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86daad98-22dd-481c-8aba-0ead1f7199d2 | STATE v MATTHEWS | N/A | 14776 | Montana | Montana Supreme Court | No. 14776 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THE STATE OF MONTANA, Plaintiff and Appellant, DONALD R . MATTHEWS, Defendant and Respondent. Appeal from: District Court of the Fourth Judicial District, Honorable JacK L, Green, Judge presiding. Counsel of Record: For Appellant: Jack Lowe, Helena, Montana For Respondent : D. R . Matthews, Missoula, Montana Anthony F. Keast, Missoula, Montana Submitted on Briefs: July 16, 1979 Decided : jEp 2 I , 1979 -- - SEF 2 t ' : * . - Filed: -- Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. The State of Montana filed an information in District Court charging respondent Donald R . Matthews with two criminal offenses. The District Court granted respondent's motion to dismiss. From that order the State appeals. On January 25, 1979, attorneys working for the Commis- sioner of Campaign Finances and Practices brought criminal charges under the Campaign Finances and Practices Act (MCPA), sections 13-35-101 through 13-37-231, MCA, against Donald R . Matthews, respondent. Based upon an affidavit, leave to file an information was granted by the District Court and an arraign- ment date was set. The affidavit did not set forth the facts that the State had offered the Missoula County Attorney an oppor- tunity to prosecute the case and that he had waived his right to do so as required by section 13-37-124, MCA. Appellant had, however, declined to prosecute the respondent as evidenced by an affidavit of the Missoula County Attorney. Respondent filed several motions to dismiss and both parties filed briefs. Acting upon these motions, another district judge in the district in which the information was filed, dismissed the charge. The precise language of this ruling was as follows: "Defendant's Motion to Dismiss for Lack of Juris- diction is granted for the reason that the Affi- davit for Leave to File an Information does not show that the requirements of section 13-37-124 MCA have been met." Appellant orally moved the court for leave to amend the affidavit but this was refused. The defendant did not enter a plea. This appeal was brought as refiling in District Court would constitute double jeopardy under the provisions of section 46-11-503 (2) , MCA. The issues presented on appeal are: 1 . In an action brought under the MCPA does the failure to recite the fact that the case was first offered to the county attorney in the affidavit deprive the District Court of juris- diction? 2 . Does one judge of a District Court have authority to dismiss a criminal action where another judge of coordinate jurisdiction has granted leave to file an information? Section 13-37-111, MCA, gives the Commissioner of Cam- paign Finances and Practices (Commissioner) the responsibility of enforcing the state's election laws. This responsibility is to be exercised in conjunction with the county attorneys of the state. This includes a procedure whereby in any prosecution under the MCPA the county attorney must be notified and given the oppor- tunity to initiate the appropriate action. If the county attorney fails to initiate any action within 30 days or if he waives his right to prosecute, the Commissioner may initiate the appropriate action. Section 13-37-124, MCA. This case was initiated by a member of the Commissioner's sed staff. The methodywas by leave to file an information supported by an affidavit. The purpose of an affidavit is to establish probable cause. Section 46-11-201(1). There is nothing in this statute which indicates that an affidavit must allege jurisdic- tion. The District Court's jurisdiction in criminal matters is granted by the Constitution of Montana. Art. VII, Section 4 . Jurisdiction is also given to the District Courts by statute in section 46-2-201, MCA, and in this case by section 13-37-113, MCA, which provides that all prosecutions under the MCPA must be brought in District Court. Finally, section 46-2-101, MCA, confers juris- diction upon state courts in general when the offense charged is committed within the state. While it is true that the Commissioner must offer the pros- ecution to the county attorney in a case under the MCPA, there is no indication in any of the above cited statutes that a failure to recite such a fact in the State's affidavit or information will deprive the District Court of jurisdiction. In this case the prosecution was initiated by the information. An in- formation must conform to the statutory outlines given in sec- tion 46-11-401, MCA. In this case the record reveals that the information conformed with this statute with the exception that the information was signed by a special attorney general rather than the county attorney. This deviation in procedure, however, is specifically allowed by section 13-37-113, MCA. The failure to recite the fact that the county attorney was offered the opportunity to prosecute this case is not juris- dictional. In State v . Logan (1970), 156 Mont. 48, 473 P.2d 833, the county attorney failed to file a supporting affidavit for leave to file an information as is required by section 46-11-201, MCA. This Court held that this was not a jurisdictional defect. 156 Mont. at 54. The Court found that the record disclosed suf- ficient facts to establish probable cause despite the absence of the supporting affidavit. In holding that this violation of the statute was not a jurisdictional defect this Court said, "This is patently a procedural matter, not a substantive issue involving the jurisdiction of the court." 156 Mont. at 55, 473 P.2d at 837. In the instant case the respondent is not alleging that the State violated its duty by not offering the prosecution to the county attorney. Rather, the respondent is saying that the failure to recite such a fact is a jurisdictional defect. Logan indicates that where a procedural matter is involved which does not involve a substantive issue the District Court still has juris- diction. It is apparent that the instant case involves a proce- dural matter which is not substantive. The Logan rationale was followed in the case of State v . Emerson (1976), 169 Mont. 284, 546 P.2d 509. In Emerson the District Judge allowed an amended application and affidavit to be filed to remedy omissions in the original affidavit. This Court said : "Considering the affidavit accompanying the initial application for leave to file an Infor- mation and the amendment allowed by the district court, we find no error. Admittedly section 95- 1301, R.C.M. 1947 [now section 46-11-201, MCA] re- quiring that the affidavit establish probable cause to believe that the offense has been committed was violated by the original affidavit. This, however, is patently a procedural matter, not a substantive issue involving the jurisdiction of the court. State v . Logan, 156 Mont. 48, 55, 473 P.2d 833." 169 Mont. at 289, 546 P.2d at 511. In addition to these cases, there is also statutory auth- ority to the effect that a technical defect in a charge will not require a dismissal. Section 46-11-403(3), MCA states: "No charge shall be dismissed because of a formal defect which does not tend to prejudice a substantial right of a defendant." Respondent does not argue that any of his substantial rights have been prejudiced. The affidavit and information fully inform him of the offense with which he is being charged. He will have his chance to defend himself at any eventual hearing or trial on this matter. None of respondent's substantial rights have been prejudiced in this matter. Here it is clear that there was no de- fect which would deprive the District Court of jurisdiction. Having decided the first issue in this manner it is unneces- sary to discuss the second issue as that determination could not affect the result in this case. Reversed and remanded. ..................... Chief Justice | September 20, 1979 |
a23b323c-c9fd-49a2-8543-40f16c613eef | STATE v ROGERS | N/A | 14577 | Montana | Montana Supreme Court | No. 14577 I N THE S U P = COURT O F THE STATE O F M3NTAN.A 1979 THE STATE: O F IXlNDNA, ACTING BY AND THROUGH THE D E P A R T C E N T O F H I G H m Y S O F THE STATE O F IalvBNA, Plaintiff and Appellant, Defendant and Respondent. Appeal from: D i s t r i c t Court of the Fourth Judicial ~istrict, Honorable Jack L. Green, J d g e presiding, and Honorable E . Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: M. G e n e ELatchy, Highway Legal Dept., H e l e n a , Montana For Respondent: W n e , Karlberg and Haddon, Missoula, P4xkana Kcch and Menna, Hamilton, Wntana . - - - . I - : 2 4 9 R Filed: Subnitted on briefs: M a y 31, 1979 - ~- 'J i- ' Decided : ? 1 9 B 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 i n an eminent domain proceeding by t h e S t a t e of Montana from t h e D i s t r i c t C o u r t ' s granting of respondent's p e t i t i o n f o r f i n a l judgment and order f i x i n g c o s t s a s prayed f o r by respondent. Appellant f i l e d a complaint i n Ravalli County on March 23, 1978, seeking condemnation of respondent's property f o r purposes of constructing a public highway. O n A p r i l 3, respondent f i l e d an answer claiming $66,000 a s j u s t compen- s a t i o n f o r t h e taking of her property and f o r t h e deprecia- t i o n t h a t would accrue t o t h e property n o t taken. The D i s t r i c t Court then nominated and appointed t h r e e land value commissioners t o a s c e r t a i n t h e amount of compensation t o be paid. A f t e r a hearing on May 12, t h e commissioners f i l e d a r e p o r t with t h e c l e r k of c o u r t on June 6 a s s e s s i n g respon- d e n t ' s j u s t compensation a s $40,000, $9,100 of which w a s f o r t h e property taken and $30,900 of which was f o r t h e property n o t taken. A copy of t h e r e p o r t and n o t i c e of i t s e n t r y w e r e mailed t o t h e p a r t i e s by t h e c l e r k on June 6. O n August 3 , 58 days a f t e r t h e commissioners' assess- ment was f i l e d , a p p e l l a n t f i l e d a n o t i c e of appeal con- t e s t i n g t h e assessment. Respondent subsequently 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 judgment f o r t h e reason t h a t appel- l a n t had f a i l e d t o f i l e a n o t i c e of appeal within 30 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 f i l i n g of t h e commis- s i o n e r s ' r e p o r t and a copy of t h a t r e p o r t . I n response, a p p e l l a n t f i l e d a motion requesting an order vacating t h e commissioners' r e p o r t of June 6. The D i s t r i c t Court, how- e v e r , denied a p p e l l a n t ' s motion and granted judgment i n favor of respondent on August 18. I n a s e p a r a t e proceeding t h e D i s t r i c t Court entered an order on September 18 allowing necessary c o s t s of t h e l i t i g a t i o n a s prayed f o r by respon- dent. Following t h e s e r u l i n g s , a p p e l l a n t ' s motions t o amend t h e c o u r t ' s findings, conclusions and o r d e r of August 31, and t h e c o u r t ' s r u l i n g on September 18 with r e s p e c t t o c o s t s w e r e denied. A n appeal was f i l e d with t h i s Court on October 31. O n appeal w e consider t h e following two i s s u e s : 1. Did t h e D i s t r i c t Court err i n determining t h a t a p p e l l a n t f a i l e d t o appeal from t h e land value comrnissioners' r e p o r t within t h e time provided by l a w , and hence, t h e c o u r t lacked j u r i s d i c t i o n t o hear t h e appeal? 2. Did t h e D i s t r i c t Court e r r i n f i n d i n g , a s necessary and reasonable expenses, a t t o r n e y f e e s which w e r e based upon a contingency f e e c o n t r a c t and a p p r a i s e r f e e s where t h e a p p r a i s e r d i d n o t t e s t i f y a t t h e land commissioners' hearing? With r e s p e c t t o t h e f i r s t i s s u e , t h e s t a t u t o r y proce- dure f o r appealing a commissioners' assessment i n an eminent domain proceeding i s s t a t e d i n s e c t i o n 70-30-304, W A , and provides i n p e r t i n e n t p a r t : "Appeal t o D i s t r i c t Court from Assessment of ~ommissioners. (1) A n appeal from any assess- ment made by t h e commissioners must be taken and prosecuted i n t h e c o u r t where t h e r e p o r t of s a i d commissioners i s f i l e d by any p a r t y i n t e r - ested. Such appeal must be taken w i t h i n t h e period of t h i r t y (30) days a f t e r t h e s e r v i c e upon a p p e l l a n t of t h e n o t i c e of t h e f i l i n g of t h e award . . ." Here, t h e commissioners' r e p o r t was mailed t o t h e p a r t i e s by t h e c l e r k of c o u r t on June 6. While t h e t h i r t y - day appeal period would have normally expired on J u l y 6 , a p p e l l a n t could have claimed extensions u n t i l J u l y 1 0 . I n computing t h e time period f o r purposes of appeal, t h e Montana Rules of Civil Procedure provide for a three-day extension when a party receives service by mail and has the right to do some act, such as file an appeal, and an exten- sion when the last day of the period falls on a Sunday. Rules 6 (e) and 6 (a), M.R.Civ.P. Appellant, however, filed a notice of appeal on August 3, 58 days after the commissioners' assessment was filed. Appellant nevertheless maintains that the notice of appeal was timely because the time for appeal did not begin to run when the manner of service departed from the method of service prescribed by the statute. When the statute calls for service as "in the manner of a summons," appellant contends that service by mail will not suffice and that a departure from the prescribed method is a jurisdictional defect which cannot be waived. Appellant argues for a strict construction of section 70-30-303, MCA, which pro- vides : "Report of Commissioners. The report of commis- sioners shall be made on such forms as are pro- vided for their use by authority of the court. Such report must be filed . . . with the clerk of court and the Clerk must forthwith notify the parties that such report has been filed, with notice, together with a true copy of said report, must be served upon all the parties interested, in the same manner as a summons . . ." Respondent, in turn, places emphasis upon appellant's receiving actual notice of the comrnissioners~ report. We are referred to the findings of fact of the District Court where it was found that appellant received a copy of the commissioners' report and notice of its entry on June 8. Respondent also argues that this Court has implicitly held that the manner of service prescribed under the eminent domain statutes is a procedural defect which may be waived. State of Montana v . Helehan (1977), 171 Mont. 473, 559 P.2d 817. I n Helehan s e r v i c e of t h e commissioners' r e p o r t was made by mail and such s e r v i c e d i d n o t prevent t h e c o u r t from assuming j u r i s d i c t i o n of t h e appeal. I n t h i s case, however, w e r e f r a i n from approving of methods of s e r v i c e which d e p a r t from prescribed s t a t u t o r y procedures. Nor do w e adopt respondent's i n t e r p r e t a t i o n of Helehan. W e simply hold t h a t where a p a r t y r e c e i v e s a c t u a l n o t i c e of t h e commissioners' r e p o r t i n an eminent domain proceeding and f a i l s to f i l e a n o t i c e of appeal within t h e t i m e provided by law, 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 hear t h e appeal. Since t h e D i s t r i c t Court found t h a t a p p e l l a n t received a c t u a l n o t i c e and admitted s e r v i c e on June 8 and t h a t find- i n g has n o t been shown t o be c l e a r l y erroneous, it s h a l l n o t be set aside. Rule 5 2 ( a ) , M.R.Civ.P.; Farmer's S t a t e Bank v. Mobile Homes Unlimited (1979), Mon t . , 593 P.2d 734, 36 St.Rep. 792, 796. Accordingly, w e hold t h a t appel- l a n t ' s n o t i c e of appeal w a s n o t timely f i l e d and t h a t 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 appeal. Appellant challenges t h e a p p r a i s e r ' s f e e upon two grounds--the n e c e s s i t y of t h e expense, and t h e f a c t t h a t t h e a p p r a i s e r d i d n o t t e s t i f y a t t h e commission hearing. Appel- l a n t contends t h a t n o t c a l l i n g t h e a p p r a i s e r t o t e s t i f y a t t h e commission hearing deprived it of t h e r i g h t of cross- examination of t h e a p p r a i s e r . A t t h e c o s t hearing respondent produced proof of pay- ment of t h e a p p r a i s e r by a $1,400 c a s h i e r ' s check. he c o u r t s t a t e d t h a t it considered t h e employment of an ap- p r a i s e r a necessary a c t i o n by t h e landowner t o prepare her case, and t h a t t h e s t a t e should reasonably expect t h a t t h e landowners would look t o e x p e r t s i n order t o determine t h e i r damages by v i r t u e of t h e taking. ÿ he only testimony before t h e D i s t r i c t Court a s t o t h e reasonableness of t h e a p p r a i s e r ' s charges was produced by respondent. That testimony showed t h a t a charge of $175 p e r day f o r e i g h t days was reasonable and usual f o r t h e s e r v i c e s of a professional appraiser. The expense was n e c e s s a r i l y incurred by respondent and under s e c t i o n 70-30-306, MCA, w a s properly awarded here. With r e s p e c t t o t h e a t t o r n e y f e e s , t h e evidence shows t h a t t h e f i n a l o f f e r t o respondent from a p p e l l a n t was $7,800. Respondent entered i n t o a contingent f e e arrangement with her lawyers i n May 1977 f i x i n g t h e a t t o r n e y s ' compensation a t 30 percent of any recovery i n excess of $7,800. The r e t a i n e r c o n t r a c t provided t h a t any amount awarded respon- dent by t h e c o u r t a s a t t o r n e y f e e s would be a c r e d i t a g a i n s t t h e contingent fee. Testimony a t t h e c o s t hearing produced by respondent showed t h a t a 30 percent contingent f e e con- t r a c t i n eminent domain c a s e s , on t h e c a s e s e s t a b l i s h e d here, was reasonable, and perhaps lower than t h e usual one- t h i r d contingent f e e charged by some lawyers. I t was ad- mitted t h a t counsel f o r respondent were experienced p r a c t i - t i o n e r s i n eminent domain cases. It w a s a l s o shown t h a t $50 p e r hour was t h e p r e v a i l i n g r a t e f o r lawyers' s e r v i c e s i n t h e a r e a a t t h a t t i m e and t h a t i n t h i s case t h e a t t o r n e y s had logged a t o t a l of 80 hours of work, excluding t h e work f o r t h e c o s t hearing. Respondent claimed she was e n t i t l e d t o t h e amount of f e e s c a l c u l a t e d under t h e contingent f e e c o n t r a c t because she was obligated t o pay t h e same i n any event and because t h e contingent f e e was necessary and reasonable under t h e circumstances. Appellant objected, claiming t h a t any f e e i n excess of t h e hourly r a t e was contra t o s e c t i o n 70-30-306, MCA . Section 70-30-306, MCA, became e f f e c t i v e J u l y 1, 1977. The contingent f e e was agreed upon i n May 1977, before t h e e f f e c t i v e d a t e of t h e s t a t u t e . The D i s t r i c t Court decided t h a t s i n c e t h e s t a t u t e , which l i m i t s a t t o r n e y f e e s t o be recovered by condemnees t o customary hourly r a t e s f o r a t t o r - neys i n t h e county involved, became e f f e c t i v e a f t e r t h e contingent f e e c o n t r a c t was agreed t o , it would award t h e contingent f e e under t h e s t a t u t e which preceded s e c t i o n 70- 30-306, MCA. Accordingly, t h e D i s t r i c t Court awarded $9,600 i n a t t o r n e y fees. Because t h e r e t a i n e r c o n t r a c t was agreed t o before s e c t i o n 70-30-306 came i n t o e f f e c t , t h i s case i s c o n t r o l l e d by S t a t e v. Olsen (1975), 166 Mont. 139, 531 P.2d 1330. I n Olsen t h i s Court approved a contingent f e e c o n t r a c t of 25 percent where proof of t h e reasonableness of t h e percentage was made a t t h e hearing, as necessary t o make t h e landowner whole under A r t i c l e 11, Section 29, 1972 Montana Constitu- t i o n . Here a p p e l l a n t o f f e r e d no evidence a s t o e i t h e r a reasonable hourly r a t e o r t h e reasonableness of 30 percent contingent f e e c o n t r a c t . The D i s t r i c t Court acted according t o t h e evidence before it and t h e p r e v a i l i n g law. Therefore, i t s determination of a t t o r n e y f e e s i n t h i s case w i l l n o t be disturbed. Affirmed. W e concur: I / /j J u s t i c e s | October 3, 1979 |
e58b7089-233a-4f0c-84f5-dd1673af281d | GARRETT v JACKSON | N/A | 14325 | Montana | Montana Supreme Court | No. 14325 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 JOSEPH LeROY GARRETT, et al., Plaintiff and Respondent, -vs- LESLIE F. JACKSON et al., Defendants and Appellants. Appeal from: District Court of the Fifth Judicial District, Honorable James Freebourn, Judge presiding. Counsel of Record: For Appellants: Schulz, Davis and Warren, Dillon, Montana John Warren argued, Dillon, Montana For Respondent : R. Thomas Garrison argued, Virginia City, Montana Submitted: September 24, 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 is brought by L e s l i e and Betty Jackson from a decree of t h e D i s t r i c t Court, F i f t h J u d i c i a l D i s t r i c t , d e c l a r i n g Joseph G a r r e t t t h e owner of a p r e s c r i p t i v e ease- ment of way over t h e i r land i n Madison County, Montana. The s o l e i s s u e on appeal i s whether t h e evidence presented t o t h e D i s t r i c t Court supports i t s f i n d i n g t h a t G a r r e t t ' s use w a s adverse t o t h e titles of Jacksons and t h e i r predecessors i n i n t e r e s t and was n o t merely permissive. I n 1895 Joseph and Sam Heggenberger b u i l t a slaughter- house on a t r a c t of land immediately n o r t h of M i l l Creek. They sold t h e t r a c t i n 1917 t o Walter Ellinghouse, who operated t h e slaughterhouse u n t i l 1946 when G a r r e t t and h i s wife purchased t h e land. Garrett continued t h e slaughter- house operations u n t i l 1962 and remains t h e owner of t h e t r a c t . G a r r e t t ' s land, r e f e r r e d t o as t h e "slaughterhouse t r a c t , " i s separated from t h e county road by a s t r i p of land known a s t h e "frontage t r a c t . " When G a r r e t t purchased t h e slaughterhouse tract i n 1946, t h e frontage t r a c t w a s owned by William Daniels. ~ a n i e l s ' successors i n i n t e r e s t are Glen Marsh, who owned t h e t r a c t u n t i l 1971, and t h e p r e s e n t owners, t h e Jacksons. Since t h e slaughterhouse operations began i n 1895, t h e owners of t h e slaughterhouse tract have gained access t o t h e i r land by crossing t h e frontage t r a c t from t h e county road. A wooden bridge spanned M i l l Creek permitting vehi- c u l a r t r a f f i c onto t h e slaughterhouse t r a c t u n t i l about 1968 when it w a s weakened by flooding. U n t i l 1958 t h e frontage tract was unenclosed, b u t i n t h a t year Marsh began r a i s i n g sheep and constructed a w i r e fence around t h e t r a c t t o hold them on h i s land. when he b u i l t t h e fence, Marsh d i d n o t leave a gateway along t h e county road. Consequently, when G a r r e t t attempted t o g e t onto h i s t r a c t he was confronted by a s o l i d fence. Garrett s e l e c t e d a p o i n t on t h e fence about 100 f e e t e a s t of t h e route which he had previously followed, c u t t h e w i r e s of t h e fence, and proceeded through. He twisted t h e w i r e s together behind him t o keep t h e sheep from escaping, and l a t e r n o t i - f i e d Marsh of what he had done. Marsh w a s upset over Gar- rett's a c t i o n , b u t l a t e r agreed t o place a "drop wire" g a t e i n t h e fence a t t h e p o i n t where G a r r e t t had clipped t h e w i r e s . Marsh o f f e r e d t o place a g a t e a t t h e point where G a r r e t t had previously entered t h e frontage t r a c t , b u t never constructed such an entryway. G a r r e t t continued t o use t h e new r o u t e across f o r t h e next 12 years u n t i l 1971, even though t h e regular slaughterhouse business ceased i n t h e e a r l y 1960's. There w a s evidence t h a t when t h e Jacksons purchased t h e frontage t r a c t i n 1971 G a r r e t t requested a w r i t t e n easement, which they refused. However, G a r r e t t continued t o use t h e g a t e b u i l t by Marsh, driving as f a r a s M i l l Creek, and crossing t h e creek on f o o t onto h i s land. H e a l s o cleared brush along the roadway with a chainsaw t o keep it open. I n 1971 Jacksons constructed a "jack fence" across t h e road about midway across t h e i r t r a c t . G a r r e t t d i d n o t c u t through t h i s fence, b u t parked h i s vehicle by it and pro- ceeded on f o o t onto h i s land. I n 1976 t h e Jacksons wired s h u t t h e g a t e which G a r r e t t had used s i n c e 1958. G a r r e t t clipped t h e w i r e s and removed poles which Jacksons had placed over it. The Jacksons then chained and padlocked t h e g a t e , preventing G a r r e t t from entering, and s e n t a letter t o G a r r e t t accusing him of being a trespasser. j hereafter, G a r r e t t brought t h i s a c t i o n . During t h e l a s t two years before t h e g a t e w a s chained and locked, G a r r e t t had used t h e r o u t e a c r o s s Jacksons' land some twenty t o t h i r t y t i m e s per year. It i s c l e a r from t h e evidence presented t o t h e District Court t h a t p l a i n t i f f Garrett and h i s predecessors i n i n t e r e s t have used defendant Jacksons' land f o r many y e a r s a s a means of access t o t h e slaughterhouse t r a c t . However, because G a r r e t t changed t h e r o u t e i n 1958, whatever claim he now has t o a p r e s c r i p t i v e easement must be shown t o have accrued s i n c e t h a t d a t e and with r e s p e c t t o t h e new route. To e s t a b l i s h a p r e s c r i p t i v e easement, t h e owner of t h e purported dominant tenement must e s t a b l i s h open, notorious, exclusive, adverse, continuous, and unmolested use of t h e s e r v i e n t tenement f o r t h e f u l l s t a t u t o r y period of f i v e y e a r s required t o acquire t i t l e by adverse possession. The claimant, however, i s e n t i t l e d t o r e l y upon a presumption t h a t h i s use w a s adverse t o t h e s e r v i e n t owner's t i t l e i f he demonstrates by h i s evidence t h e o t h e r elements of h i s c l a i m . Luoma v. Donohoe (1978), - Mont . I 588 P.2d 523, 525, 35 St-Rep. 1971, 1973-74; Staudinger v. DeVries (1978) Mont. , 581 P.2d 1, 2, 35 St.Rep. 861, 863; Mountain V i e w Cemetery v. Granger (1978), - Mont. I 574 P.2d 254, 257, 35 St-Rep. 76, 79. Thus, when t h e dominant owner makes t h i s preliminary showing of open, notorious, continuous, and unmolested use f o r t h e s t a t u t o r y period, t h e burden f a l l s upon t h e owner of t h e s e r v i e n t tenement t o show t h a t t h e use was n o t adverse, b u t merely permissive. Luoma, 588 P.2d a t 525, 35 St.Rep. a t 1974; Mountain V i e w Cemetery, 574 P.2d a t 254, 35 St.Rep. a t 79; OtConnor v. Brodie (1969)r 153 Mont. 129, 137, 454 P.2d 920, 925. The Jacksons argue t h a t G a r r e t t ' s a c t of c u t t i n g t h e fence w i r e s i n 1958 was n o t h o s t i l e o r adverse because Garrett rewired t h e fence a f t e r he had gone through it. However, Garrett's a c t i o n i s r e a d i l y explained by t h e presence of l i v e s t o c k on t h e frontage t r a c t a t t h e t i m e . H i s concern f o r Marsh's sheep i s i n no way i n c o n s i s t e n t with h i s claim of right-of-way. The D i s t r i c t Court found speci- f i c a l l y t h a t a f t e r Marsh i n s t a l l e d t h e drop w i r e g a t e G a r r e t t would c l o s e t h e g a t e behind him i f l i v e s t o c k w e r e p r e s e n t , and leave it open i f t h e r e were none. I n a t l e a s t one o t h e r i n s t a n c e , t h i s Court has described gate-cutting as a "dis- 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 h o s t i l e r i g h t t o t h e r i g h t s of t h e owner . . ." Taylor v. Petranek (1977), - Mont. , 568 P.2d 120, 123, 34 St.Rep. 905, 910. I n t h i s c a s e , where G a r r e t t c u t t h e fence without seeking permis- s i o n , and only later informed t h e s e r v i e n t owner of h i s a c t , t h e D i s t r i c t Court was w e l l j u s t i f i e d i n concluding t h a t G a r r e t t ' s use was adverse and h o s t i l e t o Marsh's t i t l e . The Jacksons' second attempt t o overcome t h e presump- t i o n t h a t G a r r e t t ' s use was adverse i s t h e i r a s s e r t i o n t h a t t h e presence of a g a t e through which G a r r e t t could l a t e r pass i s strong evidence of permissive use. However, t h i s Court has r u l e d t h a t t h e presence of a g a t e alone " w i l l n o t d e f e a t a p r e s c r i p t i v e easement." Hayden v. Snowden (1978), Mont. , 576 P.2d 1115, 1118, 35 St.Rep. 367, 371. A s was s a i d i n Kostbade v. Metier (1967), 150 Mont. 139, 145, 432 P.2d 382, 386, " [ t l h e evidence of t h i s one g a t e , admittedly b u i l t n o t t o s t o p people b u t c a t t l e , i s n o t enough standing alone t o r e b u t t h e presumption [ t h a t t h e use was adverse] ." In the present matter, Marsh constructed a very simple gate at the point where Garrett cut through the fence, for the apparent purpose of providing a convenient method of holding his sheep in after Garrett passed through. Thus, the District Court's judgment that Garrett's use of the roadway from 1958 to 1971 was adverse to Marsh's title is supported by substantial credible evidence and by the pre- sumption of adversity. There is no clear preponderance of the evidence against the District Court's conclusion. The Jacksons testified at trial that they were unaware of any claim to an easement across their property until some time after they purchased the land, and that even then, Garrett's use was not adverse. However, assuming that the District Court correctly concluded that Garrett's claim fully ripened from 1958 to 1971, it is not necessary for Garrett to again establish his claim after the transfer of the servient tenement. In O'Connor v . Brodie, supra, 153 Mont. at 139, 454 P.2d at 926, this Court held that once the owners of a water line easement had acquired their prescrip- tive title, the servient owner's knowledge or lack of knowledge of the claim was immaterial: "But whether the defendants had actual knowledge of the underground water line is immaterial for the reason that plaintiffs had acquired prescrip- tive title prior to the time defendants acquired their property. Prescriptive title once estab- lised is not divested by the subsequent transfer of the servient estate. Ferguson v. Standley, 89 Mont. 489, 498, 300 P. 2d 245, [249]." See also Mountain View Cemetery v. Granger, supra, 574 P.2d at 258, 35 St-Rep. at 81. Garrett's use of the existing roadway from 1958 is sufficient to create a presumption of adverse use. The Jacksons failed to overcome that presumption, and the D i s t r i c t C o u r t ' s judgment t h a t G a r r e t t has p r e s c r i p t i v e l y acquired an easement a c r o s s t h e land is supported by s u f f i - c i e n t , s u b s t a n t i a l c r e d i b l e evidence. The judgment of t h e District Court i s affirmed. J u s t i c e f W e concur: J u s t i c e s | October 9, 1979 |
723a687a-1fab-4ea9-b025-fd6d18971d19 | VINCENT v EDWARDS | N/A | 14831 | Montana | Montana Supreme Court | No.14831 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 CHARLOTTE VINCENT, Plaintiff and Appellant, -vs- JOHN ROBERT EDWARDS et al., Defendants and Respondents. Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: McDonough, Cox and Simonton, Glendive, Montana For Respondents: Douglas Y. Freeman, Hardin, Montana Ronald Lodders, Billings, Montana Charles Cashmore, Billings, Montana flf;T , , : ir;? Filed: - . Submitted on briefs: September 12, 1979 Mr. Justice Gene B. Daly delivered the Opinion of the Court. his is an appeal from the judgment in a personal injury action from the District Court, Thirteenth Judicial ~istrict, Yellowstone County. Plaintiff Charlotte Vincent appeals from the District Court order granting summary judgment in favor of the defendants, Schultz & Meyer Con- struction Company, Empire Sand & Gravel Company, Inc., and Jimmy D. Arndt. Plaintiff brought this cause to recover for injuries suffered in an automobile accident on the night of July 3, 1974. She was a passenger in an automobile which struck a cow lying on Interstate 94 which was then under construc- tion. The cow had been struck by two other automobiles immediately before plaintiff's collision. The original complaint alleges the accident resulting in plaintiff's injuries was caused by the negligence of the operators of the two other automobiles and the construction companies working on Interstate 94. The original complaint was filed on June 28, 1977. At that time, plaintiff posi- tively knew the identity of only two defendants, John Robert Edwards and George Mike Edwards. Consequently, the driver of the second car, Jimmy D. Arndt, and the two construction companies, Schultz & Meyer Construction Company and ~mpire Sand & Gravel Company, Inc., were designated by fictitious names pursuant to section 25-5-103, MCA. Respondent Arndt was designated as "John Doe" and the two construction com- panies were designated as "A.B.C. Construction company" in the original complaint. Later, plaintiff moved to amend the original complaint upon discovering the true identities of the fictitiously named defendants. The motion was granted on September 25, 1978, and p l a i n t i f f f i l e d an amended complaint. The t h r e e f i c t i t i o u s l y named defendants w e r e each served with a summons on o r a f t e r September 25, 1978. P r i o r t o such s e r v i c e , they had no n o t i c e of e i t h e r t h e a c c i d e n t o r t h e i n s t i t u t i o n of any p r i o r a c t i o n on behalf of p l a i n - t i f f . There is no d i s p u t e t h a t t h e t r u e names of t h e two construction companies could have been obtained from informa- t i o n e a s i l y a c c e s s i b l e upon mere inquiry. The t h r e e f i c t i t i o u s l y named defendants moved f o r summary judgment on t h e grounds t h a t t h e three-year s t a t u t e of l i m i t a t i o n s on p l a i n t i f f ' s claim had run on J u l y 3, 1977, under s e c t i o n 27-2-204(1), MCA. The motion was granted, and judgment was entered a g a i n s t p l a i n t i f f on A p r i l 30, 1979. P l a i n t i f f appeals from t h i s judgment. This appeal r a i s e s an i s s u e of f i r s t impression i n t h i s j u r i s d i c t i o n : whether o r n o t t h e " r e l a t i o n back" l i m i t a t i o n s of Rule 1 5 ( c ) , M.R.Civ.P., apply t o an amendment of a com- p l a i n t made t o i d e n t i f y defendants o r i g i n a l l y named f i c t i - t i o u s l y pursuant t o s e c t i o n 25-5-103, MCA, and made a f t e r t h e s t a t u t e of l i m i t a t i o n s has run. This appeal involves two Montana s t a t u t e s and t h e i r i n t e r p r e t a t i o n and r e l a t i o n s h i p t o each o t h e r . P l a i n t i f f - a p p e l l a n t r e l i e s on t h e f i c t i t i o u s name s t a t u t e , s e c t i o n 25- 5-103, MCA, which provides: "Suing a p a r t y a f i c t i t i o u s name. When t h e p l a i n t i E f i s ignorant of t h e name of t h e defen- d a n t , such defendant may be designated i n any pleading o r proceeding by any name; and when h i s t r u e name i s discovered, t h e pleadings o r proceedings may be amended accordingly." The second s t a t u t e r e l e v a n t t o t h i s appeal i s Rule 1 5 ( c ) , M.R.Civ.P., regarding t h e r e l a t i o n back of amendments t o pleadings, which provides i n p e r t i n e n t p a r t : "Relation back -- of amendments. Whenever t h e claim o r defense a s s e r t e d i n t h e amended plead- i n g a r o s e o u t of t h e conduct, t r a n s a c t i o n , o r occurrence set f o r t h o r attempted t o be set f o r t h i n t h e o r i g i n a l pleading, t h e amendment r e l a t e s back t o t h e d a t e of t h e o r i g i n a l plead- ing. A n amendment changing t h e p a r t y a g a i n s t whom a claim i s a s s e r t e d r e l a t e s back i f t h e foregoing provision i s s a t i s f i e d and, within t h e period provided by law f o r commencing t h e a c t i o n a g a i n s t him, t h e p a r t y t o be brought i n by amendment (1) has received such n o t i c e of t h e i n s t i t u t i o n of t h e a c t i o n t h a t he w i l l n o t be prejudiced i n maintaining h i s defense on t h e m e r i t s , and (2) knew o r should have known t h a t , b u t f o r a mistake concerning t h e i d e n t i t y of t h e proper p a r t y , t h e a c t i o n would have been brought a g a i n s t him." I n her b r i e f a p p e l l a n t argues t h a t Rule 1 5 ( c ) , M.R.Civ.P., and t h e f i c t i t i o u s name s t a t u t e speak t o d i f f e r e n t circum- stances. She contends t h a t s e c t i o n 25-5-103 is concerned with defendants whose names o r i d e n t i t i e s a r e o r i g i n a l l y unknown and a r e later discovered and no change of p a r t i e s i s involved. Rule 1 5 ( c ) , she argues, i s concerned with a s i t u a t i o n where a p l a i n t i f f has e i t h e r misnamed t h e proper defendant o r has mistakenly named t h e wrong defendant, and t h e r e f o r e wishes t o make an amendment "changing t h e p a r t y . " She argues t h a t t h e requirements of Rule 1 5 ( c ) , which admit- t e d l y have n o t been s a t i s f i e d here, do n o t apply t o amend- ments s u b s t i t u t i n g named defendants f o r f i c t i t i o u s defendants a f t e r t h e s t a t u t e of l i m i t a t i o n s has expired. Thus, appel- l a n t contends, amendments i d e n t i f y i n g and s u b s t i t u t i n g named defendants r e l a t e back t o t h e f i l i n g of t h e o r i g i n a l com- p l a i n t naming f i c t i t i o u s defendants, and t h e s t a t u t e of l i m i t a t i o n s i s t o l l e d . The only purpose of t h e f i c t i t i o u s name s t a t u t e is t o t o l l t h e s t a t u t e of l i m i t a t i o n s i n a s i t u a t i o n such as t h a t which confronted a p p e l l a n t i n t h e p r e s e n t case. F i n a l l y , a p p e l l a n t denies t h a t t h e r e i s any requirement f o r a p l a i n t i f f u t i l i z i n g t h e f i c t i t i o u s name s t a t u t e t o e x e r c i s e reasonable d i l i g e n c e t o determine t h e t r u e name of t h e defendant, o r i n t h e a l t e r n a t i v e , i f t h e r e i s such a requirement, t h e defendant must demonstrate preju- d i c e , which has n o t been done i n t h i s case. Respondents urge t h a t t h e s t a t u t e of l i m i t a t i o n s had run o u t before any of t h e respondents w e r e named as p a r t i e s defendant, and t h a t t h e t r i a l c o u r t t h e r e f o r e properly granted summary judgment. They argue t h a t t h e amended complaint does n o t r e l a t e back t o t h e f i l i n g of t h e o r i g i n a l complaint f o r two reasons: (1) Rule 1 5 ( c ) , M.R.Civ.P., i s a p p l i c a b l e and i t s requirements have n o t been m e t ; and ( 2 ) t h e p l a i n t i f f d i d n o t e x e r c i s e reasonable d i l i g e n c e t o determine t h e t r u e names of t h e f i c t i t i o u s l y named defendants. Because we hold t h a t an amendment t o a complaint s u b s t i - t u t i n g named defendants f o r f i c t i t i o u s l y named defendants f a l l s within t h e scope of Rule 1 5 ( c ) , it i s n o t necessary f o r us t o consider t h e second i s s u e r a i s e d on appeal. A t t h e o u t s e t it i s worthy of note t h a t while Montana's f i c t i t i o u s name s t a t u t e , s e c t i o n 25-5-103, MCA, permits amendment of t h e pleadings upon discovery of t h e defendants' t r u e names, t h e s t a t u t e i s s i l e n t a s t o t h e r e l a t i o n back of t h e amendment and t h e s t a t u t e of l i m i t a t i o n s . Both of t h e s e i s s u e s , t h e r e l a t i o n back of amendments and t h e s t a t u t e of l i m i t a t i o n s , a r e s p e c i f i c a l l y addressed i n Rule 1 5 ( c ) , b u t are n o t mentioned i n s e c t i o n 25-5-103, t h e f i c t i t i o u s name s t a t u t e . Nevertheless, a p p e l l a n t contends t h a t d e s p i t e t h e absence of any language i n s e c t i o n 25-5-103 t o l l i n g t h e s t a t u t e of l i m i t a t i o n s o r providing f o r t h e r e l a t i o n back of a n amendment, t h e only purpose of a f i c t i t i o u s name s t a t u t e is t o t o l l t h e s t a t u t e of l i m i t a t i o n s and t h e amended com- p l a i n t must t h e r e f o r e r e l a t e back t o t h e f i l i n g of t h e o r i g i n a l complaint, c i t i n g Annot., 85 A.L.R.3d 130, 134, i n support of her p o s i t i o n . W e r e f u s e t o read such a r u l e i n t o s e c t i o n 25-5-103 by implication, s i n c e Rule 1 5 ( c ) expressly d e a l s with t h e matter. I t is c l e a r t h a t t h e more s p e c i f i c provisions of Rule 1 5 ( c ) , M.R.Civ.P., a r e c o n t r o l l i n g i n t h e p r e s e n t case. This r u l e provides: ". . . A n amendment changing t h e p a r t y a g a i n s t whom a c l a i m i s a s s e r t e d r e l a t e s back --- i f t h e foregoing provision i s s a t i s f i e d [same trans- a c t i o n o r occurrence]and, within t h e period provided by -- l a w f o r commencing the a c t i o n a g a i n s t him, t h e p a r t y t o be brought i n by amendment (1) has received such n o t i c e of t h e i n s t i t u t i o n of t h e a c t i o n t h a t he w i l l n o t be prejudiced i n maintaining h i s defense on t h e m e r i t s , and (2) knew o r should have known t h a t , b u t f o r a mistake concerning t h e i d e n t i t y of t h e proper p a r t y , t h e a c t i o n would have been brought a g a i n s t him." (Emphasis and bracketed m a t e r i a l supplied. ) Appellant apparently acknowledges t h a t t h e requirements of Rule 15 (c) have n o t been m e t i n t h i s c a s e i n t h a t n e i t h e r respondent Jimmy D. Arndt nor respondents Schultz & Meyer Construction Company and Empire Sand & Gravel Company, Inc., had any n o t i c e o r knowledge of t h e i n s t i t u t i o n of t h e a c t i o n a g a i n s t them u n t i l a f t e r t h e three-year s t a t u t e of l i m i t a - t i o n s had expired. Laforest v. Texaco, Inc. (1978), Mont. , 585 P.2d 1318, 1321, 35 St.Rep. 1580. Appellant seeks t o avoid t h e consequences of t h i s f a c t under Rule 15 (c) by attempting t o l i m i t t h e a p p l i c a t i o n of Rule 15 ( c ) t o s i t u a t i o n s where a p l a i n t i f f has e i t h e r misnamed t h e proper defendant o r has mistakenly named t h e wrong person a s a p a r t y defendant, and by attempting t o d i s t i n g u i s h t h e circumstances covered by t h e f i c t i t i o u s name s t a t u t e , where t h e i d e n t i t i e s of defendants whose names w e r e o r i g i n a l l y unknown a r e l a t e r discovered. W e agree with the respondents t h a t t h i s i s a d i s t i n c t i o n without a d i f f e r e n c e . A s f a r a s respondents a r e concerned, these amendments w e r e amendments "changing t h e party a g a i n s t whom a claim i s asserted," s i n c e t h e f i r s t time respondents had any n o t i c e o r knowledge t h a t they w e r e being sued was when they w e r e served with the amended complaints. From t h e i r standpoint, respondents w e r e completely new p a r t i e s brought i n t o t h e a c t i o n f o r the f i r s t t i m e a f t e r t h e s t a t u t e of l i m i t a t i o n s had run. Rule 1 5 ( c ) i s designed t o provide protection f o r i n d i - viduals i n the p o s i t i o n of respondents, who had no n o t i c e o r knowledge of t h e lawsuit u n t i l more than a year a f t e r t h e s t a t u t e of l i m i t a t i o n s had run. I n Laforest v. Texaco, Inc. (1978) - Mont. , 585 P.2d 1318, 1321, 35 St.Rep. 1580, t h e o r i g i n a l complaint erroneously named the wrong persons a s defendants, and t h e proper defendant, Texaco, had no n o t i c e o r knowledge of t h e lawsuit u n t i l it was served with an amended complaint a f t e r t h e s t a t u t e of l i m i t a t i o n s had run. Although t h e f i c t i t i o u s name s t a t u t e was not involved i n Laforest, t h i s Court discussed t h e reasoning underlying Rule 1 5 ( c ) i n t h a t case, quoting from Munetz v. Eaton Yale & Towne, Inc. (E.D. Pa. 1973), 57 F.R.D. 476, " ' I f p l a i n t i f f had i n mind i n i t i a l l y t h e proper e n t i t y o r person and a c t u a l l y had served t h a t intended person o r e n t i t y , then it i s c l e a r t h a t t h e amendment would be permitted even though t h e s t a t u t e of l i m i t a t i o n s had run as t o t h e person so misnamed i n t h e process and complaint, be- cause t h e person or e n t i t y would already be i n court, would have had adequate n o t i c e of the pendency of t h e a c t i o n , and, therefore, t h e r e would be no prejudice t o the person o r e n t i t y by allowing t h e amendment. However, when t h e e f f e c t of t h e amendment i s t o bring before t h e Court f o r t h e f i r s t t i m e a completely d i f f e r e n t person o r e n t i t y which had n o t previously had n o t i c e of t h e s u i t and such amendment, assuming it would r e l a t e back, occurs a f t e r t h e applicable s t a t u t e of l i m i t a t i o n s has run, then t h e new person o r e n t i t y would be prejudiced and t h e amendment i s n o t allowed . . . "'The a d d i t i o n o r s u b s t i t u t i o n of p a r t i e s who had no n o t i c e of t h e o r i g i n a l a c t i o n i s n o t a l - lowed. S u b s t i t u t i o n of a completely new defen- d a n t c r e a t e s a new cause of a c t i o n . Permitting such procedure would undermine t h e p o l i c y upon which the s t a t u t e of l i m i t a t i o n s i s based.' ( C i t a t i o n s omitted. ) " This same r a t i o n a l e has been followed i n cases from o t h e r j u r i s d i c t i o n s considering both a f i c t i t i o u s name s t a t u t e s i m i l a r o r i d e n t i c a l t o Montana' s - and Rule 15 ( c ) : "As an i n i t i a l matter, because from t h e view- p o i n t of t h e p a r t y sought t o be added b e l a t e d l y , it can make no d i f f e r e n c e whether he was o r i - g i n a l l y designated a s John Doe and n o t served, o r o r i g i n a l l y n e i t h e r named nor served because another person was erroneously thought t o be t h e c o r r e c t defendant, w e hold t h a t both s i t u - a t i o n s are encompassed by S 81A-115(c)'s r e f e r - ence t o 'changing t h e p a r t y a g a i n s t whom a c l a i m i s a s s e r t e d . ' " Sims v. American Casualty Com- pany (1974), 131 Ga.App. 461, 206 S.E.2d 121, 134, a f f ' d . , 232 Ga. 787, 209 S.E.2d 61. See a l s o Gould v. Tibshraeny (1973), 2 1 Ariz.App. 146, 517 P.2d 104, 106. The p o l i c y behind our s t a t u t e of l i m i t a t i o n s has been s t a t e d and given e f f e c t by t h e Montana Court i n Cassidy v. Finley (1977), - Mont. - , 568 P.2d 1 4 2 , 1 4 4 , "This Court has o f t e n s t a t e d one of t h e o b j e c t s of a t r u e s t a t u t e of l i m i t a t i o n s i s t o prevent p o t e n t i a l p l a i n t i f f s from s i t t i n g on t h e i r r i g h t s , and t o suppress s t a l e claims a f t e r t h e f a c t s concerning them have become obscured by l a p s e of t i m e , d e f e c t i v e memory, o r d e a t h o r removal of witnesses." Appellant argues t h a t t h e only purpose of a f i c t i t i o u s name s t a t u t e i s t o t o l l t h e s t a t u t e of l i m i t a t i o n s s o t h a t t h e amendment s u b s t i t u t i n g t h e defendants' t r u e names f o r t h e f i c t i t i o u s defendants w i l l r e l a t e back t o t h e f i l i n g of t h e o r i g i n a l complaint. This argument ignores t h e require- ments of Rule 1 5 ( c ) and t h e p o l i c i e s expressed i n cases construing that rule. Furthermore, other purposes and applications of the fictitious name statute can be readily found in cases involving unknown heirs, in quiet title actions and other actions, and in discovery procedures.. Appellant relies largely on Annot., 85 A.L.R.3d 130, and cases cited therein, for the proposition that an amend- ment substituting the true name of a defendant designated by a fictitious name in the original complaint relates back to the filing of the original complaint for the purpose of tolling the statute of limitations. Two of the cases, while considering a fictitious name statute or a court rule allow- ing designation of unknown defendants by a fictitious name, were decided before the adoption of Rule 15(c) or its equi- valent in their respective jurisdictions. Therefore, Maddux v . Gardner (1945), 239 Mo.App. 289, 192 S.W.2d 14, and Wall Funeral Home, Inc. v . Stafford (1969), 3 N.C.App. 578, 165 S.E.2d 532, cannot be considered as authority for appellant's proposition that Rule 15(c) is inapplicable or for the proposition that the amendments relate back to toll the statute of limitations in the present case, since there was no Rule 15(c) or equivalent to consider when those cases were decided. By the same token, Sousa v. Casey (1973), 111 R.I. 623, 306 A.2d 186, and Farrell v. Votator ~ivision of Chemetron Corp. (1973), 62 N.J. 111, 299 A.2d 394, also failed to address the question presented here concerning the effect of Rule 15(c) on fictitiously named defendants. While those jurisdictions had adopted Rule 15(c) or its equivalent at the time the cases were decided, the decisions made no mention of the rule. Thus, although Rule 15(c) was in force, those cases were decided solely on the basis of a fictitious name statute or court rule, and the effect of Rule 15(c) was not considered. Appellant points out that Montana's fictitious name statute, section 25-5-103, MCA, was adopted verbatim from the California statute, and argues that the California cases construing that statute support her contentions. This argument ignores the fact that California has no Rule 15(c) nor any equivalent procedural rule that speaks to the rela- tion back of amendments. See West's Annotated California Code of Civil Procedure, sections 473, 474. Therefore, Mayberry v. Coca Cola Bottling Co. (1966), 244 Cal.App.2d 350, 53 Cal.Rptr. 317, and other California cases are dis- tinguishable since they did not consider the issue involved in the present case. On the other hand, the federal cases cited by respon- dents were decided under Rule 15(c) alone, as there is no federal fictitious name statute, and the federal courts have not adopted a court rule allowing the designation of unknown defendants by fictitious names. Craig v. United States (9th Cir. 1969)r 413 F.2d 854; Stephens v. Balkamp, Inc. (E.D. Tenn. 1975), 70 F.R.D. 49. This is true even in a diversity suit where state law provides for a fictitious name statute, on the grounds that such a statute is procedural rather than substantive, and is therefore inapplicable in a federal diversity action under Erie Railroad Co. v. Tompkins (1938), 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. See Williams v. Avis Transport (D. Nev. 1972), 57 F.R.D. 53. The only cases considering both a fictitious name statute and Rule 15(c) have held that an amendment to a complaint sub- stituting named defendants for fictitious defendants will relate back to the filing of the original complaint and toll the statute of limitations only if the requirements of ~ u l e 15 (c) are satisfied. Gould v. Tibshraeny (1973), 21 ~riz.App- 146, 517 P.2d 104, is squarely on point with the present case. In Gould the plaintiff named fictitious defendants pursuant to a fictitious name statute nearly identical to Montana's, then subsequently filed an amended complaint substituting Tibshraeny for one of the "Doe" defendants after the statute of limitations had run. The court rejected the same argument presented here by appellant, holding that the amended com- plaint did not relate back to the filing of the original com- plaint to toll the statute of limitations where the require- ments of Rule 15(c) had not been met: "It is fundamental that the purpose of the statute of limitations is to provide a cutoff point in time for stale claims. Rule 15(c) carries out this sound policy by requiring notice of the institution of the action within the time limitations set by the statute of limitations before an amendment adding new parties will relate back to the date of the original pleading." Gould, 517 P.2d at 106. The Arizona Court relied on an earlier Arizona decision which is also on point. See Hartford Insurance Group v. Beck (1970), 12 Ariz.App. 532, 472 P.2d 955. Cases con- sidering both a fictitious name statute and Rule 15(c) have also been decided in Georgia with the same result. In Sims v. American Casualty Company (1974), 131 Ga-App. 461, 206 S.E.2d 121, 134-136, aff'd., 232 Ga. 787, 209 S.E.2d 61, the plaintiff amended her complaint to substitute several named defendants for those fictitiously named in her original complaint after the statute of limitations had run. Summary judgment for the defendant was affirmed, against the plain- tiff's contentions that the amendment related back to the filing of the original complaint under the fictitious name statute. As in the present case, the requirements of Rule 15(c) had not been satisfied because the defendants did not have notice or knowledge of the action within the period of l i m i t a t i o n s . See a l s o B r e r Rabbit Mobile Home S a l e s , I n c . v. P e r r y (1974), 132 Ga.App. 128, 207 S.E.2d 578, and Annot., 85 A.L.R.3d 130, 146-148, S 7 ( a ) . I n summary a p l a i n t i f f may u t i l i z e t h e f i c t i t i o u s name s t a t u t e and may amend a complaint t o s u b s t i t u t e t h e t r u e name of t h e defendant when discovered. I f t h e amendment o c c u r s a f t e r t h e s t a t u t e of l i m i t a t i o n s has run, however, t h e r e a l o r intended defendant must have e i t h e r been served o r otherwise received n o t i c e of t h e i n s t i t u t i o n of t h e a c t i o n under t h e c o n d i t i o n s provided i n Rule 1 5 ( c ) . Af firmed. W e concur: %'..UE$%&~, Chief J u s t i c e y-ibvL L- , b , h 7 J u s t i c e s | October 25, 1979 |
62315e2e-dcaa-4632-b23b-9c931d739928 | STATE v HUMAN RIGHTS DIVISIOIN | N/A | 14483 | Montana | Montana Supreme Court | No. 14483 I N THE S U P R E M E C O W O F THE STATE O F MXl?ANA 1979 STATE O F M3NTANA, by & through its P U B L I C ErJPmYEES m1- BOARD, Plaintiff and Appllant, HUMAN RIQTTS DIVISION et al., Defendants and Respondents. Appeal f m : District Court of the First Jcdicial District, Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Appellant : J. Michael Young argued, Dept. of A d m h . , Helena, Plbntana For Respondents: Frederick F. S h W argued, Helena, Mntana Ibsemq Zion, Helena, Plbntana Submitted: March 22, 1979 Decided: NGV 1 1 9 B Filed: rj - , : ; 1 ~m f r Mr. Justice Daniel J. Shea delivered the Opinion of the Court. The State of Montana Public Employees' Retirement Board appeals from a decision of the Lewis and Clark County District Court which held that the Human Rights Commission must first exhaust its administrative remedies before seeking judicial review. In doing so, the District Court dismissed the request of the Public Employees' Retirement Board for a mandatory injunction or a declaratory judgment directed at the Human Rights Commission. The essential issue with which we are concerned is whether the law is clear on its face that the Human Rights Commission has no subject matter jurisdiction to inquire into the validity of sex-based survivor annuity mortality tables used by the Public Employees' Retirement Board (hereafter referred to as the Retirement Board). The Retirement Board contends that the Human Rights Commission is deprived of subject matter jurisdiction because of an exemption written in section 49- 3-103, MCA of the Human Rights Act. The pertinent part of this statute provides: "Nothing in this chapter shall prohibit any public or private employer: "(2) from observing the terms of a . . . bona fide employee benefit plan such as a retirement, pension, or insurance plan which - - - is not a subterfuqe to evade the purposes of -- this chapter, . . ." ( ~ m s a s i s added.) Based upon this statute, the Retirement Board argues that it is immune from any inquiries by the Human Rights Commission as to the conduct, operation or application of its employee benefit retirement plans. The facts giving rise to this controversy are briefly as follows. Rose Stocks is the surviving spouse of a former state employee, and as such is entitled to benefits under the Public Employees' Retirement Act. Through the Human Rights Commission, she filed a complaint alleging that the sex-based survivor mortality tables used by the Public Employees' Retirement Plan are discriminatory. The Human Rights Commission investigated her complaint and later issued a finding of probable cause, and issued a certification of hearing notifying the Retirement Board that it had twenty days to answer this complaint. Rather than doing so, however, the Retirement Board brought suit in District Court seeking injunctive relief from the pending administrative hearing. The Retirement Board sought an injunction against the Human Rights Commission on the grounds that such agency had no subject matter jurisdiction (based on section 49-3-103(2), MCA, supra,) and in the alter- native, sought a declaratory judgment that the Human Rights Commission had no subject matter jurisdiction. The controversy turns on the exemption provided for in section 49-3-103(2), MCA, and the language "bona -- fide employee . . . retirement, pension" and "which is not a ----- subterfuge to evade the purposes -- of this chapter . . ." The Human Rights Commission argued that it has primary subject matter jurisdiction to determine if a retirement plan is either "bona fide" or is "a subterfuge to evade the purposes" of the Human Rights Act (sections 49-3-101 through 49-3-303, MCA). Moreover, the Human Rights Commission also argues that the Retirement Board is not entitled to judicial review because it had not exhausted its administrative remedies. The Retirement Board argues that section 49-3-103(2), MCA, by its own terms deprives the Human Rights Commission of subject matter jurisdiction over the state's employee retirement benefit plan (PERS). But the District Court did not so conclude, and neither can we. Whether the Retirement Board's retirement plan was bona fide or a subterfuge, was nothing that the District Court could determine from the allegations made by the Retirement Board. In reading section 49-3-103(2), MCA, the District Court declared in its order dismissing the suit: "The Court cannot make a determination whether PERS [Retirement Board] practices constitute a 'bona fide employee benefit plan' or a 'subterfuge' on the facts now before it. Findings of fact in this specialized area are a matter for agency expertise . . . The commission should have the first opportunity to determine whether PERS falls under the exemption." We see nothing in the arguments presented to this Court that would lead us to come to a different conclusion than the District Court. Section 49-3-103(2), MCA, does not on its face, deprive the Human Rights Commission of subject matter jurisdiction. Indeed, a reading of this statute in conjunction with the entire Human Rights Act, would lead to the conclusion that the Human Rights Commission has a right, if not a duty, to determine if either a public or private employee retirement plan is in good faith or is a subterfuge used to evade the purposes of the Act. There is a complaint presently pending before the Human Rights Commission, and there is a corresponding duty of the Human Rights Commission to act on that complaint. If the retirement plan, together with its implementation, does not constitute illegal sex-based discrimination, we can only assume that the Human Rights Commission would so find. If not, the Retirement Board is not without a remedy at that time to seek judicial review of a final determination made by the Human Rights Commission. The decision of the District Court is affirmed. This case is remanded to the District Court with directions to send it back to the administration agency f s appropriate proceedings. We Concur: Chief Justice Justices L ' | October 31, 1979 |
dc9f190f-7a96-4111-8af2-8666f1867af5 | MATTER OF M A M | N/A | 14438 | Montana | Montana Supreme Court | No. 14438 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MATTER OF M.A.M., Youth in Need of Care Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: Ralph Herriott argued, Billings, Montana For Respondent: Harold Hanser, County Attorney, Billings, Montana Robert Waller argued, Deputy County Attorney, Billings, Montana Damon Gannett argued, Billings, Montana Filed: SEP 25 - - A Submitted: June 15, 1979 Decided: SEP 2 6 lgZg Mr. Justice Daniel J. Shea delivered the Opinion of the Court. The natural mother of M.A.M. (herein referred to as the child) appeals from a judgment of the Yellowstone County District Court declaring M.A.M. to be a youth in need of care, and awarding the permanent care, custody and control of her to the Department of Social and Rehabilitation Services (herein referred to as SRS), with the authority to assent to adoption. The mother does not contest the District Court's determination that the child was dependent, neglected or abused as defined in section 41-3-102, MCA, under the evidentiary standard of "clear and convincing" as adopted in, In The Matter of Inquiry into J.L.B., Youth in Need of Care (1979), Mont . , 594 P.2d 1127, 1137, 36 St.Rep. 896, 902. Rather, she contends that once this determination was made, the District Court abused its discretion in awarding permanent care, custody and control of the child to the SRS, with authority to consent to the child's adoption. She argues that it is too harsh a remedy to permanently deprive her of the custody of her child, and that the better remedy is to return the child to her custody subject to close supervision by the child welfare authorities. The facts, however, fully support the District Court's decision. The child involved in this matter, is five years of age. On December 28, 1977, the natural mother of the child appeared in the office of the social worker with the Child Protection Unit, and reported that she had physically beaten her child the previous evening, December 27, 1977. Two social workers immediately went to a day care center where the child was playing in order to determine the -2- extent of her physical injuries. The social workers discovered that the child had fresh bruises on her back, shoulder, arm, rib cage, and a welt or bruise behind her left ear. The social workers brought the child to Dr. J. Patrick Sauer for a medical examination. Dr. Sauer determined that the child's bruises had been recently inflicted and caused by repeated strikings with a foreign object. The social workers, based upon Dr. Sauer's report and their own investigation, removed the child from the custody of the natural mother and arranged for foster care. The child's natural mother agreed to this arrangement. On February 14, 1978, the SRS filed a petition in District Court seeking a decree declaring the child to be a youth in need of care, with her permanent care, custody and control being awarded to the State of Montana, with authority to assent to adoption. Notice of the petition and of the hearing on the issue of child custody were duly issued to the natural mother and father. On April 14, 1978, the District Court held a custody hearing. The natural mother appeared and was represented by counsel. An attorney appeared on behalf of the child, having been appointed guardian ad litem and counsel for the child. SRS appeared and was represented by the Yellowstone County Attorney. The natural father, served with notice by publication, did not appear. On May 2, 1978, the District Court entered findings of fact, conclusions of law, and a decree, finding that the child was an abused and neglected child within the meaning of section 41-3-102, MCA, and was a youth in need of care. The court awarded the permanent care, custody and control of the child to SRS, and granted SRS the - 3- authority to place the child for adoption. As a result of the District Court order, the parental rights of the natural mother were terminated. This appeal followed. Under section 41-3-102(2)(a), MCA, the commission or omission of any act or acts which materially affect the normal physical or emotional development of a youth con- stitutes abuse or neglect. Section 41-3-102(4), MCA, provides that a youth who is dependent or is suffering from abuse or neglect is a youth in need of care. Section 41-3-404, MCA, requires the District Court to hold a hearing and determine whether the youth is an abused, neglected, or dependent child, and to determine the cause. Upon a finding that a child is dependent, neglected or abused, section 41-3-406(1) (b) (i), MCA, permits the District Court to transfer legal custody to SRS, which, of course, was done in this case. There was substantial credible evidence in the record to justify the District Court order permanently depriving the mother of her child. This Court has in previous decisions recognized that family integrity is a constitutionally protected interest, In The Matter of Inquiry into J.L.B., Youth in Need of Care (1979), Mont . , 594 P.2d 1127, 1136, 36 St.Rep. 896, 902; In The Matter of The Guardianship of Doney (1977) , Mont. , 570 P.2d 575, 34 St.Rep. 1107, and of course the declaration of policy which accompanies the statutes governing termination places emphasis on the preservation of family unity whenever possible (section 41- 3-101(1)(d), MCA). But we have also noted that family unity need not be preserved at the expense of the best interests of the child. In the Matter of Inquiry into J.J.S. Youth in Need of Care (1978), Mont . , 577 P.2d 378, 35 St.Rep. 394; In Re Gore, Youths in Need of Care (1977), Mont . , 570 P.2d 1110, 34 St.Rep. 1179. -4- The instant case arose following the physical beating of the child by her natural mother on December 27, 1977. On December 28, 1977, two social workers examined the child and discovered she had fresh bruises on her back, shoulder, arm, rib cage, and a welt or bruise behind her left ear. After an examination of the child, Dr. Sauer determined that the child's bruises had been recently inflicted and caused by repeated strikings with a foreign object. Testimony later established that the beating had been administered with a belt or belt buckle. Julie Goldberg, a social worker employed by Yellow- stone County, testified that she was aware of four incidences of abuse that the natural mother had inflicted upon the child. Ms. Goldberg also testified that the child had been placed away from her natural mother in foster care on five separate occasions. Ms. Goldberg further testified that three of the five foster care placements were directly related to incidence of abuse, and the placements had taken place after the acts of abuse had occurred. Dr. Monty C. Gustafson, a clinical psychologist, testified that the potential for further child abuse by the natural mother was high. He specifically recommended that the child not be returned to the natural mother. David Pierce, a psychiatric social worker, also cautioned against returning the child to the natural mother. During cross- examination, he emphatically reiterated his position. Based on the totality of circumstances of this record, we cannot find an abuse of discretion in the District Court decision to award permanent custody of the child to SRS. The judgment of the District Court is affirmed. W e Concur: Chief J u s t i c e /' . ------------------ ------ Justices | September 26, 1979 |
d215fbd0-6698-405c-9a2c-81e434fa1d91 | STATE v DISTRICT COURT | N/A | 14938 | Montana | Montana Supreme Court | No. 14938 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THE STATE OF MONTANA, on the Relation of RAYMOND L. OLSON, Relator, THE DISTRICT COURT OF THE NINETEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF LINCOLN, and HON. ROBERT M. HOLTER, DISTRICT JUDGE, THEREOF, Respondents. ORIGINAL PROCEEDING: Counsel of Record: For Relator: Randono, Lewis & Donovan, Great Falls, Montana For Respondents: Hon. Mike Greely, Attorney General, Helena, Montana William A. Douglas, County Attorney, Libby, Montana Submitted on briefs: October 1, 1979 Decided: - 2 Filed: EL:;:: . Mr. Justice John C. Sheehy delivered the Opinion of the Court. Raymond Olson petitions and appeals from an order of the Lincoln County District Court, setting aside a previous order which found Olson "not guilty" by reason of insanity and ordering him committed to the State Hospital. Olson was charged in 1969 with two counts of rape. Olson gave timely notice of his intent to rely on the defense of insanity. The case was submitted to the jury. The jury returned a guilty verdict upon which two concurrent sentences of 60 years were entered. The sentences were subsequently reversed on appeal. State v . Olson (1971), 156 Mont. 339, 480 P.2d 822. Upon remand the trial court held a hearing and. determined Olson not guilty by reason of insanity and ordered him committed to the State Hospital on March 18, 1971. The commitment order hereinafter referred to as the 1971 order, referred to the 1970 testimony and depositions of Drs. Miguel F. Gracia and Robert A. Wetzler, qualified psychologists who had examined Olson. Olson walked away from the State Hospital in 1972 without permission. On February 17, 1977, an order was entered for the issuance of a bench warrant against Olson "for purposes of determining whether he should be released from custody of" the State Hospital. Olson was summarily returned to the State Hospital. From 1972 until 1977 Olson lived in Great Falls with his wife and family. On September 1, 1977, Olson assaulted the same woman but the charges were subsequently dismissed. Olson petitioned for discharge on December 27, 1977. He was examined by Drs. Pierce and Gelernter whose reports were filed with the court at an August 3, 1978 hearing. Appeal was again taken resulting in reversal of the judgment and remanded for further hearing. State v. Olson (1979), Mon t . , 593 P.2d 724, 36 St.Rep. 761. On May 25, 1979, the State applied -- ex parte to the District Court for an order that Olson be examined by Dr. Wetzler. The application was granted and examination held on May 30, 1979. Thereafter a hearing was held on June 13, 1979 and the deposition of Dr. Wetzler filed on June 26, 1979. The court by an order entered August 6, 1979 (herein- after referred to as the 1979 order) set aside the 1971 order on the basis that it "was procured by the Defendant's fraud upon . . . [the] Court.. . ." It is from this 1979 order which Olson appeals seeking reinstatement of the 1971 order and prohibiting the District Court from any further proceedings relating to it. Olson sets forth the following issues on appeal, all of which are conceded by the respondent: (1) Is this controversy proper for the Montana Supreme Court to exercise original jurisdiction? (2) Did the District Court deny the appellant due process of law by not giving notice or an opportunity to be heard on the question of setting aside the 1971 order? (3) Was there sufficient evidence of a fraud for the District Court to set aside the 1971 acquittal order? ( 4 ) Did the August 6, 1979 order place the appellant in double jeopardy in violation of the Fifth Amendment to the United States Constitution and the 1972 Mont. Const., Art. 11, 825. Section 3-2-204(1), MCA, states: "The supreme court may affirm, reverse, or modify any judgment or order appealed from and may direct the proper judgment or order to be entered or direct a new trial or further proceedings to be had." (~mphasisadded.) --- This statute gives to this Court the power to remand a case to a lower court accompanied by instructions that direct further action be taken by it in accordance with those in- structions. This jurisdiction recognizes the principle that a lower court cannot ignore an appellate court's mandate in disposing of a case after it has been returned to the lower court. See In Re Stoian's Estate (1960), 138 Mont. 384, This Court in Stoian said: "'On the remand of the cause after appeal, it is the duty of the lower court to comply with the mandate of the appellate court and to obey the directions therein . . . the trial court commits error if it fails to follow the directions of the appellate court.. . .' "This court also has held that the district court cannot refuse to carry out its mandate when a case has been remanded to the district court for further proceedings. In Montana Lumber & Mfg. Co. v . Obelisk Mining & C. Co., 16 Mont. 117, 40 P. 145, the district court was reversed because it refused to follow the mandate laid down by this court on a former appeal of the same case. (Montana Lumber & Mfg. Co. v. Obelisk Mining & C. Co., 15 Mont. 20, 37 P. 897), wherein the district court had been directed to include certain property in a decree of foreclosure." In Re Stoian's Estate, 357 P.2d at 45; Jangula v . United States Rubber Company (1967), 149 Mont. 241, 244, 425 P.2d 319, 321. The District Court in the present case was in error for not following the mandate of this Court as set forth in our earlier opinion of this year. The specific instructions of this Court were as follows: ". . . we conclude that this cause must be remanded for further testimony on the specific question of whether Olson's antisocial behavior as illustrated in the incidents involving Karla White have anv relationship to any mental disease or defect cur;ently suffered by oison. (Giving citations.) The point to be determined by the - District Court is whether Olson's present 'danger- ousness', if any, is related to or growing out of the abnormal mental condition he exhibited in 1970. "The mere fact that Olson may have a tendency towards antisocial behavior is not sufficient to warrant his continued confinement in Warm Springs. See, Harris v. United States (D.C. App. 1976), 356 A.2d 630, 632. If Olson does not suffer from a mental disease or defect which causes this behavior, there is no reason for continuing to include him in the exceptional class of people discussed earlier. Baxstrom v. Herold (1966), 383 U.S. 107, 114-15, 86 S.Ct. 760, 764-65, 15 L.Ed.2d 620, 625-26. The ordinary punishments of the criminal justice system are adequate to handle Olson's future criminal conduct, in such circumstances. "We also point out that the District Court is not limited to either recommit Olson to Warm Springs or release him unconditionally. Section 95-508 gives the District Court authority to release conditionally persons committed to the State Hospital by placing such conditions as it deems necessary on the release. But see, Application of Zion (1978), Mont., 585 P.2d 1084, 35 St. Rep. 1475. On remand, the District Court should not foreclose the possibility of conditional release as a proper means of balancing Olson's interest in liberty against society's interest in protection from potentially dangerous persons. Application of Zion, 585 P.2d at 1087, 35 St. Rep. at 1478; Hill v. State, 358 So.2d at 209." (Emphasis added.) State v . Olson (1979), Mont . , 593 P.2d at 731-732, 36 St.Rep. at 770-771. The 1979 revocation order of the District Court was the invalid for several reasons, one of which was / usurpation of one of the primary functions of this Court. The District Court attempted the exercise of an appellate power and as such is invalid. By means of its 1979 revocation order it attempted to vacate an earlier District Court judgment which had become the law of the case. By so doing the lower court not only trampled on Olson's rights of notice and hearing but also exposed him to double jeopardy. The District Court is now instructed to determine Olson's dangerousness, if any, and if release is justified then set suitable conditions for his release consistent with what we have presently discussed and quoted from our earlier opinion. Accordingly, the 1979 order of the District Court is reversed and the cause remanded for further proceedings. Justice We Concur: Chief Justice ................................... Justices M r . J u s t i c e John Conway Harrison s p e c i a l l y concurring: I agree t h a t t h e t r i a l judge here has no a u t h o r i t y t o set a s i d e t h e judgment of a previous t r i a l judge t h a t " p e t i - t i o n e r was not g u i l t y by reason of i n s a n i t y " and thereby commit him t o t h e S t a t e Hospital f o r treatment. However, I agree with statements made by Judge Holter t h a t a fraud w a s perpetrated, n o t only on t h e c o u r t , b u t on t h e people of Montana. See m y d i s s e n t i n S t a t e v. Olson (1979), Mont . , 593 P.2d 724, 732, 36 St.Rep. 761, 771. Our law allowing t h e finding of "not g u i l t y by reason of i n s a n i t y , " when applied t o sexual crimes, c r e a t e s a "Catch 22" s i t u a t i o n . The professional testimony t h a t p u t p e t i t i o n e r i n a p o s i t i o n t o b e n e f i t from such a p l e a now t e l l s t h e c o u r t t h a t he never should have been s e n t t o t h e S t a t e Hospital because he could n o t have been b e n e f i c i a l l y t r e a t e d . A s I understand t h e testimony of t h e p s y c h i a t r i s t s , t h e s e types of offenders belong, n o t i n the S t a t e Hospital, b u t i n prison. This p e t i t i o n e r was convicted of raping two women i n Lincoln County. The conviction was set a s i d e due t o e r r o r s made by t h e t r i a l judge i n refusing t o allow t h e prosecution t o permit v o i r d i r e examination of prospective j u r o r s on s u b j e c t s r e l a t e d t o t h e i n s a n i t y defense. However, t h e r e w a s no question of h i s g u i l t of t h e crimes charged. When brought f o r r e t r i a l , t h e c o u r t , on t h e b a s i s of p s y c h i a t r i c testimony a t t h e f i r s t t r i a l , allowed t h e entrance of a p l e a of n o t g u i l t y "by reason of i n s a n i t y " and s e n t p e t i t i o n e r t o t h e S t a t e Hospital. The jury a t p e t i t i o n e r ' s f i r s t t r i a l found t h a t he knew what he was doing and d i d not s u f f e r from a degree of mental d i s e a s e o r d i s o r d e r which prevented h i s r e s p o n s i b i l i t y f o r committing t h e o f f e n s e charged. Years ago, before psychiatry r e f i n e d t h e degrees of i n s a n i t y , when one went berserk, r e g a r d l e s s of t h e degree of i n s a n i t y , he was s a i d t o be "crazy"; a word t h a t covered every a s p e c t of mental i l l n e s s . W e know b e t t e r now. Some writers have pronounced t h e change toward t r e a t i n g mental d i s e a s e an e x h i b i t i o n of such human q u a l i t y a s t h e moral con- s t i t u t i o n . Rules of law, a s well a s l e g i s l a t i o n , a r e predi- cated on p a t t e r n s of human behavior. C e r t a i n l y , they f u r n i s h t h e i d e a l f o r a democratic s o c i e t y t o a s p i r e t o , b u t here t h e p e t i t i o n e r s was f a r from being possessed of such a moral con- s t i t u t i o n . I n a d d i t i o n , t h e t e s t f o r determining h i s compe- tency d i d not exact too much. H e c a r e f u l l y planned h i s as- s a u l t s on t h e two women when t h e i r husbands were away a t work and promptly f l e d t h e scene a f t e r t h e commission of t h e rapes. I believe t h e evidence showed him l e g a l l y sane. It i s pos- s i b l e t h i s i s a c a s e of depravity r a t h e r than one of i n s a n i t y . Where t h e dividing l i n e i s between them, w e do not know. It may be t h a t t h e law has n o t developed t h e proper technique; but, such as we have, no body of men and women is b e t t e r q u a l i f i e d t o cope with t h e problem than a c a r e f u l l y s e l e c t e d jury. I n view of what t h e p s y c h i a t r i s t s now t e s t i f y , t h i s type of offender does n o t s u f f e r from mental d e f e c t s t r e a t - a b l e a t t h e S t a t e Hospital. It now becomes a l e g i s l a t i v e matter where such offenders a r e t o be confined and whether they a r e e n t i t l e d t o t h e use of t h e p l e a of "not g u i l t y by reason of i n s a n i t y . " | November 21, 1979 |
c73ff882-d4d9-4ba9-b76f-3b5ff68088ea | GUARDIANSHIP OF P J D | N/A | 14759 | Montana | Montana Supreme Court | No. 14759 IN THE SUPREME COURT OF THE STATE OF MONTANA IN RE THE GUARDIANSHIP OF P.J.D., a minor. Appeal from: District Court of the Eighth Judicial District, Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Richard Ganulin argued, Great Falls, Montana For Respondent: Dennis Conner argued, Great Falls, Montana Gary Zadick argued, Great Falls, Montana Submitted: September 14, 1979 Decided: SEP 2 5 1979 Filed: M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. O n ~ p r i l 24, 1969, P . J . D . was declared a dependent and neglected child. The Division of Child Welfare Services of t h e Department of Public Welfare was awarded permanent l e g a l custody with t h e r i g h t t o consent t o t h e adoption of t h e youth. O n May 7, 1969, P.J.D. was placed i n t h e f o s t e r c a r e of t h e a p p e l l a n t s herein. She has resided with them s i n c e t h a t t i m e . O n November 17, 1974, P.J.D. was permanently placed with the appellants. P.J.D. has been disabled with c e r e b r a l palsy s i n c e b i r t h . Appellants have been approved a s adoptive parents; however, they are f i n a n c i a l l y unable t o adopt P.J.D. O n June 27, 1978, a p p e l l a n t s f i l e d a p e t i t i o n i n t h e 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 , County of Cascade, requesting t h a t they be appointed guardians of P.J.D., t h e i r permanent f o s t e r c h i l d . The Department of S o c i a l and Re- h a b i l i t a t i o n Services (SRS) made a motion t o dismiss t h e p e t i t i o n on t h e grounds t h a t t h e c o u r t lacked s u b j e c t matter j u r i s d i c t i o n and t h a t t h e p e t i t i o n f a i l e d t o s t a t e a claim upon which r e l i e f could be granted. O n January 2 2 , 1979, t h e D i s t r i c t Court granted SRS's motion t o dismiss and, on February 8, 1979, denied a p p e l l a n t s ' motion t o amend t h e conclusions of law by vacating t h e hearing on t h e motion. Appellants appeal from t h e s e o r d e r s of t h e ~ i s t r i c t Court. The s o l e i s s u e presented t o t h i s Court i s 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 72-5-222(1), MCA, and s e c t i o n 72-5-225(2), MCA, t o determine (1) whether t h e ~ i s t r i c t Court has j u r i s - d i c t i o n t o appoint permanent f o s t e r p a r e n t s a s guardians of a c h i l d i n t h e l e g a l custody of SRS, and ( 2 ) whether SRS ever had p a r e n t a l r i g h t s over P . J . D . and, i f so, whether t h e s e r i g h t s have been suspended by circumstances, Appellants' p r i n c i p a l arguments can be summarized a s follows : (1) The t e r m " p a r e n t a l r i g h t s " a s used i n s e c t i o n 72-5- 222(1), MCA, r e f e r s t o t h e r i g h t s of t h e n a t u r a l parents, which i n t h i s case w e r e terminated on A p r i l 24, 1969. The f o s t e r parents have t h e r i g h t t o custody, companionship and s e r v i c e s of the c h i l d and c o n t r o l her r e l i g i o n , education and d i s c i p l i n e . ( 2 ) SRS's " p a r e n t a l r i g h t s of custody" were terminated by t h e permanent f o s t e r placement with appellants. Section 72-5-222 ( I ) , MCA, and ARM S46-2.6 ( 2 ) -S640 ( 3 ) (c) (i) . ( 3 ) Appellants request t h i s Court t o l i m i t i t s d e c i s i o n t o t h e f a c t s of t h i s c a s e and appoint them guardians. The D i s t r i c t C o u r t ' s order dismissing t h e p e t i t i o n i s founded upon i t s i n t e r p r e t a t i o n of s e c t i o n s 72-5-222(1) and 72-5-225 ( 2 ) , MCA. Section 72-5-222 (1) s t a t e s : "The c o u r t may appoint a guardian f o r an unmar- r i e d minor -- i f p a l l - p a r e n t a l r i g h t s of custody have been terminated o r suspended circum- -- - stances o r p r i o r c o u r t order." (Emphasis sup- - . - . - p l i e d . ) Section 72-5-225(2) provides: "Upon hearing, i f t h e c o u r t f i n d s t h a t a q u a l i f i e d person seeks appointment, venue i s proper, t h e required n o t i c e s have been given, t h e requirements of 72-5-222 have been m e t , and t h e welfare and b e s t i n t e r e s t s of t h e minor w i l l be served by t h e requested appointment, it s h a l l make t h e appointment. &-other c a s e s t h e c o u r t may dismiss t h e - roceedings o r -- make any o t h e r d i s p o s i t i o n of :he matter --- t h a t w i l l b e s t serve the i n t e r e z of t h e minor." (Emphasis supplied.) -- Resolution of t h i s case r e s t s on t h e construction placed on t h e above s t a t u t e s and more p a r t i c u l a r l y , on t h i s Court's i n t e r p r e t a t i o n of t h e phrase " a l l p a r e n t a l r i g h t s of custody . " Although t h e r e i s no Montana case law which f o r our purposes s p e c i f i c a l l y i n t e r p r e t s t h e above s t a t u t e s , appel- l a n t s c i t e and r e l y on a r e c e n t Montana case, I n r e Guardian- s h i p of Evans (1978), M o n t . , 587 P.2d 372, 35 St-Rep. 1768, a s being d i s p o s i t i v e here. A c l o s e look a t Evans r e v e a l s it i s 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. The problem of s t a t u t o r y i n t e r p r e t a t i o n was n o t reached i n Evans. Appellants cite various cases f o r t h e proposition t h a t t h e D i s t r i c t Court should appoint a guardian whenever neces- s a r y o r convenient f o r 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 re Henwood's Guardianship (1958), 49 Cal.2d 639, 320 P.2d 1; San Diego County Dept. of Pub. Welf. v. Superior County (1972), 1 0 1 Cal.Rptr. 541, 496 P. 2d 453; I n re C.M.D. (Del. 1969), 256 A.2d 266. These cases, however, a r e e a s i l y d i s - tinguishable. They involve d i f f e r e n t s t a t u t o r y g u i d e l i n e s f o r guardianship than those w e a r e considering i n Montana. There a r e , however, two cases from Arizona construing t h a t s t a t e ' s guardianship s t a t u t e s which a r e i d e n t i c a l t o Montana's. The f i r s t i s Morales v. Glenn (1977), 1 1 4 Ariz. 327, 560 P.2d 1234. I n Morales t h e custody of t h e two minor c h i l d r e n involved w a s , pursuant t o a divorce decree, lodged i n t h e f a t h e r . I n 1976 t h e f a t h e r died, and t h e p a t e r n a l grandparents assumed custody of t h e two children. A request f o r custody by t h e mother w a s made t o t h e grandparents, which request was refused. Thereafter, t h e grandmother p e t i t i o n e d f o r guardianship of t h e c h i l d r e n a l l e g i n g t h a t a l l p a r e n t a l r i g h t s of custody had been terminated by c o u r t order. The mother regained custody of t h e c h i l d r e n through a habeas corpus proceeding and moved t o dismiss t h e guardian- s h i p proceedings. This motion w a s denied, and t h e mother appealed. The Arizona c o u r t found t h e mother's p a r e n t a l r i g h t s of custody had n o t been terminated by t h e divorce decree o r circumstances and held t h e lower c o u r t e r r e d i n n o t g r a n t i n g t h e mother's motion t o dismiss. The c o u r t went on t o s t a t e : "The Probate Court does n o t have j u r i s d i c t i o n t o award custody when custody by o p e r a t i o n of t h e law . . . o r by c o u r t o r d e r . . . has a l r e a d y been determined." Morales, 560 P.2d a t 1237, 1238. I n M c N e a l v. Mahoney (1978), 117 A r i z . 543, 574 P.2d 31, t h e c o u r t , c i t i n g Morales , held t h a t where t h e f a t h e r ' s custody r i g h t s had n o t been terminated by circumstances o r by h i s c o n d i t i o n a l d e l i v e r y of t h e c h i l d t o grandparents, t h e appointment of t h e grandparents a s temporary guardians f o r t h e c h i l d was improper and " t h e t r i a l judge was without a u t h o r i t y t o appoint even a temporary guardian f o r Cindy." McNeal, 574 P.2d a t 35. I n t h e i n s t a n t c a s e t h e custody of P.J.D. was estab- l i s h e d by c o u r t o r d e r on A p r i l 24, 1969, when permanent l e g a l custody with r i g h t t o consent t o adoption of P . J . D . was awarded t o SRS. Permanent custody of a c h i l d i s defined i n ARM S46-2.6 (2) -S650 (1) (b) as: ". . . t h e l e g a l s t a t u s c r e a t e d by an o r d e r of t h e youth c o u r t , t h a t g i v e s a person o r agency t h e r i g h t and duty t o t h e c a r e , custody and c o n t r o l of a youth with t h e a u t h o r i t y t o con- s e n t t o t h e adoption of s a i d youth. This s e v e r s t h e r i g h t s and d u t i e s of t h e n a t u r a l p a r e n t ( s ) t o t h e c h i l d . " F u r t h e r , " [ t l r a n s f e r of l e g a l custody of a c h i l d s h a l l include guardianship of any a s s e t s o r e s t a t e of t h e c h i l d . . ." Section 41-3-406(4), MCA. I n e f f e c t , by making such an o r d e r , t h e c o u r t g r a n t s a l l 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 t o SRS. SRS, t h u s , becomes responsible f o r t h e c a r e , feeding, and c o n t r o l of the child. To provide for the best interests of and protect the welfare of a child, SRS attempts to place the child "in a stabilized setting such as an adoptive home or permanent foster care home which will promote the development of a psychological parent-child relationship." ARM S46-2.6(2)- S640 (3) (c) (i) . As unacceptable as it may sound, some of the children will never be adopted. Instead of having to institutionalize these children, SRS licenses foster parents, people who want to care for children but are either ineligible to adopt or cannot afford to adopt. When a child is placed in permanent foster home care, as P.J.D. was here, SRS provides certain services including: counseling services to child and foster parents; referral services when appropriate; arrange for continued education of the child as appropriate to his age and abilities; arrange for medical services for the child; and open foster home payments for board, room and personal necessities. ARM S46-2.6(2)-S6020. These services are in keeping with the duty placed upon SRS when it is granted legal custody of a child. The responsibilities and duties charged to SRS are similar to the ones charged to natural parents. The only difference is that to care for a child, SRS, in promoting a natural instead of institutional environ- ment for the child, must assign the everyday duties of care and feeding to foster parents like the appellants. By such assignment, however, SRS does not forego any of the duties it was charged by court order to carry out; it merely assigns the duties so they will be carried out in a more natural environment. SRS is still responsible for the youth's care and must keep a constant vigil to assure that the youth's best interests are being served. This duty is so strict because, i n e f f e c t , SRS i s charged with overcoming any ill- e f f e c t s t h e deprivation of t h e c h i l d ' s n a t u r a l p a r e n t s may have had on the c h i l d . While it i s t r u e t h a t t h e permanent f o s t e r parents, when placed i n t h i s s i t u a t i o n , assume t h e r o l e of p a r e n t s and can i n f a c t become t h e psychological p a r e n t s of t h e c h i l d , t h i s does n o t change t h e l e g a l r e l a t i o n s h i p between t h e c h i l d and SRS. "A c h i l d cannot be adversely possessed a s can a piece of r e a l property." I n t h e Matter of F i s h (1977) Mont. - , 569 P.2d 924, 928, 34 St.Rep. 1080, 1085. Appellants argue t h a t t h e phrase " a l l p a r e n t a l r i g h t s of custody" from s e c t i o n 72-5-222(1), MCA, w a s intended t o encompass only " p a r e n t a l r i g h t s " of n a t u r a l p a r e n t s and t h e r e f o r e , t h e r i g h t s granted t o SRS when it w a s awarded permanent custody of P.J.D. a r e incapable of t h e D i s t r i c t Court's j u r i s d i c t i o n t o appoint a guardian. This contention i s n o t supported by t h e f a c t s o r by t h e l a w . I n l i g h t of 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 placed on SRS, t h e r e can be l i t t l e doubt t h a t it was awarded p a r e n t a l r i g h t s t o custody s i m i l a r t o t h a t of a n a t u r a l parent. There a l s o can be l i t t l e doubt t h a t t h e phrase " a l l p a r e n t a l r i g h t s of custody" includes the r i g h t s awarded t o SRS. This i s t h e l o g i c a l r e s u l t . To construe t h e above phrase t o include only n a t u r a l p a r e n t s would c r e a t e problems t h a t a p p e l l a n t s f a i l t o take i n t o account. I f only n a t u r a l p a r e n t s ' r i g h t s were protected, it would mean t h a t a guard- i a n could be appointed f o r a c h i l d with adoptive parents, s o l e l y because t h e n a t u r a l parents' r i g h t s had been ter- minated. One can hardly argue t h a t t h e l e g i s l a t u r e intended such a r e s u l t . SRS, i n r e a l i t y , t a k e s t h e place of t h e adoptive p a r e n t by seeing t h a t t h e c h i l d ' s needs are taken c a r e o f , a l b e i t by f o s t e r parents. The phrase " p a r e n t a l r i g h t s of custody" t h e r e f o r e i n c l u d e s t h e p a r e n t a l r i g h t s of both adoptive p a r e n t s and SRS when it i s awarded custody. The r i g h t s held by SRS here are permanent i n n a t u r e and have n o t been terminated. This being t h e c a s e , t h e c o u r t was without j u r i s d i c t i o n t o appoint a guardian under s e c t i o n 72-5-225(2), MCA. I t d i d n o t e r r i n dismissing a p p e l l a n t s ' p e t i t i o n . One o t h e r p o i n t needs t o be discussed. Because t h e p a r e n t a l r i g h t s of P.J.D. were n o t terminated, t h e l a s t sentence of s e c t i o n 72-5-225 ( 2 ) may come i n t o play. This sentence reads: " I n o t h e r c a s e s t h e c o u r t m a y dismiss t h e proceedings o r -- make any o t h e r d i s p o s i t i o n of -- t h e m a t t e r t h a t w i l l b e s t serve t h e i n t e r e s t of t h e minor." (Emphasis added.) The language of t h i s sentence i n d i c a t e s t h a t it i s w i t h i n t h e c o u r t ' s d i s c r e t i o n i n such a s i t u a t i o n t o e i t h e r dismiss t h e proceeding o r make some o t h e r d i s p o s i t i o n . H e r e , t h e c o u r t chose t o dismiss t h e proceeding. I n t h e absence of abuse of d i s c r e t i o n , t h i s Court w i l l n o t a l t e r such a decision. I n re Gore (1977), Mont. , 570 P.2d 1110, 34 St-Rep. 1179. I n t h e i n s t a n t case, a n a t t o r n e y was appointed t o p r o t e c t P.J.D.'s i n t e r e s t s . I n h i s b r i e f t o t h i s Court, he states: " I t appears t o m e t h a t t h e d i v i s i o n of a u t h o r i t y between t h e f o s t e r p a r e n t s and 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 i n t h e P . J . D . matter has been suf- f i c i e n t l y compatible s o 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 have been looked a f t e r . The department has provided a l l medical c a r e , f i n a n c i a l a s s i s t a n c e and so- cial s e r v i c e s support t o P.J.D. t h a t have appeared t o be necessary." W e have no f a c t record i n t h i s c a s e , s o we have no i n d i c a t i o n t h a t SRS w i l l remove t h e c h i l d from its f o s t e r p a r e n t s . Nor 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 c h i l d should be r e c e i v i n g a d d i t i o n a l care which SRS r e f u s e s t o provide. It a l s o appears t h a t SRS has agreed t o g r a n t a u t h o r i t y t o t h e f o s t e r p a r e n t s t o a u t h o r i z e emergency medical treatment. Apparently, 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 a r e being served here. This i s n o t t o say t h a t t h e r e a r e no long t e r m f o s t e r placements, such a s t h e c a s e here, i n which changes of s t a t u s may be d e s i r a b l e . But t o i n t e r p r e t t h e s t a t u t e as a b l a n k e t permission f o r such i s overlooking t h e p o s s i b l e mischief involved i n s h o r t t e r m c a s e s by t h e less s i n c e r e of t h o s e among us. Therefore, any change i n t h e r u l e s as w e have a p p l i e d them must come from t h e l e g i s l a t u r e a f t e r long and s e r i o u s c o n s i d e r a t i o n and adequate safeguards a r e i n s t a l l e d f o r t h e b e n e f i t of t h e f o s t e r c h i l d r e n . The judgment of d i s m i s s a l of t h e District Court i s affirmed. 4- L/L/,A J u s t i c e 2 W e concur: 7~-efl, @&,4 Chief J u s t i c e -4- u s t i c e s | September 25, 1979 |
1c175b0b-59e1-4e54-838a-f18bbab65726 | STATE v HELFRICH | N/A | 14744 | Montana | Montana Supreme Court | N o . 14744 I N THE SUPREME C O U R T O F THE STATE O F M O N T A N A 1979 STATE O F M O N T A N A , P l a i n t i f f and Appellant, -vs- RICHARD HELFRICH, Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l District, Honorable W. W. Lessley, Judge p r e s i d i n g . Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Donald White, County Attorney, Bozeman, Montana Gregory R. Todd argued, Deputy County Attorney, Bozeman, Montana For Respondent: Goetz and Madden, Bozeman, Montana James H. Goetz argued, Bozeman, Montana Submitted: September 1 2 , 1979 Decided : rglv : , , , : : F i l e d : . 1 Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. The State of Montana appeals from an order of the Gallatin District Court granting defendant's motion to suppress all evidence resulting from an illegal search and seizure. On July 25, 1978, Mildred Arnold telephoned the Gallatin County Sheriff's Office. She informed the answering office that she observed what she thought was a number of marijuana plants growing in the yard of her neighbor, Richard Helfrich, in Willow Creek, Montana. A deputy was dispatched to investigate the matter. The yard was fenced and contained a "lush" garden, including tall sunflowers. After investi- gating and seeing no marijuana, the deputy closed the case. On July 31, 1978, Arnold entered Helfrich's garden and took a sample of a leafy material. The next day, August 1, 1978, she took a sample to the Gallatin County Sheriff's Office where it was field tested positive for THC, the active ingredient in marijuana. Later that same day, Gallatin County Sheriff officers went into the alley behind the Helfrich property, looked over the fence of the defendant and claimed to have spotted and subsequently photographed marijuana plants growing within a second enclosure constructed of wood and chicken wire. On these facts, the officers obtained a search warrant from the Justice of the Peace. On August 3, 1978, the officers went to the Helfrich household and servedthe warrant on Helfrich's wife. As a result, a quantity of plant material alleged to be marijuana was pulled from the garden. An information was filed on August 21, 1978, charging Helfrich with criminal sale of dangerous drugs. A suppression -2- hearing was held on November 22, 1978. The District Court, by an order entered on December 4, 1978, suppressed all evidence oral and tangible, direct and indirect, resulting from the search and seizure. The court based its suppression order on faulty probable cause stemming from the illegal actions of Arnold. We affirm. The State presents three issues for our review: 1. Whether the evidence must be suppressed according to current constitutional authority? 2. Does the exclusionary rule apply to cases in which evidence is illegally seized by a private person? 3. Was Mildred Arnold a constructive agent of the Gallatin County Sheriff's Office? The 1972 Mont. Const., Art. 11, 811, states in pertinent part: ". . . No warrant to search any place, or seize any person or thing shall issue . . . without probable cause . . ." Section 46-5-202, MCA, states: "Grounds for search warrant. Any judge may issue a search warrant upon the written application of any person, made under oath or affirmation before the judge, which: "(2) states facts sufficient to show probable cause for issuance of the warrant;" State law requires that the decision as to the existence of probable cause be made on the basis of sufficient competent facts. According to the record, the application for a search warrant was premised on two factors: (1) photographs taken from the roadway abutting the respondent's property by a Gallatin County Sheriff's detective and (2) a sample of marijuana illegally obtained by an inquisitive neighbor. No trace of marijuana was reported by the first officer who personally surveyed the area on July 25, 1978. In fact, the opposite conclusion was reached as is exemplified by the -3- initial closure of the case. It is virtually impossible by careful scrutiny of the photographs alone to either locate, or identify any substance which would give credibility to the existance of marijuana. Only the sample from Mrs. Arnold affords any basis to support the allegation of the existence of marijuana on the Helfrich property. The sample obtained by respondent's curious neighbor was obtained by means of illegal trespass upon the Helfrich property. As a result, the sample was tainted as being the fruit of an illegal invasion of respondent's right of privacy. Since the application and subsequent issuance of the search warrant were based in fact, solely on an illegally obtained sample, the issuance of the search warrant and the subsequent search itself were both improper and illegal. The evidence was properly suppressed by the District Court. The State relies upon the rule enunciated in Burdeau v. McDowell (1921), 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048. That decision held illegally obtained evidence admissible under the Fourth Amendment when seized by a non-governmental agent who is not acting in concert with any governmental agency. We find the Montana Constitution affords an individual greater, explicit protection in this instance than is offered in the Fourth Amendment decision of the Burdeau Court. The 1972 Mont. Const., Art. 11, 5s 10 and 11 provide: "Section - 10. -- Right of privacy. The right of individual privacy is essential to the well- being of a free society and shall not be infringed without the showing of a compelling state interest. "Section 11. Searches and seizures. The people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures. No warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to be seized, or without probable cause, supported by oath or affirmation reduced to writing." The importance of the right of individual privacy to the framers of the Montana Constitution is obvious from these provisions and the transcript of the Montana Con- stitutional Convention. Transcript of Proceedings, Vol. VII, pp. 5179-5205 (1972). This Court has previously noted the significance of the explicit guarantee of the right to individual privacy contained in section 10, as no comparable provision exists in the United States Constitution. State v. Sawyer (1977), Mont. , 571 P.2d 1131, 1133, 34 St.Rep. 1441, 1444; State v. Coburn (1974), 165 Mont. 488, The framers of the 1972 Constitution indicated the right of individual privacy was significant whatever the source of the invasion. The delegate who introduced the proposed privacy section reflected these concerns: ". . . Certainly, back in 1776, 1789, when they developed our bill of rights, the search and seizure provisions were enough, when a man's home was his castle and the state could not intrude upon this home without the procuring of a search warrant with probable cause being stated before a magistrate and a search warrant being issued. No other protection was necessary and this certainly was the greatest amount of protection that any free society has given its individuals. In that type of a society, of course, the neighbor was maybe three or four miles away. There was no real infringement upon the individual and his right of privacy. However, today we have observed an increasingly complex society and we know our area of privacy has decreased, decreased and decreased . . ." Tr. of the Montana Con- stitutional Convention, Vol. VII, pp. 5180-81. Later in the same statement, the scope of the delegates' concern was addressed: ". . . It isn't only a careless government that has this power to pry, political organizations, private information gathering firms, and even an individual can now snoop more easily and more effectively than ever before . . ." Tr. at p. 5182. A search and seizure such as the one executed by Mrs. Arnold amounts to a significant invasion of individual privacy. In State v. Brecht (1971), 157 Mont. 264, 485 P.2d 47, this Court held that the admission by the District Court of evidence gained by means of eavesdropping on a telephone conversation was reversible error because the defendant's Constitutional right of privacy has been violated via the Fourth Amendment under the Federal Constitution as applied to State criminal court proceedings by the "due process" clause of the Fourteenth Amendment. This Court also stated the eavesdropping "equally" violated the defendant's rights under 1889 Mont. Const., Art. 111, 87. (~mphasis added.) The 1972 Montana Constitution is more explicit in regards to such rights. The State in the present case, as it did in Brecht contends the privacy protection is afforded only against law enforcement officers and not against violations by private citizens. In Brecht, we refuted this argument: ". . . The violation of the constitutional right to privacy and against compulsory self-incrimination is as detrimental to the person to whom the protection is guaranteed in the one case as in the other. To distinguish between classes of violators istantamount to distinction of the right itself . . ." (Emphasis added.) Brecht, Mont. at 270, 485 P.2d at 51. In the same case, we recognized the appropriateness of the exclusion of illegally obtained evidence in such cases: "This \Court in the present case would be remiss were it not to recognize that evidence obtained by the unlawful or unreasonable invasion of several of the constitutionally protected rights guaranteed to its citizens by both the federal and Montana constitutions properly comes within the contemplation of this Court's exclusionary rule. To do otherwise would lend Court approval to a fictional distinction between classes of citizens: those who are bound to respect the Constitution and those who are not. Were the exclusionary rule to recognize such distinctions it would by indirection circumvent the rule established by this Court to enforce these rights and would in fact render the rule and the constitutional guarantees it protects meaningless." Brecht, 157 Mont. at p. 271, 485 P.2d at p. 51. The Brecht holding was affirmed in Coburn, supra. We again affirm and thereby hold that the right of individual privacy explicitly guaranteed by the State Constitution is inviolate and the search and seizure provisions of Montana law apply to private individuals as well as law enforcement officers. Evidence obtained through illegal invasions of individual privacy are not to be admitted into evidence in a court of law of this State. Because the search of the Helfrich property was based upon the fruit of an unlawful trespass, the District Court acted properly in suppressing the evidence and granting the defendant's motion to dismiss. Since the first issue is dispositive of this case, we will not address the remaining issues. The order of the District--Court is affirmed. _ , --. Justice i/ We Concur: w e f Justice .............................. Justices M r . J u s t i c e John Conway Harrison dissenting: I r e s p e c t f u l l y d i s s e n t . While I recognize t h a t both t h e Coburn case and t h e Brecht case have been p a r t of our case l a w f o r several years and t h a t a t least one l e g i s l a t u r e has had t h e opportunity t o change t h e law established i n these opinions, I f e e l now, as I d i d when I dissented t o those opinions, t h a t w e w e r e e s t a b l i s h i n g bad law. Here, w e have a p r i v a t e c i t i z e n , who i n no way can be considered an agent of t h e S t a t e , turning over evidence t o t h e S t a t e t h a t she had procured i n an assumed t r e s p a s s on her neighbors' property. She had no o t h e r i n t e r e s t than t o enforce t h e law, and her a c t of turning over t h e evidence t o t h e s h e r i f f ' s o f f i c e i s d i f f e r e n t from t h a t of H i l l i s i n the Coburn case, where H i l l i s had a previous agreement with t h e p o l i c e t o g e t t h e evidence from h i s employee's pocket. I believe under the f a c t s here Coburn i s c l e a r l y distinguishable. P r i o r t o Brecht and Coburn t h e purpose of the exclusionary r u l e was t o guarantee t h a t t h e S t a t e and i t s authorized representatives would observe an i n d i v i d u a l ' s c o n s t i t u t i o n a l r i g h t s . The r u l e was t o p r o t e c t t h e individual from i l l e g a l p o l i c e a c t i v i t y . It d i d n o t encompass i l l e g a l searches by p r i v a t e individuals; i t s basic purpose, as s t a t e d above, w a s t o d e t e r p o l i c e a c t i v i t y and thereby guarantee the p u r i t y of t h e j u d i c i a l process. Once w e extend t h e exclusionary r u l e t o p r i v a t e persons, a s w e a r e doing here, s a i d extensions can and w i l l extend the r u l e beyond any l o g i c a l purpose. For these reasons I would reverse the D i s t r i c t c o u r t ' s order of suppression and send t h e case t o t r i a l . | October 3, 1979 |
6182fbfe-907d-4ee2-ba48-70ee235cb390 | POULSEN v TREASURE STATE INDUSTRI | N/A | 14934 | Montana | Montana Supreme Court | No. 14934 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 HAROLD POULSEN, KARL INGEBRIGTSON, DICK OLSON and EMERY MATSKO, JR., Plaintiffs, TREASURE STATE INDUSTRIES, INC., A Montana Corporation; and KENNETH K . KNIGHT, Respondents. ORIGINAL PROCEEDING: Counsel of Record: For Plaintiffs: Graybill, Ostrem, Warner & Crotty, Great Falls, Montana Donald Ostrem argued, Great Falls, Montana For Respondents: Smith, Emmons, Baillie and Walsh, Great Falls, Montana Cure and Borer, Great Falls, Montana Edward Borer argued, Great Falls, Montana Submitted: September 17, 1979 Decided : ! ? 7 <-. - 1979 Filed: , : <-+ ; ! .-\t-; ; , - - * a < s- \ / ! - IQ ! 5 1 J' +< J W J , - Clerk 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. P e t i t i o n e r Kenneth K. Knight has f i l e d an o r i g i n a l motion i n t h i s Court seeking an o r d e r permitting him t o p o s t s e c u r i t y o t h e r than a supersedeas bond t o s t a y enforcement of a money judgment a g a i n s t him pending appeal. The underlying a c t i o n i n t h e D i s t r i c t Court of Cascade County r e s u l t e d i n e n t r y of judgment a g a i n s t defendant Knight and defendant Treasure S t a t e I n d u s t r i e s , I n c . , a Montana corpor- ation, j o i n t l y and s e v e r a l l y i n t h e sum of $302,129.65 and an a d d i t i o n a l award s o l e l y a g a i n s t defendant Treasure S t a t e I n d u s t r i e s i n t h e sum of $1,742.52. his judgment was entered on June 1, 1979. Thereafter an amended judgment was entered a g a i n s t t h e same defen- d a n t s i n t h e same amounts with an a d d i t i o n a l judgment of indemnity i n favor of defendant Treasure S t a t e I n d u s t r i e s a g a i n s t defendant Knight f o r such amounts as Treasure S t a t e might u l t i m a t e l y pay t o p l a i n t i f f i n s a t i s f a c t i o n of t h e j o i n t and s e v e r a l judgment a g a i n s t it and Knight. Following e n t r y of t h e amended judgment, t h e D i s t r i c t Court granted t h r e e temporary s t a y s of judgment and execution pending a hearing i n t h a t c o u r t on defendant Knight's a p p l i c a t i o n t o f i l e s e c u r i t y o t h e r than a supersedeas bond. O n August 1 7 , 1979, follow- i n g hearing, t h e D i s t r i c t Court denied t h e application. O n t h e same d a t e defendant Treasure S t a t e I n d u s t r i e s posted a supersedeas bond a s represented by a c e r t i f i c a t e of d e p o s i t i n t h e sum of $319,224.52, which w a s approved by t h e D i s t r i c t Court. This covered t h e l i a b i l i t y of Treasure State I n d u s t r i e s on t h e judgment b u t d i d n o t cover t h e l i a b i l i t y of defendant Knight. Thereafter defendant Knight f i l e d an o r i g i n a l motion i n t h i s Court t o permit him t o p o s t s e c u r i t y o t h e r than a supersedeas bond o r i n an amount d i f f e r e n t from t h e amount of t h e judgment, pursuant t o Rule 7 ( a ) , M.R.App.Civ.P. This Court set t h e motion for hearing on September 13, stayed enforcement and execution on the judgment pending hearing, and enjoined defendant Knight from transferring, encumbering or concealing property for the purpose of avoiding satisfaction of judgment. Plaintiffs in whose favor the underlying amended judgment was entered filed their written objection to defendant Knight's motion. The motion and objections thereto came on for hearing be- fore this Court on September 13. An affidavit of Knight's counsel and the financial state- ment of Knight were submitted for filing. Oral argument by coun- sel for Knight and by counsel for objectors was heard. This Court granted Knight the right to take and submit two depositions, his own and that of Eleanor K . Johnson, by September 17 in support of his motion. These have been taken and filed. The order staying enforcement and execution on the judgment and enjoining Knight from transferring, encumbering or concealing property for the pur- pose of avoiding satisfaction of the judgment have been continued pending our decision on Knight's motion. The matter has now been submitted to us for decision. The essential facts in this case are clear. Knight cannot secure a supersedeas bond from a commercial bonding company with- out posting a cash security or its equivalent (in the form of a certificate of deposit, an irrevocable letter of credit from a bank, or an assigned savings account) in the amount of his liabil- ity on the judgment. Knight claims he cannot post cash security without liquidating a substantial portion of his assets, incurring substantial tax liabilities, and suffering severe business and econ- omic hardship which he seeks to avoid. He has applied to one bank for a letter of credit but has been advised this would exceed that bank's lending authority. He seeks authorization from us to post common stocks and pledges of personal assets including equity positions, real estate and business ventures in lieu of a supersedeas bond. He has submitted an unverified "personal statement" dated April 1, 1979, indicating a net worth far in excess of his liability on the judgment together with a customer's copy of his account with a stock brokerage firm. The pertinent rule under which Knight's motion is made provides : "Upon entry of a judgment or order a party may apply to the district court on notice or ex parte for a stay of the execution of the judgment or order. The court in its discretion may grant said stay . . . Upon service of notice of appeal, if the court has made no such order or the appellant de- sires a stay for a longer period than ordered, he may present to the district court and secure its approval of a supersedeas bond . . . On application, the supreme court in the interest of justice may suspend, modify, restore, or grant any order made under this subdivision." Rule 7(a), M.R.App.Civ.P. The purpose of a supersedeas bond as a condition for staying enforcement and execution on a judgment is to guarantee and secure the rights of the judgment creditor during the appeal process. At the same time it preserves and implements the judgment debtor's statutory right of appeal. It is well established that a super- sedeas bond may be required to preserve the rights of the unsuccess- ful party. Gallatin Trust and Savings Bank v. Henke (1969), 154 Mont. 170, 461 P.2d 448, and cases therein cited. Here Knight seeks to post security other than a supersedeas bond to guarantee and secure the rights of judgment creditors pend- ing determination of his appeal "in the interest of justice" as provided in Rule 7(a), M.R.App.Civ.P. Alternatively, he seeks re- duction of the amount of any supersedeas bond to a lesser sum than the amount of his liability on the judgment. We deny Knight's motion in the exercise of our discretion for several reasons. Denial of his motion will not deny him access to this Court to appeal from the judgment. He is apparently a wealthy man who can post a supersedeas bond albeit with some financial hardship consisting of monetary losses in liquidation of assets, tax consequences, and loss of business income. We do not consider the rights of his judgment creditors guaranteed and secured by the reduction in amount of a supersedeas bond on the posting of substitute security in the form of stocks and pledges of equities in business ventures, real estate and personal assets. A reduction in amount of a supersedeas bond below the amount of his liability on the judgment cannot secure the rights of his judgment creditors. Additionally such substitute security fluc- tuates in value due to changes in market conditions and requires constant attention to preserve the security of the judgment creditors. his Court has neither the expertise nor the capacity to monitor such collateral. If commercial bonding companies de- cline to issue a supersedeas bond based on such security, what justification exists for this Court to accept such security in lieu of a supersedeas bond? None has been advanced that moves our discretion. Additionally, Knight's attempts to secure a supersedeas bond have been neither prompt nor thorough. The record does not disclose any attempt to secure a loan from a bank or lending institution. The record discloses but one inquiry of a bank con- cerning the acquisition of an unrevocable letter of credit. He has not furnished this Court with a recent net worth statement verified by a certified public accountant. These indications do not support his claims that the "interests of justice" require us to grant his motion. For the foregoing reasons, the motion of Kenneth K. Knight is denied in its entirety. Our orders staying enforcement and execution of the judgment and restraining and enjoining Kenneth K. Knight from transferring, disposing, encumbering or concealing property heretofore issued by this Court are vacated effective October 15 in the absence of his posting a supersedeas bond or o r its equivalent approved by t h e Court. . Chief J u s t i c e t/ J u s t i c e s J | October 2, 1979 |
834e72a8-e74d-411d-ac4a-464f15d3f1c7 | MATTER OF HOLMES | N/A | 14379 | Montana | Montana Supreme Court | No. 14379 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN THE MATTER OF THE ESTATE OF CHARLES LIVINGSTONE HOLMES, deceased. Appeal from: District Court of the Nineteenth Judicial ~istrict, Honorable Robert M. Holter, Judge presiding. Counsel of Record: For Appellant: Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana Jack L. Lewis argued, Great Falls, Montana For Respondent: Fennessy, Crocker & Harman, Libby, Montana Evans and German, Libby, Montana Ann German argued, Libby, Montana Filed: AUG 2 , ; 1q-q ". - Submitted: June 14, 1979 Decided : AOG 2 ; 1979 Mr. Justice John Conway Harrison delivered the Opinion of the Court. c his is an appeal from a District Court order finding that the will of Charles Livingstone Holmes provided for a charitable bequest within the purview of Montana's Mortmain Statute and therefore was valid only as to one-third of the decedent's estate and that the remaining two-thirds of the estate should pass to the heirs of the decedent by operation of law. The beneficiary of the charitable bequest negated by the order, the Shriners Hospitals for Crippled Children, appeals. On January 5, 1978, just 12 days prior to his death, Charles Holmes executed a last will in which he devised all his property to the Shriners Crippled Children's Home of San Francisco, California. The will acknowledged that dece- dent's immediate family consisted of two adult sons but specifically stated that no provisions be made for them. Decedent had executed a prior will in 1977 in which he disinherited his sons and left all his property to the Shriners Hospitals after an intervening trust. Following Holmes' death, the personal representative named in his will petitioned for formal probate. The peti- tion was set for hearing on March 23, 1978, and the Shriners were notified of the hearing. At the hearing, decedent's son, Charles Holmes, Jr., orally objected to the will on the basis of lack of testamentary capacity. Shriners did not appear at the hearing and were not given notice of the objection to the will. The District Court took the matter under advisement. On April 24, 1978, the District Court entered an order admitting the will to probate but declaring two-thirds of t h e d e v i s e void under s e c t i o n 72-11-334, MCA, Montana's Mortmain S t a t u t e . The c l e r k of c o u r t d i d n o t s e r v e n o t i c e of e n t r y of t h e o r d e r on t h e Shriners. The personal repre- s e n t a t i v e d i d send t h e S h r i n e r s a letter a d v i s i n g them of t h e voidance of two-thirds of t h e bequest. They r e c e i v e d t h e letter on May 5, 1978. O n May 17, 1978, t h e S h r i n e r s appealed t h e m a t t e r t o t h i s Court. Appellant raises s e v e r a l i s s u e s on appeal i n c l u d i n g t h e c o n s t i t u t i o n a l i t y of t h e Mortmain S t a t u t e and i t s continued v a l i d i t y under t h e Montana Uniform Probate Code. Respon- d e n t , Charles Holmes, Jr., a s s e r t s t h e Mortmain S t a t u t e i s c o n s t i t u t i o n a l and v a l i d under Montana's Uniform Probate Code. H e a l s o contends a p p e l l a n t cannot raise t h e chal- l e n g e s t o t h e s t a t u t e f o r t h e f i r s t t i m e on appeal. W e w i l l f i r s t a d d r e s s t h e arguments concerning a p p e l l a n t ' s a b i l i t y t o r a i s e t h e i s s u e s p e r t a i n i n g t o t h e v a l i d i t y of t h e Mortmain S t a t u t e . Respondent contends t h a t s i n c e a p p e l l a n t made no ap- pearance i n District Court t o r a i s e i t s c h a l l e n g e s t o t h e Mortmain S t a t u t e , well-established p r i n c i p l e s of l a w p r e v e n t it from doing s o on appeal. Appellant a s s e r t s t h a t it was n o t given s u f f i c i e n t n o t i c e of t h e proceeding i n t h e D i s - t r i c t Court t o allow it t o p r e s e n t i t s arguments on t h e v a l i d i t y of t h e Mortmain S t a t u t e . Appellant argues t h a t by r a i s i n g t h e i s s u e s on appeal, it raises them a t t h e f i r s t o p p o r t u n i t y afforded. T h i s i s s u e can be resolved by considering t h e n o t i c e r e q u i r e d a t d i f f e r e n t s t a g e s of formal probate proceeding and t h e e f f e c t of l a c k of r e q u i r e d n o t i c e on any j u d i c i a l a c t i o n taken a s a r e s u l t of t h e proceedings. When formal probate proceedings begin, t h e Montana Uniform Probate code (MUPC), s e c t i o n 72-3-305, MCA, sets o u t t h e n o t i c e require- ments. The s e c t i o n s t a t e s n o t i c e of t h e time and place of t h e hearing on t h e p e t i t i o n f o r formal probate s h a l l be given t o p a r t i e s including t h e decedent's h e i r s and devisees named i n any w i l l . The s t a t u t e e f f e c t i v e l y d e a l s with t h e n o t i c e requirements a t t h e o u t s e t of formal probate pro- ceedings. I n t h i s case, t h e s t a t u t e was complied with a s t h e S h r i n e r s were n o t i f i e d of t h e i n i t i a l hearing. Next, t h e n o t i c e required of any w i l l c o n t e s t must be considered. MUPC s e c t i o n 72-1-303, MCA, e n t i t l e d "Pleadings-- when o r d e r s o r n o t i c e binding one binds another--represen- t a t i o n , " d e a l s with formal proceedings involving e s t a t e s . Subsection (3) of t h a t provision s t a t e s , "Notice i s required a s follows: ( a ) Notice as prescribed by 72-1-301 s h a l l be given t o every i n t e r e s t e d person . . ." I n t e r e s t e d person under t h e M U P C includes named devisees. Section 72-1- 1 0 3 ( 2 1 ) , MCA. Although subsection (3) does n o t go on t o s t a t e t h a t t h e n o t i c e required by t h e subsection means n o t i c e of w i l l c o n t e s t s , t h e heading and context of t h e s e c t i o n i n d i c a t e t h e n o t i c e r e f e r r e d t o i n t h e s t a t u t e is n o t i c e t o i n t e r e s t e d persons of pleadings f i l e d i n formal probate proceedings. Since t h e M U P C r e q u i r e s p a r t i e s who oppose t h e probate of a w i l l t o s t a t e t h e i r o b j e c t i o n s i n t h e form of pleadings, s e c t i o n 72-3-308, MCA, w i l l c o n t e s t s would be pleadings and a l l i n t e r e s t e d persons would have t o be given n o t i c e they had been f i l e d . The S h r i n e r s received no n o t i c e of t h e w i l l c o n t e s t here. The n o t i c e required on t h e e n t r y of an order i n formal probate proceedings must a l s o be considered. his does n o t f a l l under t h e c o n t r o l of a s p e c i f i c provision of t h e M U P C . To determine t h e n o t i c e required a t t h i s s t a g e of t h e pro- ceedings, r e f e r e n c e must be made t o t h e Montana Rules o f c i v i l Procedure. The M U P C provides f o r t h i s s t e p i n s i t u a - t i o n s n o t s p e c i f i c a l l y covered by t h e MUPC. S e c t i o n 72-1- 207, MCA. The r u l e s r e q u i r e t h e c l e r k of c o u r t t o s e r v e n o t i c e of e n t r y of an o r d e r upon each p a r t y t o an a c t i o n who i s n o t i n d e f a u l t f o r f a i l u r e t o appear. Rule 7 7 ( d ) , M.R.Civ.P. To f a l l under Rule 7 7 ( d ) , a named d e v i s e e must s a t i s f y two c r i t e r i a . The d e v i s e e must be a p a r t y under t h e meaning of t h e r u l e and t h e d e v i s e e must n o t be i n d e f a u l t f o r f a i l u r e t o appear. Regarding p a r t i e s t o a probate pro- ceeding, t h e M U P C d e f i n e s " i n t e r e s t e d persons" a s i n c l u d i n g ". . . h e i r s , d e v i s e e s , c h i l d r e n , spouses, c r e d i t o r s , bene- f i c i a r i e s , and any o t h e r s having a p r o p e r t y r i g h t i n o r claim a g a i n s t a t r u s t e s t a t e o r t h e e s t a t e of a decedent, ward, o r p r o t e c t e d person which may be a f f e c t e d by t h e proceedings." S e c t i o n 72-1-103(21), MCA (emphasis added). I n s e c t i o n 72-3-305(2), MCA, t h e M U P C r e q u i r e s n o t i c e of t h e i n i t i a t i o n of formal probate proceedings t o be given t o p a r t i e s including named devisees. These two s e c t i o n s of t h e M U P C i n d i c a t e t h e l e g i s l a t u r e intended named d e v i s e e s t o be p a r t i e s t o formal probate proceedings and, t h e r e f o r e , re- c e i v e n o t i c e under Rule 7 7 ( d ) . Case l a w from o t h e r j u r i s - d i c t i o n s f u r t h e r s u b s t a n t i a t e s t h i s p o i n t . The ~ a l i f o r n i a Court of Appeals h e l d named b e n e f i c i a r i e s i n a testamentary t r u s t t o be i n d i s p e n s i b l e p a r t i e s t o t h e l i t i g a t i o n i n I n R e t h e E s t a t e of Reed (1968), 259 Cal.App.2d 14, 66 ~ a l . ~ p t r . 193, 198-99. O n t h e second p o i n t , although t h e ~ h r i n e r s d i d n o t make a n appearance i n t h e m a t t e r , no d e f a u l t was re- quested o r entered. Thus, named d e v i s e e s i n w i l l s who a r e n o t i n d e f a u l t f o r f a i l u r e t o appear a r e e n t i t l e d t o n o t i c e of t h e e n t r y of an o r d e r i n formal probate proceedings. he S h r i n e r s s t a n d i n t h a t p o s i t i o n i n t h i s case. They should have been given n o t i c e of t h e e n t r y of t h e o r d e r by t h e c l e r k of c o u r t . Under t h e MUPC, t h e S h r i n e r s w e r e e n t i t l e d t o n o t i c e a t a l l s t a g e s of t h e formal probate proceedings. They d i d n o t r e c e i v e n o t i c e of t h e w i l l c o n t e s t o r t h e e n t r y of t h e o r d e r p a r t i a l l y admitting t h e w i l l t o probate. The M U P C and t h e Montana Rules of C i v i l Procedure d i c t a t e t h e consequences of f a i l u r e t o provide t h e r e q u i r e d n o t i c e . The M U P C s t a t e s where n o t i c e i s r e q u i r e d , i n t e r e s t e d persons may be bound by o r d e r s where n o t i c e i n conformity w i t h M U P C p r o v i s i o n s was given. S e c t i o n 72-3-111(2), MCA. The n e g a t i v e i n f e r e n c e of t h a t p r o v i s i o n would be t h a t o r d e r s i s s u e d without n o t i c e a r e n o t binding on t h e p a r t i e s t h a t do n o t r e c e i v e n o t i c e . Under t h a t provision, t h e o r d e r e n t e r e d i n t h i s c a s e would have no binding e f f e c t on t h e S h r i n e r s . The e f f e c t o f l a c k of n o t i c e of e n t r y of t h e o r d e r of t h e District Court i s covered by c a s e law i n t e r p r e t i n g t h e Montana Rules of C i v i l Procedure. Rule 77(d) r e q u i r e s t h e c l e r k of c o u r t t o send n o t i c e of o r d e r s e n t e r e d i n c a s e s t o p a r t i e s t o a n a c t i o n n o t i n d e f a u l t f o r f a i l u r e t o appear. I f t h e c l e r k f a i l s t o send t h e n o t i c e , t h e t i m e f o r a p a r t y t o appeal an o r d e r does n o t begin t o run. P i e r c e Packing Co. v. The District Court (1978), Mon t . , 579 P.2d 760, 761-62, 35 St.Rep. 656, 658-59; Haywood v. S e d i l l o (1975), 167 Mont. 101, 104, 535 P.2d 1014. his r u l e ap- p l i e s r e g a r d l e s s of a c t u a l n o t i c e of t h e e n t r y of t h e o r d e r by t h e p a r t y seeking t o appeal t h e o r d e r . P i e r c e , 579 ~ . 2 d a t 761. H e r e , t h e record does n o t d i s c l o s e any n o t i c e having been s e n t t o t h e S h r i n e r s by t h e c l e r k a t any t i m e . Under P i e r c e , t h e t i m e f o r appealing t h e o r d e r of t h e is- t r i c t Court has n o t y e t begun t o run. This i s important i n formal probate proceedings because t h e M U P C allows t h e ~ i s t r i c t Court t o modify o r v a c a t e o r d e r s i n t h e proceedings w i t h i n t h e time allowed f o r appeal. S e c t i o n 72-3-318, MCA. Since t h e t i m e f o r appeal has n o t y e t begun t o run i n t h i s matter, n e i t h e r has t h e t i m e t o r e q u e s t t h e c o u r t t o modify o r v a c a t e t h e o r d e r e n t e r e d here. The S h r i n e r s can s t i l l r e q u e s t t h e D i s t r i c t Court t o modify o r v a c a t e t h e o r d e r t h e c o u r t e n t e r e d on t h e b a s i s of t h e i s s u e s r a i s e d by t h e S h r i n e r s . The above a n a l y s i s shows a p p e l l a n t was n o t given proper n o t i c e of t h e c o n t e n t t o Charles Holmes' w i l l o r t h e e n t r y of t h e o r d e r voiding two-thirds of t h e d e v i s e t o t h e S h r i n e r s . The e f f e c t of t h e improper n o t i c e i s t h a t t h e o r d e r i s s u e d by t h e D i s t r i c t Court does n o t bind a p p e l l a n t and t h e t i m e f o r a p p e l l a n t t o p e t i t i o n t h e D i s t r i c t Court t o modify o r v a c a t e t h e o r d e r has n o t elapsed. W e t h e r e f o r e remand t h e c a s e t o t h e D i s t r i c t Court t o consider any p e t i t i o n appel- l a n t might make t o modify o r v a c a t e t h e o r d e r e n t e r e d by t h e D i s t r i c t Court. Having determined t h e case must be r e t u r n e d 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, w e w i l l now consider t h e v a l i d i t y of t h e Mortmain S t a t u t e f o r t h e guidance of t h e District Court i n r e c o n s i d e r i n g t h e matter. Appellant bases i t s c h a l l e n g e s t o t h e s t a t u t e on c o n s t i t u t i o n a l grounds and a l s o argue t h e Mortmain S t a t u t e c o n f l i c t s w i t h p r o v i s i o n s of t h e Montana Uniform Probate Code, t h u s being impliedly repealed by t h e code. Addressing t h e i s s u e of implied re- p e a l of t h e Mortmain S t a t u t e by c o n f l i c t i n g p r o v i s i o n s i n t h e MUPC, w e f i n d t h a t no case l a w e x i s t s concerning t h e e f - f e c t of adoption of t h e Uniform Probate Code on a ~ o r t m a i n S t a t u t e . Only seven s t a t e s still have Mortmain S t a t u t e s . 52 Notre D a m e Lawyer 638, by Kymson F. DesJardins, a t 639 (1977). Of t h e seven s t a t e s with Nortmain S t a t u t e s , only Montana, Idaho and F l o r i d a have adopted t h e Uniform Probate Code. Neither Idaho nor Florida have r u l e d on the v a l i d i t y of t h e Mortmain S t a t u t e under the Uniform Code, nor d i d those s t a t e s adopt a provision i n t h e i r Uniform Probate Code comparable t o s e c t i o n 72-1-106, MCA, which s t a t e s : "Should any provision of t h i s code c o n f l i c t with any provisions of o t h e r s t a t u t e s of t h e s t a t e of Montana and r e l a t i n g t o probate, guardianship, o r o t h e r s u b j e c t s incorporated i n t h i s code and such o t h e r s t a t u t e o r s t a t - u t e s w a s o r w e r e adopted p r i o r t o t h e enact- ment of t h i s code, t h e provisions of t h i s code s h a l l be deemed t o be c o n t r o l l i n g . " To determine t h e v a l i d i t y of t h e Mortmain S t a t u t e under t h e Uniform Probate Code, we must t u r n t o general r u l e s of s t a - t u t o r y construction aided by s e c t i o n 72-1-106, MCA. I n S t a t e v. Langan (1968), 151 Mont. 558, 445 P.2d 565, t h e Court faced t h e problem of determining t h e e f f e c t of Uniform Drug Act on t h e general s t a t u t e s i n t h e Criminal Code. The Uniform Drug Act provided a comprehensive scheme f o r r e g u l a t i o n of t h e preparation, possession and s a l e of n a r c o t i c drugs. Under t h e s e f a c t s , t h e Court held t h e l e g i s l a t u r e intended t o cover t h e whole f i e l d of n a r c o t i c s r e g u l a t i o n under t h e Uniform Act. Where provisions of t h e general laws could n o t be harmonized t o give e f f e c t t o both t h e s p e c i f i c law i n t h e a r e a and general l e g i s l a t i o n passed p r i o r t o t h e adoption of t h e comprehensive l e g i s l a t i o n , t h e c o n f l i c t i n g provisions of t h e e a r l i e r law w e r e repealed. Langan, 151 Mont. a t 564. I n S t a t e v. Holt (1948), 1 2 1 Mont. 459, 194 P . 2 d X m t h e Court i n t e r p r e t e d t h e e f f e c t of S t a t e Liquor Control Act, a comprehensive piece of l e g i s l a t i o n enacted i n 1933 i n a n t i c i p a t i o n of a "day of j u b i l e e " following t h e r e p e a l of Eighteenth Amendment on s t a t e p r o h i b i t i o n laws n o t e x p r e s s l y repealed by t h e Control A c t . I n doing so, t h e Court s t a t e d t h a t while r e p e a l s by i m p l i c a t i o n a r e n o t favored, where an i r r e c o n c i l a b l e c o n f l i c t e x i s t s between e a r l i e r and l a t e r s t a t u t e s , t h e c o u r t s do n o t h e s i t a t e t o d e c l a r e t h e e a r l i e r s t a t u t e repealed by t h e l a t e r l e g i s l a t i v e a c t i o n . Halt, 121 Mont. a t 468. The Court f u r t h e r s a i d : " E s p e c i a l l y i s t h e r e p e a l of t h e p r i o r incon- s i s t e n t A c t h e l d t o be t h e i n e v i t a b l e r e s u l t where t h e l a t e r A c t i s a comprehensive A c t ' e s t a b l i s h i n g e l a b o r a t e i n c l u s i o n s and exclu- s i o n s of persons, t h i n g s and r e l a t i o n s h i p s o r d i n a r i l y a s s o c i a t e d w i t h t h e s u b j e c t . ' Sutherland on S t a t u t o r y Construction, para- graph 2018." Halt, 121 Mont. a t 467-68. See a l s o , S t a t e e x rel. Marlenee v. District Court (1979), Mont. , 592 P.2d 153, 36 St.Rep. 457. - Given t h e s e r u l e s of c o n s t r u c t i o n and t h e i r s p e c i f i c implementation under Montana c a s e law, t h e Mortmain S t a t u t e must be d e c l a r e d impliedly repealed by t h e adoption of t h e Montana Uniform Probate Code i f t h e s t a t u t e c o n f l i c t s with t h e Uniform Code i n such a manner a s t o be ". . . wholly i n c o n s i s t e n t , incompatible, and n o t capable of being recon- c i l e d " w i t h t h e code. S t a t e e x rel. Jenkins v. Carisch Theatres Inc. (1977), Mont . , 564 P.2d 1316, 1319, 34 St.Rep. 481. The Mortmain S t a t u t e allows o n l y one-third of a t e s t a - t o r ' s e s t a t e t o p a s s t o a c h a r i t y under a w i l l executed w i t h i n t h i r t y days of t h e t e s t a t o r ' s death. S e c t i o n 72-11- 334, MCA. When implemented, t h e s t a t u t e r e q u i r e s a s much as two-thirds of a t e s t a t o r ' s e s t a t e t o p a s s c o n t r a r y t o t h e t e s t a t o r ' s i n t e n t a s expressed i n a w i l l . The Montana Uniform Probate Code c l e a r l y r e q u i r e s t h e i n t e n t of t h e t e s t a t o r t o c o n t r o l t h e passing of h i s property. The Code s t a t e s : "The i n t e n t i o n of a t e s t a t o r a s expressed i n h i s w i l l c o n t r o l s t h e l e g a l e f f e c t of h i s d i s p o s i t i o n s . . ." Section 72-2-501, MCA. Section 72-1-102, NCA, provides: " ( 1 ) This code s h a l l be l i b e r a l l y construed and applied t o promote i t s underlying purposes and p o l i c i e s . " ( 2 ) The underlying purposes and p o l i c i e s of t h i s code a r e to: " ( b ) discover and make e f f e c t i v e t h e i n t e n t of a decedent i n d i s t r i b u t i o n of h i s property;" These s t a t u t e s obviously c o n f l i c t . The Uniform Probate Code mandates implementation of t h e t e s t a t o r ' s i n t e n t . The Mortmain S t a t u t e prevents implementation of t h e i n t e n t ex- pressed i n a w i l l as t o a s much as two-thirds of t h e testa- t o r ' s e s t a t e . J u d i c i a l construction cannot r e c o n c i l e t h e s t a t u t e s . I t i s impossible t o devise a system within t h e t e r m s of t h e Mortmain S t a t u t e and t h e Code t o give e f f e c t t o t h e i n t e n t of t h e t e s t a t o r on the one hand and allow two- t h i r d s of an e s t a t e t o pass contrary t o t h e express language of t h e t e s t a t o r ' s w i l l on t h e o t h e r hand. Applying t h e above r u l e s of s t a t u t o r y construction t o t h e Mortmain S t a t u t e subsequent t o t h e passage of t h e Uni- form Probate Code, we f i n d Mortmain must f a l l . The l e g i s - l a t u r e enacted t h e s t a t u t e i n 1893. Eighty-one years l a t e r t h e l e g i s l a t u r e enacted a comprehensive piece of l e g i s l a t i o n s p e c i f i c a l l y dealing with t h e a r e a covered by Mortmain. The comprehensive l e g i s l a t i o n c o n f l i c t s with t h e p r i o r enacted s t a t u t e . The l e g i s l a t u r e thus impliedly repealed t h e Mort- main S t a t u t e and we now s o hold. A t t h i s p o i n t w e deem it w i s e t o i n j e c t a note on t h e scope of t h e holding i n t h i s case. W e hold only t h a t the p r o v i s i o n s i n t h e Montana Uniform Probate Code mandating t h e implementation o f t h e t e s t a t o r ' s i n t e n t , impliedly r e p e a l a p r i o r enacted and c o n f l i c t i n g s t a t u t e - - t h e Mortmain S t a t u t e . By t h i s holding, we do n o t suggest t h i s same reasoning a p p l i e s t o s e c t i o n s w i t h i n t h e Code i t s e l f , such a s t h e safeguards provided f o r an omitted spouse o r p r e t e r m i t t e d c h i l d r e n , t h a t may r e q u i r e property t o p a s s i n a manner n o t set o u t i n t h e t e s t a t o r ' s w i l l . The r u l e s of c o n s t r u c t i o n d e a l i n g with t h e e f f e c t of subsequent comprehensive l e g i s - l a t i o n on e x i s t i n g laws a r e n o t t h e same a s those p e r t a i n i n g t o c o n s t r u i n g s e p a r a t e s e c t i o n s of comprehensive l e g i s l a t i o n . F u r t h e r , t h e l e g i s l a t u r e c l e a r l y intended such p r o v i s i o n s t o be exceptions t o t h e r u l e t h a t t h e t e s t a t o r ' s i n t e n t c o n t r o l s t h e d i s p o s i t i o n of h i s property. S e c t i o n 72-3-101, MCA. Having found t h e Mortmain S t a t u t e i m p l i e d l y repealed by t h e adoption of t h e Uniform Probate Code, w e need n o t ad- d r e s s t h e c o n s t i t u t i o n a l i s s u e s r a i s e d by a p p e l l a n t . The c a s e i s remanded t o t h e District Court with d i r e c - t i o n s t o allow a p p e l l a n t t o p e t i t i o n t h e D i s t r i c t Court t o modify o r v a c a t e t h e o r d e r e n t e r e d by t h e D i s t r i c t Court. I n considering any such p e t i t i o n , t h e District Court i s advised t h a t t h e adoption of t h e Montana Uniform Probate Code impliedly r e p e a l s s e c t i o n 72-11-334, MCA, Montana's Mortmain S t a t u t e . n W e concur: /" I ? A & Chief a u s t i c e $ f & 7 & J | August 27, 1979 |
b5cc99a8-ada3-454b-a6ce-bff16c99f0d1 | STATE v MURRAY | N/A | 14623 | Montana | Montana Supreme Court | N o . 14623 I N THE SUPREME C O U R T O F T H E STATE O F M O N T A N A 1979 T H E STATE OF M O N T A N A on t h e r e l a t i o n of LYNN MILLER, I n d i v i d u a l l y and a s Chair- man o f t h e Tax Relief Association, P l a i n t i f f s and Relators, FRANK MURRAY, Montana S e c r e t a r y of S t a t e , and t h e County Clerk and Recorders, e t a l . , Respondents and Defendants. Appeal from: D i s t r i c t Court o f t h e F i r s t J u d i c i a l District, Honorable P e t e r G. Meloy, Judge p r e s i d i n g . Counsel o f Record: For Relators: P e t a j a , Jacques & Smoyer, Helena, Montana Charles P e t a j a argued, Helena, Montana Leo Gallagher argued, Helena, Montana For Respondents: Hon. Mike Greely, Attorney General, Helena, Montana Mike McGrath argued, A s s i s t a n t Attorney General, Helena, Montana Richard P. Heinz, County Attorney, argued, Polson, Montana P a t r i c k F l a h e r t y , County Attorney, Boulder, Montana Mark Murphy, Deputy County Attorney, argued, Boulder, Montana Charles Graveley, County Attorney, Helena, Montana Denzil R. Young, County Attorney, Baker, Montana John Flynn, County Attorney, Townsend, Montana Submitted: September 2 0 , 1979 Decided: 8 C T 2 lgm F i l e d : .3%T 2 Mr. Justice John C. Sheehy delivered the Opinion of the Court. Lynn Miller appeals from an order of the Lewis and Clark County District Court, denying a request for a declaratory judgment interpreting section 13-27-103, MCA, and instructing the respondents to certify and accept certain signatures which appear on petitions supporting relators' proposed initiative. Miller also appeals from the same order granting respondents' motion to quash relators' alternative request for a writ of mandate compelling the respondents to certify and accept the signatures so that the initiative could be placed on the ballot at the next general election. Relators, Lynn Miller is chairman of the Tax Relief Association, a group organized for the purpose of placing a constitutional initiative expanding the state gambling laws on the 1978 general election ballot. Petitions for the purpose of collecting the necessary 31,672 signatures were duly approved by the Secretary of State as to form and style prior to June 30, 1978, and thereafter circulated among the electorate by members and supporters of the Association. The signed petitions were then turned into the respective County Clerk and Recorders who reviewed the submitted signatures and certified to the Secretary of State the signatures which they believed were qualified electors of the State by July 14, 1978. Shortly thereafter, the Secretary of State determined the petition drive had fallen short by 2,904 signatures. On August 15, 1978, the Association filed suit alleging approximately 3,500 signatures were wrongfully disqualified. Specifically, relators requested a declaratory judgment -2- declaring: (1) that the signatures on an initiative petition need not be identical to satisfy the statutory requirement of section 37-116, R.C.M. 1947, that requires the petition be signed in substantially the same manner as on the voter registry card; (2) that the address given by a petition signer need not be identical to that found on the voter registry card, so long as the address is still within the county and legislative district in which the petition is submitted for certification; and (3) that certain signatures rejected by the Clerks and Recorders be declared valid, and direct the Montana Secretary of State to accept them and to certify the initiative as a ballot issue for the next general election. In the alternative, appellants sought a writ of mandate directing: (1) the County Clerk and Recorders to recount the signatures on the petitions filed in the respective counties and to certify those signatures which are substantially similar to the signatures on the voter registry cards or to show cause why; (2) to certify those signatures which were accompanied by an address not identical to that on the voter registry cards but which are still within the county and legislative district in which the petition was submitted for certification or to show cause why; (3) the Montana Secretary of State to accept the recertified petitions and to certify the initiative as a ballot issue in the next general election if the required number of signatures have been secured or to show cause why. An alternative writ of mandate was issued by the District Court. A show cause hearing was held on August 29, 1978, at which time arguments were heard and motions were made to dismiss the complaint and quash the writ of mandate. The District Court by an order entered September 5, 1978, denied the declaratory relief and writ of mandate and granted respondents' motion to quash. The Court based its denial of declaratory relief on the reasons that the controversy would become moot before a factual determination could be made and that it is the function of the legislature and not the judiciary to resolve the question of petition signature qualifications. The denial of mandate relief was for the reason that in carrying out their duties, the County Clerks must exercise their discretion to determine whether a petition is signed in substantially the same manner as the voter registry card and mandate will not issue to control discretion. We affirm. Relators present three issues for our review: (1) Did the District Court err in refusing to issue a declaratory judgment? (2) Did the District Court err in refusing to issue the writ of mandate as asked? (3) Is it necessary for the Supreme Court to enter a declaratory judgment? We find that the first issue in this case is controlled by the last issue which will be addressed first and the mandate issue discussed last. This Court will not pass upon moot questions. State v. Thompson (1978) , Mont . , 576 P.2d 1105, 35 St.Rep. 343; Bell v. State Highway Commission (1954), 128 Mont 122, 271 P.2d 425; Adkins v. City of Livingston (1948), 121 Mont. 528, 194 P.2d 238. A question which is moot is not a proper subject for a declaratory judgment. See Chovanak v. Mathews (1948), 120 Mont. 520, 188 P.2d 582. A moot question is one which existed once but because of an event or happening, it has ceased to exist and no longer presents an actual controversy. In the present case, the Forty-Sixth Montana Legislature has significantly modified the statute on which relators depend. See Chapter 494, Laws of 1979. As a result, it would be superfluous for this Court to issue a declaratory judgment as requested by relators. The controversy cannot be repeated because the law has been decisively changed. -4- Not only has the specific statute in controversy been changed, but so have the initiative procedures that will be used for the ballot in 1980. Under the new law, the procedures to be used to petition for an initiative to be on an election ballot differ greatly from the process used for the 1978 elections. See Chapter 400, Laws of 1979. Even though a sufficient number of valid signatures may in fact exist, there was not sufficient time available to qualify the matter for the 1978 ballot and we find no means of legal or equitable relief is now available. For these reasons, this Court finds no basis to issue the declaratory relief sought by the relators. A writ of mandate may be issued "to compel the performance of an act which the law specially enjoins - as - a duty resulting from an office . . . " (Emphasis added. ) Section 27-26-102(1), MCA. "Mandamus is an extraordinary remedy which lies to compel only a 'clear legal duty.'" State ex rel., State Tax, Etc. v. Montana Bd. (1979), - Mont . I 593 P.2d 747, 749, 36 St.Rep. 849, 851. The difficulty here is that there was not a legal duty on the part of the Secretary of State under section 13-27-304, MCA, to accept any signatures which were not forwarded by the County Clerk and Recorders and verified as registered electors. Likewise, the Clerk and Recorders do not have a duty to accept and certify signatures submitted to them as a matter of course. The Clerk and Recorders are only required to certify to the Secretary of State the number of signatures they find to be valid. In order to decide if a signature may be counted, the Clerk and Recorder must determine if the signatures on the petition are "signed in substantially the same manner" as the signatures on the voter registry cards. Section 13-27- 103, MCA. To satisfy this statutory requirement, the individual -5- Clerk and Recorders must exercise discretion. Mandate does not lie to control discretion, absent an abuse thereof. Burgess v. Softich (1975), 167 Mont. 70, 535 P.2d 178. Addresses aid the Clerk and Recorders in the certification process. The only purpose of the address is to aid in the identification of the signer so that the Clerk can then locate the signer's voter registration for the purpose of certifi- cation. State v. Board of Examiners (1952), 125 Mont. 419, 239 P.2d 283. However, if it is the belief of the individual Clerk and Recorder that the signature differs from that on the voter registry card, then the signature is not valid for this means of signature certification. This function of the Clerk and Recorder is discretionary, and we hold that the District Court did not err in refusing to issue a writ of mandate as requested by the relators. The order of the District Court is affirmed. Justice v We Concur: Chief Justice tices | October 2, 1979 |
3bf1e38b-5e8a-4d50-b630-4434b96d2a38 | MARRIAGE OF AANENSON v AANENSON | N/A | 14553 | Montana | Montana Supreme Court | N o . 14553 IN THE SUPHEME C o m OF THE S T - OF M3NTANA 1979 IN IIE THE M?UWAGE OF ROBIN JAY AANENSON, Petitioner and Appellant, -vs- DENISE ANN AANENSON, Respondent and Respondent. Appeal fm: District Court of the Eighteenth Judicial District, Honorable W . W . Lessley, Judge presiding. Counsel of m r d : For Appellant: Brown, Pepper & Kmrmers, Bozeman, Mntana Gene I . Brawn argued, Bozenaan, IWntana For Respondent : A . Michael Salvagni argued, B o z m , Mntana Sdmitted: March 20, 1979 Decided: AUG 1.5 l 9 n Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Husband appeals from the judgment of the Gallatin County District Court dissolving his marriage and making provisions for property distribution, maintenance award, and an award of attorney fees. The parties were married on August 16, 1975. No children were born as issue of the marriage. On May 23, 1978, the husband filed a petition seeking a dissolution of the marriage and an equitable property distribution. On July 14, 1978, the wife filed a cross-petition seeking dissolution of the marriage, a property distribution, maintenance award, and attorney fees. The husband and wife were the only witnesses who testified at the hearing. Husband is a 21 year old maintainer for the Milwaukee Railway, and has a high school education. At the time this action was tried, he was earning $1,300 a month, and he netted approximately $800 a month after deductions. He testified that he spent approximately $200 a month for living expenses. The wife is 22 years old, and is employed by the Manhattan State Bank as a bookkeeper-teller. She has a high school education and one year of vocational training as a medical assistant. At the time this action was tried, she was taking home approximately $445 a month. She testified that she had approximately $260 in expenses each month, excluding housing. She further testified that she would not be able to remain in the couple's mobile home unless she was provided with at least $100 a month maintenance. The testimony of the parties established that the marital estate consisted of the following assets: 1. Four unimproved lots in Three Forks, Montana. Parties owed $6,100 on these lots, the valuation of which was not established at trial. 2. A 1976 Mercury valued at $4,795, with $500 left to be paid on this car. 3. A 1964 Ford pickup valued at $1,000. The truck was free and clear. 4. A 1975 mobile home, on which there was a balance of $11,000 due on the purchase price. Monthly payments of $178.81 were required on the purchase price for the next seven years. Petitioner testified that the equity in the mobile home was approximately $4,000. 5 . Various items of personal property. In addition to entering a decree dissolving the marriage, the District Court ordered the 1964 Ford pickup to the husband and the 1976 Mercury to the wife. The four unimproved lots were to be sold, and the proceeds of the sale were to be used to pay the $6,100 loan at the bank. The court also ordered that if the proceeds from the sale produced an excess after payment of the loan, the excess be first applied to the balance owing on the 1976 Mercury with the remainder to be divided equally between the parties. The parties stipulated to the distribution of the various items of personal property. With respect to the mobile home and the wife's request for maintenance, the Court rendered the following conclusion of law: "That the Respondent be awarded the mobile home subject to the condition that the Petitioner pay to the Respondent the amount of $100.00 per month of which $89.40 shall be applied to the monthly payment of $178.81 and the remainder to be used by the Respondent for her maintenance, and further subject to Petitioner's continuous equity in the mobile home to be paid Petitioner by Respondent in the event of the following: Upon Respondent's remarriage, upon Respondent's sale of the mobile home, upon the balance owing on the mobile home being paid in full by Respondent or until further order of this Court and upon the happening of any said event the Petitioner shall not be further required to pay to Respondent the sum of $100.00 per month." The court further ordered the petitioner to pay the wife's reasonable attorney fees. The husband contends first, that the District Court abused its discretion and erred in the distribution of the marital assets; second, that the District Court erred in the award of $100 a month for maintenance; and third, that the District Court erred in the award of reasonable attorney fees to the wife. Section 40-4-202 MCA, controls District Courts in the equitable apportionment of marital assets. Section 40-4-203 MCA, controls District Courts on the issue of whether or not to grant a maintenance award. Under section 40-4-202 MCA, the District Court is authorized to equitably apportion the marital assets between the parties. The statute requires the District Courts to consider the criteria expressly enumerated in the statute. Under section 40-4-203(1) MCA, maintenance may be awarded if the spouse seeking maintenance lacks sufficient property to provide for his reasonable needs and is unable to support himself through appropriate employment. Section 40-4-203(2) MCA establishes a list of guidelines or factors that the District Court is required to consider. Husband first contends that the District Court made a completely one-sided distribution of the marital assets. He argues that the wife received the 1976 Mercury and the mobile home, while he received only the 1964 Ford pickup. He argues that an equitable distribution of the marital assets should have resulted in an equal division of the assets. In essence, husband contends that the assets, including the mobile home, should have been reduced to cash and then divided equally between the parties. He cites no authority. Although the District Court may equally divide the marital assets, such a distribution is not mandated by section 40-4-202 MCA. See Kuntz v. Kuntz (1979), Mont . , 593 P.2d 41, 36 St.Rep. 662. Section 40-4-202 is flexible and it vests a good deal of discretion in the District Court. In Re Marriage of Jorgensen (1979), Mont . , 590 P.2d 606, 609, 36 St.Rep. 233, 237. We have stated, before and after the adoption of the statute, that each case must be looked at individually, with an eye to its unique circumstances. Jorgensen, 590 P.2d at 609; Cook v. Cook (1972), 159 Mont. 98, 495 P.2d 591. -4- A District Court has far-reaching discretion in resolving property divisions, and its judgment will not be altered unless a clear abuse of discretion is shown. Kaasa v. Kaasa (1979), Mont . , 591 P.2d 1110, 1113, 36 St.Rep. 425, 428; Kramer v. Kramer (1978), Mont . , 580 P.2d 439, 35 St.Rep. 700; Eschenburg v. Eschenburg (1976), 171 Mont. 247, 557 P.2d 1014. The test 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? Kuntz, 593 P.2d at 43; Jorgensen, supra; Kraner, supra; Zell v. Zell (1977) , Mont. , 570 P.2d 33, 34 St.Rep. 1070; Berthiaume v. Berthiaume (1977) , Mont . , 567 P.2d 1388, 34 St.Rep. 921. The duty of the District Court was to consider the statutory criteria and equitably apportion the marital assets. We find that the District Court did so. The District Court considered the duration of the marriage, the age, occupation, amount and sources of income, vocational skills, employability, estate, and the liabilities and needs of each of the parties. The distribution of one asset, the mobile home, lies at the heart of the husband's argument. He claims that the Court allowed the wife to retain possession of the mobile home, in which there was $4,000 equity at the tine this action was tried, for such time as she desired. He further argues that by virtue of the $100 a month maintenance award, he is required to pay one-half of the monthly payment on the mobile home. The court order, however, protected the husband's equity in the mobile home. The order of maintenance directed that $89.40 of the $100 be applied to the monthly payment of $178.81 on the mobile home. The net effect of the court order was to protect the petitioner's present and future one-half equity in the mobile home. -5- The wife was not awarded possession of the mobile home for such time as she desired; but rather the court order conditioned the award. Upon the occurrence of one or more of four events, as specified in the court order, the wife must pay the husband his share of the equity in the mobile home. This award was not arbitrary nor beyond conscientious judgment as reason. An award of maintenance is related only to the needs of the spouse seeking maintenance. Jorgensen, 590 P.2d at 611; Johnsrud v. Johnsrud (1977), Mont . , 572 P.2d 902, 34 St.Rep. 1417; Cromwell v. Cromwell (1977), Mont . I 570 P.2d 1129, 34 St.Rep. 1193. The District Court has wide discretion in the determination of maintenance awards, and that discretion is not to be disturbed unless clearly erroneous. Jorgensen, 590 P.2d at 611. In the instant case, the District Court specifically found the wife lacked sufficient property to provide for her reasonable needs and was unable to support herself. This finding is supported by the record. In compliance with the requirements of section 40-4-203 MCA, the District Court awarded maintenance in the amount of $100 a month. We hold that the District Court properly exercised its discretion in awarding maintenance to the wife. Last, the husband contends that there was no showing of necessity, and that the court abused its discretion in granting attorney fees to the wife. Section 40-4-110 MCA controls District Courts concerning the issue of attorney fees. This statute vests in the District Court the discretion to award costs and attorney fees in a dissolution proceeding. Brown v. Brown (1978), Mont . , 587 P.2d 361, 35 St.Rep. 1733, 1740. Clearly, there was a necessity for the husband to pay the attorney fees in this case. -6- The District Court found that the respondent lacked sufficient property to provide for her reasonable needs, and that she was unable to support herself without a maintenance award. Additionally, the wife testified she did not have the money with which to pay her attorney fees. The record also contains testimony establishing that the husband was taking home approxi- mately $800 a month, and that the wife was taking home approximately $445 a month. The District Court was adequately appraised of the relative financial means of the parties, and sufficient evidence supported the court's finding of an award of attorney fees. We note, however, that a showing must be made on the reasonable- ness of attorney fees; and that a hearing must be held on attorney fees. Downs v. Downs (1979), Mont . , 592 P.2d 938, 940, 36 St.Rep. 577, 581; Marriage of Barron (1978), Mont . I 580 P.2d 936, 35 St.Rep. 891; First Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 547 P.2d 1328; Crncevich v. Georgetown Rec. Corp. (1975), 168 Mont. 113, 541 P.2d 56. The reasonableness of the attorney fees claimed must be shown by evidence. An award of attorney fees must be based on a hearing allowing for oral testimony, the introduction of exhibits, and an opportunity to cross-examine in which the reasonableness of the attorney fees claimed is demonstrated. Green v. Green (1979), Mont. , 593 P.2d 446, 450, 36 St.Rep. 708, 713; State Highway Comrn'n. v. Marsh (1978), Mont . , 575 P.2d 38, 35 St.Rep. 105. Guidelines have been established concerning the factors to be considered in determining the proper amount of attorney fees to be awarded. First Security Bank of Bozeman v . Tholkes, 169 Mont. at 429-430; Crncevich, supra. The cause is remanded to the District Court for a hearing, consistent with the authority cited, to determine the amount of reasonable attorney fees to be paid by the petitioner. The judgment of the District Court is otherwise affirmed. Husband is to pay costs on appeal. ................................. Justice We Concur: Chief Justice | August 15, 1979 |
0add6876-452e-4793-a072-e9896f287e90 | FLATHEAD HEALTH CENTER v COUNTY OF | N/A | 14554 | Montana | Montana Supreme Court | No. 14554 I N THE S U P R E M E C O W O F THE STATE: O F MXJTANA 19 79 FLATHEAD l3EAliTH Cl3JIER et a l . , Plaintiff and Appellant, -vs- CCNNIY O F FZATHEAD et al., Defendants and Respondents. Appeal frm: D i s t r i c t Court of the Eleventh J d i c i a l D i s t r i c t , Honorable Jams M. Salansky, Judge presiding. Counsel of Record: For Appellant: Smith Law Firm, H e l e n a , Wntana Hash, Jellison and O'Brien, Kalispell, Pbntana For Respondents: Leaphart Law Firm, H e l e n a , Wntana Randy K. Schwickert, Kalispell, Wntana Sutmitted on briefs: March 21, 1979 Decided: AUG - 9 1979 Filed : m c - 9 5.379 Mr. Justice John C. Sheehy delivered the Opinion of the Court. Flathead Health Center, doing business as Kalispell Regional Hospital (hereinafter referred to as the "hospital") appeals from an order of the Flathead District Court granting summary judgment to the County of Flathead and the Montana and Department of SociaVRehabilitation Services (hereinafter referred to as "County" and "SRS" respectively) in an action for declaratory judgment. The hospital provides medicaid services, pursuant to Title XIX of the Social Security Act, to qualified persons in the County of Flathead. As compensation for providing medicaid services to eligible individuals for the fiscal years 1976 through 1979, SRS and the County have paid the hospital pursuant to the "reasonable cost" formula of the medicaid program. The hospital contends that this form of reimbursement is insufficient compensation and as a result has submitted to the County a demand for payment under a "full and adequate" formula (i.e. the standard charges of the hospital minus the reasonable costs already paid by respondents). Respondents maintain that the hospital has been paid in full pursuant to the medicaid program. Following briefs by the parties in support of their respective motions for summary judgment, the District Court heard oral arguments on April 28, 1978 and thereafter entered its findings of fact and conclusions of law and entered judgment for the respondent on September 5, 1978. The District Court concluded that federal law governed and rejected the arguments of the hospital that the County and SRS were required by law to compensate further the hospital for services rendered to medicaid patients in Flathead County. We affirm. The hospital presents 3 issues for our review: 1. Whether Title XIX (medicaid) of the Social Security Act limits reimbursement for hospital care of eligible, indigent patients to "reasonable costs" defined in federal regulations? 2. Whether section 53-3-103 MCA requires the County to pay to the hospital the difference between its "full and adequate costs" and the "reasonable cost" already paid to the hospital under medicaid? 3. Whether SRS and the County of Flathead are bound by implied contractual and equitable principles to pay "full and adequate" costs to avoid unjust enrichment? The medicaid program, established in 1965 by Title XIX of the Social Security Act is a program of federal reimbursement to states which provide medical assistance to needy persons. A state desiring to participate in the medicaid program must submit to the Department of Health, Education and Welfare (HEW) a plan conforming to the requirements of the Social Security Act. If the plan is approved by HEW, the state is eligible to receive reimbursement. 42 U.S.C. 61396. Montana began participating in the program in 1967, SRS being charged with supervision thereof. Section 53-6-111 MCA. Beginning in the same year, SRS entered into written contracts with various hospitals throughout the State. Pursuant to these contracts, SRS agreed to pay to the hospitals by supplement "full and adequate costs11 to the extent such costs exceeded "reasonable costs". Contrary to medicaid regulations, these contracts were never approved by HEW as a part of Montana's medicaid plan, however, they were construed by this Court to obligate SRS to reimburse the hospitals to the extent of "full and adequate costs as represented by the standard charges of the hospital." See St. James Community Hospital v. Dept. of SRS (1979), Mont . I P . 2d , 36 St.Rep. 941; Montana Children's Home, et al. v. Dept. of SRS (1979), Mont . I P.2d I 36 St.Rep. 507; Montana Deaconess Hosp. v. Dept. of Soc. and R . S. (1975), 167 Mont. 383, 538 P.2d 1021. t Title XIX of the Social Security Act, 42 U.S.C. §139&(a) (13) (D) provides: "(a) A State plan for medical assistance must- . . . "(13) provide-. . . "(D) for payment of the reasonable cost of inpatient hospital services provided under the plan, as determined in accordance with methods and standards . . . which shall be developed by the State and reviewed and approved by the Secretary and (after notice of approval by the Secretary) included in the plan, except that the reasonable cost of any such services as determined under such methods and standards shall not exceed the amount which would be determined under section 1395x(v) of this Title as the reasonable cost of such services for purposes of subchapter XYIII of this chapter; . . .I1 42 U.S.C. S1396j(a). The regulations promulgated by HEW pursuant to this statute provides in part: " (a) State plan requirements. A State plan for medical assistance under title XIX of the Social Security Act must: . . . "(8) Provide that participation in the program will be limited to providers of service who accept, as payment -- in full, the amounts paid in accordance 5 t h the fee structure. (Emphasis added.) 45 C.F.R. S250.30 (1976) . The next year the above cited regulation was redesignated 42 C.F.R. s450.30. In 1978, this same section was again redesignated but this time with "clarifying editorial changes." These changes aid in determining the meaning of the regulation for the purposes of this appeal. The purpose of the changes was to "simplify and clarify the existing regulations without making any substantive change." 43 Fed. Reg. 45176 ' . (1978). The clarified regulation states quite simply: "A State plan must provide that the medicaid agency must limit participation in the medicaid program to providers who accept, as payment in full, the amounts paid by the agency." 42 C.F.R. S447.15 (1978) . Participation in the federal medicaid program is voluntary, but if a state elects to participate, it must comply with the requirements of the federal statutes and regulations in order to remain eligible for federal funds. See, Shea v. Vialpando (1974), 416 U.S. 251, 253, 94 S.Ct. 1746; King v. Smith (1968), 392 U.S. 309, 317, 88 S.Ct. 2128; Aitchison v . Berger (N.Y. 1975), 404 F.Supp. 1137, 1141. Montana as a participant in the medicaid program must conform to the Social Security Act and all valid regulations promulgated thereunder as long as it remains in the program. Contrary to appellant's assertion, the above cited regulation does prohibit supplementing the payments made under the "reasonable cost" formula from any source. In Johnson's Professional Nursing Home v. Weinberger (5th Cir. 1974), 490 F.2d 841, 844, the Court stated: "Nothing in the statutory scheme or in the statutory history indicates that Congress meant to preclude the reasonable cost standard as a measure of reasonable charges consistent with efficiency, economy, and quality of care. The statutory limit, reasonable charges, etc., applies to - all state medicaid payments." (Emphasis added.) Federal law and regulations clearly proscribe supplementing State medicaid payments beyond the amounts specified by the "reasonable costs" formula. Under the second issue the appellant contends that section 53-3-103 MCA (1979), mandates the County to pay to the hospital the balance due for services rendered to midicaid patients after receiving credit on account for SRS medicaid payments. The statute reads in pertinent part as follows: "Medical aid and hospitalization for indigent. (1) Except as provided in other parts -- of this title, medical aid and hospitalization for county residents and nonresidents within the county unable to provide these necessities for themselves are the legal and financial duty and responsibility of the board of county commissioners and are payable from the county poor fund.. , ." (Emphasis added. ) The emphasized language in the cited statute was added by amendment in 1965. It was in that year that the State Legislature implemented a program of medical assistance for the aged, by enacting Section 1, Chapter 212, Laws of 1965 which was codified as sections 71-1501 through 71-1510, R.C.M. 1947. Both of these measures were enacted in the same section. It is apparent that the additional language refers to,the new provisions of Chapter 15, Title 71 providing medical aid to the aged. In 1967, the medicaid program was implemented in section 1, Chapter 325, Laws of 1967. These same provisions which implemented medicaid for Montana also repealed sections 71-1501 through 71-1510, R . C . M . However, no change was made in section 53-3-103 MCA in 1967 (formerly section 71-368 (1) (2) (4) (5), R.C.M. 1947). Therefore, in the absence of any repealing language, it is presumed that this language can only refer to the new Medicaid program which was codified under the same title. Action by the recent legislature affirms this interpretation. House Bill No. 692 added the following emphasized language to section 53-3-103 MCA: "(3) The department may promulgate rules to determine under what circumstances persons in the county are unable to provide medical aid and hospitalization for themselves, including the power to define the term 'medically needy'. However, the definition may not allow payment by a county for general assistance - medical for persons whose income exceeds 300% of the limitation for obtaining regular county general relief assistance or for persons who are eligible for medicaid in -- -- - accordance with Title 53, Chapter 6, - - part 1, - or for persons who have the right or are entitled to ------ medical -- aid and hospitalization -- from the federal government -- or any agency thereof." Section 1, Chapter 707, Laws of 1979. The House Bill states that it was introduced at the request of the Code Commissioner for clarification purposes only, to ensure that medicaid eligible persons may not receive County medical assistance. This Court has no quarrel with appellant's contention that the County has an obligation to provide medical assistance to the indigent under section 53-3-103 MCA. The Court does differ however, with the contention of the appellant as to the financial extent of reimbursement from federal sources when the county assumes the obligation. Contrary to appellant's assertion that the regulations promulgated by SRS are not a substitute for the County's obligation to provide medical services to the indigent but rather is one of many resources which must be applied to reduce the County's obligation, this Court views the regulations differently. The ARM regulation refers to "eligibility" as well as "medical resources." The regulation states in pertinent part: "Eligibility, Medical Resources " (1) County Medical programs are not to be considered resources. Therefore, applicants or recipients who have access to medical resources will be required to - use such resources. Such resources include but are not limited to: "(a) Medical Assistance (Medicaid);" (Emphasis added.) Section 46-2.10(38)-~102030, ARM. In order for a person to qualify for medicaid, that person must be eligible, and to be eligible a person must qualify under a state plan which has been approved by the Director of HEW. Such a plan must agree with all the statutes and regulations promulgated under the Social Security Act. In other words, use of the plan implies legal use under federal regulations which in turn means sole use by definition. Appellant also contends that such a construction will result in higher charges to the cash-paying public in violation of 42 U.S.C. §1395x(v) (1) (A). This argument was addressed by this Court in St. James Community Hospital v. Dept. of SRS, supra, 36 St-Rep. at 944: "We note . . . that the 'reasonable cost' limitation under the federal statute and regulation is designed to encourage 'economy, efficiency and quality of care' . . . (citations omitted.) It is not for this Court to modify this general policy by adopting a different standard than that intended by Congress." Hospital's remedy, if one is to be obtained, is at the federal level. Appellant's last issue is also without merit. The principle underlying the implied contract doctrine is that one person should not be permitted to be unjustly enriched at the expense of another, but should be required to make restitution for property or benefits received where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly. 66 Am.Jur.2d Restitution and Implied Contracts S3 (1973). See also, Brown v. Thornton (1967), 150 Mont. 150, 156, 432 P.2d 386, 390. The circumstances on the record do not justify payment be made based on any other formula than the "reasonable costs" formula. The decision of the District Court is affirmed. Justice We Concur: | August 9, 1979 |
e22adaea-61d1-4937-b67e-a63455219633 | HOPPER v HOPPER | N/A | 14612 | Montana | Montana Supreme Court | No. 14612 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 VOGA HOPPER, Plaintiff and Respondent, -vs- EDWIN S. HOPPER, Defendant and Appellant. Appeal from: District Court of the Eighteenth Judicial District, Honorable Jack Shanstrom, Judge presiding. Counsel of Record: For Appellant: Hoyt and Lewis, Great Falls, Montana For Respondent: Lyman H. Bennett, 111, Bozeman, Montana Submitted on briefs: July 5, 1979 Decided: SEF L ; 1979 M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. his is an 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 Eighteenth J u d i c i a l D i s t r i c t , dated September 19, 1978. The D i s t r i c t Court upheld i t s previous d e n i a l of a p p e l l a n t Edwin Hopper's a l t e r n a t i v e motions t o vacate and s e t a s i d e a property settlement and support agreement incor- porated i n t h e J u l y 19, 1976 decree d i s s o l v i n g t h e marriage of Edwin and Voga Hopper. This Court ordered t h e matter submitted on t h e b r i e f s and decides t h e case without o r a l argument. The p a r t i e s t o t h i s appeal w e r e married i n t h e S t a t e of Idaho i n 1969. I n t h e f a l l of 1975 t h e p a r t i e s , r e s i d i n g i n Bozeman, Montana, decided t o o b t a i n a d i s s o l u t i o n of t h e marriage and o r a l l y agreed between themselves t o a d i v i s i o n of t h e i r property. Out of t o t a l assets of a value of approxi- mately $200,000, v i r t u a l l y a l l of which had been contributed t o t h e marriage by Edwin, Voga was t o r e c e i v e $50,000 cash p l u s an automobile and c e r t a i n f u r n i s h i n g s from t h e house. A t t h e t i m e Edwin had been employed f o r some 1 4 y e a r s as t h e exclusive s a l e s r e p r e s e n t a t i v e f o r Tony Lama Boot Company f o r a t e r r i t o r y encompassing s e v e r a l western s t a t e s , a job which required extensive t r a v e l i n g . Shortly a f t e r C h r i s t - m a s , Edwin l e f t Bozeman i n connection with h i s business, and Voga, who was n o t employed o u t s i d e t h e family home, con- s u l t e d an a t t o r n e y regarding t h e d i s s o l u t i o n . Edwin testi- f i e d t h a t a f t e r t h i s consultation, Voga increased her s e t t l e - ment demands t o $85,000 cash p l u s t h e o t h e r property, Subsequently, Edwin and Voga together m e t with her a t t o r n e y a t which t i m e t h e p a r t i e s were advised t h a t i f they could agree upon a property settlement and an uncontested d i s s o l u - t i o n , they would save on expenses f o r a t t o r n e y f e e s . I t w a s decided t h a t her a t t o r n e y would r e p r e s e n t both p a r t i e s i n t h e d i s s o l u t i o n proceedings. Edwin and Voga t h e r e a f t e r negotiated t h e terms of a property agreement and consulted with Edwin's f i n a n c i a l advisor, M r . Terry Lynn, regarding t h e t a x consequences of t h e i r proposed settlement. Their a t t o r n e y d r a f t e d a w r i t t e n property settlement and support agreement t o r e f l e c t t h e agreement reached by t h e p a r t i e s . The agreement was reviewed and s l i g h t l y modified by Terry Lynn and then returned t o t h e a t t o r n e y who prepared t h e f i n a l d r a f t . Edwin signed t h i s f i n a l d r a f t without reading it. A p e t i t i o n f o r d i s s o l u t i o n of marriage was f i l e d by Voga i n t h e 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 on A p r i l 9, 1976, and a summons served on Edwin A p r i l 16, 1976. Edwin f a i l e d t o appear a t t r i a l , and h i s d e f a u l t w a s entered by t h e District Court i n a J u l y 19, 1976, decree g r a n t i n g t h e d i s s o l u t i o n and incorporating t h e t e r m s of t h e property settlement and support agreement. The D i s t r i c t Court made t h e following finding of f a c t : " I X . That t h e p a r t i e s t o t h i s a c t i o n have reached a property settlement and support agreement and f i l e d t h e s a m e t o be incorporated i n t h i s Decree, and t h e same is n o t unconscionable." Under t h e t e r m s of t h i s property settlement and support agreement, Voga was t o r e c e i v e various a s s e t s of t h e mar- r i a g e . Furthermore, Edwin was o b l i g a t e d t o pay her t h e sum of $64,632 amortized over a period of 1 2 1 months i n monthly i n s t a l l m e n t s of $850, with i n t e r e s t a t 10 percent annually. H e w a s a l s o required t o provide s e c u r i t y f o r t h e payment of t h i s o b l i g a t i o n . The D i s t r i c t Court awarded t h e a t t o r n e y $2500 a s reason- a b l e a t t o r n e y f e e s and made a f u r t h e r f i n d i n g of f a c t t h a t : "IV. The plaintiff is unemployed and is not trained for any employment other than the keep- ing of the records of the parties with respect to property of the parties . . ." Somewhat at odds with this finding is the fact that Voga began work as a receptionist in a dentist's office at a salary of $450 per month the day following the date of the decree, a position she acknowledged she had obtained a short time prior to the dissolution of marriage. Edwin first obtained separate counsel in November 1976 after the law firm that represented the parties in their dissolution attempted to execute on his property to collect attorney fees awarded in the decree. This dispute was settled out of court. Edwin regularly made the designated monthly payments to his former spouse and nothing further was done by either party in connection with the decree until September 1, 1977, when Voga filed an affidavit charging Edwin with contempt of court for failure to provide security for payment of the sum required to be paid to her under the property settlement agreement and decree. An order to show cause why he should not be held in contempt was issued by the Honorable W. W. Lessley on September 6, 1977. The Honorable Jack D. Shanstrom assumed jurisdiction on Septem- ber 13, 1977, pursuant to an order granting Edwin's motion for disqualification. On November 7, 1977, Edwin filed an answer to the order to show cause and a motion for relief from the July 19, 1976 decree, together with an affidavit alleging that the terms of the property settlement and support agreement incorporated into the decree were uncon- scionable. Following several continuances, a hearing was held on the order to show cause on December 9, 1977. During the examination of Voga Hopper as an adverse witness, counsel for appellant initiated an inquiry touching upon elements of fraud allegedly committed upon the District Court at the time of the dissolution proceeding. This line of question- ing was objected to by counsel for Voga on the grounds that no specific allegations of fraud had been previously alleged in any of the pleadings. Following oral argument by counsel, the District Court continued the hearing allowing Edwin to file additional pleadings setting forth specific allegations of fraud. On April 12, 1978, Edwin, appellant herein, filed alternative motions pursuant to Rule 60(b), M.R.Civ.P. These motions requested the District Court to set aside that portion of the decree of dissolution relating to the property settlement and support agreement on grounds of fraud on the court, fraud in the inducement, and change of circumstances rendering the provisions unconscionable. Respondent's attorney then filed a motion asking the District Court to overrule appellant's motions for the reason that appellant's motions were not filed within 60 days after judgment as required by Rule 60(b), M.R.Civ.P., and for the further reason that no hearing was held on appellant's motions within ten days after the filing of the alternative motions, as is required by Rule 60 (c) and Rule 59 (d) , M.R.Civ.P. Respondent's motion also requested a determination of the issues before the court. The District Court issued an order on July 15, 1978, denying appellant's alternative motions. On August 4, 1978, appellant's attorney filed a motion, supported by affidavit, to vacate the order or judgment as there had been no hearing on the matter. The motion to vacate was then set for a hearing on the merits and the hearing was held on August 31, 1978. At the commencement of this hearing, counsel for respondent contended that the issue of fraud was not properly before the District Court because the court lacked jurisdic- tion to hear the issue by virtue of Rule 60(b), M.R.Civ.P. The District Court permitted the testimony, as witnesses had been brought in from outside the area, and counsel for respondent participated in the hearing, preserving his jurisdictional challenge. Thereafter, on September 19, 1978, the District Court issued findings of fact and conclu- sions of law as proposed by counsel for respondent. Edwin Hopper appeals from these findings of fact and conclusions of law upholding the denial of his alternative motions to vacate the property settlement provisions of the decree of dissolution. The issues presented may be summarized as follows: 1. Is paragraph I1 of the "property settlement and support agreement" a provision for the disposition of prop- erty or a provision for the payment of maintenance and support? 2 . Did the District Court have jurisdiction to con- sider whether fraud had been committed upon the court? 3. Was the District Court's conclusion that no fraud had been committed upon the court supported by substantial evidence and the law? 4. Did the District Court have jurisdiction to con- sider whether fraud had been committed upon the appellant? 5 . Did the ~istrict Court have jurisdiction to deter- mine the conscionability of the provisions of the property settlement and support agreement? The parties executed a written separation agreement which was incorporated into the decree of dissolution. Appellant contends that paragraph I1 of this instrument, set forth below, is a provision for the maintenance of his former spouse. Respondent argues that the provision contern- plates a distribution of property. The agreement provides in pertinent part: "Additionally, in full and final settlement of the Second Party's obligation to support and main- tain the First Party, the Second Party shall pay to the First Party or her designated beneficiary, the sum of Sixty Four Thousand Six Hundred Thirty Two and no/100 Dollars ($64,632.00) to be amor- tized over a period of one hundred twenty one (121) months, bearing interest at the rate of ten percent (10%) per annum and payable in monthly installments of Eight Hundred Fifty and no/100 Dollars ($850.00)." (Emphasis added.) Appellant argues that the language employed by the parties governs, so that the payments, as designated, are to be made "in full and final settlement of the Second Party's obligation to support -- and maintain the First Party . . ." Furthermore, appellant contends that if this language is ambiguous, it should be construed most strongly against respondent as the drafting party. While we agree that the language employed is ambiguous when read in light of the entire agreement, this language was drafted in final form by counsel for both parties. We agree with respondent that this language is in substance a provision for the distribution of property, notwithstanding the fact that it is couched in terms of support and main- tenance. In a case decided prior to the enactment of the Uniform Marriage -and Divorce Act in this state, the wife gave up the right to any future support, relinquished claims against property owned by the husband, and agreed to assume some of the husband's liabilities as consideration for payments of $750 a month for nine years. We held that: "In the property settlement agreement, the pay- ments to the wife for nine years were labeled as 'alimonyt, but, as is apparent from the agreement, the payments were not in fact alimony per se, and the use of the term 'alimony' was only a label." Washington v. Washington (1973), 162 Mont. 349, 354, 512 P.2d 1300. See also, blovius v . Movius (1974), 163 Mont. 463, 517 ~ . 2 d Under the principles expressed in Washington, this Court will look past mere labels to the substance of the partiest agreement to determine whether particular provi- sions are maintenance payments to the former spouse or part of a property settlement. This rationale has been followed in a recent case decided under the Uniform Marriage and Divorce Act where the wife relinquished her right to the family residence in consideration for payments, labeled alimony, which were held to be part of the property settle- ment. In re Marriage of Reilly (1978), - Mont . , 577 The present case involves a provision for the payment of a lump sum, bearing interest, over a period of time, payable to the wife or to her designated beneficiary. The husband is required to provide security for payment of the principal and the sum of the unpaid balance becomes immedi- ately due and payable upon his death or permanent disability. The agreement was drafted with the purpose of making the payments qualify as periodic payments for income tax pur- poses. The wife released all claims to any other property of the parties. Under the foregoing circumstances, it is clear that the paragraph in question is a provision for the distribution of property, rather than a provision for main- tenance or support. Turning to the second issue, we conclude that it was within the District Court's jurisdiction to determine whe- ther fraud had been committed upon the court. The Uniform Marriage and Divorce Act, section 40-4-208(1) MCA, provides pertinent part : "(b) . . . The provisions as to property disposi- tion may not be revoked or modified by a court, except: "(ii) if the court finds the existence of condi- tions that justify the reopening of a judgment under the laws of this state." Rule 60(b), M.R.Civ.P., states that fraud is adequate grounds for granting relief from a judgment or order: "On motion and upon such terms as are just, the court may relieve a party or his legal represen- tative from a final judgment, order, or proceeding for the following reasons: . . . (3) fraud (whe- ther heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an ad- verse party . . . The motion shall be made within a reasonable time, and for reasons (1) , (2) and ( 3 1 when a defendant has been personally served . . . not more than 60 days after the judgment, order or proceeding was entered or taken . . . This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding . . . or to set aside a judgment for fraud upon the court." Respondent contends that the District Court lacked jurisdic- tion to rule on appellant's motion because he failed to comply with the 60-day time limitation set forth in Rule 60 (b) , M.R.Civ. P. The last sentence of Rule 60 (b) fore- closes any possibility that the time limitations for making a motion under the Rule have any application where fraud has been committed upon the court: "This rule does not limit the power of a court . . . to set aside a judgment for fraud upon the court. " The law in this state is settled: "The power of the court to set aside a judgment on the basis of fraud upon the court is inherent and independent of statute, and the timeliness of proceedings to set aside a prior judgment so obtained is not subject to the six months time limitation in Rule 60(b), M.R.Civ.P., but must ultimately depend upon equitable principles and the sound discretion of the court." In re Julia Ann Bad Yellow Hair (1973), 162 Mont. 107, 111, 509 P.2d 9, 12. In Selway v . Burns (1967), 150 Mont. 1, 429 P.2d 640, 645, a case involving fraud committed upon the court, this Court stated: "It was also argued that Mrs. Suthard's motion was not timely. If this argument is based on the re- quirements of Rule 60(b), it cannot be accepted because the power invoked by the court in this matter does not depend on statute." The only limitation that has been placed upon the exercise of this power is that the investigating court must observe the usual safeguards of the adversary process by granting notice to affected persons and by conducting a fair hearing on the existence of the fraud. Selway v. Burns, supra, 429 P.2d at 644. See also Pilati v . Pilati (19791, Mont. , 592 P.2d 1374, 36 St.Rep. 619. In light of the foregoing, we hold that the question of whether fraud was practiced upon the court was properly before the Dis- trict Court. We now turn to the question of whether the District ' Court holding was supported by substantial evidence and by the law. The District Court reached a conclusion of law: "IV. That no fraud was committed on the Court during the plaintiff's presence before the Honor- able W . It W. Lessley on the 19th day of July, 1976, . . . This conclusion, coupled with the District Court's holding that appellant's alternative motions were properly denied for failure to comply with the time limitations of Rule 60(b), M.R.Civ.P., indicates that the District Court properly considered applicable law and that its ruling is supported by the law. Because the District Court heard testimony on the issue and reached the conclusion of law quoted above, we must assume that the District Court con- sidered this issue on the merits. Having concluded that no fraud had been committed upon the court, the District Court properly denied appellant's motions as being untimely under Rule 60 (b) , M.R.Civ.P. Our standard for review has been stated as follows: "When reviewing findings of fact and conclusions of law of a district court, sitting without a jury, this Court has repeatedly held such find- ings and conclusions will not be disturbed if supported by substantial evidence and by the law." Arrowhead, Inc. v. Safeway, Inc. (1978), Mont . , 587 P.2d 411, 413, 35 St.Rep. 1830, 1832. Appellant relies largely on the wife's failure to disclose that she had secured employment as establishing a fraud upon the court. Respondent began employment as a receptionist for a dentist at a salary of $450 per month on the day after the date of the decree of dissolution, having obtained that position some days prior to the dissolution. Yet the decree recited that she was "unemployed and not trained for any employment." Unfortunately, there is no transcript of the testimony taken at the dissolution pro- ceedings of July 19, 1976, when this alleged fraud upon the court occurred. This Court has held that "[flraud upon the court . . . may consist of affirmatively misrepresenting facts to the court or of concealment of material facts by a person who is under a legal duty to make a full disclosure to the court." In re Julia Ann Bad Yellow Hair (1973), 162 Mont. 107, 111, 509 P.2d 9, 12, citing Selway v. Burns, supra. The same issues were raised in a recent case where a former spouse petitioned to set aside a decree of dissolu- tion and property settlement on grounds of fraud. Pilati v. Pilati (1979), Mon t . , 592 P.2d 1374, 36 St.Rep. 619. ,Pilati involved a situation where the husband failed to make a full and accurate disclosure of all the assets of the parties to either his spouse or to the court, with the result that the wife received a grossly inadequate property settlement under the terms of a settlement agreement incor- porated in the decree. We held that his nondisclosure constituted an extrinsic fraud and a fraud upon the court so as to justify relief. There was no intentional concealment of material assets from the court in the present case as there was in Pilati. Likewise, this case does not involve a misrepresentation to the court preventing a fair submission of the controversy, as was the case in Selway, where the testator's executor represented to the District Court that the testator's daughter had consented to a stipulated judg- ment against her mother's estate when in fact the daughter had not so consented and was not even aware of the suit. Furthermore, the District Court had before it and incorpor- ated into its decree a property settlement agreement that had been reached by the parties; it was not adjudicating a property settlement nor determining a maintenance award that would be affected by the future employment or employability of the parties. The District Court could well have concluded that there was no affirmative misrepresentation or concealment by respondent or by counsel when he submitted the decree to the court and that any error as occurred when the court adopted the finding that Voga was unemployed and not trained for any employment was inadvertent. Alternatively, the District Court may have concluded that the wife's employment status was not a material fact in view of the parties' property settlement agreement and that it did not substantially affect the merits of the case. That being so, we are unable to say that the District Court's holding was not supported by substantial evidence and the law. There is no record of the dissolution proceedings of July 19, 1976, available to assist this Court in our review of the District Court's ruling. Furthermore, in balancing interests this Court has recognized a public interest in the finality of judgments. Although a different balance was struck under the differing facts of that case, the proper rule was stated in Selway: ". . . Any time limitations that may be involved in this case require that a balance be struck between the public interest in putting an end to litigation at some point and the public interest in keeping its judicial system free of corrup- tion. For this reason the timeliness of the mo- tion to vacate must ultimately depend upon equi- table principles and placed within the sound discretion of the court . . ." 429 P.2d at 645. Under all of the circumstances of the present case, we are constrained to uphold the ruling of the trial court. The next issue is whether the District Court had juris- diction to consider whether appellant had been defrauded into executing the property settlement agreement which was incorporated in the decree of dissolution. Prior to the enactment of Rule 60(b), M.R.Civ.P., the now repealed predecessor statute, section 93-3905 R.C.M. 1947, provided that: ". . . [ T I he court may . . . relieve a party or his legal representative from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise, or excus- able neglect; provided, that application there- for be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken." Because this predecessor to Rule 60(b), M.R.Civ.P., did not provide for relieving from j udgment fraud, this Court in several cases arising prior to enactment of Rule 60(b) relied on the inherent power of a court to grant relief from a judgment obtained by extrinsic fraud. "The power of a court of equity to grant relief from a judgment obtained by fraud is inherent; it does not depend upon statute." Bullard v. Zimmerman (1930), 88 Mont. 271, 277, 292 P. 730, 732. The statutory time limitation the former statute did not apply to fraud: ". . . a court of general jurisdiction has the right, entirely independent of statute, to grant relief against a judgment obtained by extrinsic fraud, and may grant that relief either on mo- tion in the original cause or upon a separate equity suit, and after - the period proscribed & the statute . . ." Cure v. Southwick (1960), 137 Mont. 1, 349 P.2d 575, 579, citing Gillen v . Gillen (1945), 117 Mont. 496, 159 P.2d 511. (Emphasis added.) This rule applied only to fraud which could be classified as "extrinsic fraud": "Not every fraud committed in the course of a judicial determination will furnish ground for such relief. The acts for which a judgment or decree may be set aside or annulled have refer- ence only to fraud which is extrinsic or colla- teral to the matter tried by the court, and not to fraud in the matter on which judgment was rendered . . . [Fraud] is extrinsic or collateral within the meaning of the rule, when the effect of it is to prevent the unsuccessful party from having a trial or from presenting his case fully." Bullard v . Zimmerman, 88 Mont. at 277, 292 P. at 732, citing Clark v. Clark (1922), 64 Mont. 386, 210 P. 93, 94. Rule 60(b), M.R.Civ.P., unlike its predecessor section 93-3905, specifically enumerates fraud as a ground for relief from a judgment: "On motion and upon such terms as are just, the court may relieve a party or his legal represen- tative from a final judgment, order, or proceeding for the following reasons: . . . (3) fraud (whe- ther heretofore denominated intrinsic or extrinsic) II * . . Moreover, Rule 60(b) establishes a time limitation within which the motion must be made: "The motion shall be made within a reasonable time, and for reasons (I), (2) and (3) when a defendant has been personally served . . . not more than 60 days after the judgment, order or proceeding was entered or taken . . ." This time limitation, however, does not apply to an independent action for relief from a judgment, as distin- guished from a motion for such relief. The last sentence of Rule 60 (b) , M.R.Civ.P., states that " [t] his rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment. . ." In a recent case decided under Rule 60(b), we followed the established rule that the courts of this state have inherent power to set aside a judgment for extrinsic fraud, independent of statute and statutory time limitations, where one of the parties brought an independent action for relief. Pilati v . Pilati (1979), Mont . , 592 P.2d 1374, 36 St.Rep. 619. Appellant in the present case attempted to raise the issue of extrinsic fraud on - motion after the 60- day time limitation of Rule 60tb) had expired, rather than by an independent action for relief from the judgment. He is barred from proceeding on motion under Rule 60(b), and the District Court properly denied his alternative motions in this regard. The final issue in this case is whether or not the District Court had jurisdiction to determine the conscion- ability of the property settlement agreement where the court had earlier, in the decree of dissolution, found the agree- ment to be not unconscionable. The District Court held that a determination of conscionability was prevented by the doctrine of - res judicata. We agree. "The doctrine of res judicata states that a final judgment on the merits by a court of competent jurisdiction is conclusive as to causes of action or issues thereby litigated, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction." Meagher County Newlan Creek Water Dist. v. Walter (1976), 169 Mont. 358, 361, 547 P.2d 850, 852. ". . . [Flour criteria exist in Montana law which must be met before a plea of res judicata can be sustained. These criteria are: (1) the parties or their privies must be the same; (2) the subject matter of the action must be the same; (3) the issues must be the same, and must relate to the same subject matter; and (4) the capacities of the persons must be the same in reference to the subject matter and to the is- sues before them." Smith v. County of Mussel- shell (1970), 155 Mont. 376, 378, 472 P.2d 878, 880. All these criteria are satisfied in the present case. In view of the foregoing, it is unnecessary for us to decide whether or not appellant's motions were also untimely for the reason that no hearing was held on the motions within ten days after filing, as is required by Rule 60(c) and Rule 59 (d) , M.R.Civ.P. The judgment of the District C0urt.s affirmed. We concur: A Chief Justice | September 28, 1979 |
7e8e5572-374f-48fe-ad38-089ce0782009 | State v. Minett | 2013 MT 68N | DA 12-0201 | Montana | Montana Supreme Court | DA 12-0201 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 68N STATE OF MONTANA, Plaintiff and Appellee, v. PETER MARCUS MINETT, Defendant and Appellant. APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause No. DC-10-151 Honorable Kurt Krueger, Presiding Judge COUNSEL OF RECORD: For Appellant: Joseph Palmer Howard, Attorney at Law, Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Lynn Ployhar, Assistant Attorney General, Helena, Montana Submitted on Briefs: February 13, 2013 Decided: March 12, 2013 Filed: __________________________________________ Clerk March 12 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 Peter Minett (Minett) appeals from a judgment and order of commitment entered by the Second Judicial District Court, Silver Bow County, on December 20, 2011. The issue presented on appeal is whether Minett’s attorney provided ineffective assistance of counsel at the hearing on Minett’s motion for a new trial. We affirm. ¶3 On June 13, 2011, a jury found Minett guilty of the felony offense of driving under the influence of alcohol (DUI), fourth or subsequent offense. At trial, Minett was represented by Joseph Connors, Jr. (Connors). On July 11, 2011, Minett filed a pro se motion for a new trial in which he raised various claims of ineffective assistance of counsel and claims concerning jury conduct. ¶4 The District Court held a hearing on the motion on November 2, 2011. At the hearing, Minett was represented by newly-appointed counsel Victor Bunitsky (Bunitsky). Bunitsky argued that Minett’s right to due process was violated when Connors failed to provide Minett a DVD prior to trial. The DVD documented Minett’s DUI processing at the jail and was played for the jury during trial. Bunitsky claimed that because Connors failed to show Minett the DVD before trial, Minett was unable to advise Connors to bring in Minett’s employer as a witness. Bunitsky argued Minett’s employer could have testified about 3 Minett’s behavior and condition prior to his arrest and provided information to help explain Minett’s demeanor during the DUI processing. Consequently, Bunitsky asserted, Minett was deprived of the ability to make important decisions regarding his defense. ¶5 Bunitsky did not advance additional arguments or support for Minett’s two claims regarding jury conduct. Minett’s claims were that (1) during his trial, two jurors smiled and nodded at each other, and (2) during his trial, two jurors witnessed Minett being transported in handcuffs and shackles. At the hearing, Bunitsky addressed the first claim by stating: . . . I take no position with regard to the jury, Judge. I know [Minett] put in [the motion] something with regard to the two jurors that would smile at each other. There’s no evidence that anything improper happened. We can’t prove anything. So I would allow that argument just to stand as is. Bunitsky did not address Minett’s second claim pertaining to jury conduct. During the hearing, Bunitsky did not introduce any evidence or witness testimony. ¶6 In response, the State made a number of arguments including that it disclosed the DVD to Minett and Connors and that they had the opportunity to view it prior to trial. It also asserted that there is no evidence of any juror misconduct. Pursuant to § 46-16-702, MCA— which allows a court to grant a defendant a new trial if required “in the interest of justice”— the State requested that the court deny Minett’s motion. ¶7 The District Court denied Minett’s motion. The court determined Minett’s arguments “essentially surround general complaints about his communication with trial counsel.” The court did not find Connors was ineffective or Minett unfairly represented. 4 ¶8 On December 20, 2011, the court entered a judgment and order of commitment. Minett appeals. Specifically, he argues Bunitsky was ineffective in his representation of Minett at the hearing because he did not present any evidence or witness testimony in support of Minett’s motion. ¶9 Claims of ineffective assistance of counsel are mixed questions of law and fact which this Court reviews de novo. State v. Miner, 2012 MT 20, ¶ 10, 364 Mont. 1, 271 P.3d 56. We review ineffective assistance of counsel claims pursuant to the two-prong test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Miner, ¶ 11. Under the Strickland test, a defendant must demonstrate that (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced the defendant. Miner, ¶ 11. If the defendant makes an insufficient showing regarding one prong, we need not address the other. Miner, ¶ 11. ¶10 To satisfy the first prong, the defendant must show that counsel’s performance “fell below an objective standard of reasonableness measured under prevailing professional norms and in light of the surrounding circumstances.” Whitlow v. State, 2008 MT 140, ¶ 20, 343 Mont. 90, 183 P.3d 861. There is a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Whitlow, ¶ 15. To establish prejudice under the second prong, the defendant must show there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceedings would have been different. Miner, ¶ 12. 5 ¶11 Minett has not demonstrated that Bunitsky’s failure to present evidence and testimony at the hearing rendered his performance deficient. Bunitsky was appointed as Minett’s counsel after Minett filed his pro se motion for a new trial. Bunitsky thus did not have the opportunity to evaluate whether there was sufficient support for Minett’s claims prior to Minett raising them before the court. We have no reason to believe any evidence even existed that Bunitsky could have presented, aside from testimony from Minett and Connors. And, as the State points out, Bunitsky may have made a reasonable decision not to present such testimony. It is possible Bunitsky thought that subjecting his client to cross- examination would have been detrimental to his case, and Connors’ testimony unhelpful. Furthermore, Bunitsky may have believed that Connors’ testimony would have refuted Minett’s allegations. ¶12 Minett’s ineffective assistance of counsel claim is not supported by any evidence and is based on speculation. Minett has failed to overcome the strong presumption that Bunitsky’s conduct fell within the wide range of reasonable professional assistance. Accordingly, he has not satisfied the first prong of the Strickland test, thus his ineffective assistance of counsel claim fails. ¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our Internal Operating Rules, which provides for noncitable memorandum opinions. ¶14 Affirmed. /S/ MICHAEL E WHEAT 6 We Concur: /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE /S/ LAURIE McKINNON | March 12, 2013 |
de2a295e-c578-4852-8ff8-20e974d5cbdd | GUNDERSON v BOARD OF COUNTY COMRS | N/A | 14765 | Montana | Montana Supreme Court | No. 14765 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 JACK GUNDERSON, Plaintiff and Appellant, THE BOARD OF COUNTY COMMISSIONERS OF CASCADE COUNTY, Defendants and Respondents. Appeal from: District Court of the Eighth Judicial District, Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Channing J. Hartelius, Great Falls, Montana For Respondents: J. Fred Bourdeau, County Attorney, Great Falls, Montana Submitted on briefs: August 15, 1979 Decided : SEF I r? 1979 'C : - r-, i - Y g 9 Filed: Mr. Justice John C. Sheehy delivered the Opinion of the Court. Plaintiff Jack Gunderson appeals from an order dismissing his amended complaint for failure to state a claim upon which relief could be granted. Rule 12 (b) (6) , Mont. R.Civ.P. The order was entered by the District Court, Eighth Judicial District, Cascade County, in favor of the Board of County Commissioners of Cascade County, defendants. Gunderson's account of the facts is accurate and is substantially as follows. Gunderson is a taxpayer and a resident of School District 74 in Cascade County. He and a majority of the residents of his territory petitioned to become a part of School District 30 in Teton County. A hearing before the County Superintendents of Cascade and Teton Counties was held as required by section 20-6-213, MCA. Evidence was produced at that hearing and duly recorded by a court reporter. Subsequently, the Superintendent of Teton County approved the transfer, and the Superintendent of Cascade County rejected it. An appeal to the Board of Commissioners of Teton and Cascade Counties was perfected pursuant to section 20-6-213, MCA. A joint hearing was held before the two Boards. The Teton County Commissioners approved the transfer, while the Cascade County Commissioners rejected it. Gunderson then filed a complaint against the Board of Commissioners of Cascade County. Subsequently, an amended complaint alleging an abuse of discretion by the Board of County Commissioners was filed. The Board of County Commissioners filed a motion to dismiss the amended complaint for failure to state a claim upon which relief could be granted. Rule 12(b) ( 6 ) , Mont. R.Civ.P. The District Court granted the motion and dismissed the amended complaint. -2- This appeal followed. Gunderson raises two issues upon this appeal. 1. Was it error to dismiss the complaint when there is an allegation of abuse of discretion? 2. Did the District Court err in holding the phrase "in the best interests of the residents of the territory" in section 20-6-213(4), MCA, superfluous? Having examined both the District Court record and the briefs of the parties, we are compelled to hold in favor of the Board of County Commissioners of Cascade County on both issues. Gunderson asserts the amended complaint states a cause of action for abuse of discretion by the Board of Commissioners. We cannot agree with this contention. As Gunderson points out, the heart of his amended complaint is paragraph 6. In that paragraph, Gunderson first alleges the Board of Commissioners abused its discretion by failing to meet jointly with the Teton County Board of Commissioners, as required by section 20-6-213, MCA. As a matter of law, we must take this first allegation as true for purposes of the motion to dismiss. Potter v. Miller (1965), 145 Mont. 197, 198, 399 P.2d 994, 995. However, the amended complaint also alleges each Board of County Commissioners was unanimous in its decision, though their decisions were contrary, and no facts are alleged that any other mode of decision would have produced a different result. In the absence of such a statutory provision, Gunderson has alleged no injury from the procedure followed, and one who is not injured will not be heard to complain. State v. Lensman (1939), 108 Mont. 118, 129, 88 P.2d 63, 68. Gunderson further alleges in paragraph 6 of his amended complaint that the Board of Commissioners abused its discretion -3- by (1) failing to consider the best interests of the residents of the territory to be withdrawn, (2) solely basing their decision on the financial considerations of the territory to remain, and (3) disregarding all other evidence as to advis- ability and best interest presented at the hearing. All three allegations appear to be inferences made by Gunderson because the three matters were not addressed in the Board's written decision. Section 20-6-213, MCA, does not contain any explicit legislative direction as to what matters the Board of Com- missioners is to consider in reaching its decision. The statute vests great discretion in the county officials, and so long as the transfer power is exercised within the limits of section 20-6-213, MCA, that exercise is not subject to interference by the courts. Sorenson v. Bd. of Cty. Com'rs. of Teton Cty. (19781, Mont . , 577 P.2d 394, 396, 35 St.Rep. 436, 439. Pursuant to section 20-6-213(4), MCA, the transfer petition here could be granted only if the requested transfer is deemed both advisable - and in the best interests of the residents of the territory in question. One factor pertaining to advisability is the financial condition of the remaining territory. Potter v. Miller, supra. Having determined the proposed transfer was financially inadvisable, the Board of Commissioners was required by the express language of the statute to deny the transfer petition. They properly did SO. The case law Gunderson cites in support of his contention is not convincing. See generally, Ballard v. Gregory (1975), 166 Mont. 110, 530 P.2d 1163; Read v. Stephens (1948), 121 Mont. 508, 193 P.2d 626; Grant v. Michaels (1933), 94 Mont. 452, 23 P.2d 266. Certainly, the Board of County Commissioners would be acting arbitrarily if it disregarded all evidence - of matters which by the terms of the statute it should consider. However, such is not the case here. Gunderson next contends the District Court erred in holding the phrase "in the best interests of the residents of the territory" in section 20-6-213(4), MCA, superfluous. We need look no further than the District Court's opinion itself to decide this issue. In that opinion, the District Court said: "Having determined that the transfer was inadvisable, it was the duty of the Defendants to act otherwise than to grant the petition i.e. deny it. That there may have been persuasive and competent evidence that the transfer was in the best interests of the residents of the territory to be transferred is, as the law is written, superfluous." The District Court did not rewrite the statute. Section 20-6-213(4), MCA, requires the proposed transfer be both advisable and in the best interests of the residents of the territory. Any evidence of the best interests of the residents would, indeed, be superfluous since the transfer was deemed inadvisable. The District Court properly granted the motion to dismiss for failure to state a claim upon which relief could be granted. Rule 12 (b) (6) , Mont. R . Civ. P. Furthermore, the District Court did not hold the phrase "in the best interests of the residents of the territory" in section 20-6-213(4), MCA, is superfluous. It merely declared that any evidence of the best interests of the residents would be superfluous in this case. The District Court's decision is affirmed. W e Concur: Chief J u s t i c e n | September 10, 1979 |
459053c1-2874-4371-8bc5-aa2d79c7d554 | WYNIA v CITY OF GREAT FALLS | N/A | 14711 | Montana | Montana Supreme Court | No. 14711 I N THE S U P R E M E COUHT O F THE STATE O F IvDIWANA 1979 ROBERT E. WYNIA and WINmm C. WYNIA, Plaintiffs and Appllants, THE CITY O F GRJ3?Q FAL;LS, AND THE SCHOOL DISTRICT #1 O F CASaDE COUNTY, Respondents a n d Defendants. Appeal fnmn: D i s t r i c t Court of the Eighth Judicial D i s t r i c t , Honorable Joel G. Fbth, Judge presiding. Counsel of Record: For Appellants: Jardine, Stephenson, B l e t t and W e a v e r , Great Falls, Mntana Jack L . Lewis argued, Great Falls, Mntana For Respondents: J. Fred Bourdeau, Comty Attorney, Great Falls, Mntana Carroll C. Blend argued, Deputy County Attorney, Great Falls, Mntana David V. GLiko argued, City Attorney, Great Falls, Mntana Filed: Suhitted: June 7, 1979 m i d & : SEP Y Mr. Justice Daniel J. Shea delivered the Opinion of the Court. This appeal is brought by Robert and Winona Wynia from an order of the District Court, Cascade County, dismissing their action for declaratory judgment against the City of Great Falls and School District Number One of Cascade County. The Wynias had sought a declaration that the City's act of closing and barricading a street and alley which adjoined their residential lot was illegal. In the alternative, they had sought a declaration that if the street and alley had been legally closed, the City nonetheless was illegally restricting their use and enjoyment of the private legal interests which they retained in the roadway which their property abutted. Plaintiffs own two adjoining residential lots on the northwest corner of the block in Great Falls. The lots are bounded on the north by Second Avenue South, on the west by 20th Street South, and on the south by Third Alley South. Great Falls High School is located just west of plaintiffs' property, across 20th Street South. In October and November 1976, the School District circulated petitions which requested the City to close four intersections leading into a two block segment of 20th Street South. The affected segments of 20th Street South, Third Alley South, and Fourth Alley South are indicated on the diagram: I Rut, Sou+h L , , , , l & 5 d - I -2- 4+h hue. So&* The effect of the closures is to create a cul-de-sac of the two block sections of 20th Street South on the east of Great Falls High School. All of the lot owners along both sides of the affected two blocks of 20th Street South, with the exception of plaintiffs, signed the petitions. Of the nine lot owners whose property abuts on Third Alley South, seven, excluding the plaintiffs signed the petitions. The petitions which were presented to the plaintiffs and to the other lot owners on their block and along the two block section of 20th Street South did - not mention the closure of the entire alley between 20th and 21st Street, or of the entire - two blocks between Second Avenue South and Fourth Avenue South. Instead, the petitions referred to the closure of 22-1/2 foot "segments" of the street and alleys: "We, the undersigned adjoining property owners hereby petition the City Commission of the City of Great Falls to close those segments of 20th Street South, 3rd Alley South, and 4th Alley South described hereinbelow: "'a segment of 20th Street South which is bounded on the south by the south right-of-way line of 2nd Avenue South, and bounded on the north by a line which is parallel to and 22-1/2 feet north of the south risht-of-way line of 2nd Avenue South; and, segments oi 3rd ~ 1 1 ; ~ South and 4th Alley South which are bounded on the west by a line which is 22-1/2 feet west of the east right-of-way line of 20th Street South, and bounded on the east by the east right-of-way line of 20th Street South.' "We further petition the City Commission of the City of Great Falls to take all measures necessary to make effective the revision of traffic in the vicinity of Great Falls High School, with the understanding that such measures will be imple- mented on a trial basis until a final determination has been made by the City Commission that the overall effect of the revision of traffic has been beneficial." On February 22, 1977, the City Commission adopted Resolution No. 6905, stating its intent to close the segments noted in the petition and provided for notice of publication in the Great Falls Tribune, a newspaper of general circulation in the affected area. On March 15, 1977, the Commission passed Resolution No. 6920, providing for a closure of the 22-1/2 foot segments of 20th Street South and Third and Fourth Alleys South on a temporary basis. The Resolution contained a preamble which recited that the City Manager had caused notice of Resolution No. 6905 to be published in accordance with section 7-14-4114, MCA, on March 1, 1977. On December 20, 1977, the City Commission passed Resolution No. 7035 providing for the permanent closure of two segments of 20th Street South, at the intersections of Second and Fourth Avenues South and one segment each of Third and Fourth Alleys South where they joined 20th Street South. In the complaint filed on June 2, 1978, the plaintiffs sought a declaration that the percentage of owners whose lots abutted to the northernmost 22-1/2 foot segment of 20th Street South and the 22-1/2 foot segment of Third Alley South was insufficient to give the City authority to close those segments. Plaintiffs also sought, on that basis, to have Resolution Nos. 6905, 6920, and 7035, declared invalid, and the closure of the segments of 20th Street South and Third Alley South adjoining their property, declared illegal and void. The complaint sought a removal and permanent injunction against further placement of barricades on the 22-1/2 foot segments of 20th Street South and ~hird Alley South which their lots abutted. Finally, in the event the District Court held the closures valid, the plaintiffs sought a declaration that upon the closure of the segments they became owners of the half of the closed segments nearest their lot and were entitled to unencumbered use and ownership of that land. On December 19, 1978, the District Court denied all relief sought by plaintiffs and granted the defendants' motion for summary judgment and dismissal of the complaint. -4- The principal issues presented for this Court's deter- mination are whether the City of Great Falls followed the proper statutory procedures for closure of the segments of 20th Street South and Third Alley South abutting on plaintiffs' lots; and alternatively, if the City did properly close the segments of street and alley, does the closure effect a reversion of half of each of those segments to plaintiffs? The plaintiffs' first issue is broken down into four categories. They contend first that the petitions requesting closure of the two segments of street and alley abutting on their property did not contain the required percentage of signatures from lot owners on the segments to be closed. Plaintiffs maintain that the City could not close the 22-1/2 foot segments of 20th Street South and of Third Alley South until it was presented with a petition signed by 75 percent of the lot owners whose property abutted those segments - - to be closed. They contend the City was without authority to consider the signatures of those lot owners who did not live on the portions of 20th Street South and Third Alley South which were not closed by the terms of the Resolutions. Plaintiffs argue that the proper determination of the required percentage of signatures must be made in reference to those lots which abut on the segments to be closed. When that approach is followed, they point out, the only lot owners whose land abuts on the closed segment of 20th Street South are themselves and the School District. Similarly, the only lot owners whose property abuts on the closed segment of Third Alley South are themselves and their across-alley neighbors, the Skinners. In each case, then, the percentage of lot owners whose lots abut on the closed segments who signed the petition was 50 percent, not 75 percent as required by statute. Second, plaintiffs contend that the final resolution of the City Commission (No. 7035) was void because the petitions had requested only a temporary closure, not a permanent closure of the street and alley segments. Third, plaintiffs argue that the closure is void because the City Commission did not give notice as required by section 7-3-4448, MCA, and that notice by publication was insufficient. Fourth, plaintiffs claim that the ordinance of closure is void because it fails to preserve their private right-of-way and easement as required by section 7-3-4448, MCA. Section 7-14-4115, MCA, provides for the dis- continuance of streets and alleys. A series of amendments between 1887 and 1945 however, have left the statute with three different terms to describe the action which a city might take : "The council, or county commissioners if the town - be unincorporated, may discontinue a street or alley, or any part thereof, in a city or town or unincor- porated town or townsites, upon the petition in - writing of all owners of lots on the streets or alleys, if it can be done without detriment to the public interest; provided that where the street or alley is to be closed for school purposes, a petition signed by seventy-five per cent (75%) of the lot owners on the whole street or alley to be closed, will be required; provided further that such vacation shall not affect the right of any publicutility to continue to maintain its plant and equipment in any such streets or alleys." (Emphasis added.) That the City in this case is acting "for school purposes" is not challenged. The plaintiffs' contention is only that the percentage of signatures obtained on the petition was inadequate because only those signatures of lot owners on the segments which were to be closed can be considered. The difference between plaintiffs' and the City's position stems from a differing perception of the effect of the closure of the various 22-1/2 foot segments. The plaintiffs point to the literal language of the three City Commission Resolutions which refer to the closure of 22-1/2 foot "segments" of the roadways. By pointing to the total effect of the "segment" closures, however, the City must take the position that the three resolutions were intended to have a broader impact than they show on their face. In essence, the entire two blocks of 20th Street South were "closed" to through traffic by the City's action, and not - just four 22-1/2 foot segments of 20th Street South and Third and Fourth Alleys South. Clearly, the entire two blocks were directly affected by the City's action. Plaintiffs contend that the City cannot argue concerning the total effect of the small closures, however, for to do so would modify or contradict the specific terms of the closure resolutions. It is true that as a general rule public records must speak for themselves. Evidence offered to contradict an official record is therefore inadmissible. See Eastman V. School Dist. No. 1 (1947), 120 Mont. 63, 72-73, 180 P.2d 472, 476. Buell v. City of Bremerton (1972), 80 ~ash.2d 518, 495 P.2d 1358, 1362. This rule does not extend so far as to prevent the drawing of a reasonable inference concerning the purpose of the proposed ordinance. "In construing a municipal ordinance, the courts will look to the ordinance as a whole to ascertain the intention of the lawmaking body and the purpose sought to be accomplished by the legislation." 1 Antieau Municipal Corporation - Law S4.43 at 4-82 (1975). If possible, an attempt must be made to produce a harmonious whole from each and every part of a statute. City of Portland v. Kirk (0r.App. 1974), 518 P.2d 665, 666-67. -7- In this case a review of Resolution No. 7035 by itself shows that the City Commission contemplated the simultaneous closure of four 22-1/2 foot segments of street and alley. Considered as a whole, the intent to create a cul-de-sac is obvious. The Commission was not so much concerned with the 22-1/2 foot segments themselves as with the two blocks of street between the northernmost and southernmost segments. The petition and resolutions do speak only of the closure of 22-1/2 foot segments, and section 7-14-4115, MCA, most naturally interpreted refers to the lot owners whose land is on the street actually to be closed. The statute does not speak in terms of those effected by the closure. Nor do the words "(75%) of the lot owners on the whole street or alley to be closed" support the City's argument that the statute is directed at those directly affected. In the first portion of the statute, the language refers to "any part" of a street or alley. Thus, if a part of a street is to be closed, the natural meaning of the statute is that the lot owners whose lots adjoin that whole part must be considered within the 75 percent. The problem, then, is that while the City intended to prevent through traffic along two blocks of 20th Street South, it officially acted to "close" only 45 feet of the street itself. In effect, the entire two blocks were "closed" in one sense. The general public can no longer utilize 20th Street South to get from Fourth Avenue South to Second Avenue South. Similarly, lot owners along 20th Street South have restricted access to their property. Whatever character 20th Street South may now have, it is no longer a through roadway since it has been "closed" to that specific purpose. Thus, the City Commission resolution, viewed in completeness, "closed" not just several 22-1/2 foot segments of street and alley, but also "closed" two blocks of 20th Street South. The petitions and resolutions are not completely descriptive of their effect. But their effect is surely the closure of two blocks of 20th Street South, and the imposition of similarly limited access to the two alleys between 20th and 21st Streets South. Following this conclusion, then, all the lot owners along the affected two blocks of 20th Street South and along the affected two alleys were "lot owners on the whole street or alley to be closed". It was this entire group of lot owners which was relevant to the determination of the 75 percent requirement, despite the inartful drafting of the petitions and resolutions. Plaintiffs argue that the City Commission lacked authority to adopt Resolution No. 7035 permanently closing the street and alley adjoining their lots, because the petitions which were presented to the Commission requested only temporary closure. It is true that the second paragraph of the petition contains the words "with the understanding that such measures will be implemented on a trial basis." That paragraph, however, continues, "until a final determination has been made by the City Commission that the overall effect of the revision of traffic has been beneficial." By its wording, the petition appears to have intended that the City Commission have some form of continuing power after the trial basis closures were implemented, otherwise the phrase that begins "until a final determination" would have no meaning. Although the petition does not say what -9- that continuing power is, a fair inference is that the City would have the authority, following a trial period of closure, to permanently close the street and alleys. In fact, this appears to be precisely what the City did, for kesolution No. 6920, providing for temporary closure, was enacted in March 1977, while the final permanent closure resolution- No. 7035, was not adopted until December 1977. In a written interrogatory addressed to the City, plaintiffs asked, among other things, under what authority the City Commission had the right to declare the street and alley closures. The City answered: "Known at present but not limited to: Section 11- 2801 R.C.M. 1947, Section 11-3308 R.C.M. 1947, Section 11-3208 R.C.M. 1947, Section 11-3201 R.C.M. 1947." By this answer, plaintiffs contend that the City's expression of reliance upon section 7-3-4447(2), MCA, binds the City to follow its mandate. The section provides: "Improvement and vacation of streets and highways. When lt deemsit necessaryythe commission may cause any street, alley, or public highway to be opened, straightened, altered, diverted, narrowed, widened, or vacated." Plaintiffs correctly point out that if the City relies upon this statute, however, it must also follow the require- ments of section 7-3-4448, dealing with vacation and name changes of streets. Section 7-3-4448, requires the city commission first to pass a resolution of intent to vacate the street and then requires the city manager to "cause notice of such resolution to be served in the manner that service of summons is required to be made in civil actions upon all persons whose property abuts upon the portion of the street affected . . . " It is conceded that the City did not give such notice to plaintiffs but relied instead upon the notice by publication provision of section 7-14-4114(3), MCA. A single newspaper notice appeared on March 1, 1977 in the Great Falls Tribune and no personal service of the resolution of intent was ever attempted. There is no doubt that the notice by publication on March 1, amply complied with the requirement of section 7-14- 4114(3), MCA. The question then is whether the City was bound by sections 7-3-4447(2) and 7-3-4448. The plaintiffsp argument that the City is bound by these sections takes two directions. First, the plaintiffs argue that the City's reliance upon section 7-3-4447(2), PICA, in its answer to their interrogatory binds it to follow the section. The City's response to the interrogatory question, however, appears to be academic rather than an attempt to invoke its authority. It is clear from the resolution of March 15, 1977 (No. 6920) that the City had proceeded under section 7-14-4114(3), MCA. The City's brief on this appeal reiterates this conclusion. There seems no basis for holding the City to the notice requirements of Title 7, Chapter 11, Part 44, MCA, (formerly Title 11, Chapter 33, R . C . I I . 1947) simply because a reference was made to that chapter in response to an interrogatory filed after the City's action was already complete. A nore serious question, however, is whether the City can elect to proceed under section 7-14-4115, PICA, and ignore the requirements of Chapter 11 when it closes a street. Plaintiffs argue that the words "vacate" and "close" are synonymous. Thus, they contend, that the City cannot avoid the requirements of sections 7-3-4447 (2) , PICA, and 7-3-4448, MCA, simply by referring to the action as a "closure" rather than a "vacation". In State ex rel. Smart v. City of Big Timber (1974), 165 Mont. 332, 335, 528 P.2d 688, 692, this Court noted that section 7-14-4114 is "the amalgam of the intent of a number of legislatures." The Court continued: -11- "This is important when this single statute purports to deal with the 'discontinuance', 'closing', and 'vacation' of streets. It appears that the terms were thought of by the draftsmen as being interchangeable." 165 Mont. at 335, 528 P.2d at 692. Smart, however, involved neither discontinuance, closing, nor vacation of a street, but only an alteration or improvement. 165 Mont. at 335, 528 P.2d at 692. Thus, there was no need to determine whether, despite the thoughts of the draftsmen, there might be some legal distinction between "vacate" and "close". If there is no distinction between "vacate" and "close" the two statutes (section 7-14-4114 and '7-3-4448) overlap. Indeed, some overlap is inevitable because both sections contain the word "vacate." Further, the notice provision, section 7-14-4114(3), MCA, uses the word vacate: "Before acting upon such petition a notice must be published or posted in three public places, stating when such petition will be acted on, and what street or alley, or part thereof, is asked to be vacated. Such notice must be published in a newspaper or posted at least one week before the petition is acted on." (Emphasis added.) Thus, two separate statutes with separate, conflicting notice requirements purport to deal with the procedures for vacating a city street. We conclude, however, that the City closed, rather than vacated the street, and that the notice by publication was therefore adequate. Section 7-3-4448, dealing with vacation and changing names of streets declares that vacation operates as a revocation of the city's acceptance of the dedicated street or alleyway: . . . and such order of the commission vacating or narrowing a street or alley, which has been dedicated to public use by the proprietor, shall, to the extent that it is vacated or narrowed, operate - - as a revocation -- of the acceptance thereof by -- the commission,. . ." (Emphasis added.) It is plain that the City in this case did not intend to revoke its acceptance of two blocks of 20th Street South, but rather to alter its use by closing it to through traffic. It has not given up its interest in the street. The City therefore had the power to enact the closure resolution once it had followed the requirements of sections 7-14-4115 and 7-14-4114(3), MCA. Had the City intended to revoke its acceptance of the street, to give it up, to vacate its legal interest in the street, it would have been necessary to follow the personal notice requirements of section 7-3-4448. Since, however, the City only closed the street to through traffic, the notice by publication was sufficient. Plaintiffs contend that the City's closure of the streets and alleys bordering their lots is void because of the City's failure to preserve an easement of way through the closed portions of roadway. The right-of-way requirement is included in the final clause of section 7-3-4448: ". . . the right of way and easement therein of any lot owner shall not be impaired thereby." Thus, when a city vacates a street or alley, the abutting owners right of access through the vacated street must not be impaired. Once again the conflict between section 7-14-4115 and section 7-3-4448, MCA, comes into view. Section 7-14-4115, which governs "closing" and "vacation" contains no similar requirement. As we have determined above, the City did not "vacate" the streets and alleys in the sense of revoking its acceptance of them under section 7-3-4448, MCA. Under section 7-14-4115, the City had the power to close the street and alter its use without any need of preserving easements. Since there was no "vacation" in the sense of section 7-3-4448, MCA, neither must there be a preservation of easements in conformity with that section. -13- Having concluded that the City properly "closed" the street and alley which adjoined the plaintiffs' lots we must determine what, if any interest, passes to the plaintiffs in those closed sections of street and alley. The plaintiffs contend that the City has vacated the street and alley and that they are therefore entitled to the half of the street and alley nearest their lot under a common-law reversion. Because we have already concluded that there is a difference between "closure" and "vacation" and that the City only closed, rather than vacated the street and alley, we must reject this contention. The City did not revoke its acceptance of the dedicated land, but has limited and altered its use for school purposes. Thus there can be no reversion to the adjoining landowner. The City has given up nothing. Assuming the City has power to create a cul-de-sac of one of the streets abutting the plaintiffs' lots, the plaintiffs further argue that such an action by the City causes compensable damage to their property. The question created by this contention is whether the plaintiffs have a property interest, unique from that of the public in general, in access to their lot from the nearest intersection in both directions. It is clear that a lot owner whose lot abuts upon a public roadway has some rights of easement that are distinct from those of the general public. It is the extent of the rights of the abutting lot owner which distinguishes the majority from the minority position. Perhaps a majority of courts have concluded that this right of access extends from the property owner's lot to the next adjoining intersections in both directions along the public street. Bacich v . Board of Control of California (1943), 23 Cal.2d 343, 349-350, 144 P.2d 818, 823. Annot. 49 A.L.R. 330, 351 (1927), and 93 A.L.R. 639, 642 (1934). In Bacich, the California Supreme -14- Court created an easement in both directions in favor of the abutting lot owner. Having created the easement, it was a simple step to hold that cutting off half of the easement by allowing traffic in only one direction, the easement has been impaired and a right to damages is created. 23 Cal.2d at 354, 144 P.2d at 825. On the other hand, a minority position, perhaps best articulated by Justice Traynor in the Bacich dissent, agrees that there exists some right of access unique to the landowner whose lot abuts a public street, but denies that such a private right extends in both directions to the nearest intersection. Obviously, if no easement exists in both directions, the property owner "can have no recovery even though the value of the abutting property may be diminished as a result ofthe improvement." 23 Cal.2d at 369, 144 P.2d at 833, citations omitted (Traynor, J. dissenting). In his dissent, Justice Traynor observed that the right of ingress and egress is a creation of judicial decision which has protected lot owners from particular types of street improvements which would impair the use of their land. Nonetheless, the abutting owners' rights were always considered subordinate to "any reasonable use of the street made by public authorities to facilitate general travel." 23 Cal.2d at 370-371, 144 P.2d at 833-834. Thus, so long as some "adequate and reasonable" means of access is preserved, an abutting landowner suffers no compensable injury from the closure of traffic from one direction: "The trust that arises from the appropriation of land for public thoroughfares is for the benefit of the public at large and only incidentally for the benefit of abutting owners. The extension of the abutting owner's rights in the present case makes the primary consideration the benefit of abutting owners rather than the benefit of the public. Hitherto no California case has ever defined the right of ingress or egress as inclusive of an easement to the next intersecting street. The rule has been that the right of ingress and egress is limited to adequate and reasonable access to the property from the street, that it does not extend to the full width of the street, or to the full length thereof, or even to all points upon the street in front of the abutting property. It is sufficient if there is access to a street that in turn connects with the general street system. Any improvement that does not materially interfere with such access does no compensable damage." 23 Cal.2d at 371, 144 P.2d at 834. (Traynor, J. dissenting.) Public policy is better served by the minority position. Reasonable regulation of traffic often impairs total freedom of access by abutting lot owners. If a municipality were forced to compensate abutting owners each time it limited their two-directional access, the municipalities'incentive or ability to provide for the safe flow of traffic would be restricted. There are several instances, for example, in which a city may reregulate traffic without compensation to abutting owners: ". . . city traffic ordinances abound with regulations that limit a property owner's freedom of movement upon the street on which his property abuts. Thus 'U' turns or the making of left turns upon emerging from a building or private driveway are frequently prohibited, and the diversion of traffic into one-way streets is common. Frequently traffic moving in opposite directions is separated by some physical barrier such as a raised curbing. These restrictions have the same effect whether they ensue from traffic regulations or physical obstructions and there is no more reason to allow compensation because of the resulting diminution in property values or the inconvenience of circuity of travel in the one case than in the other." Bacich, 23 Cal.2d at 371-372, 144 P.2d at 834-835. In the present case, the closure was effected for the purpose of protecting pedestrian school children on their way to and from school, and to prevent automobile noises from disrupting classes on the east side of the school building. These purposes would be discouraged if a city were forced to compensate the abutting land owners for their loss of two-way access. Here, reasonable access of the plaintiffs to their property has been preserved. The minority position is not only more legally sound, but more realistically serves the needs of a community. The judgment of the District Court is affirmed. We Concur: Chief Justice Justices | September 5, 1979 |
fb3ebf1e-d5f5-44f4-8323-9c4ec77cc506 | STRONG v STATE | N/A | 14579 | Montana | Montana Supreme Court | N o . 14579 I N THE S U P R E M E COURT O F THE STATE O F MlNlYNA 1979 Plaintiff and Respondent, STATE O F m A N A and STATE D E P A I U W N T O F INSI'mIONS, Defendant and Appellant. Appeal froan: D i s t r i c t Court of the First Judicial D i s t r i c t , Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Garrity, Keegan & B m , Helena, mntana Donald Garrity argued, Helena, mntana For Appellant: Scribner, H u s s & Mulroney, Helena, Mmtana Lawrence D. Huss argued, Helena, mntana Sutmnitted: June 12, 1979 Decided: SkP 2 0 1979 -- Honorable John S. Henson, District Judge, sitting in place of Mr. Justice John C . Harrison, delivered the Opinion of the Court. Plaintiff-respondent Geraldine C. Strong brought this action in the District Court, Lewis and Clark County, to recover damages for her dismissal from her job with defendant-appellant Department of Institutions. Strong charged that her dismissal was a direct result of her having filed a sex and age discrimin- ation complaint against the Department before the United States Equal Employment Opportunity Commission (EEOC). The Department now appeals from a jury verdict and subsequent judgment in favor of Strong. Strong began working with the Department as a reimbursement officer in Billings in 1967. In 1972, she was promoted and moved to Helena to become administrator of the Department's Reimburse- ment Division. In the spring of 1974, the Department reorganized and the Reimbursement Division became a bureau of the newly-created Audit- ing and Accounting Division. Strong applied for a division level position in both the Auditing and Accounting Division and the Re- search and Evaluation Division. She was told that the former posi- tion had been filled and that she did not possess the qualifications necessary for the latter. AS a result of being denied consideration for the positions, Strong filed the EEOC complaint in August 1974. An investigation ensued, and during this period Strong alleges that her once-healthy working relationship with the Department deteriorated. Strong testified that she and her staff were subjected to five sudden moves to various office spaces, that she was excluded from impor- tant staff meetings which she had formerly attended regularly, that her proposals were ignored and her budget requests denied. The Department submitted a substantial amount of contradic- ing testimony which indicated that Strong's performance became deficient after the filing of the complaint. The Department alleged that Strong was overspending her travel budget, that she was unable to work with her fellow employees and subordinates and that she was deliberately attempting to overspend the budget for her bureau. The Department denied that any putative or re- taliatory action was ever directed to be taken against Strong, but rather that she would have been terminated regardless of her complaint to the EEOC. Nicholas Rotering, staff counsel for the Department, repre- sented the Department concerning the complaint and reviewed its progress. Rotering concluded after discussions with the EEOC that the complaint was invalid because of a time lapse after the initial investigation. Strong was suspended in May, 1977, and filed this action in June, 1977. She was shortly thereafter terminated. After her discharge, Strong and the Department learned that the EEOC complaint had not lapsed, and, in fact, a partially favorable determination toward Strong had been made. Appellant argues two issues on appeal, the first of which is as follows: (1) Did the District Court err in admitting into evidence a copy of the EEOC determination? Over objection, plaintiff's Exhibit 35 was admitted into evidence. The exhibit was characterized by the trial judge as "a Xerox copy of the essential determination of the Equal Employ- ment Opportunity Division of the United States Government" and stated in part: "Determination "Under the authority vested in me by 29 CFR 1601. 19b(d) (September 27, 1972) I issue, on behalf of the Commission, the following determination as to the merits of the subject charge. "On the above findings, we find no reasonable cause to believe that the Charging Party received a lesser salary because of her sex. "Based on the evidence, we find reasonable cause to believe that the Respondent violated Title VII of the Civil Rights Act of 1964, as amended, by failing to promote the Charging Party because of her sex. "On Behalf of the Commission: Pedro Esquivel, District Director." Appellant objected to the evidence because it charged that the EEOC determination was hearsay. Rule 801, Mont.R.Evid., provides for the definition of hearsay: "(c) Hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The Commission Comments to Rule 801 of the Rules note under subpart (c) , in part: " . . . And third, from the phrase ' . . . offered in evidence to prove the truth of the matter asserted,' statements offered for purposes other than to prove the truth of their contents are not hearsay." We think the evidence in dispute does not conform with this requisite element of the hearsay rule; that is, the finding was not offered to prove the truth of the matter asserted. The pur- pose of introducing the EEOC report was not to prove that there was probable cause to believe that the Department had discriminated against Strong on the basis of sex, but rather that the EEOC had not terminated its investigation of Strong's original complaint as believed by the Department. It was not the finding of the EEOC that was asserted by the plaintiff, only the fact that there was a finding made subsequent to the time that the Department's in-house counsel informed the Department that the EEOC would not proceed with the complaint. The same purpose would have existed if the EEOC ruling would have been adverse to Strong. Appellant's position is further weakened by the fact that both appellant and respondent agreed to and signed a pretrial order which stipulated that certain exhibits could be offered at trial without proof of foundation and subject only to objections as to relevancy or materiality. Paragraph six of the pretrial order provides as follows: "6. Exhibits. The following are exhibits which are to be offered at the time of trial. Each of such exhibits may be offered and received at the time of trial without further proof of foun- dation, and subject only to the objections as to relevancy or materiality." The plaintiff's exhibits were attached as Appendix C and con- tained, as item number 35, the EEOC determination dated August Appellant now contends that the report is hearsay, but it has waived its right to enter any objections, other than as to relevancy and materiality, concerning the introduction of the EEOC findings. Rule 16, M.R.Civ.P. provides in pertinent part: "The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matter considered, and which limits the issues for trial to those not disposed of by admission or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice." (Emphasis supplied.) Any injustice to the Department which may have stemmed from the admission of the EEOC report was considered when the District Court judge weighed the relevancy of the evidence against its possible prejudicial effect. The judge decided that the rele- vance of the report outweighed its possible resultant prejudice. As an additional safeguard, a cautionary instruction was submitted to the jury in which the jury was admonished that the findings of the EEOC were "without legally binding effect" and that they simply permitted Strong to file a claim in federal court. Further, it is unlikely that the Department could be sub- stantially prejudiced by an exhibit which dealt with issues (sex and age discrimination) which were not placed before the trier of fact for determination. Here, the issue is whether Strong's filing of the complaint precipitated her subsequent dismissal, and the contents of the report do not relate to these issues. The second issue argued by appellant states: (2) Are the verdict and the judgment supported by the evidence? We believe they are. The Department charges that it was justified in discharging Strong because of her poor job perfor- mance, and that she cannot be insulated from a legitimate dis- missal because she has filed a complaint with the EEOC. Appellants rely on Mt. Healthy City School District Board of Education v . Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L ed 2d 471, in which the United States Supreme Court held that even where constitutionally protected conduct (speech) played a substantial part in a school board's decision not to rehire a teacher, the teacher is not entitled to reinstatement if the school board would have reached the same decision even in the absence of the protected conduct. Appellant argues that the evidence is clear that Strong was properly discharged for reasons valid in themselves and un- connected with the EEOC complaint and recites a distorted fact situation relying solely on the testimony of its own witnesses to support its argument. It cannot be ignored that a large volume of testimony adverse to the appellant was also submitted to the jury. While much of the evidence is conflicting, the credibility and weight given to conflicting evidence is the province of the trier of fact and not this Court. Estate of Holm v . Parsons (1979), Mont . , 588 P.2d 531, 36 St.Rep. 11. The jury was properly instructed to find for the Department if there was sufficient and independent grounds for Strong's dismissal. If the jury believed by a preponderance of the evidence that the filing of the complaint was the motivating factor for the firing, it was instructed to find for Strong. The jury apparently chose to believe the testimony of Strong and her witness; that is, the dismissal was retaliatory and not justified. It is a well established legal principle that where fact issues are presented to a jury and there is substantial evidence to support the findings of the jury verdict, the verdict is con- clusive on appeal. Johnson v. St. Patrick's Hospital (1968), 152 Mont. 300, 448 P.2d 729. This reasoning has been extended yet further in McGee v . Burlington Northern Inc. (1977), Mont. , 571 P.2d 784, 34 St.Rep. 1304, where this Court held that only when there is a complete absence of probative facts to sup- port the verdict does error occur. In this case we see no reason to question the trial jury's decision. The verdict and judgment of the trial court are aFfirmed. ohn S. Henson, District Judge, g in place of Mr. Justice John C. rrison. We concur: | September 20, 1979 |
e8a72ab7-3899-41fe-9263-1adfa8c24091 | LUMBY v DOETCH | N/A | 14602 | Montana | Montana Supreme Court | No. 14602 IN THE SUPREME COURT OF THE STATE OF MONTANA DALE M. LUMBY and FRANCES LUMBY, husband and wife, F . Plaintiffs and Respondents, VS . LaMOINE 0 . DOETCH, et al., Defendants and Appellants. Appeal from: District Court of the Nineteenth Judicial District, Honorable Robert M. Holter, Judge presiding. Counsel of Record: For Appellant: Keller & Gilmer, Kalispell, Montana For Respondent: William A. Douglas, Libby, Montana Thomas R. Bostock, Libby, Montana Ann C. German, Libby, Montana Sub~itted on briefs: ;~p,y 11 1 - Decided: SEP 26 1979 - T c - Filed: bkf? % - 1075 . i Mr. Justice John C. Sheehy delivered the Opinion of the Court. The defendants, LaMoine 0 . Doetch, Betty D. Doetch, Estate of Kenneth L. Doetch and Bonnie L. Doetch, appeal from a judgment entered in favor of the plaintiffs, Dale M. and Frances Lumby, rescinding a contract for the sale of real and personal property. The judgment was entered by the District Court, Nineteenth Judicial District, Lincoln County. LaMoine and Betty Doetch owned a small business in Libby, Montana, known as "Dutch's Sport Shop". The business dealt with Suzuki motorcycles, Bombardier snowmobiles, boats and accessories. Similarly, Kenneth and Bonnie Doetch owned a small business in the same city dealing with Honda motorcycles and office supplies. Kenneth was the son of LaMoine and Betty Doetch. Kenneth died of leukemia in January 1978, and Bonnie, his widow, represents both his estate and herself individually in this cause. Having seen a "for sale" advertisement, the Lumbys were interested in purchasing that portion of the Doetch businesses dealing with Suzuki and Honda motorcycles and Bombardier snowmobiles, including the real property associated with "Dutch's Sport Shop" and the personal property associated with the motorcycles and snowmobiles. The Lurnbys first met LaMoine and Betty Doetch on July 21, 1977, in Libby. At that time, the Lumbys inquired about the financial health of "Dutch's Sport Shop" and whether that business was in good standing with its suppliers and wholesalers. The Lumbys were assured the business was in excellent financial condition and there were no problems at all with its suppliers and wholesalers. The Lumbys were shown a handwritten profit and loss statement for 1976 showing a net income of $42,756.13. The statement was prepared by Betty Doetch. The Lumbys were impressed with the profitability of "Dutch's Sport Shop". They gave $500 to LaMoine and Betty Doetch to hold open the exclusive opportunity to purchase the business. Thereafter, the Doetchs assured the Lumbys on many occasions of the profitability of the business and that it was in good standing with suppliers and wholesalers. The Lumbys were told the business was realizing a profit schedule in 1977 equal to that realized in 1976. To confirm this fact, the Lumbys were shown a profit and loss statement for January 1, 1977, to June 30, 1977, depicting a net profit of $19,201.68. This statement was also prepared by Betty Doetch. On July 27, 1977, the Lumbys and the Doetchs entered a real estate purchase and sale agreement specifying a purchase price of $112,500. The agreement specified August 15, 1977, as the closing date for the transaction. Also on July 27, 1977, the Lumbys paid $500 to the Doetchs. This payment entitled the Lumbys to inspect the financial records of "Dutch's Sport Shop" to verify the represented profitability of that business, The inspection continued for one week but proved fruitless. The records maintained by Betty Doetch, were in poor condition, disorganized and confusing. As a result, the Lumbys asked a bank officer about the financial condition of "Dutch's Sport Shop". They were told it was illegal to give out such information. Despite the failure of their investigations, the Lumbys continued payments on the contract of July 27, 1977. The Lumbys paid the Doetchs $8,877 on August 12, 1977, $8,250 on August 14, 1977, and $9,873 on August 15, 1977. On August 15, 1977, the parties executed a contract for deed embodying the general terms of the real estate purchase and sale agreement of July 27, 1977. Thereupon, the Lumbys assumed full control and operation of the business formerly known as "Dutch's Sport Shop". On or about November 1977, the Lumbys received letters and telephone calls from suppliers seeking payment for past due bills incurred by the Doetchs. The Lumbys became aware of numerous "not sufficient funds" checks written by the Doetchs and that shipments of equipment and parts to the Doetchs had been suspended in 1977 by U . S. Suzuki and Bombardier. Dale Lumby approached LaMoine Doetch and requested a return of the purchase money already paid to the Doetchs on the contract for deed. Dale Lumby warned of possible legal action in case of a refusal. His request was refused. On November 29, 1977, the Doetchs assigned their interest in the contract for deed to David Kieffer for the sum of $50,000 cash plus a repair of LaMoine Doetch's boat. Just prior to the assignment, the Doetchs represented to Kieffer that there were no problems with the contract for deed. The representation was made after Dale Lumby had requested a rescission of the contract for deed. Kieffer borrowed $50,102.50 from United National Bank of Libby to finance the purchase of the Doetch interest in the contract for deed. This loan was secured by a written promissory note and financing statement whereby Kieffer pledged his interest in the contract for deed as collateral for the loan. Kieffer was current on all required payments on the loan as of the time of the trial of this cause. On January 12, 1978, the Lumbys filed this cause for rescission of the contract for deed. The Lumbys alleged the Doetchs misrepresented the financial condition of their business and its standing with its suppliers and wholesalers. The District Court held as follows: 1. The Lumbys were entitled to rescind the contract of August 15, 1977, as to all defendants. 2. The Lumbys were entitled to the return of $31,650 plus interest and were entitled to a judgment in that amount against the Doetchs. 3. The Doetchs had defrauded Kieffer and the United National Bank of Libby in the sum of $50,102.50 plus $840 expenses, together with interest at the rate of 10% per annum. Kieffer and the United National Bank of Libby were entitled to a judgment in such amount. 4. Kieffer was entitled to a judgment for exemplary damages against the Doetchs in the amount of $5,000. 5. The property which is the subject of the action was to be sold at public auction in accordance with Montana statutes relating to sales of property subject to lien. -5- The Doetchs filed motions to amend the findings of fact and for a new trial. Such motions were not set for hearing within the time limits prescribed by Rule 59, Mont.R.Civ.P., and a notice of appeal was timely filed by the Doetchs. The sole issue to be decided upon this appeal is whether the judgment is supported by substantial credible evidence. In resolving this issue, we are guided by a number of principles established by this Court. The credibility of witnesses and the weight to be given their testimony are matters for the District Court's determination in a nonjury case. Corscadden v. Kenney (1977), - Mont . , 572 P.2d 1234, 1237, 34 St.Rep. 1533, 1537. Thus, in examining the sufficiency of the evidence, we must view the same in a light most favorable to the prevailing party, and we will presume the findings and judgment by the District Court are correct. Hellickson v. Barret Mobile Home Transport, Inc. (1973), 161 Mont. 455, 459, 507 P.2d 523, 525. We will not overturn the findings and conclusions of the District Court unless there is a decided preponderance of the evidence against them, and when the evidence furnishes reasonable grounds for different conclusions, the findings of the District Court will not be disturbed. Morgen and Oswood Const. Co. v. Big Sky of Mont. (1976), 171 Mont. 268, 275, 557 P.2d 1017, 1021. The burden of proof is on the appellant. Schuman v. Study Com'n. of Yellowstone Cty (1978), Mont . , 578 P.2d 291, 292, 35 St.Rep. 386, 388. Having examined the record with the above principles in mind, we find there is substantial credible evidence to support the findings and conclusions of the District Court. The evidence in the record furnishes reasonable -6- grounds for the court's conclusions as to each element of a prima facie case for fraud in the inducement. Consequently, the findings of the District Court will not be disturbed. Morgen and Oswood Const. Co. v. Big Sky of Mont., supra. The Doetchs represented to the Lumbys that their net income in 1976 was $42,756.13 and they were realizing an income in 1977 equal to that of 1976. The District Court could properly conclude that these representations were false. No one at trial, including the Doetchs' accountant could verify the profitability of the business. In fact, the Doetchs' accountant testified he did not have a great deal of confidence in the business records of the Doetchs. The Doetchs also represented to the Lumbys that their business was in good standing with its suppliers and whole- salers. There is substantial credible evidence that this representation was false. The Doetchs had written numerous "not sufficient funds" checks to their suppliers and whole- salers. In fact, prior to this representation, shipments from some suppliers were suspended. There is substantial credible evidence to support the conclusion the representations were material. Dale Lumby testified the excellent profitability of the business was the major inducement for his entering the business trans- action. Similarly, the relationship of a business with its suppliers and wholesalers reflects on profitability, the major inducement. The District Court could also properly conclude the Doetchs knew their representations to be false. Betty Doetch was responsible for keeping the books of the Doetchs' business. She recorded the transactions of the business and received notice of the "not sufficient funds" checks. Also, the evidence indicates the Doetchs would sometimes record a cash down payment that was not actually received. There is substantial credible evidence to find the Doetchs intended the Lumbys to rely on the representations. The Doetchs knew the Lumbys were interested in purchasing the business. The Doetchs knew the financial condition of the business and its standing with its suppliers and wholesalers was important to the Lumbys. The Lumbys inquired on these subjects repeatedly. Next, the District Court could properly conclude the Lumbys actually relied on and had a right to rely on the truth of the representations. Generally, where an injured party investigates the truth of representations for himself or has equal means as the defendant to ascertain the truth, reliance on the rep- resentations, however false, will afford no grounds for complaint. Bails v. Gar (1976), 171 Mont. 342, 348, 558 P.2d 458, 462. Here, however, the Lumbys investigated the records of the business to no avail. They requested the income tax records of the Doetchs but were refused. They inquired at the local bank but were refusedthere too. Next, they questioned sales representatives and were told the business was in good standing with its suppliers and wholesalers. Consequently, as Dale Lumby testified, the Lumbys relied on the representations because they felt the Doetchs were honest people. Under these circumstances, the Lumbys had a right to rely on the representations. Finally, there was substantial credible evidence supporting the finding that the Lurnbys suffered damages as -8- a proximate consequence of the representations. The Lumbys paid a purchase price in excess of the real worth of the business as a result of their reliance on the representations by the Doetchs. This excess purchase price is traceable to the representations. The judgment of the District Court is affirmed since there is substantial credible evidence to support the findings and conclusions of that Court. _____ Justice We Concur: ief Justice f-" | September 26, 1979 |
143e33cf-2282-42cd-bec0-c65f04d22a1c | MARRIAGE OF SCHULTZ | N/A | 14391 | Montana | Montana Supreme Court | N o . 14391 IN THE SUPREME Cw>UHT OF THE STATE OF PKB?I'ANA 19 7 9 IN RE THE MAFWAGE OF RICHARD F . SCHULTZ, Petitioner and Respondent, and cAFuA JEAN SCHULTZ, Respondent and Appellant. Appeal fran: District Court of the Eleventh Judicial District, Honorable R o b e r t Sykes, Judge presiding. Counsel of Record: For Appellant: Hash, Jellison, O'Brien and Bartlett, Kalispell, mntana M . Dean Jellison argued, Kalispell, mntana For Respondent: Hoyt and Lewis, Great Falls, mntana Tam L . Lewis argued, Great Falls, mntana Submitted: March 23, 1979 Mided: JUC 3 Q 1979 Filed: JUL 3 3 1979 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. The wife in a dissolution of marriage proceeding appeals from the amended judgment of the Flathead County District Court and challenges the property distribution and maintenance pro- visions of the decree. The parties were first married in June 1967. They were divorced about a year and a half later, but remarried in December 1969. The present proceeding for dissolution of marriage was commenced in July 1977. At the date of dissolution, the husband was 46 years old and employed as a railroad brakeman-conductor, earning about $1,350 per month. The wife was 37 years old and unemployed, although she has worked as a bartender and waitress. Both parties had former marriages. The wife had been married three times before. She brought three minor children into her marriages with the husband. Although she was entitled to child support for one of her three minor children, she never received any. The husband had been married once before, and he entered his marriages with the wife with a single child support obligation from his former marriage. No children were born of the marriages between the parties. The primary asset of the marital estate was a twenty-acre tract of land, known as the Haskill Creek property, located east of Whitefish, Montana, in Flathead County. A small log house on this land served as the marital home of the parties and the wife's children. The husband originally contracted to purchase the real property for $11,000 before his marriages to the wife, and approximately $5,000 of the purchase price was paid by the husband during his marriages to the wife. At dissolution, the court gave the Haskill Creek property a current value of $40,000. The remainder of marital assets consisted of miscellaneous personal property which the court valued at $7,170. The court found that the allowable marital debts amounted to $4,280. On July 28, 1977, the husband commenced this action for dissolution of marriage. As trial approached, there appeared to be no dispute as to the terms of dissolution except for the wife's demand for a half interest in the Haskill Creek property, for maintenance in the amount of $500 per month, and for attorney fees. Trial was held without a jury on December 22, 1977 and February 16, 1978. Most of the testimony dealt with valuation of the marital assets and the nature of the parties' relation- ship during marriage. One of the court's findings of fact summarized the situation as follows: "Considerable strife, turmoil and controversy occurred throughout the two marriages of the parties. Drinking on the part of both parties has contributed to the problem. The respondent [wife] left the family home with the children on several occasions; and the separation of the parties dissipated the assets and monies accumulated during the course of the marriage on the part of both parties." On March 23, 1978, the court awarded the Haskill Creek property to the husband and ordered that the wife be paid $6,000 as her interest therein. The husband was to assume all the marital debts (except $500 owed on the wife's organ) including the balance due on the Haskill Creek property. In disposing of the personal property, the court apparently attempted to award the items requested by each party and, in order to equalize the difference in values, required the husband to pay $235 to the wife. The court made no provision for maintenance. On April 3, 1978, the wife moved to amend the decree. She sought provisions for the requested maintenance and an increase of her interest in the Haskill Creek property from $6,000 to $17,000. After a telephone conference with the parties' attorneys, the court amended its findings and conclusions with provisions to the effect that the husband contributed approximately $20,100 toward support of the wife's children during the marriage and that he was entitled to consideration of this in the distribution of marital property. The court also declared that the wife's "request for support is denied." The wife appeals and presents the following issues for our review: 1. Whether, in distribution of the marital estate, the District Court erred by considering the husband's contribution toward support of the wife's children by a former marriage. 2. Whether the District Court erred in making no finding of fact relative to the wife's entitlement to maintenance. 3. Whether the District Court erred by failing to dispose of the parties' personal property. The wife contends that the court erred by considering the husband's contribution toward support of her minor children in distribution of the marital property. The husband argues that since he had no legal duty to support his stepchildren under section 61-117, R.C.M. 1947, now section 40-6-217 MCA, the court's consideration of support contributions was proper. The statute upon which the husband relies states that a stepparent is not legally bound to support his stepchildren, "but if he receives them into his family and supports them --- --- it is presumed that he does so as a parent. . ." Section 61- -- ------ 117, R.C.M. 1947, now section 40-6-217 MCA (emphasis added). The evidence was undisputed that the husband voluntarily under- took to support his stepchildren, and it follows therefore, that he did so as a parent. Section 61-116, R.C.M. 1947, now section 40-6-216 MCA, provides that, "[a] parent is not bound to compensate the other parent . . . for the voluntary support of his child, -4- without an agreement for compensation . . ." No such agreement was made in this case. We conclude that the District Court erred in considering the husband's support of his stepchildren in disposition of the marital estate. The wife next challenges the court's failure to make findings of fact regarding her request for maintenance. The court merely made the conclusion of law that the wife's "request for support is denied." The husband contends that under section 48-322 (I), R.C.M. 1947, now section 40-4-203 (1) MCA, the court could only award maintenance if it found that the wife lacked sufficient property to support herself - and that she was unable to support herself through appropriate employment. He argues that since the court did not make such findings, denial of maintenance was proper. The argument does not respond to the issue. The mere fact that an affirmative showing must be made as a precondition to the award, does not dispose of the District Court's duty under Rule 52(a), Mont.R.Civ.P., to make findings of fact on contested issues. In Barron v. Barron (1978) , Mont . , 580 P.2d 936, 938, 35 St.Rep. 891, 894, this Court stated: ". . . the findings of fact required by Rule 52(a) is nothing more than a recordation of the essential and determining facts upon which the District Court rested its conclusions of law and without which the District Court's judgment would lack support. There are several reasons why it is important this record- ation be made. The purpose of requiring findings of fact is three-fold: 1) as an aid in the trial judge's process of adjudication; 2) for purposes of res judicata and estoppel by judgment; and 3) as an aid to the appellate court on review. 5A Moore's Federal Practice Sec. 52.06 [l] . " Similarly, in Dahl v. Dahl (1978), Mont . , 577 P.2d 1230, 1232, 35 St.Rep. 536, 539, this Court remanded for the District Court's failure to enter findings on requested attorney fees. Attorney fees, like maintenance, require an affirmative showing as a condition precedent to their award. See, section 48-327, R.C.M. 1947, now section 40-4-110 MCA; Allen v . Allen (19781, - Mont . , 575 P.2d 74, 76, 35 St.Rep. 246, 249. Review of the court's findings, conclusions and decree in this case disclose no facts relating to the cited pre- conditions contained in section 48-322(1), R.C.M. 1947, now section 40-4-203(1) MCA. The flat assertion that "support is denied" was inadequate to dispose of this contested issue. Finally, the wife asserts that the District Court failed to dispose of the parties personal property. The court findings on disposition of the personal property are confusing. In one finding, the court listed various household goods and other personal property which were acquired during the marriage and declared that the parties had an equal interest therein. The aggregate value of these items was $3,820. In the same finding, by separate paragraph, certain other personal property acquired during marriage was set aside for the wife. The total value of these items was $3,350. The next finding of fact stated that the husband owes the wife $235, "as the difference in values for the property held by each party." The husband suggests that the court intended to give each party exactly one-half of the personal property acquired during marriage; so that the wife's $3,350 worth of personal property, plus $235, would equal one-half of $7,170 ( $ 3 , . 3 5 0 + $3,820). While conceivable, the court's statement that the parties had an equal interest in the $3,820 worth of personal property, leaves us unconvinced. On remand, the District Court should be more explicit in its distribution of the parties' personal property. The cause is reversed and remanded with instructions that the District Court distribute the marital estate without -6- consideration of the husband's contributions toward support of the wife's children. The District Court is further directed to make specific findings of fact concerning the wife's entitle- ment to maintenance and to clarify its distribution of the parties' personal property. We Concur: -. - 1 Chief Justice ,J' Justices Mr. Justice John C. Harrison dissenting: I dissent. I would sustain the trial court's findings, allow the wife an additional $235.00, and terminate the matter without further p | July 30, 1979 |
e4ec584e-db5a-4954-88c9-da58b6fd7cfb | MATTER OF MURPHY | N/A | 14347 | Montana | Montana Supreme Court | N o . 14347 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 19 79 I N T H E M A T T E R O F T H E ESTATE O F MAURICE D. MURPHY, Deceased. Appeal from: D i s t r i c t Court of t h e F i f t e e n t h J u d i c i a l D i s t r i c t , Honorable M. James S o r t e , Judge p r e s i d i n g . < Counsel o f Record: For Appellant: Traynor and Hoversland, Scobey, Montana Kenneth W. Hoversland argued, Scobey, Montana Robert L. Stephens, Jr., B i l l i n g s , Montana David B. Kinnard argued, B i l l i n g s , Montana For Respondents: James Gardner argued, Dept. Labor, Helena, Montana James McCann argued, Wolf P o i n t , Montana E a r l C. G r o s s , Hardin, Montana James A. Torske, Hardin, Montana Kronmiller and Seykora, Hardin, Montana John M. D i e t r i c h , B i l l i n g s , Montana Douglas Freeman, Hardin, Montana Loren J. O'Toole, Plentywood, Montana Submitted: February 5 , 1979 Decided: m 6 - 9 1 9 7 9 F i l e d : AuG - 3 1379 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. This is an appeal from a probate proceeding in the District Court, Daniels County. A number of Maurice D. Murphy's creditors have appealed from a June 1, 1978 order, which authorized the personal representative of Maurice Murphy's estate to take all cash and personal property in the personal representative's possession and deliver the same to respondent, Northeast Montana Production Credit Association of Wolf Point (hereafter PCA). Technically, this appeal only involves an order entered June 1, 1978; however, to understand why we must remand without a decision on the merits, it is necessary to briefly review the convoluted history of Maurice D. Murphy's estate. Maurice D. Murphy died testate on December 7, 1973. At the time of his death, Murphy was heavily in debt; his principal creditors were: (1) W . 3 D . Graham, et a1.-- $464,392.28--this balance was due under a contract for deed executed by the decedent prior to his death; (2) PCA-- $305,687.24--this was a secured debt incurred by decedent to finance his ranching operations; and (3) Citizenti State Bank of Scobey, Montana (hereafter Bank)--$72,667.75--this is an unsecured debt owed by decedent on a personal note to the Bank. Decedent also owed approximately $100,000 to other unsecured creditors. On December 20, 1973, Ralph Shiell was appointed personal representative of Maurice D . Murphy's estate. Shiell's first act was to apply for authorization to continue the decedents ranching business; at the same time, Shiell applied for authority to borrow $91,077 from PCA for the estate and to be allowed to secure such a loan by executing mortgages on the estate's livestock, equipment and feed. The District Court routinely granted all of Shiell's requests and specifically found that such action "is in the best interests of the estate." On February 26, 1974, after all of the money from the first loan had been expended, Ralph Shiell petitioned the District Court for authorization to borrow an additional $138,500 from PCA to enable Shiell to continue operating the Murphy ranch and to allow him to pay off certain creditors of the estate. This request was also routinely granted. Thus, during the first three months after his death, Maurice Murphy's estate became indebted to PCA for an additional $229,577 with all loans purportedly secured by mortgages on the estate's livestock, machinery and feed. On March 29, 1974, Ralph Shiell filed his notice of resignation with the District Court and requested that his accounts be approved and his responsibility to the estate terminated. A hearing on this matter was set for August 9, 1974, and at that time Shiell's resignation was accepted, his accounts approved, and Gary Murphy, decedents son, was appointed to succeed Shiell as administrator. Gary Murphy administered the estate from August 9, 1974 until September 20, 1976, the date he filed his resignation with the District Court. During his term as administrator, Murphy was authorized by the District Court to borrow the following sums from PCA: AMOUNT DATE SECURITY GIVEN September 26, 1974 Mortgage on livestock, machinery and feed March 13, 1975 Mortgages on livestock, machinery, feed - and real estate August 22, 1975 Mortgage on livestock, machinery and feed $ 18,000 October 30, 1975 Mortgage on livestock, machinery and feed $ 85,000 December 10, 1975 Mortgage on livestock, machinery and feed $ 25,000 March 10, 1976 Mortgage on livestock, - machinery and feed $336,767 TOTAL On March 29, 1976, Loren O'Toole, one of the attorneys for the estate, petitioned the District Court for authority to sell 1,017 head of estate cattle (all of the cattle were pledged as security for the various PCA loans). The authori- zation to sell was granted by the District Court and OIToole was able to sell the cattle to John Wycoff, James Wycoff, and Richard Redland for a consideration of $263,120. Thereafter, OIToole filed a second petition (August 9, 1976b This petition asked the District Court to determine which creditors should receive payment from the funds held for the estate. OIToole's petition stated that the estate currently had $286,545 on hand, and that "with the exception of $22,500.00 all of the sums above came from the sale of cattle, which were mortgaged to the Production Credit Association of Wolf Point, Montana." The District Court set O'Toole's petition for hearing on September 3, 1976; however, because of various delays, the court did not hold the hearing until September 20, 1976. At that time, the court held an informal, unrecorded con- ference in the judge's chambers. Apparently, the parties attending the informal conference agreed to submit written briefs detailing their theories on how the $286,545 should be distributed. On November 22, 1976, after receiving a number of written briefs and after entertaining further arguments ( a l s o n o t recorded) t h e D i s t r i c t Court entered t h e following order : "Payments from t h e e s t a t e of t h e above named decedent a r e ORDERED a s follows and i n t h i s order of p r i o r i t y : "1. The c o n t r a c t f o r deed entered i n t o on t h e 10th day o f J u l y , 1973 by and between W. J. D. Graham and Ruth M. Graham, husband and wife; William S. Graham and Lavere C. Graham, husband and wife, a s s e l l e r s , and Lalon Fladager and Daryl Fladager, and t h e assignment made thereunder; "2. Secured and unsecured o b l i g a t i o n s owing t o t h e Production C r e d i t Association, Wolf Point, Montana t h a t e x i s t e d a s of t h e d a t e of death and any advances made upon p e t i t i o n and approved by s p e c i f i c c o u r t order a f t e r t h e d a t e of death; "3. S t a t u t o r y Attorneys f e e s , and f e e s of t h e Personal Representatives, and Accountants' f e e s a s determined by t h e Court; (Public policy compells t h a t a t t o r n e y s f e e s must receive a p r i o r i t y i n e s t a t e s of questionable solvency o r insolvent e s t a t e s would n o t be properly administered with t h e advice of counsel. I f t h e r e a r e i n s u f f i c i e n t funds f o r f u l l payment of Paragraphs 1, 2 and 3, then t h e payment a s provided i n Paragraphs 2 and 3 w i l l be p r o - r a t a ) . "4. Extraordinary f e e s of t h e a t t o r n e y s , accountants, and t h e personal r e p r e s e n t a t i v e s a s determined by t h e Court; "5. Creditors a s of t h e d a t e of death; "6. Any claim of t h e second personal r e p r e s e n t a t i v e , Gary Murphy, f o r monies expended, and determined t o be necessary and reasonable, f o r t h e preservation of t h e e s t a t e a s s e t s ; "7. Beneficiaries under t h e t e r m s of t h e W i l l o r otherwise; and "8. Any o t h e r funds advanced by t h e Production C r e d i t Association a f t e r t h i s d a t e , f o r purposes necessary f o r t h e preservation of t h e e s t a t e a s s e t s , and approved by an Order of Court, w i l l be paid i n accordance with Paragraph 2 of t h i s Order, and s u b j e c t only t o t h e Graham c o n t r a c t r e f e r r e d t o i n Paragraph 1 and, i f necessary, pro-rated a s provided i n Paragraph 3." Gary Murphy, a p a r t y designated t o receive payment i n no. 6 of t h e November 22, 1976 o r d e r , f i l e d a p e t i t i o n f o r w r i t of supervisory c o n t r o l with t h i s Court. This Court heard o r a l arguments on October 6, 1977, and l a t e r declined j u r i s d i c t i o n f o r t h e following reasons: "(1) This is a fragmented appeal without the necessary record to support a review. " (2) This matter comes to this Court on brief only. There is no evidence of a proper hearing in the District Court due to the absence of a transcript record. " (3) If a hearing was had, we cannot be sure that all interested parties were represented. "(4) We find no evidence in the court record of a determination of validity of the claims involved. "For these reasons the application of Petitioner Relator is dismissed without prejudice." Murphy v. District Court (1977) , Mont . , 571 P.2d 803, 804, 34 St.Rep. 1365, 1366. From the time this Court issued its November 17, 1977 decision until February 1, 1978, the District Court file reflects little activity the part of the Murphy estate administrators. The most activity we can discern occurred on February 1, 1978, when PCA filed a petition seeking an order directing the personal representative to pay over the estate assets in partial satisfaction of the PCA claim. A hearing on the PCA petition was held on March 1, 1978, in Wolf Point, Montana. A transcript of that proceeding was kept, and it indicates that the PCA, the Bank, Gary Murphy and the attorneys for the estate were present, and presented oral argument to the court. It also indicates that Douglas Freeman, attorney for the administrator, Erle C. Gross, had notice of the hearing, but was unable to attend due to bad weather. After hearing oral arguments, the District Court entered the following one page order on June 1, 1978: "Northeast Montana Production Credit Association having on the 31st day of January, 1978, filed its petition herein directing payment to it of $499,686.37 together with interest; and following hearing on said petition on March 1, 1978; "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the personal representative is authorized and directed to take all cash and personal property now in his hands as belonging to decedent's estate and to deliver the same to Northeast Montana Production Credit Association to payment of its claim. Items of personal property may be sold and converted to cash prior to such delivery at the discretion of personal representative." Citizens State Bank of Scobey, a creditor with an ante mortem debt, filed a notice of appeal from the June 1 order on June 8, 1978. The Bank claims it has first priority over all other estate claims, and therefore the District Court erred in awarding PCA first priority. The notices of appeal filed by Gary Murphy and the State Department of Labor do not appear in the record transmitted to this Court; however, the District Court Clerk has informed this Court that timely notices were filed on behalf of the Department and Murphy. Accordingly, we shall assume that Murphy and the Department have complied with Rule 4, M0nt.R.App.Civ.P. The Department and Murphy claim to be entitled to a pro rata share of the funds and personal property in the personal representative's possession. They allege their claims are costs of administration and are in the same class as PCA's claim. The June 1, 1978 order is an appealable order under Rule 1, M0nt.R.App.Civ.P. That rule specifically provides that "an order directing the delivery, transfer, or surrender of property" may be appealed by an aggrieved party. Thus, the parties are properly before this Court. Unfortunately, this Court is still not in a position to finally dispose of the matter on the merits. The order entered by the District Court states simply "that the personal representative is authorized and directed to take his all cash and personal property now in/hands . . . and to deliver the same to Northeast Montana Production Credit Association to (sic) payment to its claim." There is no memorandum opinion or other explanation of the basis for entry of the order. The parties and this Court are left to speculate as to why the District Court found PCA entitled to the proceeds in the possession of the personal representative. Briefs and oral arguments before this Court clearly assert that the parties are not certain which law the District Court judge applied (the old probate provisions or the provisions of the Uniform Probate Code), which claims are valid, and which classification was given to the various claims. As a result, this Court is not in a position to enter a binding decision on the merits. Although Rule 52, M0nt.R.Civ.P. is seldom used in probate proceedings, we feel that it must be applied to the present fact situation so that this Court will know precisely the questions presented for appellate review. We recently defined the underlying reasons for findings of fact and conclusions of law: "The purpose of requiring findings of fact is three-fold: 1) as an aid in the trial judge's process of adjudication; 2) for purposes of res judicata and estoppel by judgment; and 3) as an aid to the appellate court on review. 5A Moore's Federal Practice Y l 5 2 . 0 6 [I] ." Marriage of Barron (1978), Mont . , 580 P.2d 936, 938, 35 St.Rep. 891, 894. For purposes of this opinion, reason no. 3 is most important. As the record now stands, we can only speculate on the factors which went into the District Court's decision. The facts of this case require a remand to the District Court so that a proper order can be entered. The District Court is directed to enter findings and conclusions or a memorandum clarifying the order it entered June 1, 1978. This cause is remanded for action consistent with this opinion. 9+g-A We Concur: Chief Justice | August 9, 1979 |
abf7bc23-e811-485c-a3ab-b98c419bbd29 | BOISE CASCADE CORP v FIRST SECURI | N/A | 14204 | Montana | Montana Supreme Court | No. 14204 I N T H E s U P H E M E ~ u K r O F T H E s r A T E O F ~ 1979 BOISE CASCADE C O R P O R A T I O N , A Delaware Corporation, Plaintiff and Appellant, FIRST SECUUTY BANK O F JWiENDA, et a l . , Defendants and Respondents. Appeal froan: D i s t r i c t Court of the Third Judicial D i s t r i c t , Honorable Robert Boyd, J d g e presiding. Counsel of Record: For Appellant : Scribner, H u s s and Mulroney, Helena, Plbntana Watkiss and Campbell, Salt Lake City, Utah Robert Maach arqued, Salt Lake City, Utah For Respondents: Knight, Dahood, Mackay and m a n , Anaconda, bbntana David M c L e a n arqued, Anaconda, bbntana Submitted: - M a y 3, 1979 Decided: AU - 9 Filed : AUF - 9 197$ Mr. Justice John C. Sheehy delivered the Opinion of the Court. Boise Cascade Corporation appeals from a summary judgment entered against it in the Third Judicial District, Deer Lodge County. Boise Cascade was engaged in the design, construction and fabrication of modular homes. It maintained a system of independent dealers to market and distribute the prebuilt homes. Mountain Sales, Inc., of Missoula, Montana, was a duly authorized dealer for Boise Cascade in Montana. The president and managing executive of Mountain Sales, Inc. at the time this case arose was James D. Spring. David M. McLean, one of the defendants, an Anaconda, Montana lawyer, was a partner in an enterprise known as Lakeview Associates, then engaged in the subdivision of real property around the area in Montana known as Georgetown Lake. In the spring of 1974, James D. Spring had a conversation with Robert "Jasty" Johnson, one of McLean1s partners in Lakeview Associates. Spring mentioned to Johnson that there was a home already built at Post Falls, Idaho, which was being used as a modular home and which couTd be purchased, but that the partner- ship should act immediately because a substantial price increase was about to go into effect. The partnership agreed and Spring called the Boise Cascade facility in Post Falls, to make arrange- ments to purchase the house through Mountain Sales, Inc. Then he executed on behalf of Mountain Sales, Inc., and forwarded to Boise Cascade, a dealer purchase order dated March 18, 1974, for the home at a total selling price of $18,341 plus $7,659 sales commission. The dealership made a downpayment of $100 with the purchase order. On March 25, 1974, the modular home was shipped from Post Falls, Idaho to Missoula, Montana and placed on the sales lot for Mountain Sales, Inc. -2- On March 21, 1974, four days before the house was shipped to Missoula, Spring brought two separate documents for signatures to Anaconda. One was a letter of instruction and joint assignment of funds, and the other was an assignment of funds. Spring told McLean that McLean's signatures on the documents were necessary for Mountain Sales' files. One of those signed by McLean had the following language: TO _ _ _ First S e c u r i g . _. f i 2 1 1 k ___ _ ___- Anaconda, fiontana -_-- -- - - - - _ _ & --- A> - ---- -- -- ---- -- ,c*- I -(We) tiir U I ~ Jersigued ilal~f2 ?.l.,?setl a11 o r d e r i o r ,I' , . 8 0 : s ~ Last-.ade ilon~e(s) .-, - . , -., ....-I in t h e amount o f S s A ! ~ - p ~ _(_ ---- (See ;~ct,~ched cant r a c t ) . AS a11 irrducenent t o Xountafn S a l e s , I n c . . a s Sei.lt:r ;~iid i ; i r s t S e r t l r i t " hihiik i . 1 ?liss,:uLn. Ire*-einafter referred t o a s r\ssi.r:nt\c?s, t 1 . 1 st;it-t. p roriclc t i o n , t . tie uncic rs igncd t l ( ~ ? : , hereby n u t h c r i z e you to allucete, :inti does ilcbrcby ass!):n, trailfe:. ancl s c ! t O V P I - to Asslpl~ces the sum Is, ' ,'. c of $ f ; , , ' ( - c-I c,@ / ------ , t o be d i s b u r s e d :o Assignees a s joint payees upon d e l i v e r y * of s a i d home(s) evidenced by a c o n p l e t i o n cercificats s i g n e d by the undzrsigned Purchasers. . I I Zt is s p e c i f i c a l l y untlr?l.stood and agreed t h a t n e i t h e r titc y i v i n ~ nor nccep t < n g of this letter by Assif.:iii:es, w i t h o r w i t l ~ ~ ~ t ~ t sc,.tr~ i L V , si1e1 i i r ~ ;IIIV r ~ c i y n l l e c ~ or c o n s t i t u t e a waiver of tltc rLp,!,l~t of c i t h c r - t'issi~:nee t o f j l c o r cn1i.t-cc anv mechanic's o r m a t e r i a l m a n ' s lien or m;lintain any action to which i t would otherwise b e e n t i t l e d . As per tlie forey,nf.ng instl-t~c t ini~:;. !JC have d~ 2$,&$ f i Uollzrs (6 ----- Jbooo, 1, m d paynenc of tllc Iicreinabove d e s c r i b e d . invoices w i l l bc made by us to Assignees as joint payees from the said funds upon presen- tation by A s s i m e e s of any one or nlore such a executed completion certificates. Title j. Li. id:;::...: 1, , ,, , & . .' - SELLER ~ i u C 6 t a i n Sales, Inc . / The foregoing assignment was stamped "RECEIVED, MAR 23 1974, BOISE CASCADE" and the following handwritten notation: If Tom "Invoice this to Bank when we bill this out LKA" "LKA" is Larry K. Anderson, a managing employee in the home office of Boise Cascade. As indicated above, J. R. Bennett, president of the First Security Bank of Anaconda, had executed the instrument shown on March 21, 1974. The second document was a letter of instruction and joint assignment of funds which was not presented to J. R. Bennett for his signature until July 25, 1974. We will set out below the full text of the second document in our discussion relating to letters of credit. It is enough to say at this time that the two documents concerned the same sale and the same fund, -4- but the first instrument assigned the funds to Mountain Sales and First Security Bank of Missoula as joint payees, whereas the second instrument assigned the funds to Mountain Sales and Boise Cascade as joint payees. Bennett signed the second instrument on behalf of the First Security Bank of Anaconda at the request of James D. Spring. On August 1, 1974, the house was transported from the sales lot in Missoula to the site in the subdivision on George- town Lake. McLean paid the balance due for the modular house by taking three checks to Missoula. The three checks were payable to Mountain Sales, Inc. and were deposited by James D. Spring in the dealership account at First Security Bank of Missoula. The money used by McLean to pay for the house had been loaned to Lakeview Associates by the First Security Bank of Anaconda. No invoice or completion certificate was presented to the bank in Anaconda. The Anaconda bank instructed Lakeview Associates to be certain the funds were delivered to First Security Bank of Missoula. The record does not disclose what Mountain Sales, Inc. did with the funds deposited in its accounts. The dealership contract between Boise Cascade and Mountain Sales, Inc. was eventually terminated by Boise Cascade. To settle its account with Boise Cascade, Mountain Sales, Inc. executed and delivered to Boise Cascade a promissory note dated January 31, 1975, personally guaranteed by James D. Spring, in the amount of $20,397.43. The note provided that the guaranty by Spring would be extinguished upon his death or incapacity. On April 4, 1975, Spring fell from a horse and became totally incapacitated. On October 10, 1974, Boise Cascade had filed a materialman's lien on the modular house now situated on Georgetown Lake. On August 1, 1975, Boise Cascade filed a release of material- man's lien in the Clerk and Recorder's Office in Granite County, stating that the debt had been fully paid. However, an affidavit before the District Court at the time of the motion for summary judgment from a Boise Cascade representative stated that the release had been mistakingly filed and that no consideration had been received for the release of the materialman's lien and that the debt had not been satisfied. On June 11, 1976, Boise Cascade filed a complaint in the District Court for Missoula County against First Security Bank of Anaconda and McLean. The complaint has four claims. The first claim is on breach of contract, alleging that as a condition precedent to approval of the purchase contract and commencement of construction of the modular home, on July 24, 1974, the defendants had executed the second document, assigning funds to Boise Cascade as a joint assignee; that the funds had not been delivered and that the defendants refused to perform the assignment. The second claim is alleged to be one in "estoppel in pais or equitable estoppel." The essential allegations are that the defendants disclaim any contractual obligations to Boise Cascade; that they gave a written promise to set aside and pay funds to Boise Cascade as a joint payee in order to induce Boise to manufacture, sell and deliver the prefabricated home; that Boise Cascade relied on the assignment to materially change its position; and that because thereof the defendants are estopped from denying the obligation to pay Boise Cascade $18,341. The third claim for relief in the complaint is alleged to be on the basis of negligence, in which it is stated that the defendants owed a duty to Boise Cascade in connection with the disbursement of the proceeds of the $18,341 construction loan; that the defendants were negligent -6- in that they disbursed the proceeds to Mountain Sales, Inc., solely; that Mountain Sales is insolvent; and by reason of such alleged negligence of the defendants, Boise Cascade has been damaged in the sum of $18,341. The fourth claim is alleged to be on quasi-contract, quantum meruit and uncon- scionability in that Boise Cascade has provided materials for a home with the expectation of being paid; that the defendants have received a benefit; and that it would be unjust and unconscionable for the defendants to retain the benefits without payment to Boise Cascade. McLean and First Security Bank of Anaconda filed their amended answer generally denying the allegations in Boise Cascade's complaint and adding a counterclaim in the nature of malicious prosecution. Both sides moved the District Court for summary judgment. On December 21, 1977, the District Court entered findings of fact and conclusions of law granting summary judgment to defendants on the claims of Boise Cascade, and denying the counterclaims of defendants. Judgment was entered January 16, 1978 in favor of the defendants on Boise Cascade's claim. Boise Cascade appeals from the summary judgment taken against it; no cross-appeal is taken by the defendants as to the counterclaims. The issues stated by Boise Cascade are: 1. The District Court erred in granting summary judgment to the defendants on both the contractual and negligence causes. 2. The District Court erred in concluding that the second document (set forth below) dated July 25, 1974 failed for lack of consideration and lack of mutuality. 3. The District Court erred in concluding that as a matter of equity defendants have performed the obligation by paying Mountain Sales, Inc. -7- 4. The District Court erred in finding that the defendants were not guilty of any negligence. While those are the issues stated by Boise Cascade, it has developed, in the briefs and upon oral argument, that the real issue being presented by Boise Cascade to this Court is that the second document of July 25, 1974 was in legal effect a letter of credit, and thereof Boise Cascade, and not the defendants, is entitled to summary judgment. FINDINGS OF FACT IN SUMMARY JUDGMETJT CASE --- It has been helpful to us in considering this matter that the District Court set forth in findings, the "uncon- tradicted, uncontested facts" of the case. As we noted in Eisemann v. Hagel (1971), 157 Mont. 295, 299, 485 P.2d 703, 705, findings of fact in cases where the court grants summary judgment are unnecessary and redundant. The reason is that the facts are not decided when a summary judgment is granted, since Rule 56, M0nt.R.Civ.P. requires that there be no material fact issue present in the case. Therefore, the failure of an appellant to assign error to findings of facts in a summary judgment case has no effect on his appeal, Eisemann, supra; Washington Optometric Association v. County of Pierce (1968), 73 Wash. 445, 438 P.2d 861. Accordingly, in this case, while we have regarded the facts noted by the District Court for its summary judgment, we have also reviewed the record in this case to make certain that no fact issue is present which would make it necessary to alter, vacate, or remand on the basis of a fact issue. THE LETTER - OF CREDIT ISSUE In this Court, Boise Cascade has contended that the document of July 25, 1974 was in legal effect a letter of credit, and as such, requires a summary judgment in favor of Boise Cascade, at least against First Security Bank of Anaconda. - 8- W e set f o r t h now t h e f u l l t e x t of a document signed by F i r s t S e c u r i t y Bank of Anaconda on J u l y 25, 1974: LETTES OF INSTRUCTION AND JOINT ASSIGNMENT OF FUMDS I (We) the undsrsignea have placed an order for one (I) Boise Cascade Home in the emount of - S -sJIJA?Ja = $ U O ~ ~ Q - dollars (See Attached Contract). As an inducement to & b d c . ) ~ . d JALSS . , as Seiler and Boise Cascade Corporation as Manufacturer, hereinafter referred to as Assignees, to begin production and to further secure Assignees' ability to collect sums owing pursuant to the above-mentioned order, you are hereby authorized and instructed to allocate and, on or before thirty (30) days following the dale of d lilrery of said home, to set aside on $posit and/or allocated by you the sum of & & F H s ~ ) & ~ nbdf-+-)a LGb ma*- a d - L d o i l a r s ($ 1 a. 3+1. ). I (We) in further consideration of Assignees' beginning production of the above-mentioned house, do hereby assign, transfer, and set over to Assignees the above-mentionsd set-aside funds and do hereby instruct you to delivsr such set-aside funds to Assignees as joint payees upon presentation to you by Assignees of an invoice and a Covptetizm Certificate signed by the undersigned purchasers. it is specifically understood and agreed that neither the giving nor accepting of this letter by Assign- ees, with or withcrit security, shall in any way affect or constitute a waiver of the right of either Assignee to file or enforce zny mechanic's or materialman's li- maintain zny action to which it would otherwise be entitled. ' & + J ' + J 4 . k t & . - Purchaser Purchaser APPROVED: SELLER: v f i c - c L - . . ZL ;,A&,*@, MANUFACTURER: Boise Cascade Corporaticn BY / Title ACKNOWLEDGEMENT AND ACCEPTANCE As per tho foregoing instructions, we have allocated and will set aside on or before 30 da s after debery of the above-mentioned house sum o f b E / s A ~ ? $ O J J ~ J P /$,dpx&. ,ew,?y+ d$ - < ) and paym+nt of the hereinbefore described invoice will be made by us to Assignees as joint payees from said funds Upon presentation by Assignees of the above- mentioned invoice accompanied by an appropriate Completion Certificate. Accepted this 7 J m a y of J L J L z 1973' FIRST SECURITY BAElK 'Anaconda, Montana 5971 1 BY 2 / & - (Lending Institution) Title F A 'is BENNEIT, Pr'ZESiDENT Chapter 5 of t h e Uniform Commercial Code r e l a t e s t o letters of c r e d i t . Section 30-5-102 MCA s t a t e s : " (1) This chapter a p p l i e s : " ( a ) t o a c r e d i t issued by a bank i f t h e c r e d i t r e q u i r e s a documentary d r a f t o r a documentary demand f o r payment; and "(b) t o a c r e d i t i s s u e d by a person o t h e r than a bank i f t h e c r e d i t r e q u i r e s t h a t t h e d r a f t o r demand f o r payment be accompanied by a document of t i t l e ; and " ( c ) t o a c r e d i t i s s u e d by a bank o r o t h e r person i f t h e c r e d i t i s n o t within sub- paragraphs ( a ) o r (b) b u t conspicuously s t a t e s t h a t it is a letter of c r e d i t o r is conspicuously s o e n t i t l e d . " ( 2 ) Unless t h e engagement m e e t s t h e r e q u i r e - ments of subsection ( I ) , t h i s chapter does -- not apply t o engagements -- t o make advances - - o r t o honor d r a f t s o r demands f o r payment, t o author t o pay o r purchase, t o guarantees o r to --- - g e n e r a l agreements . . ." (Emphasis added. ) apply t o engagements -- t o make advances - - o r t o honor d r a f t s o r - demands f o r payment, - t o author i t i e s F u r t h e r , under t h e UCC, a " l e t t e r of c r e d i t " and a "documented demand f o r payment" a r e defined a s follows: -10- "(a) 'Credit' or 'letter of credit' means an engagement by a bank or other person made at the request of a customer and of a kind within the scope of this chapter (30-5-102) that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the credit. A credit may be either revocable or irrevocable. The engage- ment may be either an agreement to honor or a statement that the bank or other person is authorized to honor. "(b) A 'documentary draft' or a 'documentary demand for payment' is one honor of which is conditioned upon the presentation of a document or documents. 'Document' means any paper in- cluding document of title, security, invoice, certificate, notice of default and the like." Section 30-5-103 (a) & (b) MCA. If the instrument of July 25, 1974 is truly a letter of credit, as contended by Boise Cascade, then that letter of credit would become a primary obligation between the issuer, First Security Bank of Anaconda, and Boise Cascade as beneficiary. Asociacion de az-de Gua v. United States Nat. Bank of Ore. (9th Cir. 1970), 423 F.2d 638, 641; Fidelity Bank v. Lutheran Mutual Life Insurance Co. (10th Cir. 1972), 465 F.2d 211. Lack of consideration is not a defense to a documentary demand on a letter of credit, section 30-5-105 MCA, and the issuer must honor a draft for payment which complies with the relevant terms of the credit regardless of conformance with the underlying contract between the customer and the beneficiary. We conclude, upon consideration, that the written acceptance by the bank in the instrument of July 25, 1974 does not con- stitute a letter of credit for two reasons: (1) the acceptance contained in the instrument of July 25, 1974 is not a letter of credit within the meaning of the Uniform Commercial Code; and, (2) in any event there has been no compliance with the terms of the instrument of July 25, 1974 so as to make the issuer liable. The contention that the bank's obligation was a letter of credit was not raised by the pleadings, Milne v. Leiphart (19461, 119 Mont. 263, 174 P.2d 805; Sonnek v. Universal C.I.T. Credit Corporation (1962), 140 Mont. 503, 374 P.2d 105, nor raised in briefs or argument before the entry of summary judgment, State ex rel. Sol. v. Orcutt (1979), Mont . I 588 P.2d 996, 36 St.Rep. 1; State v. Voyich (1963), 142 Mont. 355, 384 P.2d 765. We will not consider such issues for the first time on appeal. Without waiving that ground for rejection of Boise Cascade's contention, we are constrained to note that this instrument does not constitute a letter of credit. The instrument does not evince a clear intention on the part of the bank to be primarily liable to Boise Cascade upon Boise Cascade's compliance with the terms of the instrument, irrespective of the underlying agreements between Boise Cascade and PlcLean. Sections 30-5-101 et seq., MCA apply essentially to a letter of credit arrangement, and not to a contract between the issuer and his customer, nor to a contract between the customer and the beneficiary. The instrument here, prepared by Boise Cascade, is no more than its title indicates: a letter of instruction and joint assignment of funds. The bank does not agree to be primarily liable. For that reason the engagement of the bank does not meet the requirements of section 30-5-102(1) MCA, and accordingly that portion of the UCC does not apply, under section 30-5-102(2) to "engagements to make advances or to honor drafts or demands for payments, to authorities to pay or purchase, to guarantees or to general agreements." Finally, whether the instrument is regarded as a letter of credit, or a simply assignment, Boise Cascade has made no showing that it has complied or could comply with the terms of the engagement, that it supply an invoice and a completion certificate signed by McLean. The purchaser of the mobile home is Mountain Sales, Inc.; therefore, the dealer was Boise Cascade's customer and not McLean. -12- BREACH - OF CONTRACT ISSUE Boise Cascade also maintains that both the bank and McLean are liable to it upon a breach of contract theory in that they did not perform the obligations of the instrument of July 25, 1974. The District Court decided that no contract was involved between Boise Cascade on the one hand, and McLean and First Security Bank of Anaconda on the other, because no contract existed between them. The courts decision was based on grounds of lack of consideration and lack of mutuality. Consideration is defined in section 28-2-801 MCA as "[alny benefit conferred or agreed to be conferred upon the promisor by any other person . . ." The consideration recited in the July 25, 1974 instrument is that as an inducement to Mountain Sales as seller and Boise Cascade Corporation and Manufacturer, hereinafter referred to as assignees, to begin production of the modular home. In this case, at the time of the execution of the instrument, the modular home had already been constructed and was sitting on the Missoula lot of Mountain Sales, Inc. From the viewpoint of David M. McLean, no consideration whatever transferred from Boise Cascade to him. He had agreed to purchase a modular home from Mountain Sales, Inc. which was already constructed. He had agreed to pay $26,000 for his purchase which amount he fully paid. The instrument he signed on July 25, 1974 was not addressed to any particular bank, and the balance he agreed could be allocated was no more than what he had already agreed to pay as the balance on the purchase from Mountain Sales, Inc. Boise Cascade cannot point to any benefit conferred on upon David M. McLean by it through his signature on July 25, 1974. In like manner, no benefit moved from Boise Cascade to First Security Bank of Anaconda. Its lending arrangement was -13- made with David M. McLean and his associates, not with Boise Cascade. It had signed two instruments, one for delivery to Mountain Sales, Inc. and Boise Cascade, and the other to Mountain Sales, Inc. and First Security Bank of Missoula. The monies from First Security Bank of Anaconda were eventually deposited with the First Security Bank of Missoula. Both instru- ments had been procured from the bank at the instigation of Mountain Sales, Inc. No dealings occurred between any repre- sentative of Boise Cascade and First Security Bank of Anaconda. There is no consideration from Boise Cascade moving to First Security Bank of Anaconda which in any way can be considered an inducement to the bank, or a benefit conferred upon it by Boise Cascade, or could be construed as a detriment incurred by Boise Cascade through the signature received from First Security Bank of Anaconda. In that situation, again, no consideration existed. Consideration is an essential element of a contract, section 28-2-102 MCA, without which a contract does not exist. What Boise Cascade had from First Security Bank of Anaconda was simply a gratuitous promise. Such a promise cannot be enforced at all. "It is well settled, as a general rule, that consideration is an essential element of, and is necessary to the enforceability or validity of, a contract. It follows from this rule that a promise not supported by any con- sideration cannot amount to a contract or be enforced, and that want or lack of consideration is an excuse for nonperformance of a promise. In order for a contract to be valid and binding, each party must be bound to give some legal consideration to the other by conferring a benefit upon him or suffering a legal detriment at his request. In suits upon unilateral contracts, it is only where the defendant has had the benefit of the consideration for which he bargained that he can be held bound." 17 Am.Jur.2d 428 Contracts S86. The engagement also lacks mutuality as against both McLean and the bank, but in view of the fact that we find no consideration here, it is unnecessary to discuss lack of mutuality at length. THE NEGLIGENCE ISSUE Boise Cascade contends that because the trial court made no findings or conclusions respecting Boise's claims of negligence against the bank and McLean, that the District Court overlooked Boise's negligence claim entirely. It also contends that the negligence issue was not squarely before the court and that the general proposition is that issues of negligence are ordinarily not susceptible of summary adjudication, citing Mally v. Asanovich (1967), 149 Mont. 99, 105, 106, 423 P.2d 294, 297. As we have pointed out earlier in this opinion, there is no duty on the District Court to make findings of fact and conclusion of law, so this is not a factor so far as our review of summary judgment is concerned. We wish to determine whether there was any genuine issue of material fact involved, and if none exists, it then becomes a question of law as to whether a summary judgment was properly rendered in this case on the question of negligence as well as the other issues. We have recognized that a breach of contract might also give rise to an action in tort, State v. District Court of Eighth Judicial District (1967), 149 Mont. 131, 136, 423 ~ . 2 d 598, 600. We have also discussed what determines when a tort and a breach of contract arise out of the same set of facts in First Security Bank of Bozeman v. Bankers Union Life Insurance Company (1979), Mont . I P.2d , 36 St.Rep. 854, 862. We stated: "A cause of action may sound in tort although it arises out of a breach of contract, if a defaulting party, by breaching the contract, also breaches a duty which he owes to the other party independently of the contract. This distinction was carefully noted in Battista v. Lebanon Trotting Association (U.S.C.A. 6th 1976), 538 F.2d 111, where the Sixth Circuit Court applied Ohio law. There the court noted that under Ohio law a tort a r i s e s o u t of a breach of c o n t r a c t i f t h e p a r t y a l s o breaches a duty which he owes t o another independently of t h e c o n t r a c t , and which duty would e x i s t even i f no c o n t r a c t e x i s t e d . It i s t h i s f a c t o r which determines whether an a c t i o n of t h i s kind i s one of c o n t r a c t o r of t o r t . . ." Boise Cascade's claim here i s t h a t t h e defendants f a i l e d t o make t h e i r check payable t o Boise Cascade and Mountain S a l e s , Inc. j o i n t l y , and t h a t t h i s f a i l u r e c o n s t i t u t e d a breach - of c o n t r a c t and negligence. I n o t h e r words, Boise Cascade i s attempting t o recover under two l e g a l t h e o r i e s f o r one breach of duty. A s we s t a t e d i n F i r s t Security Bank of Bozeman, supra, -- t h e r e must e x i s t an independent duty, s e p a r a t e and d i s t i n c t from t h e c o n t r a c t o b l i g a t i o n , before a p a r t y can recover f o r a t o r t o r f o r a breach of c o n t r a c t on t h e same s e t of f a c t s . What is missing here, and what d e f e a t s Boise Cascade's negligence claim, is an independent duty, a p a r t from t h e instrument of J u l y 25, 1974, owed by e i t h e r defendant t o Boise Cascade. In t h a t circumstance, a s a matter of law, Boise Cascade has no negligence a c t i o n on which it may recover a g a i n s t e i t h e r defendant. THE EQUITY ISSUE The D i s t r i c t Court found a s " a matter of equity" t h a t t h e defendants f u l l y performed t h e i r o b l i g a t i o n by paying t h e agreed-upon p r i c e t o Mountain Sales, Inc. Boise Cascade contends by so holding t h e c o u r t denied t h a t portion of its complaint r e l y i n g upon e q u i t a b l e estoppel and t h a t such a d e n i a l i s improper. Equitable estoppel i s an unfavored d o c t r i n e and w i l l only be sustained upon c l e a r and convincing evidence, F i e r s v. Jacobson (1949), 123 Mont. 2 4 2 , 211 P.2d 968. What i s lacking a s an element of estoppel a g a i n s t t h e defendants is any r e l i a n c e on t h e execution of t h e instrument of J u l y 25, 1974 by Boise Cascade t o begin production of o r t o d e l i v e r t h e modular home. A n estoppel a r i s e s only when a p a r t y by h i s a c t s , conduct o r acquiescence has caused another in good faith to change his position for the worse. Mundt v. Mallon (1938), 106 Mont. 242, 249, 76 P.2d 326; Bagley v. Hotel Florence Company (1974), 165 Mont. 145, 151, 526 P.2d 1372, 1375. The summary judgment entered by the District Court is affirmed . We Concur: - - ---------- ------------------- 9 Justice f--- | August 9, 1979 |
0973e75c-dd53-45b9-a9dc-8049a9764a70 | 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 3 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 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 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 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 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 |
feaad81c-7075-45ba-a7f6-8f10526a648d | DOUGLAS v STATE BAR OF MONTANA | N/A | 13644 | Montana | Montana Supreme Court | No. 13644 I N THE S U P - COUIU' O F THE STATE Q E ' MONTANA 1978 DOT\TALD A. DOUGLAS, for himself and for others of a class similarly interested, Plaintiffs and Appellants, -vs- THE STATE BAR OF MONTANA et al., Defendants and Respondents. Appeal from: D i s t r i c t Court of the First Judicial D i s t r i c t , Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellants: Donald A. Douglas argued, Helena, bbntana For Respondents: Hughes, Bennett and Cain, Helena, Pbntana Alan F. Cain argue3 , Helena, b%xtam Suhitted: October 10, 1978 Decided: AUG = 9 1979 Filed: AUG - 9 1928 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. This is an original action for declaratory judgment whereby the plaintiff seeks to nullify action taken by the State Bar of Montana in June 1975, voting at its annual meeting to increase the annual dues of its active and inactive membership. The background of this case has already been set forth in Douglas v. State Bar of Montana et al. (1978), Mont . I P.2d , 35 St.Rep. 510. There we set forth the factual background giving rise to plaintiff's claim and determined that although the District Court did not have jurisdiction to hear the matter we would treat the matter as an original petition for declaratory judgment. In Douglas, we noted that an order of this Court dated January 29, 1974 was in conflict with an order dated January 23, 1975, wherein we inadvertently passed control over bar dues to the State Bar of Montana. By the 1975 order, all that is required is.that bylaws of the State Bar of Montana be amended with the approval of the membership at its annual meeting, and a dues increase then becomes an accomplished fact. We also noted in Douglas that we did not see how plaintiff could prevail unless this Court declared that its January 23, 1975 order was invalid. In the present petition therefore, plaintiff adds an argument that in any event the vote of the membership in June 1975 increasing the annual dues was invalid because the State Bar of Montana had failed before such meeting, to publish a financial statement of the State Bar. We note first that for purposes of this action, we deem the 1975 order of this Court to be controlling. Accordingly, the dues increase voted upon by the membership and without the approval of this Court, was proper. Nor do we believe that it is proper to nullify the action of the membership because the financial statement of the State Bar was not published before the annual meeting. Plaintiff argues that membership must be notified (as Section provided for in Article VIII,/3 of the bylaws of the State Bar) at least 30 days in advance of when and where the annual meeting was to take place. A proper notice was given in this case, and the notice also advised the membership that a proposed amendment to change the bylaws to increase annual membership dues was on the agenda. Plaintiff does not deny he had notice of this meeting. What he argues, however, is that the membership could not intelli- gently vote on the proposed amendment because it had no knowledge of the financial condition of the State Bar at the time the vote was taken. Article XII(b) of the bylaws states: "A financial statement showing assets, liabilities, receipts and disbursements of the State Bar shall be published in the State Bar Bulletin prior to the annual meeting." Because this statement was not published in the State Bar Bulletin before the annual meeting, plaintiff argues that the vote on the proposed dues increase was a nullity. Plaintiff had notice of the annual meeting, and notice that a proposed dues increase was on the agenda, but failed to attend. The State Bar admits that it failed to publish the financial statement before the annual meeting but explains it as being caused by the short time period between the transfer of assets from the former Montana State Bar Association (the nonunified bar association) to the present State Bar of Montana (the unified bar association). A vote was taken in Helena on May 15, 1975 by the Board of Trustees to transfer its assets to the State Bar of Montana. At the same meeting, the trustees adopted a resolution to increase the annual dues of its membership by amending the bylaws. Kent Parcell, the executive secretary of the organization told the trustees that the Bar was "in sound fimncial shape." Four days later, on May 19, 1975, a notice was -3- published in the Montana Bar Bulletin notifying all Montana lawyers that the annual meeting would take place at Big Sky, Montana, on June 20 and 21, 1975, and that one of the items on the agenda was a proposal to amend the bylaws so that annual dues could be increased. The State Bar argues that there was not enough time between May 15, 1975 and May 20, 1975 to gather and publish the financial statement of the State Bar of Montana. Thirty-six days elapsed between the transfer of the assets and the actual commencement of the State Bar meeting at Big Sky. There is certainly some connection between the financial condition of the State Bar and the necessity or desirability to increase the annual dues of its membership. But we do not believe that the failure to do so, under the circumstances here, is cause to nullify the action of the majority of those voting at Big Sky, to increase the annual dues of its active and inactive membership. Arguments pro and con were presented at the convention, and the vote to increase the dues prevailed. By our order of January 23, 1975, we authorized such action, and we see no reason to undo that action now. The problem however, of future dues increases, continues to fester. We noted in the first Douglas case that a significant opposition to a unified bar in this state was prompted by a fear that fees would be increased without a vote of the full membership. These people did not want their dues increased solely by a vote of those attending the annual bar convention meeting. This, indeed, was one of the reasons for our 1974 order wherein we specifically reserved the right to approve or disapprove of membership dues. This Court realized that often members cannot afford to, or for some other reason cannot or will not attend the annual meetings. Nonetheless, they should have a voice in determining whether their annual dues are to be increased. Presently, the voice is limited to those who attend the annual meetings. -4- We also noted in the first Douglas opinion that this Court inadvertently passed control over dues increases to the State Bar of Montana. That was something this Court did not intend to do. As far as the future is concerned, it should not stand unrectified. By retaining the authority to approve or disapprove of annual dues increases in this Court, the entire membership will have an opportunity to register their approval or disapproval. Clearly, the entire membership should have a say. We cannot grant relief to the plaintiff in this case. However, this Court will, by appropriate order, reinstate our authority to approve or disapprove of future dues increases. The State Bar of Montana will be instructed to take appropriate action to comply with the order of this Court. Except as herein noted, the relief requested by plaintiff is denied. The cause is ordered dismissed. + 1 /'I- _ / , - - , , , i z - , i 4 - - --L - LL-licic&z - Justice We Concur: Chief Justice Justices I N THE S U P R E M E COURT O F THE STATE O F MONTANA No. 13644 D O N A L D A. DOUGLAS, f o r himself and f o r o t h e r s of a c l a s s s i m i l a r l y i n t e r e s t e d , P l a i n t i f f s and Appellants, V S . THE STATE BAR O F MONTANA, e t a l . , Defendants and Respondents. O R D E R IT I S O R D E R E D t h a t t h e following c o r r e c t i o n be made on page 3, l i n e 19 of t h e above Opinion of t h e Court: " t h a t a proposed dues increase was on t h e agenda, but f a i l e d t o a t t e n d . . . ." S H O U L D READ: " t h a t a proposed dues increase was on t h e agenda.. . ." D A T E D t h i s 7 day of August, 1979. Chief J u s t i c e AUGS - 1 9 7 9 g o m a d 8 X a r n Q ~ CLERK OF SUPREME COURT STATE OF MONTANA | August 9, 1979 |
03b63eba-fb3c-4f93-b7c4-fac54e127f35 | MARRIAGE OF MABERRY | N/A | 14624 | Montana | Montana Supreme Court | No. 14624 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF: JOYCE M. MABERRY, Petitioner and Respondent, -VS- RAY G. MABERRY, Respondent and Appellant. Appeal from: District Court of the Eighth Judicial District, Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: John M. McCarvel, Great Falls, Montana For Respondent: Marra, Wenz, Iwen and Johnson, Great Falls, Montana Submitted on briefs: June 29, 1979 Decided : AUG 1 3 1919 Filed: . , I -S G1.,'C : 3 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. This i s an appeal by respondent (husband) from t h e decree of divorce and d i v i s i o n of t h e m a r i t a l estate and d e n i a l of a motion f o r a new t r i a l i n t h e District Court of t h e Eighth J u d i c i a l D i s t r i c t , County of Cascade. The p a r t i e s w e r e married over 20 y e a r s ago and a t t h e t i m e of t h e i r marriage had l i t t l e o r no a s s e t s . Three c h i l d r e n w e r e born of t h e marriage: Donna, now 2 1 y e a r s o l d ; ~ i m o t h y , now 18 y e a r s of age; and Thomas, now 17 y e a r s of age and re- s i d i n g away from both p a r e n t s . Timothy has a l e a r n i n g d i s - a b i l i t y , i s b o r d e r l i n e r e t a r d e d and has p e t i t mal e p i l e p s y and r e s i d e s with h i s mother. P e t i t i o n e r (wife) i s 4 1 y e a r s o l d and has been a f u l l - t i m e housewife s i n c e 1957. She i s i n good h e a l t h and has done part-time work s i n c e t h e p a r t i e s separated i n 1977, w i t h average earnings of $148 per month. Respondent i s 4 3 y e a r s o l d , able-bodied, has worked s t e a d i l y f o r 20 y e a r s a s a c a r p e n t e r and has been self-employed s i n c e 1977. H i s earnings have s t e a d i l y increased, and from D e c e m - b e r 15, 1977, t o May 15, 1978 ( f i v e months), h i s earnings w e r e $18,018 with business expenses of about $4,120. A l l property of t h e p a r t i e s has been accumulated during t h e mar- r i a g e . The a s s e t s of t h e p a r t i e s c o n s i s t o f : Real: Home i n Great F a l l s valued a t $62,000, minus a mortgage of $9,941.08; c a b i n a t Lincoln, Montana, valued a t $45,000 w i t h no l i e n s thereon. Personal: 1976 Ford Granada, l i e n $2,251.26; 1975 Ford 3/4 t o n pickup, l i e n $1,500; t h r e e snowmobiles; two pool t a b l e s ; and, a boat. The D i s t r i c t Court found: 1. The b e s t i n t e r e s t of t h e c h i l d under t h e d i s a b i l i t y , Timothy, would be served i n h i s mother's custody with rea- sonable v i s i t a t i o n remaining i n respondent. 2. P e t i t i o n e r i s e n t i t l e d t o $300 maintenance f o r a period of two years t o r e a d j u s t back i n t o t h e labor market. 3 . Respondent should pay $100 per month f o r t h e c a r e and support of Timothy together with a l l reasonable medical, doctor, h o s p i t a l , d e n t a l , and o p t i c a l expenses incurred on behalf of Timothy u n t i l he becomes self-supporting. 4. The exclusive use of t h e G r e a t F a l l s home t o p e t i - t i o n e r and she must pay taxes, insurance, e t c . Respondent i s t o make t h e $200 a month payment u n t i l Timothy leaves t h e residence. The residence should then be s o l d and t h e n e t s a l e s proceeds divided equally between t h e p a r t i e s except t h a t re- spondent may deduct $100 o r one-half of t h e monthly payments paid by him on behalf of p e t i t i o n e r u n t i l t h e d a t e of s a l e , before t h e n e t d i v i s i o n between t h e p a r t i e s . The cabin a t Lincoln i s t o be s o l d and t h e n e t proceeds divided equally between t h e par ties. 5. The Ford Granada should go t o p e t i t i o n e r and t h e pickup t o t h e respondent, each t o make t h e payments on t h e balance due on t h e i r vehicle. 6. One snowmobile w a s given t o p e t i t i o n e r and two snow- mobiles t o respondent. I n a d d i t i o n , t h e two pool t a b l e s and boat went t o respondent. 7. Each p a r t y was 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 husband p r e s e n t s t h r e e i s s u e s f o r review by t h i s Court: 1. Did t h e t r i a l c o u r t e r r i n f a i l i n g t o g r a n t respon- d e n t ' s motion f o r a new t r i a l ? 2. Did t h e t r i a l c o u r t e r r i n ordering c h i l d support payments t o be paid by respondent when no minor c h i l d re- s i d e s with p e t i t i o n e r ? 3. Did t h e t r i a l c o u r t err i n f a i l i n g t o e s t a b l i s h a n e t worth of t h e m a r i t a l e s t a t e p r i o r t o g r a n t i n g main- tenance t o p e t i t i o n e r ? The motion f o r new t r i a l was properly denied by t h e t r i a l c o u r t . Section 25-11-103, MCA. This s e c t i o n r e q u i r e s demonstration of grounds set f o r t h i n subsections ( I ) , ( 3 ) , and ( 4 ) of s e c t i o n 25-11-102, MCA. This standard has n o t been pleaded o r proved i n t h e record before t h i s Court. It i s p u b l i c policy i n Montana t o r e q u i r e p a r e n t s t o c a r e f o r c h i l d r e n who a r e s u f f e r i n g from d i s a b i l i t y and unable t o c a r e f o r themselves i f t h e p a r e n t s a r e a b l e t o do so. See a l s o s e c t i o n 40-4-204, MCA. There a r e a l s o numer- ous treatises supporting t h i s p o s i t i o n . The Uniform Mar- r i a g e and Divorce Act adopted i n Montana supports t h i s p o s i t i o n . There i s no evidence i n t h e record t h a t t h e t r i a l c o u r t d i d n o t e s t a b l i s h t h e n e t worth of t h e m a r i t a l e s t a t e p r i o r t o g r a n t i n g maintenance t o p e t i t i o n e r . Finding no e r r o r o r abuse of d i s c r e t i o n , t h e judgment of t h e t r i a l c o u r t i s affirmed. We concur: Chief justice % Q ? . %4/ Justices | August 13, 1979 |
8a475a8c-7c22-4853-bfb7-02d3be13a1e3 | BYRD v COLUMBIA FALL LIONS CLUB | N/A | 14783 | Montana | Montana Supreme Court | No. 14783 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 HERMAN BYRD, d/b/a BYRD'S FOOD MART, Plaintiff and Respondent, COLUMBIA FALLS LIONS CLUB and KENNETH E. GILES, Defendant and Appellant. Appeal from: District Court of the Eleventh Judicial District, Honorable James M. Salansky, Judge presiding. Counsel of Record: For Appellant: James A. Cumming, Columbia Falls, Montana For Respondent: Robert B. Allison, Kalispell, Montana Submitted on briefs: August 1, 1979 Decided: sEC 1 !Yfl Filed: Z E C 1 $5 1979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. This is an appeal by the defendant, Columbia Falls Lions Club from an order entered by the District Court, Eleventh Judicial District, Flathead County, denying the defendant's motion to set aside an order dismissing his appeal from the Flathead County Justice Court. The dismissal order was entered upon a motion to dismiss by the plaintiff Herman Byrd, d/b/a Byrd's Food Mart. The plaintiff owns a small grocery store in Martin City, Montana. In June 1974, Kenneth Giles entered plaintiff's grocery store and represented that he was a scout leader who was leading a group of scouts to a camporee financed by the defendant. On the basis of this representation, plaintiff made sales and deliveries to Giles totaling $831.44. Plaintiff tried unsuccessfully to collect this account from Giles. Plaintiff then sought payment from the defendant who denied having sponsored the camporee. In May 1977, plaintiff brought an action in the Flathead County Justice Court against both the defendant and Giles for payment of his account. A trial was held before the Justice of the Peace in July 1977. The Justice Court entered judgment in favor of plaintiff in August 1977. Giles suffered a default judgment and is not a party to this appeal. On September 14, 1977, the defendant filed a notice of appeal together with an undertaking, and the cause was transmitted to the District Court. Except for some informal settlement discussions, no further action was taken in this cause for over thirteen months. On October 26, 1978, plaintiff filed a motion to dismiss the appeal on the ground of unnecessary delay. The motion and an accompanying memorandum of authority were duly served on the defendant. It did not file any reponse to the motion. On January 3, 1979, the District Court granted the motion and dismissed the appeal on the ground asserted. No hearing on the motion was held, and no notice of an intent to rule on the motion was given to the defendant. The defendant moved to set aside the order dismissing the appeal on January 10, 1979. Such motion was denied, and the defendant has appealed from this denial. The sole issue upon this appeal is whether the District Court violated the defendant's constitutional right to due process of law by granting the motion to dismiss without a hearing or any notice of an intention to rule on the motion. We hold that it did not. The right to due process of the law is guaranteed by both the Montana and United States Constitutions. U.S. Const., Amend. XIV; 1972 Mont. Const., Art. 11, S17. The interest to be protected by due process of the law is the opportunity to be heard. That interest is of no value if an interested party is not informed that a matter is pending and cannot decide for himself whether to contest or acquiesce. Mullane v. Central Hanover Tr. Co. (1950), 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed 865. Thus, notice must be given in any proceeding which is to be accorded finality, and such notice must be reasonably calculated, under the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections. Mullane, supra. We find the defendant here was given sufficient notice and an opportunity to be heard. The defendant was duly served with a copy of the motion to dismiss and its supporting memorandum. Such service was reasonably calculated, under the circumstances, to apprise the defendant of the pendency of the motion to dismiss and the grounds thereof. Similarly, Rule 5 of the Eleventh Judicial District, State of Montana, gave the defendant ten days to file a reply to the motion to dismiss. This time period was reasonably calculated, under the circumstances, to afford defendant with an opportunity to present its objections to the motion to dismiss. Yet, it failed to do so. Such failure is deemed an admission that the motion is well taken in the defendant's opinion. Rule 11, Uniform Rules for District Courts of Montana; Rule 5, Eleventh Judicial District, State of Montana. The defendant contends it was unfair to grant the motion to dismiss since it was engaged in settlement discussions with the plaintiff during the pendency of the motion to dismiss. This objection is without merit. These discussions were conducted informally without the approval of the court, and during this period, the defendant never requested an extension of time, withdrawal of the motion or any other form of relief from either the District Court or the plaintiff. The District Court properly granted the plaintiff's motion to dismiss the appeal on the ground of unnecessary delay. Once the appeal was perfected to the District Court, the defendant had the burden of carrying its cause forward. Eide Insurance v. Correll (1970), 156 Mont. 167, 478 P.2d 272. Yet, it allowed the cause to rest idle for over a year. Similarly, the defendant was apprised of the pendency of the motion to dismiss and was given an opportunity to respond. Yet, it failed to do so. -4- The order of the District Court denying plaintiff's motion to set aside the dismissal is affirmed. Justice We Concur: /chief Justi I , 7, | September 10, 1979 |
5330af95-c40a-4f03-86ba-2271505aa5f9 | STATE v HOLLIDAY | N/A | 14421 | Montana | Montana Supreme Court | No. 14421 I N THE SUPREME C O W OF THE STATE OF M3N?1ANA 1979 THE STATE OF MJNTANA, Plaintiff and Respondent, -vs- TRAVIS EEOLLIDAY, Defendant and Appellant. Appeal froan: District Court of the Thirteenth Judicial D i s t r i c t , Hon. Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Reno and Dolve, Billings, mntana J a m e s A. Reno argued, Billings, mntana For Respondent: IEon. Mike Greely, Attorney General, Helena, mntana Mary B. Troland, Assistant Attomey General, argued and Marc Racicot, Assistant Attorney General, appeared, H e l e n a , mntana James Seykora, County Attorney, appeared, Hardin, mntana Filed: W G 2 0 1979 Submitted: April 30, 1979 Decided: I U G 2 0 1979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. The defendant in this matter appeals from a judgment entered on April 3, 1978 by the District Court, Thirteenth Judicial District, Big Horn County, upon a jury verdict of guilty of the crime of robbery. Defendant was originally tried with three other defendants in October 1975 for the robbery and homicide of Monte Dyckman, a Safeway store employee in Hardin, Montana. The facts surrounding those crimes have been recited in detail by this Court elsewhere. See, State v. Fitzpatrick (1977), Mont . , 569 P.2d 383, 34 St.Rep. 736. Therefore, for purposes of this appeal, they need not be exhaustively recounted here. Briefly, the evidence adduced at defendant's trial demonstrated he and four other individuals met in a Billings bar on April 5, 1975, and discussed robbing the Safeway store in Hardin, Montana. Defendant then accompanied the others to a home on the west side of Billings, where further plans for the robbery were developed. Defendant then requested a ride to Hardin with one of the participants for himself and two female companions. The other men drove to Hardin in a second car. Arriving in Hardin, the men left the girls at a local bar at defendant's request and then drove around the town to ascertain the location of the Safeway store and the drive-in bank where the store's receipts for that day would most likely be deposited. This accomplished, they returned to the bar, where one of the men, prompted by defendant's remark that they did not have tape to bind the hands or cover the mouths of the intended victim or victims, left to get some rope. When he returned, the group separated, the defendant and two others going in one car, and the remaining two men going in the other. By this time, the evidence showed defendant had obtained a gun. -2- The two groups then proceeded t o t h e Safeway s t o r e where they intended t o w a i t u n t i l t h e s t o r e c l o s e d a t 10:OO p.m. During t h i s t i m e defendant and one of t h e occupants of t h e c a r c u t t h e rope i n t o p i e c e s which w e r e given t o t h e two men i n t h e o t h e r c a r . When t h e s t o r e c l o s e d , t h e s t o r e manager and Monte Dyckman each drove o f f i n h i s own c a r , defendant and h i s companions following Dyckman and t h e o t h e r men following t h e s t o r e manager. A s soon a s it became apparent t h e s t o r e manager d i d n o t have t h e d e p o s i t of t h e d a y ' s r e c e i p t s , t h e men went t o t h e d r i v e - i n bank t o await t h e a r r i v a l of Monte Dyckman. Defendant and h i s companions, s e e i n g Dyckman t u r n i n t o t h e bank, returned t o B i l l i n g s , defendant remarking t h e men i n t h e o t h e r c a r would g e t Dyckman. Defendant and h i s companions a r r i v e d a t t h e w e s t s i d e B i l l i n g s house a t approximately 2:00 a.m., A p r i l 6 , 1975 and awaited t h e a r r i v a l of t h e o t h e r two members of t h e group. Eventually only one r e t u r n e d and i n d i c a t e d t h e robbery had i n f a c t occurred, b u t very l i t t l e money was taken. Xonte Dyckman was discovered l a t e r t h a t day, s h o t t o death. On May 20, 1975, t h e S t a t e of Montana f i l e d an information charging t h e defendant and h i s f o u r companions with d e l i b e r a t e homicide, aggravated kidnapping, and robbery. A j o i n t t r i a l w a s h e l d i n October 1975, and two of t h e f o u r defendants f i n a l l y t r i e d w e r e found g u i l t y of a l l t h r e e counts, while defendant and t h e remaining p a r t i c i p a n t were found g ~ i l t y only of t h e robbery count. Upon appeal, t h i s Court i n d i c a t e d t h e defendants s u f f e r e d p r e j u d i c e from being t r i e d j o i n t l y and concluded t h a t t h e j u r y had been improperly and inadequately i n s t r u c t e d . S t a t e v. F i t z p a t r i c k , 569 P.2d a t 393, 395. W e then reversed and remanded f o r a new t r i a l a s t o a l l defendants. 569 P.2d a t 396. O n November 2 1 , 1977, an amended information was f i l e d charging t h e defendant with t h e crime of robbery. A p r e t r i a l motion t o d i s m i s s a s s e r t i n g defendant was being subjected t o double jeopardy was made and denied. A t t r i a l , t h e following was read t o t h e jury p r i o r t o t h e t a k i n g of any evidence: "Counsel of record s t i p u l a t e and agree t h a t t h e following f a c t u a l s i t u a t i o n may be presented t o t h e j u r y without r e q u i r i n g f u r t h e r proof o r foundation: "On o r about t h e l a t e n i g h t hours of A p r i l 5, 1975, Monte Dyckman, who was then an employee of t h e Safe- way S t o r e of Hardin, Montana was robbed of t h a t s t o r e ' s r e c e i p t s . "During t h e course of s a i d robbery, Monte Dyckman w a s k i l l e d by being s h o t i n t h e back of t h e head by a .45 automatic handgun t w i c e a f t e r being bound with h i s hands behind h i s back. " A t t h e scene of t h e homicide approximately 12 m i l e s w e s t of Hardin, Montana, i n t h e a r e a g e n e r a l l y known a s Toluca Interchange, t h e r e w e r e two s p e n t .45 c a l i b e r s h e l l c a s i n g s found on t h e ground approxi- mately 120 f e e t t o t h e r e a r of t h e Dyckman v e h i c l e , and two spent .45 c a l i b e r automatic s h e l l c a s i n g s found i n t h e Monte Dyckman v e h i c l e . "On June 27, 1975, a person by t h e name of Gary Eugene Radi was a r r e s t e d i n connection with t h e robbery of Monte Dyckman i n Rawlins, Wyoming; upon a s e a r c h of h i s v e h i c l e under t h e r e a r s e a t p o r t i o n of s a i d motor v e h i c l e w a s found a spent .45 c a l i b e r s h e l l casing. Upon examination by t h e Federal Bureau of I n v e s t i - g a t i o n Laboratory i n Washington, D.C., it was found t h a t t h e s h e l l c a s i n g from t h e Radi v e h i c l e had been f i r e d by t h e s a m e gun which f i r e d t h e s h e l l c a s i n g s found a t t h e murder scene. "There have been two previous t r i a l s , one a g a i n s t Gary Eugene Radi and another a g a i n s t Bernard James F i t z p a t r i c k . Gary Eugene Radi was found n o t g u i l t y although Bernard James F i t z p a t r i c k was found g u i l t y of D e l i b e r a t e Homicide, Aggravated Kidnapping and Robbery. A t t h e Radi t r i a l t h e w i t n e s s e s , Cindy Morgan, I v a Lee Finch, Edwin Bushman and C h r i s t i n e F e t t e r s d i d n o t t e s t i f y , although t h e p r i o r testimony of Finch and Bushman was read i n t o t h e record." During t h e p r e s e n t a t i o n of evidence a t d e f e n d a n t ' s t r i a l , C h r i s t i n e F e t t e r s d i d t e s t i f y and r e l a t e d t o a p a r t i c u l a r conversation which took p l a c e i n h e r presence between t h e indiv- i d u a l s involved i n t h e robbery/homicide. The conversation concerned t h e a l l e g e d e v e n t s of April 5 , 1975. She s a i d , when asked if one of the parties to the incidents of that date (Radi) said anything else about the alleged crime, "About the only other thing that I can really recall was that he said, 'The crazy son-of-a-bitch [Fitzpatri~k] blew his [Dyckman'sl head off.'" Defense counsel immediately objected, whereupon the trial judge and counsel retired to chambers. In chambers, defense counsel moved for a mistrial and the motion was denied. Defense counsel renewed his objection at the close of the State's evidence and the motion was again denied. Defendant was subsequently convicted of robbery and sentenced to a term of forty years in the State Prison. The defendant makes three basic claims in this appeal. First, he argues that his retrial on the robbery count has placed him in double jeopardy contrary to federal and state constitutional inhibitions. Second, he argues the testimony of Christine Fetters regarding Gary Radi's statement was so prejudicial that the District Court's denial of a mistrial was reversible error. Finally, defendant contends the evidence does not sufficiently corroborate the testimony of one of the participants in the activities of April 5, 1975, Edwin "Luke" Bushman. The question posed by defendant's first claim has been presented to this Court and answered in defendant's first appeal, State v. Fitzpatrick, 569 P.2d at 395. The issue as framed in that appeal was whether the conviction of defendant should be reversed and the charges against him dismissed on the grounds that the jury was inadequately instructed on the applicable law and returned inconsistent verdicts. 569 P.2d at 387. In arguing for dismissal, defendant in that appeal asserted the jury verdict that defendant was not guilty of deliberate homicide, and aggravated kidnapping also meant the -5- jury was finding the defendant was not guilty of robbery. Defendant based this contention, there as here, upon the ground that the State had proceeded to prosecute under the felony murder rule and under that theory, robbery was a necessary element of the other two crimes. We rejected defendant's requested relief of remand and dismissal and instead remanded for a new trial. 569 P.2d at 396. By asking, in this appeal, to construe the verdicts as acquittal on all counts, thus barring retrial on double jeopardy considerations, defendant is presenting in essence the same issue we have previously decided. The difference in the two arguments is superficial, not substantive. It is well established in Montana that where a decision has been reached by this Court on a particular issue between the same parties in the same case such decision is binding on the parties and courts, and cannot be relitigated in a subsequent appeal, subject to certain exceptions not pertinent here. Belgrade State Bank v. Swainson (1978) , Mont . I 578 P.2d 1166, 1167, 35 St.Rep. 549; State v. Zimmerman (1977) , Mon t . , 573 P.2d 174, 177, 34 St.Rep. 1561; see also State v. Coleman (1979), Mont . I P.2d , 36 St.Rep. 1134, (No. 14448, decided June 20, 1979). The defendant is bound by our previous determination that defendant is not entitled to a dismissal of all charges. The defendant is thus in the position of a defendant in a criminal proceeding who has had a judgment of conviction reversed on appeal for errors in the proceedings. In such a case, it is well established a retrial does not constitute double jeopardy. United States v. Ball (1896), 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed 300; Green v. United States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; State v. Ellsworth (1962), 141 Mont. -6- 78, 375 P.2d 316. This includes a reversal for errors in the instructions. United States v. Tateo (1964), 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448; Forman v. United States (1960), 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412. Defendant next claims the testimony of Christine Fetters, given the stipulation concerning the crime involved, was clearly irrelevant and prejudicial, and should have resulted in a mistrial. Defendant places reliance upon this Court's decision in State v. Williams (1977), - Mont . , 570 P.2d 578, 34 St.Rep. 1116, declaring the admission of prejudicial and irrelevant evidence is a causefor mistrial. In Williams, the admitted evidence was clearly irrelevant--it indicated the defendant's involvement in a drug sale and resulting debt, such debt later giving rise to an altercation leading to defendant being charged with intimidation. 570 P.2d at 579. Clearly, the fact of the drug sale had no probative value as to the fact of intimidation and thus was not relevant. In the present case the testimony of Christine Fetters concerning Gary Radi's statement was relevant for impeachment purposes. Radi had testified in defendant's trial denying any involvement in the commission of the crime. Edwin Bushman, the prosecution's main witness, testified Radi was - a participant in the crime. Thus the credibility of both Radi and Bushman was at issue and Fetters' statement impeached the credibility of Radi. As such, the statement was relevant and therefore admissible. Rule 401, M0nt.R.Evi.d. Moreover, it does not appear to be so prejudicial as to warrant a new tr4al. The basis for determining whether an erroneous admission of testimony constitutes justification for reversal is a showing by defendant that prejudice resulted from the testimony and that his substantial rights were thereby -7- affected. State v . Bentley (1970), 155 Mont. 383, 472 P.2d 864, 875; State v. Hay (1948), 120 Mont. 573, 194 P.2d 232, 237; section 46-20-702 MCA. In this case, a stipulation was read to the jury stating the nature of the crime committed and the disposition of other prosecutions stemming from that crime. It clearly indicated a murder had taken place and that Bernard James Fitzpatrick was convicted of that crime. Following the motion for mistrial, the District Court ordered that no further references to the murder of Monte Dyckman should be made. No further testimony on that subject occurred. Finally Christine Fetters was thoroughly cross-examined and indicated she had the impression defendant was not involved in the murder. Unlike the situation involved in Williams, supra, where the jury had no hint that a drug sale was involved until the offending testimony was uttered, here the jury knew murder had been committed and who had been convicted for it. Defendant has not met his burden of affirmatively showing prejudice. State v. Walker (1966), 148 Mont. 216, 419 P.2d 300, 304. Without such a showing, the denial of a mistrial does not constitute reversible error. See, State v. Lave (19771, Mont . , 571 P.2d 97, 34 St.Rep. 1298. Defendant finally claims that there is absolutely no corroborating evidence of any nature of Bushman's testimony, meeting the standards set by this Court and the statutes. section 46-16-213 MCA provides: "A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense,. . . 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." This Court in State v. Cobb (1926), 76 Mont. 89, 245 P. 265, 266, set forth the general rules for evaluating corrobora- tion of accomplice testimony: "(a) The corroborating evidence may be supplied by the defendant or his witnesses. "(b) It need not be direct evidence--it may be circumstantial. "(c) It need not extend to every fact to which the accomplice testifies. "(d) It need not be sufficient to justify a conviction or to establish a prima facie case of guilty. "(e) It need not be sufficient to connect the defendant with the commission of the crime; it is sufficient if it tends to do so. "(f) Whether the corroborating evidence tends to connect the defendant with the commission of the offense is a question of law, but the weight of the evidence--its efficacy to fortify the testimony of the accomplice and render his story trustworthy--is a matter for the consideration of the jury." The corroborating evidence must show more than a mere opportunity to commit the crime. State v. Coleman (1978), Mont . I In his first appeal defendant also challenged the sufficiency of the corroborating evidence. State v. Fitzpatrick, 569 P.2d at 393. This Court held that the testimony of Iva Lee Finch, Cindy Morgan, Carol Braach, Raleigh Kraft, Jr., Ronald Potts, and Lyle Doane sufficiently corroborated the testimony of Edwin Bushman. 569 P.2d at 394. In defendant's retrial, the same individuals gave essentially the same testimony as in the first trial. In addition, Christine Fetters testified defendant had asked Fitzpatrick in early April if he would like to make some money. Fetters also testified to conversation between Gary Radi and defendant concerning the robbery. The total sum of the corroborating testimony does more than merely show an opportunity to commit the crime and satisfies the requirements of -- Cobb. The judgment of the District Court is affirmed. Justice We Concur: Chief Justice ............................... Justices | August 20, 1979 |
8422234a-7e80-4f40-a0eb-1ea7b86f189b | LINDELL v RUTHFORD | N/A | 14663 | Montana | Montana Supreme Court | No. 14663 IN THE S U P R E M E COURT O F THE STATE O F PXNUWA 19 7 9 JOHN LINDELL, JON D. VICHE, and ALASKA PACIFIC ASSURANCE COMPANY, an Alaska corporation, Plaintiffs and Respondents, ROBERT E . RUTHR)RD, Defendant and Appellant and Third Party Plaintiff, -VS- UNITED SEXVICES AUIWDBILE, Third Party Defendant. Appeal £ram: D i s t r i c t Court of the Fourth Judicial District, Honorable John B. M3Zlernan, Judge presiding. Counsel of Record: For Appellant: Milodragovich, Dale & Dye, Missoula, Montana Fdwin C. Daue argued, Missoula, Montana For Respondents: Garlington, Lohn and Robinson, Missoula, Montana Gary Chumrau argued, Missoula, Mntana Doug Austin, Superior, Mntana Suhnitted: June 7, 1979 Decided: AUG . * 9 Filed: IE 1973 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. This i s an appeal by a n i n s u r e d under a g e n e r a l l i a - b i l i t y and comprehensive personal insurance p o l i c y from a judgment i n f a v o r o f h i s i n s u r e r i n t h e District Court of Mineral County. The f a c t s i n d i c a t e t h a t on May 19, 1977, Joseph Ruth- f o r d , t h e son of t h e named i n s u r e d Robert Ruthford, w a s d r i v i n g h i s f a t h e r ' s pickup looking f o r h o r s e s , some of which w e r e owned by h i s f a t h e r . While searching f o r t h e h o r s e s i n an off-road a r e a , t h e pickup became s t u c k i n t h e mud. A logging s k i d d e r w a s parked nearby which, unknown t o t h e son, had been drained of o i l . The son s t a r t e d t h e s k i d d e r and moved it near t h e pickup. Meanwhile, a t h i r d p a r t y had contacted t h e f a t h e r by CB r a d i o and t h e f a t h e r had a r r i v e d w i t h a logging chain. A t h i r d person a t t a c h e d t h e logging c h a i n t o t h e pickup and s k i d d e r . The f a t h e r stood by and watched h i s son tow t h e pickup o u t of t h e mud. T h e r e a f t e r , t h e son r e t u r n e d t h e s k i d d e r t o t h e p l a c e h e o r i g i n a l l y found it. The engine of t h e skidder was s e v e r e l y damaged because t h e r e was no o i l i n it. The owners of t h e s k i d d e r and t h e i r i n s u r e r f i l e d a damage a c t i o n a g a i n s t t h e f a t h e r seeking recovery of r e p a i r c o s t s , l o s s of income and exemplary damages. The f a t h e r answered denying l i a b i l i t y . He a l s o f i l e d a t h i r d - p a r t y complaint a g a i n s t h i s i n s u r e r , United S e r v i c e s Automobile Association, which i s t h e s u b j e c t of t h i s appeal. The f a t h e r ' s t h i r d - p a r t y complaint a l l e g e d i n substance t h a t any l i a b i l i t y on h i s p a r t t o t h e owners of t h e skidder was covered by h i s insurance p o l i c y . Therefore, he a l l e g e d , h i s i n s u r e r w a s o b l i g a t e d t o defend t h e damage a c t i o n brought a g a i n s t him and t o pay any damages recovered by t h e skid- d e r ' s owners. Following p r e t r i a l discovery, t h e i n s u r e r moved f o r summary judgment on t h e f a t h e r ' s t h i r d - p a r t y complaint on t h e b a s i s of p o l i c y exclusions. The D i s t r i c t Court g r a n t e d summary judgment t o t h e i n s u r e r and dismissed t h e t h i r d - p a r t y complaint. The f a t h e r appeals. Although t h e i s s u e s on appeal are s t a t e d d i f f e r e n t l y by each p a r t y , t h e substance of t h e controversy i s whether t h e insurance p o l i c y provides coverage under t h e f a c t s of t h i s c a s e . The i n s u r e d f a t h e r claims coverage under t h e omnibus i n s u r i n g agreement and d e f i n i t i o n s i n t h e p o l i c y and d e n i e s t h a t any p o l i c y e x c l u s i o n s e l i m i n a t e t h a t coverage. On t h e o t h e r hand, t h e i n s u r e r claims a s p e c i f i c exclusion i n t h e p o l i c y e l i m i n a t e s coverage. The complaint by t h e owners of t h e s k i d d e r a g a i n s t t h e f a t h e r a l l e g e s two bases of l i a b i l i t y : (1) t h a t t h e f a t h e r "cooperated with, a s s i s t e d , and r a t i f i e d t h e acts of h i s son" which b e n e f i t e d him by removing h i s pickup from t h e mud, and (2) t h a t t h e son w a s a c t i n g a s a g e n t of h i s f a t h e r s o t h a t t h e s o n ' s wrongful a c t s w e r e imputed t o h i s f a t h e r . The b a s i c i n s u r i n g agreement i n t h e p o l i c y provides: "The company w i l l pay on behalf of t h e i n s u r e d a l l sums which t h e i n s u r e d s h a l l become l e g a l l y o b l i g a t e d t o pay a s damages because of bodily i n j u r y o r p r o p e r t y damage . . . and t h e company s h a l l have t h e r i g h t and duty t o defend any s u i t a g a i n s t t h e i n s u r e d seeking damages on account of such bodily i n j u r y o r property damage, even i f t h e a l l e g a t i o n s of t h e s u i t a r e groundless, f a l s e o r f r a u d u l e n t . . ." The p o l i c y d e f i n e s "persons i n s u r e d " i n p e r t i n e n t p a r t as: "The named i n s u r e d and, i f r e s i d e n t s of t h e named i n s u r e d ' s household, h i s spouse, t h e r e l a t i v e s of e i t h e r , and any o t h e r person under t h e age of 21 i n t h e care of any i n s u r e d ; b u t with r e s p e c t t o any . . . v e h i c l e , n o t owned by any such insured, only while using o r having custody o r possession of such . . . v e h i c l e with t h e permission of t h e owner . . ." The policy exclusion on which t h e i n s u r e r r e l i e s pro- v i d e s : "This coverage does n o t apply: " ( j ) t o property damage t o . . . ( 2 ) property occupied o r used by t h e insured o r rented t o o r i n t h e c a r e , custody o r c o n t r o l of t h e insured o r as t o which t h e insured i s f o r any purpose exercising physical c o n t r o l . . ." The f i r s t b a s i s of l i a b i l i t y a l l e g e d by t h e s k i d d e r ' s owners a g a i n s t t h e f a t h e r i s t h a t t h e f a t h e r cooperated with, a s s i s t e d and r a t i f i e d t h e wrongful acts of h i s son. This a l l e g a t i o n i s based upon t h e f a t h e r ' s personal wrong- doing rendering him a j o i n t t o r t f e a s o r with h i s son. Ac- cordingly, t h e f a t h e r a s t h e named insured under t h e policy would be covered f o r h i s own wrongdoing u n l e s s t h e policy exclusion eliminates coverage. The skidder was n o t personally used by t h e f a t h e r , r e n t e d by him, i n h i s c a r e , custody o r c o n t r o l , nor was t h e f a t h e r exercising physical c o n t r o l over it. Thus t h e exclu- s i o n would n o t e l i m i n a t e coverage f o r any personal wrong- doing by t h e f a t h e r . This b r i n g s us t o t h e crux of t h i s appeal. The second b a s i s of l i a b i l i t y a l l e g e d by t h e s k i d d e r ' s owners a g a i n s t t h e f a t h e r i s t h a t h i s son was h i s agent; t h a t t h e s o n ' s wrongful a c t s a r e imputed t o t h e f a t h e r under t h e p r i n c i p l e of respondeat superior; and t h a t t h e f a t h e r i s l i a b l e by reason of h i s s o n ' s wrongful a c t s . I t i s agreed t h a t t h e son w a s a member of h i s f a t h e r ' s household, under t h e age of 21, and i n t h e c a r e of h i s f a t h e r , t h e named insured. This would q u a l i f y t h e son as one of t h e persons i n s u r e d were it n o t f o r t h e second c l a u s e i n t h a t p o l i c y p r o v i s i o n set f o r t h above, v i z . , " b u t w i t h r e s p e c t t o any . . . v e h i c l e n o t owned by any such i n s u r e d , o n l y while using o r having custody o r possession of such . . . v e h i c l e w i t h t h e permission of t h e owner . . ." I t i s admitted t h a t t h e son was n o t using t h e s k i d d e r , nor d i d he have custody o r possession of it, w i t h t h e permission of any o f i t s owners. Thus, t h e son i s n o t an i n s u r e d under t h e f a c t s of t h i s case. Because t h e son i s n o t an i n s u r e d under t h e p o l i c y , t h e coverage e x c l u s i o n would n o t o r d i n a r i l y apply. The exclu- s i o n a p p l i e s only t o p r o p e r t y used, r e n t e d t o , i n t h e c a r e , custody, o r c o n t r o l of " t h e insured" o r which " t h e i n s u r e d " i s f o r any purpose e x e r c i s i n g p h y s i c a l c o n t r o l . However, h e r e t h e i n s u r e r contends t h a t t h e son was h i s f a t h e r ' s a g e n t and t h e s o n ' s use, possession and p h y s i c a l c o n t r o l of t h e s k i d d e r w e r e l e g a l l y t h o s e of h i s f a t h e r who i s l i a b l e f o r h i s s o n ' s wrongful a c t s . The b a s i s of t h i s c o n t e n t i o n i s t h e d o c t r i n e of respondeat s u p e r i o r o r t h e imputed l i a b i l i t y of t h e p r i n c i p a l f o r t h e a c t s of h i s agent. Hence, according t o t h e i n s u r e r , t h e p o l i c y exclu- s i o n becomes o p e r a t i v e and e l i m i n a t e s coverage. W e have n o t previously decided t h i s i s s u e . The c o u r t s of o t h e r states are divided. An example of a c a s e holding no exclusion of coverage under s i m i l a r f a c t s i s t h e d e c i s i o n of an i n t e r m e d i a t e a p p e l l a t e c o u r t of Washington i n H o l t e r v. National Union F i r e Insurance Company (1969), 1 Wash.App. 46, 459 P.2d 61. There it was held t h a t because t h e p o l i c y d e f i n i t i o n of an i n s u r e d d i d n o t i n c l u d e t h e employee who caused t h e damage, t h e c a r e , custody and c o n t r o l exclusion d i d n o t apply. The reasoning of t h e Washington c o u r t was t h a t t h e p r o v i s i o n s of an insurance p o l i c y should be i n t e r - p r e t e d i n t h e way it would be understood by t h e average man purchasing insurance. Hence, where t h e p o l i c y d e f i n i t i o n of "insured" included executive o f f i c e r s , d i r e c t o r s and stock- h o l d e r s b u t d i d n o t list employees, t h e exclusionary c l a u s e would be i n t e r p r e t e d most s t r o n g l y a g a i n s t t h e i n s u r e r and coverage would be afforded. An example o f a c o n t r a r y r e s u l t i s t h e d e c i s i o n of t h e Oregon Supreme Court i n C r i s t e t a l . v. Potomac Insurance Company (1966), 243 O r . 254, 413 P.2d 407. There t h e c o u r t h e l d t h a t " c a r e , custody and c o n t r o l " e x c l u s i o n a p p l i e d t o a n employee of t h e i n s u r e d r e l i e v i n g t h e i n s u r e r of any duty t o defend t h e a c t i o n o r indemnify t h e i n s u r e d i n t h e amount of t h e s e t t l e m e n t . The reasoning of t h e Oregon c o u r t was based on agency p r i n c i p l e s rendering t h e a c t s of t h e employee t h o s e of h i s employer, t h e insured. W e hold t h a t t h e exclusionary c l a u s e does n o t e l i m i n a t e coverage here. The i n s u r e r has t h e duty t o defend and indemnify t h e i n s u r e d f o r any damages f o r which t h e i n s u r e d i s l i a b l e w i t h i n t h e p o l i c y l i m i t s . W e reach t h i s r e s u l t by i n t e r p r e t i n g t h e p o l i c y i n t h e way it would be understood by a n average man purchasing insurance. H o l t e r , supra. An insurance p o l i c y i s t o b e i n t e r p r e t e d a s a whole i n t h e e n t i r e t y of i t s t e r m s and conditions. S e c t i o n 33-15-316 MCA. So construed, t h e language of t h e p o l i c y i s ambiguous a s a p p l i e d t o t h e f a c t s of t h i s case. I n such c a s e t h e c o n s t r u c t i o n most f a v o r a b l e t o t h e i n s u r e d should be adopted. Atcheson v. Safeco Insurance Company (1974), 165 Mont. 239, 527 P.2d 549. Such c o n s t r u c t i o n a p p l i e s p a r t i c u l a r l y t o exclusionary c l a u s e s . Johnson v. E q u i t a b l e Insurance Co. (1963), 142 Mont. 128, 381 P.2d 778. Applying t h e s e p r i n - c i p l e s w e hold t h a t t h e enlargement of t h e exclusionary c l a u s e t o encompass t h e use, possession and p h y s i c a l c o n t r o l of a n a l l e g e d a g e n t of t h e i n s u r e d i s unwarranted and l a c k s m e r i t . W e have examined t h e p e r i p h e r a l arguments and a u t h o r i t i e s c i t e d by respondent and f i n d t h a t none would change o u r r e s u l t i n t h i s c a s e . The summary judgment i s vacated. The cause i s 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 w i t h t h i s opinion. \ Chief J u s t i c e W e concur: W w - 4 - 2 ~ J u s t i c e s | August 9, 1979 |
c0588500-393c-404e-9f3f-b1790c68e9bd | SCOTT v ROBSON | N/A | 14606 | Montana | Montana Supreme Court | No. 14606 IN THE SUPREME COUIiT O F THE STATE O F m A N A 1979 DONALD L. m, Plaintiff and Appellant, -VS- GAEiY R O - , Defendant and Respondent. Appeal from: D i s t r i c t Court of the Fourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: Allen L. W e a r argued, Bozeman, mntana For Respondent: Crowley, Haughey, Hanson, Toole and Dietrich, Billings, Montana L. Randall Bishop argued, Billings, mntana Submitted: M a y 4, 1979 Decided: JUL 1 6 1979 - < . - - r-. 5 -. ;'i : Y r:. - ,', & 4 . 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 appeal from a summary judgment i n t h e D i s - t r i c t Court of t h e Fourteenth 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 Musselshell. The case involves an a c t i o n t o recover f o r personal i n j u r y r e s u l t i n g f r o m some l o g s f a l l i n g on a workman. Following t h e taking of p l a i n t i f f ' s deposi- t i o n , defendant moved f o r a summary judgment, which motion was eventually granted. P l a i n t i f f moved t o set a s i d e , v a c a t e o r modify t h e summary judgment, which was denied, and p l a i n t i f f appeals. P l a i n t i f f S c o t t was i n j u r e d while working with defen- d a n t Gary Robson and W i l l i a m Yount, Jr., on a logging opera- t i o n . The men w e r e logging a s p e c i f i e d p o r t i o n of timber growing on t h e defendant's ranch. P l a i n t i f f and Yount had been h i r e d by Robson. S c o t t was t o f a l l t h e trees, c u t t h e limbs from them, and saw them i n t o l e n g t h s capable of being hauled t o an a r e a sawmill. Yount's job was t o s t a c k t h e l o g s hauled by S c o t t i n t o decks i n t o which they w e r e t o be loads. The loading and t h e hauling was done exclusively by defendant Robson. Deposition testimony e s t a b l i s h e d t h a t p l a i n t i f f S c o t t ' s p r i n c i p a l occupation f o r some 20 y e a r s had been t h a t of a t i m b e r sawyer. I n t h e l a t e f a l l of 1976 he approached defendant Robson seeking work because t h e l o c a l logging businesses had been closed due t o inclement winter weather. P r i o r t o t h a t t i m e he had been working'at a sawmill operated by M r . Yount, S r . The d e p o s i t i o n testimony i n d i c a t e d t h a t S c o t t would use h i s own judgment i n determining t h e merchant- a b l e l o g s and t h e manner i n which they would be c u t , would u s e h i s own saw and o t h e r equipment, and would purchase t h e g a s o l i n e and o i l f o r t h e saw. I t w a s f u r t h e r agreed t h a t S c o t t would be p a i d s t r i c t l y on a percentage of t h e l o g s c u t , r e c e i v i n g $10 p e r thousand board f e e t . I n a d d i t i o n Yount was t o r e c e i v e $10 p e r thousand board f e e t f o r t h e work he d i d i n skidding and s t a c k i n g t h e l o g s . The deposi- t i o n f u r t h e r i n d i c a t e s t h a t t h e r e w a s no withholding of any s o c i a l s e c u r i t y payments o r f e d e r a l income t a x i n t h e checks received by S c o t t . S c o t t determined h i s own working hours. The d e p o s i t i o n i n d i c a t e d t h a t Robson described t h e a r e a t o be logged, l e a v i n g t h e process of l o g s and t h e c o n t r o l of h i s movements e x c l u s i v e l y t o S c o t t . S c o t t i n d i c a t e d t h a t a t t h e t i m e of t h e agreement h i s r e l a t i o n s h i p with Robson was a s " c o n t r a c t o r s " . On March 15, 1977, Yount and S c o t t w e r e nearby a s Robson loaded t h e f i n a l t r u c k of a d a y ' s work. S c o t t had seen a number of l o a d s of l o g s go o u t and t e s t i f i e d t h a t he n o t i c e d nothing unusual about t h i s p a r t i c u l a r load. H e f u r t h e r t e s t i f i e d t h a t he knew two o r t h r e e l o g s had r o l l e d o f f during t h e loading process, b u t d i d n o t f e e l t h i s added t o t h e p o s s i b l e danger of t h e l o g s r o l l i n g o f f a f t e r they had been reloaded and had s e t t l e d some f i v e o r more minutes. According t o S c o t t every i n d i c a t i o n w a s t h a t t h e load w a s a good, t i g h t load of l o g s , no d i f f e r e n t from any o t h e r s which Robson had prepared, and s p e c i f i c a l l y t h a t t h e r e w e r e no crooked l o g s o r anything t h a t would have caused t h e load t o have been unstable. H e f u r t h e r t e s t i f i e d t h a t i n h i s e x p e r t opinion t h e s e l o g s w e r e loaded i n a customary manner of t h e logging i n d u s t r y . Following t h e loading t h e t r u c k and t h e l o g s sat motion- less f o r a t least f i v e minutes while Robson parked h i s t r a c t o r and prepared t o bind t h e load w i t h c h a i n s used f o r t h a t purpose. After parking and g e t t i n g off t h e t r a c t o r , Robson took t h e chains over t o t h e load and threw one of t h e chains over t h e top. S c o t t stepped o u t of h i s pickup, and without being asked t o do so, walked over t o hook t h e chain on the s i d e of t h e t r a i l e r opposite Robson. A s he bent t o hook t h e chain, some of t h e top logs r o l l e d off t h e truck. Yount, who was nearby, yelled a warning b u t S c o t t was unable t o r e a c t i n time and was h i t by t h e f a l l i n g logs and injured. Following t h e e n t r y of summary judgment, p l a i n t i f f sought t o depose an a d d i t i o n a l witness. Defendant f i l e d a motion t o quash t h e taking of t h e deposition, which w a s denied, and t h e deposition was taken t o perpetuate testimony under Rule 27(b), M.R.Civ.P. I n addition, p l a i n t i f f f i l e d a l e t t e r from H. B. Stevens, Supervisor of t h e Underwriting Division, S t a t e Compensation Insurance Fund, Division of Workers' Compensation, which was dated August 24, 1978, concerning t h e regulations of t h e Department on t h e stacking of logs. While p l a i n t i f f - a p p e l l a n t s e t s f o r t h f i v e i s s u e s f o r consideration by t h i s Court, w e f i n d t h a t t h e i s s u e s can be properly r e s t a t e d i n t h e following manner: 1. Whether a p p e l l a n t ' s opening b r i e f relies, i n p a r t , upon materials n o t properly included i n t h e record which should be disregarded i n deciding t h i s appeal. 2. Whether t h e D i s t r i c t Court properly granted summary judgment f o r respondent where a p p e l l a n t ' s testimony estab- l i s h e d t h a t respondent d i d not breach any duty owed appellant. 3 . Whether t h e appellant was, a s he believes, an independent contractor while working f o r respondent. The f i r s t i s s u e concerns t h e materials i n s e r t e d i n t o t h e record by a p p e l l a n t a f t e r summary judgment. The o r d e r g r a n t i n g summary judgment on t h e m e r i t s was entered on August 11, 1978. Judgment f o r respondent was e n t e r e d upon t h e o f f i c i a l docket August 16, 1978. On t h e s a m e day, a p p e l l a n t ' s counsel prepared a n o t i c e f o r t h e t a k i n g of t h e d e p o s i t i o n of William Yount, Jr., of Roundup, Montana. This n o t i c e was received by respondent's counsel on August 17, and upon r e c e i v i n g t h i s n o t i c e respondent submitted a motion t o quash along w i t h a n o t i c e of a hearing on t h e motion which was set f o r August 23, 1978. Respondent's motion t o quash argued t h a t , a judgment having been e n t e r e d i n t h e case, f u r t h e r discovery w a s i n a p p r o p r i a t e u n l e s s s p e c i f i c a l l y granted under Rule 2 7 ( b ) , M.R.Civ.P., which s t a t e s : " ( b ) PENDING APPEAL. I f an appeal has been taken from a judgment of a d i s t r i c t c o u r t o r before t h e t a k i n g of an appeal i f t h e t i m e t h e r e f o r has n o t expired, t h e d i s t r i c t c o u r t i n which t h e judgment was rendered m a y allow t h e t a k i n g of t h e deposi- -- t i o n s of witnesses t o p e r p e t u a t e t h e i r testimony f o r u s e i n t h e e v e n t o f f u r t h e r proceedings i n ---- - t h e d i s t r i c t c o u r t . I n such c a s e t h e p a r t y who de- sires t o p e r p e t u a t e t h e testimony may make a mo- t i o n i n t h e d i s t r i c t c o u r t f o r l e a v e t o t a k e t h e d e p o s i t i o n s , upon t h e same n o t i c e and s e r v i c e thereof a s i f t h e a c t i o n w a s pending i n t h e d i s - t r i c t c o u r t . The motion s h a l l show (1) names and addresses of persons t o b e examined and t h e sub- s t a n c e of t h e testimony which he expects t o e l i c i t from each; ( 2 ) t h e reasons f o r perpetuating t h e i r testimony. I f t h e c o u r t f i n d s t h a t t h e perpetua- t i o n of t h e testimony i s proper t o avoid a f a i l u r e o r delay of j u s t i c e , it may make a n o r d e r allowing t h e d e p o s i t i o n s t o b e taken . . . " (Emphasis added. ) Here it i s noted by respondent t h a t t h e only purpose of a n o r d e r g r a n t i n g a l e a v e under Rule 27(b) i s t o preserve testimony which may be l o s t i n t h e e v e n t t h a t t h e r e l i e f re- quested on appeal be granted and t h e case once again heard by t h e D i s t r i c t Court. Recently, i n Ash v. Cort (3rd C i r . (1975), 512 F.2d 909, a case r e v e r s e d on o t h e r grounds, 442 U.S. 66, t h e United S t a t e s Court of Appeals upheld t h e deci- s i o n of t h e D i s t r i c t Court denying a Rule 27 ( b ) motion t o p e r p e t u a t e testimony pending appeal. I n d i s c u s s i n g t h e r u l e , t h e Court s t a t e d : "We r e i t e r a t e t h a t Rule 27 i s n o t a s u b s t i t u t e f o r discovery. I t i s a v a i l a b l e i n s p e c i a l cir- cumstances t o p r e s e r v e testimony which otherwise could be l o s t . . . The Rule s t a t e s t h a t t h e t r i a l c o u r t 'may allow t h e t a k i n g of t h e deposi- t i o n s of w i t n e s s e s t o p e r p e t u a t e t h e i r testimony . . . i f t h e c o u r t f i n d s t h a t t h e p e r p e t u a t i o n of t h e testimony i s proper t o avoid a f a i l u r e o r d e l a y of j u s t i c e . . .' "Without some showing t h a t continued d e l a y i n g r a n t i n g discovery i s l i k e l y t o r e s u l t i n a l o s s of evidence, t h e a s s e r t i o n t h a t no discovery has y e t taken p l a c e i s p l a i n l y i r r e l e v a n t t o Rule 27. Appellant makes almost no a t t e m p t t o show why t h e requested testimony must be perpetuated. I n con- c l u s o r y t e r m s , a p p e l l a n t ' s b r i e f merely s t a t e s : 'There e x i s t s a s u b s t a n t i a l r i s k t h a t t e s t i m o n i a l evidence w i l l become u n a v a i l a b l e i f discovery is f u r t h e r postpone. I t i s probable t h a t t h e o f f i - cers and d i r e c t o r s having f i r s t hand knowledge a r e over f i f t y y e a r s of age. They are a l l s e n i o r o f f i c e r s of a l a r g e i n d u s t r i a l corporation. One d i r e c t o r has a l r e a d y died. Memories may f a d e . ' "Although age may be a r e l e v a n t f a c t o r i n showing t h a t testimony must be perpetuated t o avoid l o s s , w e simply cannot a g r e e t h a t t h e s e conclusory re- marks i n any way show t h a t evidence i s l i k e l y t o be l o s t while t h e appeal i s pending. "Since p l a i n t i f f f a i l e d t o a s s e r t r e a s o n s why it was necessary t o p e r p e t u a t e t h i s testimony, w e f i n d no abuse of d i s c r e t i o n i n t h e t r i a l c o u r t ' s d e n i a l of t h e motion." W e f i n d t h a t a p p e l l a n t ' s counsel made no a t t e m p t t o comply w i t h Rule 27(b) by r e q u e s t i n g l e a v e of c o u r t t o t a k e t h e d e p o s i t i o n of William Yount, Jr. While t h e motion t o p e r p e t u a t e testimony was l a t e r submitted, no f a c t s w e r e presented a s r e q u i r e d by t h e r u l e t o e s t a b l i s h t h a t t h e p e r p e t u a t i o n of t h e testimony of Yount w a s necessary t o avoid t h e f a i l u r e o r d e l a y of j u s t i c e . S u f f i c i e n t oppor- t u n i t y f o r discovery and examination of witnesses w a s pro- vided t o a p p e l l a n t ' s counsel while respondent's motion f o r summary judgment was pending. Here, a p p e l l a n t ' s f a i l u r e t o do so i n d i c a t e s h i s willingness t o stand on the evidence presented a t t h e summary judgment hearing. W e f i n d appel- l a n t ' s a c t i o n s improper and t h a t he cannot supplement an inadequate record on appeal by way of r e l i a n c e upon t h i s deposition of Yount. Next t o be considered i s t h e l e t t e r of B. H. Stevens which was submitted i n opposition t o respondent's motion f o r summary judgment. This l e t t e r from Stevens of t h e S t a t e Compensation Insurance Fund w a s intended t o show t h a t under workers' compensation law t h e S t a t e of Montana usually considered timber sawyers t o be employees. The l e t t e r w a s improperly included i n a p p e l l a n t ' s b r i e f f o r several rea- sons: (1) it w a s n o t presented i n t h e proper a f f i d a v i t form a s required by Rule 56, M.R.Civ.P.; ( 2 ) t h e opinion set f o r t h i n t h e letter could e a s i l y have been presented t o t h e c o u r t i n timely fashion i n opposition t o respondent's motion f o r summary judgment, r a t h e r than subsequently i n support of a motion t o set a s i d e t h e v e r d i c t which had been granted on t h e merits; and ( 3 ) t h e l e t t e r s e t s f o r t h a generalized opinion offered without e i t h e r foundation o r regard t o t h e f a c t s of t h e case. W e note t h a t i n a p p e l l a n t ' s b r i e f he admits t h a t t h e o b j e c t i o n t o t h e Yount deposition i s w e l l taken and f o r a l l i n t e n t s and purposes should not be included. However, he argues t h a t i n t h e case of t h e Stevens letter w e should consider t h e s a m e under t h e Montana Rules of ~ v i d e n c e , ~ u l e 803 ( a ) , which provides: "The following a r e n o t excluded by t h e hearsay r u l e . . . "8. . . . statements o r d a t a compilations i n any form of p u b l i c o f f i c e r s o r agency s e t t i n g f o r t h i t s r e g u l a r l y conducted and r e g u l a r l y recorded a c t i v i - t i e s . . . ' I A s previously noted above, w e f i n d t h a t t h e letter was n o t presented i n proper form and t h e r e f o r e cannot be con- s i d e r e d . The second i s s u e i s whether summary judgment was prop- e r l y granted i n favor of respondent where a p p e l l a n t ' s testi- mony e s t a b l i s h e d t h a t respondent d i d not breach any l e g a l duty owed appellant. Rule 56 ( c ) , M.R.Civ.P., states i n p e r t i n e n t p a r t : "The judgment sought should be rendered forthwith i f t h e pleadings, depositions, 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 , 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 is no genu- i n e i s s u e as t o any m a t e r i a l f a c t and t h a t t h e moving p a r t y i s e n t i t l e d t o a judgment a s a matter of law. " Under t h i s r u l e it i s c l e a r t h a t summary judgment is appro- p r i a t e only where t h e p r e t r i a l record d i s c l o s e s t h a t (1) t h e r e are no genuine i s s u e s of m a t e r i a l f a c t , and (2) t h a t t h e 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. Batey Land & Livestock Co. v. Nixon (1977), - Mont. I 560 P.2d 1334, 34 St-Rep. 105; Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613. Montana law i s exceedingly c l e a r i n i t s requirement t h a t a p l a i n t i f f i s s u b j e c t t o summary judgment i f he f a i l s i n e s t a b l i s h i n g c e r t a i n m a t e r i a l elements i n a negligence a c t i o n . S t a t e ex rel. Burlington Northern, Inc. v. D i s t r i c t Court (1972), 159 Mont. 295, 301, 496 P.2d 1152, 1156. A s s t a t e d i n P i c k e t t v. Kyger (1968), 151 Mont. 87, 100, 439 "Tt i s hornbook l a w r e q u i r i n g no c i t a t i o n of au- t h o r i t y t h a t t h e m a t e r i a l elements t h a t t h e plain- t i f f must prove i n order t o p r e v a i l i n a damage a c t i o n of t h i s kind are: " ( 1 ) A duty owing from defendant t o p l a i n t i f f ; " ( 2 ) A breach of t h a t duty by defendant; " (3) Constituting proximate cause o f ; " ( 4 ) I n j u r i e s and damages t o p l a i n t i f f . " P l a i n t i f f must introduce evidence proving o r tend- i n g t o prove each of t h e s e m a t e r i a l elements i n o r d e r t o be e n t i t l e d t o have h i s case submitted t o t h e jury. I n t h e i n s t a n t case p l a i n t i f f ' s evidence, viewed most favorably t o p l a i n t i f f , tends t o es- t a b l i s h t h e duty, breach, i n j u r y , and damages. But t h e r e i s a t o t a l absence of any evidence tending t o e s t a b l i s h a proximate causal connection between t h e breached duty and p l a i n t i f f ' s i n j u r i e s and damages." I n P i c k e t t t h i s Court d i r e c t e d summary judgment i n favor of t h e defendant a s a r e s u l t of t h e p l a i n t i f f ' s f a i l u r e t o e s t a b l i s h a proximate causal connection. I n Flansberg v. Montana Power Company (1969), 154 Mont. 53, 58-60, 460 P.2d 263, t h e r u l e was expressed under c i r - cumstances s i m i l a r t o t h e i n s t a n t case: "The f a c t s appearing i n t h e record r e v e a l a t o t a l absence of negligence on t h e p a r t of defendant o r i t s employees. This alone i s s u f f i c i e n t t o autho- r i z e summary judgment f o r defendant . . . "To s u s t a i n a claim f o r r e l i e f based on a l l e g e d negligence, t h e p l a i n t i f f must prove both negli- gence and proximate cause. [ C i t a t i o n s omitted.] Further, negligence imports such a want of a t t e n - t i o n t o t h e nature and probable consequences of t h e a c t o r omission a s a prudent man o r d i n a r i l y bestows i n a c t i n g i n h i s own concerns . . . Here t h e p l a i n t i f f , having presented h i s evidence on t h e i s s u e of negligence, has f a i l e d t o produce any s u b s t a n t i a l evidence t o support h i s claim. Whether o r n o t t h e r e i s s u b s t a n t i a l evidence pre- sented by p l a i n t i f f is a question of l a w f o r t h e Court and n o t a question of f a c t f o r t h e jury. [ C i t a t i o n s omitted. I " I f t h e r e -- i s no evidence of any negligent -- a c t o r omission % defendant, a n o n s u i t i s proper1 aranted. [ C i t a t i o n s omTtted. ] T ~ S r u l e iz - - - equally a p p l i c a b l e t o a motion f o r summary judg- ment under t h e circumstances d i s c l o s e d here." Under t h e circumstances of t h e a c c i d e n t here, whether a p p e l l a n t S c o t t w a s a n employee o r a n independent contrac- t o r , t h e duty owed him by respondent was t h a t of a business i n v i t e e . Under t h e case l a w of t h i s state an i n d i v i d u a l has been h e l d t o be a business i n v i t e e i f t h e r e e x i s t s some common i n t e r e s t o r mutual advantage gained by t h e i n v i t o r o r t h e property owner. S t a t e ex rel. Burlington Northern, Inc. v. D i s t r i c t Court (1972), 159 Mont. 295, 304, 496 P.2d 1152, 1157-58. From a p p e l l a n t ' s testimony it appears t h a t a common i n t e r e s t i s shown: "Q. I n a sense, t h e t h r e e of you w e r e r e a l l y work- i n g together toward a common g o a l , i s n ' t t h a t cor- r e c t ? A. W e l l , yes, t r y i n g t o make a d o l l a r , yes. "Q. Trying t o g e t a s many l o g s i n a s you could? A. W e l l , yes. "Q. I n t h e course of pursuing t h a t g o a l would you o c c a s i o n a l l y h e l p each o t h e r a t t a s k s , p a r t i c u l a r t h i n g s ? A. W e l l , I have skidded with t h e c a t a few t i m e s , b u t n o t very much. B i l l d i d most of it. And I have helped Gary boom down i f I happened t o be t h e r e o r something, t o hook a chain o r some- t h i n g s , you know, b u t t h a t w a s it, you know. "Q. This was j u s t a n occasional t h i n g , n o t consis- t e n t ? A. Y e s . That wasn't m y job. H e never t o l d m e t o do it o r anything. I j u s t d i d i t . " The g e n e r a l r u l e i s t h a t a property owner i s l i a b l e t o a n i n v i t e e f o r i n j u r i e s occasioned by unsafe conditions upon premises encountered i n t h e work which a r e known t o t h e p r o p e r t y owner b u t unknown t o t h e i n j u r e d person. 4 1 Am.Jur.2d Independent Contractors 827, p. 781. This Court has h e l d under t h e g e n e r a l r u l e t h a t t h e duty owed t h e business i n v i t e e i s t o e x e r c i s e ordinary care t o have t h e premises reasonably s a f e o r t o warn t h e i n v i t e e of any hidden o r l u r k i n g dangers; t h e i n v i t o r i s n o t , however, a n i n s u r e r a g a i n s t a l l a c c i d e n t s and i n j u r i e s t o i n v i t e e s . See, Dunham v . Southside National Bank of Missoula (1976), 169 Mont. 466, 548 P.2d 1383; Hackley v. Waldorf Hoerner Paper Co., (1967), 149 Mont. 286, 425 P.2d 712; and Cassaday v. C i t y of B i l l i n g s (1959), 135 Mont. 390, 393, 340 P.2d 509, 510-11. It i s undisputed t h a t a p p e l l a n t s u f f e r e d h i s i n j u r i e s a s a r e s u l t of a n i n c i d e n t which occurred on respondent's ranch. W e must look t o t h e l a w of Montana f o r t h e proper g u i d e l i n e s t o consider t h e f a c t s of t h i s case. I t has been long e s t a b l i s h e d and i s a r u l e i n Montana t h a t "an i n f e r e n c e of negligence cannot be drawn from t h e b a r e f a c t t h a t an i n j u r y occurs." Thompson v. Llewellyn (1959), 136 Mont. The method of determining whether respondent w a s n e g l i - g e n t i n t h i s i n s t a n c e i s described i n Mang v. Eliasson (1969), 153 Mont. 431, 436-38, 458 P.2d 777, 780-81, where t h i s Court s t a t e d : " I t has been w e l l s a i d t h a t a defendant who could n o t f o r e s e e any danger of d i r e c t i n j u r y r e s u l t i n g from h i s conduct o r any r i s k from a n i n t e r v e n i n g f o r c e i s n o t n e g l i g e n t . Taylor v. Chicago, M i l - waukee, S t . Paul and P a c i f i c Ry. Co., 142 Mont. 365, 371, 384 P.2d 759; Lencioni v. Long, 139 Mont. 135, 361 P.2d 455 . . . " F o r e s e e a b i l i t y i s of prime importance i n estab- l i s h i n g t h e element of duty, and t h e q u e s t i o n of d e f e n d a n t ' s negligence, i f any, must of n e c e s s i t y hinge on t h e f i n d i n g of a breach of t h a t duty. I f a reasonably prudent defendant can f o r e s e e n e i t h e r any danger of d i r e c t i n j u r y nor any r i s k f o r an i n t e r v e n i n g cause he i s simply n o t n e g l i g e n t . . . "Harper and James, The Law of T o r t s , [Vol. 21 a t page 1018, state t h e p r e v a i l i n g view. The o b l i - g a t i o n of defendants t u r n s on whether: " ' . . . The offending conduct foreseeably involved unreasonably g r e a t r i s k of harm t o t h e i n t e r e s t of someone o t h e r than t h e a c t o r . . . The o b l i g a t i o n t o r e f r a i n from . . . p a r t i c u l a r conduct i s owed o n l y t o t h o s e who a r e foreseeably endangered by t h e conduct and only with r e s p e c t t o t h o s e r i s k s and hazards whose l i k e l i h o o d made t h e conduct un- reasonably dangerous. Duty, & I o t h e r words i s measured t h e scope --- of t h e r i s k which n e g l z e n t conduct f o r e s e e a b l y e n t a i l s . ' " (Emphasis added. ) See a l s o , Jackson v. William Dingwall Co. (1965), 145 Mont. 127, 135, 399 P.2d 236, 240, where t h i s Court upheld t h e d i s m i s s a l of p l a i n t i f f ' s a c t i o n , s t a t i n g : "Negligence c a r r i e s with it l i a b i l i t y f o r conse- quences which i n l i g h t of a t t e n d a n t circumstances could reasonably have been a n t i c i p a t e d by a pru- d e n t man, b u t n o t f o r c a s u a l t i e s which, though p o s s i b l e , w e r e wholly improbable. [ C i t a t i o n omit- t e d . ] Negligence i s t h e absence of c a r e , accord- i n g t o t h e circumstance. . ." Here, a s i n Jackson, t h e deposition of a p p e l l a n t c l e a r l y shows t h a t respondent d i d not breach any duty owed a p p e l l a n t . The f a c t t h a t a p p e l l a n t had no o b l i g a t i o n t o have anything t o do with t h e loading of t h e truck and binding it down i s f u l l y revealed by h i s testimony. According t o a p p e l l a n t ' s testimony, t h e r e w a s no reason f o r him t o perceive any danger from t h e load of logs; nor was t h e r e any warning t h a t one of them would f a l l o f f t h e truck. The load of l o g s had s e t t l e d f o r a t l e a s t f i v e minutes a s t h e men who w e r e t h e r e could see. I t i s f u r t h e r shown by t h e testimony t h a t respondent gave no o r d e r s t o a p p e l l a n t t o a s s i s t him, nor d i d he have any i n d i c a t i o n t h a t a p p e l l a n t had walked up t o t h e truck t o help him i n binding t h e load. Under t h e s e circumstances t h e r e w a s no i n d i c a t i o n t h a t t h e loading of t h e l o g s had c r e a t e d a d d i t i o n a l r i s k of harm o r t h a t a p p e l l a n t w a s endangered by t h e load. W e cannot perceive t h a t respondent breached any duty t o appel- l a n t t o keep t h e premises reasonably s a f e o r t o warn of any hidden o r lurking dangers. Under t h e evidence presented, t h e r e is no showing t h a t respondent was negligent o r t h a t l i a b i l i t y attached. For t h e above reasons, it i s n o t necessary t o consider t h e t h i r d i s s u e presented, t h a t of t h e question of t h e independent c o n t r a c t o r . The order of t h e D i s t r i c t Court g r a n t i n g summary judgment We concur: z-e%wL4 ._ Ch' f Justice T r\ -i '-. Justices | July 16, 1979 |
41580f6e-e3d6-434c-92f7-15eda4c59e00 | DUMONT v WICKENS BROS CONSTRUCTIO | N/A | 14564 | Montana | Montana Supreme Court | N o . 14564 IN THE SUPREME COURT O F THE STATE O F MXIYiP7A 1979 PIERRE DUO?T (deceased) VIRGINIA m, C l a h t and Appellant, and AE;TNA FIRE - , Defendant and Respondent. Appeal from: Wrkers ' Ccanpensation Court Hon. W i l l i a m E. Hunt, Judge presiding. Counsel of Record: For Appellant: Torger S. Oaas argued, Lewistuwn, Mntana For Respondent : Andrew J. Utick argued, Helena, Mntana Sulmnitted: June 6, 1979 Decided : AU G - 9 1 9 7 9 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. Through a hearing b e f o r e t h e Workers' Compensation Court on December 1, 1977, claimant, V i r g i n i a Dumont, sought compensation b e n e f i t s f o r t h e d e a t h of h e r husband which she a l l e g e d was t h e r e s u l t of an i n j u r y he r e c e i v e d i n t h e c o u r s e and scope of h i s employment by Wickens Bros. Construc- t i o n Company on October 12, 1976. The Workers' Compensation Court denied t h e c l a i m . Claimant p e t i t i o n e d f o r a r e h e a r i n g b e f o r e t h e lower c o u r t , and o r a l argument was heard a s t o whether a rehearing should be granted. By o r d e r dated and f i l e d on September 29, 1978, t h e Workers' Compensation Court denied c l a i m a n t ' s r e q u e s t f o r a rehearing. On October 31, 1978, 31 days a f t e r t h e d a t e of d e n i a l of t h e r e h e a r i n g , t h e Workers' Compensation Court received and f i l e d c l a i m a n t ' s n o t i c e of appeal t o t h i s Court. Respondent insurance company moved t o d i s m i s s t h i s appeal on t h e ground t h a t t h i s Court l a c k s j u r i s d i c t i o n because claimant f a i l e d t o f i l e a n o t i c e of appeal w i t h i n t h e t i m e allowed by law. This Court ordered t h e appeal set f o r o r a l argument and t h e motion t o d i s m i s s a s w e l l as t h e m e r i t s of t h e appeal were argued. P i e r r e (Pete) Dumont d i e d on o r about October 12, 1976, of a h e a r t a t t a c k i n h i s bed i n h i s trailer home which had been moved t o a job s i t e near Forsyth, Montana, from ~ u m o n t ' s home i n Lewistown. H i s body was discovered i n bed by o t h e r s who i n v e s t i g a t e d when he d i d n o t r e p o r t f o r work. On Octo- b e r 14, 1976, a n autopsy w a s performed on t h e body of t h e deceased. The f i n a l anatomical d i a g n o s i s contained i n such autopsy r e p o r t r e v e a l s t h e following f i n d i n g s : " I . Marked s t e n o s i n g a r t e r i o s c l e r o s i s of coronary arteries with: "A. Recent thrombosis of p o s t e r i o r r i g h t coronary a r t e r y . "B. Old occlusion, a n t e r i o r descending branch o f l e f t coronary a r t e r y . "C. N o g r o s s evidence of r e c e n t o r p a s t myo- c a r d i a l i n f a r c t i o n . "11. Hyperemia of lungs and l i v e r . "111. Chronic pulmonary emphysema. " I V . Obesity. "V. Compression f r a c t u r e of f i r s t lumbar v e r t e b r a , c l i n i c a l . " I n h e r claim, claimant a l l e g e d t h a t t h e deceased was subjected by h i s job t o unusual s t r a i n and s u f f e r e d an i n j u r y a s defined i n s e c t i o n 39-71-119 MCA, and t h a t such i n j u r y a r o s e o u t of and w a s i n t h e course of h i s employment. The claim f o r compensation l i s t e d t h e d a t e of such a l l e g e d i n j u r y a s October 12, 1976. A t t h e hearing s e v e r a l l a y witnesses w e r e c a l l e d t o t e s t i f y concerning t h e deceased's job a c t i v i t i e s and p a r t i c u - l a r l y concerning h i s a c t i v i t i e s on October 1 2 , 1976. I n g e n e r a l such witnesses t e s t i f i e d t h a t h i s a c t i v i t i e s on t h e day of h i s d e a t h w e r e q u i t e normal. Claimant, who w a s n o t p r e s e n t on t h e job site on Octo- b e r 1 2 , 1976, attempted t o p a i n t an e n t i r e l y d i f f e r e n t pic- t u r e . She t e s t i f i e d i n considerable d e t a i l about t h e d u t i e s , t h e long hours, and stresses and s t r a i n s t h a t t h e deceased was subjected t o during t h e c o n s t r u c t i o n season of 1976. However, on cross-examination she admitted t h a t t h e deceased, a n employee of Wickens Bros. Construction Company f o r many y e a r s , was subjected i n preceding y e a r s t o s i m i l a r stresses and s t r a i n s and worked long hours, i n c l u d i n g weekends. Claimant f u r t h e r t e s t i f i e d t h a t t h e deceased, on J u l y 21, 1976, s u f f e r e d an i n j u r y t o h i s back and l e g i n an on- the-job i n c i d e n t and was h o s p i t a l i z e d f o r about t h r e e days following which he remained home f o r one week. Claimant t e s t i f i e d t h a t t h e deceased returned t o work before he was released by h i s physician and worked with pain. She s t a t e d t h a t she spent t i m e on t h e job site s o she could a s s i s t with d r i v i n g and t r e a t h i s i n j u r e d leg. She s t a t e d t h a t during September 1976 t h e deceased had been having problems with h i s s l e e p and on occasions when he could n o t s l e e p would a r i s e i n t h e n i g h t and go o u t on t h e job. On October 12, 1976, claimant was n o t on t h e job s i t e a t Forsyth. Over o b j e c t i o n of t h e respondent, claimant w a s allowed t o t e s t i f y t h a t on t h e morning of October 12, 1976, her husband c a l l e d her a t Lewistown about two hours l a t e r than usual p r i o r t o h i s t r i p t o B i l l i n g s . She s t a t e d t h a t he seemed upset and had s t a t e d t o her t h a t " a l l h e l l broke loose." When asked what had happened, he s t a t e d t h a t it would take t o o long t o explain and he would do so on t h e weekend. She f u r t h e r s t a t e d t h a t he departed from h i s customary statement i n c l o s i n g a telephone conversation by saying goodbye without saying t h a t he loved her. Claimant was unable t o explain what t h e deceased w a s r e f e r r i n g t o i n h i s phone coversation. She s t a t e d t h a t she had attempted t o determine from o t h e r employees what had occurred t o g i v e r i s e t o t h e statement made t o her by h e r husband on t h e telephone b u t had learned nothing. Respondent insurance company s t a t e s t h a t t h e c r u c i a l s i g n i f i c a n c e of t h e events of October 1 2 , 1976, was explained by t h e medical witness. D r . H o l l i s K. Lefever, t e s t i f y i n g on behalf of claimant, was provided with a copy of t h e autopsy r e p o r t . H e was asked, over respondent's continuing o b j e c t i o n , t o respond t o a hypothetical question based i n l a r g e degree on c e r t a i n disputed f a c t s of t h e case and, respondent contends, on c e r t a i n f a c t s which were n o t i n evidence. The hypothetical question asked of D r . Lefever contained reference t o t h e deceased's back i n j u r y of J u l y 2 1 , 1976; it contained reference t o an a l l e g e d i n c i d e n t n i n e days before t h e d e a t h when t h e deceased loaded some a n t i - f r e e z e i n t o h i s pickup; it contained reference t o an a l l e g e d i n c i d e n t two days before t h e death when t h e deceased a l l e g e d l y h u r t himself while loading a r a d i a t o r i n t o h i s pickup; and it contained reference t o c l a i m a n t ' s version of t h e events of October 12, 1976, and t h e deceased's t r i p t o B i l l i n g s f o r p a r t s . On cross-examination, D r . Lefever s t a t e d : "Q. Doctor, i n t h e hypothetical t h a t M r . Oaas asked you t o assume, i s t h e r e any one i n c i d e n t o r any one day i n t h e f a c t s i t u a t i o n given t o you, t h a t you could p o i n t t o a s t h e cause of t h i s death, o r i s it j u s t a build-up of a l l of t h e s e things? A. W e l l , I think t h e only day s t a t e d i n t h e hypothetical question i n which t h e r e was any chain of events t h a t I might re- l a t e t o t h i s is, i f I r e c a l l t h e hypothetical question c o r r e c t l y , concerning t h e hasty t r i p t o B i l l i n g s and t h e handling of heavy equip- ment. . ." Thus, argues respondent, D r . Lefever, c l a i m a n t ' s e x p e r t witness, made t h e events of October 12, 1976, c r i t i c a l t o t h e case. Throughout t h e r e b u t t a l testimony of D r . Lefever, he k e p t r e f e r r i n g t o t h e events of " t h a t day"--referring t o October 12, 1976. D r . Stephen Cade, respondent's e x p e r t witness, when asked t h e same hypothetical question a s had been asked of D r . Lefever, d i d n o t f e e l t h a t t h e r e was any probable r e l a t i o n s h i p between t h e events of October 1 2 and t h e death. However, he d i d explain t h a t t h e c l o s e r i n t i m e t h a t events of physical o r emotional stress were t o t h e death, t h e more l i k e l i h o o d t h e r e was of some r e l a t i o n s h i p between t h e two. Based on t h e above, t h e hearings examiner summarized t h e testimony surrounding t h e events of October 12, 1976, a s follows: "18. That f o u r witnesses t e s t i f i e d t h a t they had seen and t a l k e d with P e t e Dumont on t h e day o f h i s death b u t t h a t none of them observed him t o be showing any s i g n s of stress o r s t r a i n , p h y s i c a l o r emotional. None of t h o s e witnesses w e r e aware o f any unusual problems a t t h e job, and none of them r e c a l l Pierre Dumont having mentioned any unusual problems. "19. That t h e only evidence t h a t t h e deceased was undergoing unusual stress o r s t r a i n i s t h a t from t h e testimony of t h e claimant, t h e widow of Pierre Dumont, who s t a n d s t o g a i n , and t h a t l i t t l e o r none of t h a t testimony i s corroborated by o t h e r evidence." The following i s s u e s a r e r a i s e d on appeal: 1. Should t h i s appeal be dismissed s i n c e t h i s Court l a c k s j u r i s d i c t i o n because claimant f a i l e d t o timely f i l e a n o t i c e of appeal? 2. Did t h e Workers' Compensation Court err i n denying b e n e f i t s t o claimant under t h e Workers' Compensation Act? The f i r s t i s s u e i s d i r e c t e d a t c l a i m a n t ' s f a i l u r e t o timely f i l e a n o t i c e of appeal. This Court has never been c a l l e d upon t o r u l e i n a c a s e involving t h e i s s u e of t h e t i m e l i n e s s o f f i l i n g a n o t i c e of appeal from a d e c i s i o n of t h e Workers' Compensation Court. S e c t i o n 39-71-2904 MCA provides: "Notwithstanding 2-4-701 through 2-4-704, an appeal from a f i n a l d e c i s i o n of t h e workers' compensation judge s h a l l be f i l e d d i r e c t l y with t h e supreme c o u r t of Montana i n t h e manner pro- vided by law f o r appeals from t h e d i s t r i c t c o u r t i n c i v i l cases." A s t o what c o n s t i t u t e s a " f i n a l d e c i s i o n " of t h e Workers' Compensation judge, Rule 19 of t h e Workers' Compensation Court Rules ( h e r e i n a f t e r r e f e r r e d t o a s WCCR) provides: "19A. The Court w i l l , a f t e r t h e hearing, i s s u e f i n d i n g s of f a c t and conclusions of law and a n o r d e r s e t t i n g f o r t h t h e C o u r t ' s d e t e r - mination of t h e disputed i s s u e s . The p a r t i e s t o t h e d i s p u t e may consider t h i s o r d e r as a f i n a l d e c i s i o n of t h e Court f o r appeals pur- poses. However, any p a r t y t o t h e d i s p u t e may r e q u e s t a rehearing before t h e Court w i t h i n twenty (20) days a f t e r a p a r t y r e c e i v e s a copy of t h e o r d e r , and i f any p a r t y submits a re- q u e s t f o r rehearing, t h e order i s s u e d by t h e Court s h a l l n o t b e considered a f i n a l d e c i s i o n of t h e Court f o r appeals purposes. "19B. I f a r e q u e s t f o r a rehearing i s f i l e d , t h e p a r t i e s requesting t h e rehearing s h a l l set f o r t h s p e c i f i c a l l y and i n f u l l d e t a i l t h e grounds upon which t h e p a r t y c o n s i d e r s t h e o r d e r t o be i n c o r r e c t . I f t h e Court denies t h e r e q u e s t f o r rehearing, t h e o r i g i n a l order i s s u e d by t h e Court s h a l l be considered t h e f i n a l d e c i s i o n of t h e Court as of t h e day t h e rehearing i s denied. I f a rehearing i s granted t h e matter w i l l b e set f o r hearing. The matter w i l l be determined by t h e testimony taken a t t h e i n i t i a l hearing and a t t h e rehearing. Af- ter t h e rehearing, t h e Court w i l l i s s u e an o r d e r s e t t i n g f o r t h t h e C o u r t ' s f i n a l determination of t h e disputed i s s u e s . " F i n a l l y , Rule 5, M.R.App.Civ.P., s t a t e s i n p e r t i n e n t p a r t : "The t i m e w i t h i n which an appeal from a judg- ment o r an o r d e r must b e taken s h a l l b e 30 days from t h e e n t r y thereof . . ." The f i n d i n g s of f a c t and conclusions of l a w i n t h i s m a t t e r w e r e adopted by t h e Workers' Compensation Court by o r d e r dated June 19, 1978. Claimant had 30 days t h e r e a f t e r w i t h i n which t o f i l e a n o t i c e of appeal (Rule 5, M.R.App.Civ.P.) o r 20 days w i t h i n which t o f i l e a r e q u e s t f o r rehearing (Rule 19, WCCR). O n June 29, 1978, according t o t h e certi- f i c a t e of mailing, claimant mailed t o t h e c l e r k of t h e Workers' Compensation Court, a r e q u e s t f o r rehearing. The f i l i n g of a r e q u e s t f o r rehearing suspended t h e t i m e f o r f i l i n g of a n o t i c e of appeal. T h e r e a f t e r , respondent f i l e d formal o b j e c t i o n s t o t h e s u f f i c i e n c y of c l a i m a n t ' s r e q u e s t f o r rehearing, and claimant, i n response t o such o b j e c t i o n s , f i l e d an amendment t o her r e q u e s t f o r rehearing. On August 23, 1978, t h e Workers' Compensation Court heard o r a l argument on whether a rehear- i n g should be granted. The Workers' Compensation Court e n t e r e d i t s o r d e r denying rehearing and r e t u r n i n g t h e f i l e t o t h e Division of Workers' Compensation on September 29, 1978. I n a d d i t i o n t o denying t h e r e h e a r i n g , t h i s o r d e r had t h e e f f e c t of making t h e o r i g i n a l o r d e r of t h e Workers' Compensation Court t h e f i n a l d e c i s i o n of t h e c o u r t f o r appeal purposes a s of t h e day t h e r e h e a r i n g was denied-- September 29, 1978. Thus, t h e l a s t suspended day f o r t h e f i l i n g of a n o t i c e of appeal was September 29, 1978, and c l a i m a n t ' s f i r s t day t o f i l e a n o t i c e of appeal was, and t h e t i m e l i m i t t o f i l e t h e n o t i c e of appeal commenced running, a s of September 30, 1978. Since September has only 30 days, t h e 30-day t i m e l i m i t of claimant t o f i l e a n o t i c e of appeal expired on October 29, 1978. However, s i n c e October 29, 1978, was a Sunday, it i s n o t counted and t h e 30-day t i m e l i m i t t o f i l e a n o t i c e of appeal would e x p i r e on October 30, 1978. I t was n o t u n t i l t h e f i n a l day of t h e appeal p e r i o d , on October 30, 1978, t h a t claimant mailed h e r n o t i c e of appeal f o r f i l i n g , and t h e same was n o t received by t h e c l e r k of t h e Workers' Compensation Court u n t i l Tuesday, October 31, 1978. Under Rule 2 0 ( a ) , M.R.App.Civ.P., a n o t i c e of appeal i s n o t deemed f i l e d u n l e s s t h e n o t i c e i s a c t u a l l y received by t h e c l e r k w i t h i n t h e t i m e f i x e d f o r f i l i n g . Thus, t h e n o t i c e of appeal w a s n o t received f o r f i l i n g by t h e c l e r k of t h e Workers' Compensation Court u n t i l t h e day a f t e r t h e appeal t i m e expired. Accordingly, it i s r e s p o n d e n t ' s posi- t i o n t h a t claimant has n o t timely p e r f e c t e d h e r appeal; t h a t t h i s Court i s w i t h o u t j u r i s d i c t i o n t o e n t e r t a i n t h e appeal; and t h a t claimant i s barred from seeking t o have t h e Workers' Compensation C o u r t ' s d e c i s i o n changed o r i n any way reversed o r modified. Rule 4 ( a ) , M.R.App.Civ.P., which i s made a p p l i c a b l e t o a Workers' Compensation Court proceeding by s e c t i o n 39-71- 2904 MCA, provides: ". . . An appeal s h a l l be taken by f i l i n g a n o t i c e of appeal i n t h e d i s t r i c t c o u r t . F a i l u r e of an a p p e l l a n t t o t a k e any s t e p o t h e r than t h e timely f i l i n g of a n o t i c e of appeal does n o t a f f e c t t h e v a l i d i t y of t h e appeal, b u t i s ground only f o r such a c t i o n a s t h e Supreme Court deems appropriate, which may include d i s - missal of t h e appeal." Rule 4 , M.R.App.Civ.P., i s patterned a f t e r Rule 3 of t h e Federal Rules of Appellate Procedure. The second sentence of Rule 4 ( a ) , M.R.App.Civ.P., is i d e n t i c a l t o a l i k e provi- s i o n of Rule 3 ( a ) of t h e Federal Rules. 9 Xoore's Federal P r a c t i c e 11203.10 s t a t e s : "The n o t i c e of appeal i s f i l e d with t h e c l e r k when it i s received i n t o h i s custody and c o n t r o l . Since timely f i l i n g of t h e n o t i c e i s held t o be e s s e n t i a l t o t h e j u r i s d i c t i o n of t h e c o u r t of appeals, t h e p r e c i s e t i m e t h a t t h e n o t i c e was f i l e d can be of overwhelming importance. The most c e r t a i n way t o e f f e c t timely f i l i n g i s t o d e l i v e r t h e n o t i c e t o t h e o f f i c e of t h e c l e r k personally on o r before t h e d a t e f i x e d f o r f i l i n g . But s i n c e personal d e l i v e r y i s o f t e n inconvenient and expensive, mailing i s very frequently r e s o r t e d t o . When d e l i v e r y i s t o be e f f e c t e d by mail, it must be borne i n mind t h a t t h e n o t i c e must be received by t h e c l e r k w i t h i n t h e t i m e allowed f o r i t s f i l i n g . This i s q u i t e contrary t o t h e usual r u l e respecting t h e s e r v i c e of papers required t o be served, which i s t h a t timely mailing c o n s t i t u t e s timely service. " I t i s likewise s t a t e d i n 9 Moore's Federal P r a c t i c e 11204.02: "Discussion of t h e time f o r appeal must begin by d i r e c t i n g a t t e n t i o n t o a h o s t of cases hold- i n g with unanimity t h a t unless a n appeal i s timely taken t h e reviewing c o u r t lacks j u r i s - d i c t i o n t o hear it. Although t h a t holding i s n o t a s l o g i c a l l y compelling a s it once was, t h e n e c e s s i t y of providing a p r e c i s e l y a s c e r t a i n a b l e p o i n t of t i m e a t which l i t i g a t i o n comes t o an end s t r o n g l y m i l i t a t e s a g a i n s t i t s overthrow. A s t h e Committee Note accompanying Rule 3 [of t h e F e d e r a l Rules] admonishes: " ' R u l e 3 and Rule 4 combine t o r e q u i r e t h a t a n o t i c e of appeal be f i l e d w i t h t h e c l e r k of t h e d i s t r i c t c o u r t w i t h i n t h e t i m e p r e s c r i b e d f o r t a k i n g an appeal. Because t h e timely f i l i n g of a n o t i c e of appeal i s "mandatory and j u r i s d i c t i o n a l " , United S t a t e s v. Robinson, 361 U.S. 220, 224 (1960), compliance w i t h t h e p r o v i s i o n s o f t h o s e r u l e s i s of t h e utmost importance.' "So c a r e must b e taken t o i n s u r e t h a t t h e n o t i c e of appeal i s f i l e d with t h e c l e r k of t h e d i s t r i c t c o u r t w i t h i n t h e t i m e f i x e d f o r t h e p a r t i c u l a r appeal by Rule 4 . . ." T h i s is l i k e w i s e t h e l a w of Montana. The above-mentioned a u t h o r i t i e s w e r e c i t e d w i t h approval and s p e c i f i c a l l y adopted by t h e Montana Supreme Court i n connection w i t h a Workers' Compensation appeal b e f o r e t h e c r e a t i o n of t h e Workers' Compensation judge i n L e i t h e i s e r v. Montana S t a t e P r i s o n (1973), 161 Yont. 343, 505 P.2d 1203, where t h i s Court dismissed a n appeal f i l e d by t h e defendant upon t h e grounds t h a t t h e n o t i c e of appeal had been f i l e d t h r e e days l a t e . Respondent argues t h a t t h i s Court has c o n s i s t e n t l y followed t h e a p p l i c a t i o n of t h e above-stated r u l e s many t i m e s . S t a t e v. Wibaux County Bank (1929), 85 Mont. 532, 281 P. 341; Reid v. District Court (1953), 126 Mont. 489, 255 P.2d 693; McVay v. McVay (1954), 128 Mont. 31, 270 P.2d 393; Jackson v. Tinker (1972), 161 Mont. 51, 504 P.2d 692; F i r s t National of Lewistown v . Fray (1978), Mont . I Claimant contends t h a t respondent has f a i l e d t o compute 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 c o r r e c t l y . Claimant i n i t i a l l y s t a t e s t h a t t h e Montana Rules of Appellate C i v i l Procedure became e f f e c t i v e on January 1, 1968, approximately e i g h t y e a r s p r i o r t o t h e p r e s e n t day Workers' Compensation A c t ( e f f e c t i v e J u l y 1, 1975). Therefore, claimant argues, t h e r e i s no i n t e r p l a y between t h e Rules of Appellate C i v i l Procedure and t h e Workers' Compensation A c t even though appeals from a d e c i s i o n of t h e Workers' Compensation Court a r e taken d i r e c t l y t o t h e Supreme Court i n t h e manner pro- vided by l a w f o r appeals from a District Court i n c i v i l c a s e s . S e c t i o n 39-71-2904 MCA. The obvious example of t h i s i s t h a t it i s n o t even e x a c t l y c l e a r from a reading of Rule 4 ( a ) , M.R.App.Civ.P., where t h e n o t i c e of appeal is t o be f i l e d i n t h e case of an a p p e a l from a d e c i s i o n of t h e Workers' Compensation Court. Of course, t h e reasonable and common s e n s e understanding and p r a c t i c e i s t o f i l e it w i t h t h e Workers' Compensation Court, t r e a t i n g it, i n e f f e c t , a s a " D i s t r i c t Court" w i t h i n t h e scope and purpose of Rule 4 ( a ) . Respondent c o r r e c t l y p o i n t s o u t t h a t proceedings i n t h e Workers' Compensation Court a r e n o t governed by t h e Rules of C i v i l Procedure and t h e r e f o r e is t e c h n i c a l l y c o r r e c t i n a s s e r t i n g t h a t Rule 77(d) and Rule 5, M.R.Civ.P., have no a p p l i c a t i o n here. Respondent's argument i g n o r e s t h e f a c t t h a t proceedings i n t h e Workers' Compensation Court a r e governed by t h e Montana Administrative Procedure A c t by d i r e c t mandate of s e c t i o n 39-71-2903 MCA. Thus, s e c t i o n 2-4-623 MCA of t h e Administrative Procedure A c t a p p l i e s . The p e r t i n e n t p a r t of t h i s s t a t u t e s t a t e s : ". . . P a r t i e s s h a l l be n o t i f i e d e i t h e r per- s o n a l l y o r by m a i l of any d e c i s i o n o r o r d e r 11 . . . This p r o v i s i o n o f t h e above-cited s t a t u t e is i d e n t i c a l t o Rule 7 7 ( d ) , M.R.Civ.P., i n s o f a r a s r e q u i r i n g n o t i c e of d e c i s i o n s i n Workers' Compensation c a s e s . W e hold, t h e r e f o r e , t h a t a person who appeals from a f i n a l decision of t h e Workers' Compensation Court should i n a l l fundamental f a i r n e s s be given t h e same b e n e f i t of t h a t provision of Rule 5, M.R.App.Civ.P., which s t a t e s t h a t : ". . . except t h a t i n cases where s e r v i c e of n o t i c e of e n t r y of judgment is required by Rule 77(d) of t h e Montana Rules of C i v i l Proce- dure t h e t i m e s h a l l be 30 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." This would mean, a s i s already t h e c a s e where Rule 7 7 ( d ) , M.R.Civ.P., i s a p p l i c a b l e , t h a t when s e r v i c e of t h e n o t i c e of t h e f i n a l decision of t h e Workers' Compensation Court i s made a s mandated by s e c t i o n 2-4-623 MCA and t h a t s e r v i c e was made by mail, t h e provisions of Rule 2 1 ( c ) , M.R.App.Civ.P., a r e automatically p u t i n t o play adding t h r e e days t o t h e prescribed 30-day t i m e l i m i t f o r f i l i n g t h e n o t i c e of appeal. Thus, when one c o r r e c t l y adds t h e t i m e l i m i t s e t by Rule 4 ( a ) , M.R.App.Civ.P., a s extended by Rule 2 1 ( c ) , M.R.App.Civ.P., t h e 30th day from September 29, 1978, i s October 2 9 , 1978. Since t h a t day happened t o be a Sunday, Rule 2 1 ( a ) , M.R.App. Civ.P., comes i n t o play making t h e 30th day October 30, 1978. However, a s previously s t a t e d , Rule 2 1 ( c ) comes i n t o play adding t h r e e days t o t h e prescribed period and t h e 33rd and f i n a l day f o r f i l i n g t h e n o t i c e of appeal was November 2 , 1978. Thus, c l a i m a n t ' s appeal was timely--not one day l a t e as respondent c l a i m s . The second i s s u e concerns t h e m e r i t s of t h e d e c i s i o n of t h e Workers' Compensation Court i n denying c l a i m a n t ' s b e n e f i t s . This Court s t a t e d , a t an e a r l y d a t e , i n Birdwell v. Three Forks Portland Cement Co. (1935), 98 Mont. 483, 495, " I n order f o r t h e p l a i n t i f f t o p r e v a i l it was necessary f o r her t o prove by a preponderance of t h e evidence t h a t Birdwell s u f f e r e d an indus- t r i a l accident, and t h a t t h e i n j u r y w a s t h e proximate cause of h i s death." Perhaps t h e most s u c c i n c t statement of t h e r u l e i s found i n Aho v. Burkland Studs (1969), 153 Mont. 1, 7, 452 P.2d 415, 418, where t h i s Court s t a t e d : "The claimant has t h e burden of proving h i s c a s e . . ." Not only must claimant prove h e r c a s e by a preponderance o f t h e evidence, she must do s o by a preponderance of t h e p r o b a t i v e c r e d i b l e evidence. I n LaForrest v. Safeway S t o r e s , Inc. (1966), 147 Mont. 431, 437, 414 P.2d 200, 203, t h i s Court s t a t e d : "The claimant has t h e burden t o e s t a b l i s h by a preponderance of t h e evidence t h a t h e r condi- t i o n r e s u l t e d from a n i n j u r y and n o t from a d i s e a s e . [ C i t a t i o n omitted.] She has n o t sus- t a i n e d t h e burden of proof . . . By a d r o i t questioning, c l a i m a n t ' s counsel was a b l e t o g e t D r . Davidson t o admit t o a ' p o s s i b i l i t y ' of a supraspinatus tendon tear. However, such a ' p o s s i b i l i t y ' i s n o t probative c r e d i b l e testi- mony and w i l l n o t , without more, supply evi- dence. " The burden was upon claimant t o e s t a b l i s h by a pre- ponderance of t h e probative c r e d i b l e evidence t h a t h e r husband had died a s t h e r e s u l t of an i n j u r y which he sus- t a i n e d i n t h e course and scope of h i s employment. The Workers' Compensation Court heard extended testimony from many witnesses. The testimony was c o n f l i c t i n g . The lower c o u r t had t h e opportunity t o observe t h e demeanor of t h e witnesses and t o judge t h e i r c r e d i b i l i t y . Following t h e hearing, t h e Workers' Compensation Court e n t e r e d very de- t a i l e d f i n d i n g s of f a c t and conclusions of l a w . A f t e r c a r e f u l l y considering t h e evidence, t h e lower c o u r t r u l e d i n favor of t h e i n s u r e r and denied b e n e f i t s t o claimant. That d e c i s i o n comes t o t h i s Court with t h e presumption t h a t it i s c o r r e c t . Sedlacek v . Ahrens (1974), 165 Mont. 479, 485, 530 P.2d 424, 427; Montana Farm Service Co. v. Marquart (1978), Mont. , 578 P.2d 315, 316, 35 St.Rep. 1066, 1068. The scope of review of a d e c i s i o n of t h e Workers' Compensation Court upon appeal has been s t a t e d many t i m e s . The r u l e i s w e l l summarized i n Jensen v . Argonaut Insurance Company (1978), Mont . , 582 P.2d 1191, 1193, 35 St.Rep. 1066, 1068, i n t h e following language: "The s t a n d a r d of review a p p l i c a b l e i n d e t e r - mining t h e s u f f i c i e n c y of t h e evidence t o sup- p o r t t h e f i n d i n g s of t h e Workers' Compensation Court has been s t a t e d i n t h i s language: "'Our f u n c t i o n i n reviewing a d e c i s i o n of t h e Workers' Compensation Court i s t o determine whether t h e r e i s s u b s t a n t i a l evidence t o sup- p o r t t h e f i n d i n g s and conclusions of t h a t c o u r t . W e cannot s u b s t i t u t e o u r judgment f o r t h a t of t h e t r i a l c o u r t a s t o t h e weight of evidence on q u e s t i o n s of f a c t . Where 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 f i n d i n g s of t h e Workers' Compensation Court, t h i s Court cannot o v e r t u r n t h e d e c i s i o n . ' S t e f f e s v. 93 Leasing Co. I n c . (U.S.F.&G.) (1978), Mont. , 580 P.2d 450, 452, 35 St.Rep. 816, 818." Applying t h i s standard t o t h e i n s t a n t c a s e respondent argues it i s c l e a r t h a t t h e d e c i s i o n of t h e lower c o u r t must b e affirmed. There was a sharp c o n f l i c t i n t h e f a c t s , p a r t i c u l a r l y i n r e g a r d t o t h e e v e n t s of October 12, 1976. I n i t s statement of t h e c a s e , respondent set f o r t h a summary of t h e testimony of each witness t o t h e e v e n t s of October 12, 1976, taken almost verbatim from t h e f i n d i n g s of f a c t of t h e lower c o u r t . Following each sentence a r e c i t a t i o n s t o t h e record which support t h e f i n d i n g . Each and every f a c t found by t h e lower c o u r t i s amply supported i n t h e record. A t t h e bottom l i n e , t h e lower c o u r t chose t o b e l i e v e t h e testimony of Tom Wickens, Joseph Wickens, Myron Oakland, and Arlyn McJunkin r a t h e r than t h a t of claimant. The d e c i s i o n as t o t h e weight of t h e evidence on q u e s t i o n s of f a c t i s w i t h i n t h e province of t h e Workers' Compensation Court and where, as here, it i s supported by s u b s t a n t i a l evidence, t h i s Court cannot o v e r t u r n t h a t d e c i s i o n . The d e c i s i o n of t h e lower c o u r t was a l s o c o r r e c t i n its conclusion t h a t claimant f a i l e d t o prove a compensable i n j u r y and t h a t such a n i n j u r y caused t h e d e a t h of h e r husband. For an i n j u r y t o be compensable under t h e Workers' Compensation A c t , it must m e e t t h e d e f i n i t i o n a l requirements of t h e s t a t u t e . S e c t i o n 39-71-119 MCA d e f i n e s i n j u r y a s : " ' I n j u r y ' o r ' i n j u r e d ' means: " (1) A t a n g i b l e happening of a t r a u m a t i c n a t u r e from an unexpected cause, o r unusual s t r a i n , r e s u l t i n g i n e i t h e r e x t e r n a l o r i n t e r n a l phy- s i c a l harm, and such p h y s i c a l c o n d i t i o n a s a r e s u l t therefrom and excluding d i s e a s e n o t t r a c e a b l e t o i n j u r y . . ." A d i s c u s s i o n of what c o n s t i t u t e s an i n j u r y has r e c e i v e d a g r e a t d e a l of a t t e n t i o n . Lupien v. IYlont. Record Publishing Co. (1964), 143 Mont. 415, 390 P.2d 455; M i l l e r v . C i t y of B i l l i n g s (1976), 171 Mont. 91, 555 P.2d 747; Hurlbut v. V o l l s t e d t Kerr Co. (1975), 167 Mont. 303, 538 P.2d 344; E r h a r t v. G r e a t Western Sugar Co. (1976), 169 Mont. 375, 546 The medical evidence i n t h e i n s t a n t c a s e supports t h e conclusion t h a t t h e deceased died as t h e r e s u l t of a d i s e a s e process, p r o g r e s s i v e i n n a t u r e , t h a t i s n o t " t r a c e a b l e t o i n j u r y . " I n h i s r e b u t t a l testimony, D r . Lefever a c c u r a t e l y c h a r a c t e r i z e d t h e testimony of D r . Cade as follows: ". . . The f a c t o f t h e m a t t e r i s t h a t D r . Cade s a i d t h a t t h e d e a t h r e s u l t e d from t h e normal sequence of e v e n t s from t h e d i s e a s e . " When pressed on t h i s p o i n t , D r . Lefever s t a t e d : "Q. What evidence i s t h e r e i n t h e record--by t h e record, I mean t h e testimony t h a t you w e r e a b l e t o observe and hear a t t h e hearing on De- cember lst, t o s u p p o r t a medical opinion t o a reasonable degree of medical c e r t a i n t y t h a t M r . Dumont's d e a t h w a s merely t h e t e r m i n a l e v e n t i n t h e series of d i s e a s e processes? A. Well, t h e o r i g i n a l testimony showed t h e e x t e n t of t h e a t h e r o s c l e r o t i c process i n h i s a r t e r y , t h e presence of a t h e r o s c l e r o t i c plaques and previ- o u s l y d i s e a s e d v e s s e l s , and I t h i n k t h a t it would be a l o g i c a l conclusion t h a t a t some t i m e t h i s d i s e a s e process would have progressed t o t h i s e v e n t o r a s i m i l a r event a t sometime. "Q. Is t h e r e any way t h a t medical s c i e n c e can p o i n t a f i n g e r a t a p a r t i c u l a r t i m e and say when t h i s w i l l occur? A. No, I d o n ' t b e l i v e so. I t h i n k t h a t f r e q u e n t l y w e see t h i s d i s e a s e a s ad- vanced o r more advanced than t h i s and see peo- p l e who s u r v i v e many years. I d o n ' t t h i n k t h e r e i s any way of p r e d i c t i n g w i t h c e r t a i n t y what t h e outcomes a r e . . ." D r . Cade was a l i t t l e more emphatic. H e t e s t i f i e d : ". . . it seems abundantly c l e a r t o m e t h a t he d i e d of a d i s e a s e process t h a t had been occurring f o r y e a r s and y e a r s and t h a t he had reached t h e t y p i c a l end of t h a t d i s e a s e process." Respondent b e l i e v e s t h a t t h e most s i g n i f i c a n t case i n t h e i n s t a n t m a t t e r is Hurlbut v. V o l l s t e d t Kerr Co., supra. Hurlbut was decided a f t e r t h e 1967 amendment t o t h e i n j u r y d e f i n i t i o n which added t h e words " o r unusual s t r a i n " t o t h e d e f i n i t i o n of an i n j u r y contained i n s e c t i o n 39-71-119 MCA. The f a c t s of Hurlbut a r e s t r i k i n g l y s i m i l a r t o t h e i n s t a n t c a s e and respondent submits t h a t Hurlbut i s c o n t r o l l i n g . I n Hurlbut t h e claimant was about 59 y e a r s o l d and had been employed by t h e lumber m i l l f o r t e n y e a r s p r i o r t o t h e a l l e g e d accident--the l a s t e i g h t of t h o s e t e n y e a r s a s a superintendent. The p o l i c y of t h e employer was t o n o t o p e r a t e t h e m i l l when t h e temperature was t o o c o l d f o r t h e men and t h e machinery, and, i n t h e l a t t e r p a r t of December 1972, t h e m i l l had been s h u t down due t o t h e cold f o r more t h a n a week. O n t h e afternoon of January 5, 1973, t h e temperature r o s e t o about -12OF and t h e owner of t h e m i l l ordered claimant t o s t a r t up t h e o p e r a t i o n t h e n e x t day, and t h e claimant began c o n t a c t i n g men t o r e p o r t f o r work. The n e x t morning, January 6, 1973, claimant a r r i v e d a t work and waited i n t h e o f f i c e f o r telephone c a l l s from t h e employees t o determine how many men would r e p o r t . The temperature i n t h e o f f i c e was 50°F and claimant had h i s c o a t on. The o u t s i d e temperature was -6OF, with low wind v e l o c i t y . While s i t t i n g i n t h e o f f i c e , t h e claimant became d i z z y and went o u t s i d e t o see i f a l i t t l e f r e s h a i r would h e l p , b u t then became nauseated. H e went home and h i s w i f e drove him t o t h e h o s p i t a l where h i s d o c t o r diagnosed a myocardial i n f a r c - t i o n ( h e a r t a t t a c k ) . The claimant argued t h a t he was en- t i t l e d t o compensation because t h e m i l l had never b e f o r e been operated i n weather a s c o l d as it was t h a t morning. H e maintained t h a t t h i s c o n d i t i o n c o n s t i t u t e d "unusual s t r a i n " because it was a unique, new, d i f f e r e n t and unusual demand placed upon claimant by t h e company. This Court, speaking through J u s t i c e Daly, affirmed a d e n i a l of compensation b e n e f i t s , s t a t i n g : "Any i n j u r y , t o be compensable under t h e Work- men's Compensation A c t , must m e e t t h e d e f i n i - t i o n a l requirements of t h e s t a t u t e . S e c t i o n 92-418, R.C.M. 1947, d e f i n e s i n j u r y a s " ' a t a n g i b l e happening of a t r a u m a t i c n a t u r e from a n unexpected cause, o r unusual s t r a i n , r e s u l t i n g i n e i t h e r e x t e r n a l o r i n t e r n a l phy- s i c a l harm, and such p h y s i c a l c o n d i t i o n a s a r e s u l t therefrom and excluding d i s e a s e n o t t r a c e a b l e t o i n j u r y * * * ' "Thus, t h e r e are two elements i n t h e s t a t u t e which must b e m e t (1) t h e r e must be a t a n g i b l e happening of a t r a u m a t i c n a t u r e , and ( 2 ) t h i s must be shown t o be t h e cause of p h y s i c a l harm. "Aside from t h e testimony t h a t it was a few degrees c o l d e r than normal s t a r t i n g temperature and t h e m i l l had n o t previously operated i n temperatures t h a t c o l d , t h e r e was no testimony t h i s imposed upon claimant any duty which was unusual i n kind o r amount. The d u t i e s performed by claimant on t h e day b e f o r e h i s a t t a c k and on t h e day of t h e a t t a c k , January 6, 1973, w e r e d u t i e s h e had performed f o r t h e previous e i g h t y e a r s a s p l a n t superintendent. Simply opening a m i l l on a day c o l d e r than w a s custo- mary, w i t h no i n o r d i n a t e kind o r amount of work on h i s p a r t , cannot be s a i d t o c o n s t i t u t e 'a t a n g i b l e happening of a traumatic n a t u r e . ' Claimant has f a i l e d t o c a r r y t h e burden of proof t h a t he was i n j u r e d , w i t h i n t h e meanins of t h e s t a t u t e . " Hurlbut, 167 Mont. a t 306-07, 538 P.2d a t 346. Applying t h e test enunciated i n Hurlbut t o t h e i n s t a n t c a s e , it would seem t h a t weak a s t h e f a c t s were i n Hurlbut, they w e r e s t r o n g e r than t h o s e i n t h e i n s t a n t case. Claim- a n t ' s own medical witness s t a t e d : "Well, I t h i n k t h e only day s t a t e d i n t h e h y p o t h e t i c a l q u e s t i o n i n which t h e r e was any chain of e v e n t s t h a t I might relate t o t h i s i s , i f I r e c a l l t h e h y p o t h e t i c a l q u e s t i o n c o r r e c t l y , concerning t h e h a s t y t r i p t o B i l l i n g s [which occurred on October 12, 19761 . . ." Thus, D r . Lefever r u l e d o u t any p o s s i b l e c a u s a l connection between t h e d e a t h and any of t h e e v e n t s which a l l e g e d l y preceded October 12, 1976. A s e a r c h of t h e e n t i r e record f a i l s t o d i s c l o s e anything unusual t h a t occurred t o t h e deceased on October 12, 1976, o r even, f o r t h a t m a t t e r , t h a t t h e deceased's t r i p t o B i l l i n g s was "hasty." The only testimony t o t h e c o n t r a r y w a s t h e widow's testimony con- cerning h e r husband's phone c a l l t o h e r . I n her b r i e f , claimant relies on t h e c a s e s of Jones v. B a i r ' s Cafe (1968), 152 Mont. 13, 445 P.2d 923; Robins v. Ogle (1971), 157 Mont. 328, 485 P.2d 692; and Love v. Ralph's Food S t o r e (1973), 163 Mont. 234, 516 P.2d 598. Claimant argues, i n c o r r e c t l y , t h a t t h e s e c a s e s only r e q u i r e a showing of some "unusual s t r a i n , " e i t h e r from t h e s t a n d p o i n t of a cause o r e f f e c t , t o m e e t t h e d e f i n i t i o n a l requirements of an i n j u r y under t h e a c t . Claimant's a n a l y s i s t o t a l l y i g n o r e s t h e independent requirement t h a t a s t r a i n must r e s u l t from a t a n g i b l e happening of a traumatic n a t u r e . The following language from E r h a r t v. G r e a t Western Sugar Co. (1976), 169 Mont. 375, 380-81, 546 P.2d 1055, 1058, q u i c k l y d i s p o s e s of c l a i m a n t ' s argument: "Not only must claimant show an unusual s t r a i n , b u t t h a t t h e s t r a i n must r e s u l t from a t a n g i b l e happening of a traumatic nature. [ C i t a t i o n s omitted.] I n Love v. Ralph's Food S t o r e , 163 Mont. 234, 516 P.2d 598, w e s t a t e d t h a t Jones and Robins made t h i s r u l e c l e a r . See, a l s o , t h e e a r l i e r cases: Lupien v. Montana Record Publishing Co., 143 Mont. 415, 390 P.2d 455; James v. V.K.V. Lumber Co., supra: M i l l e r v - - - Sundance Recreation, I n c . , l ~ l - ~ o n t . 223, 4 4 1 P.2d 194." Claimant must s t i l l prove t h a t h e r husband's d e a t h was t h e r e s u l t of a " t a n g i b l e happening of a t r a u m a t i c n a t u r e " , which she t o t a l l y f a i l e d t o do. F i n a l l y , i n h e r b r i e f , claimant t a k e s i s s u e w i t h t h e lower c o u r t ' s f i n d i n g s i n connection w i t h t h e medical testi- mony i n t h e c a s e a s it r e l a t e s t o t h e c a u s a l r e l a t i o n s h i p between stress and sudden coronary d e a t h . She cites some passages from D r . L e f e v e r ' s o r i g i n a l testimony a t t h e December 1, 1977, hearing which, when taken o u t of c o n t e x t a s they a r e , appear t o support h e r p o s i t i o n . Respondent contends, and w e a g r e e , t h a t claimant i g n o r e s D r . L e f e v e r ' s testimony i n r e b u t t a l which, a s quoted p r e v i o u s l y , was d i f f e r e n t from h i s o r i g i n a l testimony when confronted w i t h t h e testimony of D r . Cade. O n r e b u t t a l , D r . Lefever ad- m i t t e d : " . . . t h e r e i s more than one opinion about t h e s i g n i f i c a n c e of stress i n sudden death." On r e d i r e c t exam during t h e r e b u t t a l d e p o s i t i o n , D r . Lefever s t a t e d : "Q. And going back t o what M r . Utick s a i d , i s t h e r e a n a c u t e d i f f e r e n c e of opinion among t h e medical community a s t o t h e cause of t e n s i o n between stress and t h e i n i t i a t i n g e v e n t s and t h e o r i g i n a l hemorrhage? A. Y e s . "Q. There a r e thoughts on t h a t both ways? A. There are more than one opinion about t h e s i g - n i f i c a n c e of stress w i t h r e l a t i o n t o i n t i m a l hemorrhage." A s D r . Cade summarized: ". . . It i s n o t c l e a r what t h e r o l e of chronic stress i s on t h e c a r d i o v a s c u l a r system. I t i s n o t c l e a r whether stress can p l a y a r o l e i n sudden death, i n a c c e l e r a t i o n of coronary a r t e r y d i s e a s e process. The s t u d i e s a r e c o n f l i c t i n g o r t h e problem has n o t been adequately s t u d i e d o r no good study shows t h i s and t h a t o r t h e o t h e r thing. " I n summary, t h e testimony of both d o c t o r s agree t h a t t h e medical community j u s t does n o t know whether stress p l a y s a r o l e i n sudden d e a t h o r a c c e l e r a t e s coronary a r t e r y d i s e a s e . The lower c o u r t had a l l t h e medical testimony b e f o r e it. A review of t h e e n t i r e testimony of both d o c t o r s r e f l e c t s t h a t t h e t r i a l c o u r t q u i t e adequately summarized such testimony i n i t s f i n d i n g s and d i d n o t err i n i t s f i n d - i n g s . There was s u b s t a n t i a l evidence t o support t h e f i n d i n g s of t h e c o u r t i n denying b e n e f i t s t o claimant. The judgment of t h e c o u r t is affirmed. W e concur: | August 9, 1979 |
1ae92e95-cc0e-449b-bc5e-bf8427f4cb12 | BRADCO SUPPLY CO v LARSEN | N/A | 14741 | Montana | Montana Supreme Court | No. 14741 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 BRADCO SUPPLY COMPANY, Plaintiff and Appellant, -vs- SANDRA LARSEN, Defendant and Respondent. Appeal from: District Court of the Twelfth Judicial District, Honorable B. W . Thomas, Judge presiding. Counsel of Record: For Appellant: Sias, Ranstrom and Graham, Chinook, Montana For Respondent: Fredrick F. Sherwood, Helena, Montana - Filed: quc - 3 K J i i Submitted on briefs:June 29, 1979 ~ecided : &JG - 9 1 9 7 9 - Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Appellant Bradco Supply Company (Bradco) appeals from an order of the Hill County District Court dismissing its peti- tion for judicial review. On April 7, 1976, respondent Sandra Larsen filed a com- plaint with the Human Rights Commission (Commission) alleging sex discrimination against Bradco for failing to hire her on March 15, 1976. On January 21, 1977, she filed an amended complaint alleging sex discrimination as the reason she was not hired by Bradco on March 15, 1976, or June 16, 1976, or August 24, 1976. The Human Rights Division, the investigative staff of the Commission, investigated the case and found reasonable cause to believe that Bradco had in fact discriminated against Ms. Larsen. This finding was issued April 22, 1977. All efforts at concilia- tion failed and the case was certified for hearing on November 10, 1977. The matter was heard by the Human Rights Division on Jan- uary 19, 1978. On June 29, 1978, the Commission issued its findings of fact, conclusions of law, and order. The findings of fact assert that Ms. Larsen had been refused employment because she was a woman and that she suffered economic harm to the extent of $20,550 between March 15, 1976, and January 19, 1978. The conclusions of law stated that Bradco's actions violated section 49-2-303(1)(a), MCA, which makes sex discrimination unlawful in employment where the reasonable demands of a position do not require a sex dis- tinction. The conclusions of law also asserted that Bradco would bear the burden of showing any amounts which should be deducted from the back pay award. The order directed Bradco to pay to Ms. Larsen $18,000 plus 6% interest less deductions for income earned by Ms. Larsen during the time in question. On July 27 Bradco requested a rehearing on this matter from the Commission. On September 15 the Commission issued an order which denied Bradco's request for a rehearing. The reason given for the denial was that the rules of the Commission did not provide for a rehearing. On October 13 Bradco petitioned the Hill County District Court for judicial review of the final order of the Commission. On November 1 the Human Rights ~ivision filed a notion to dismiss. The parties submitted briefs on this matter. On December 7, 1978, the District Court granted the motion to dismiss. From this order, Bradco appeals. The sole issue is whether the District Court erred in denying judicial review of an administrative decision under sec- tion 2-4-702(2)(a), MCA. This statute provides, in part, that the petition for judicial review must be filed within 30 days of the agency's final decision or, if a rehearing is requested, within 30 days after the decision thereon. Montana's Administrative Procedures Act (MAPA) is found in section 2-4-101, et seq., MCA. Section 2-4-305(6), MCA, states, "No rule is valid unless adopted in substantial compliance with 2-4-302 and subsection (1) of this section or 2-4-303 and within 6 months of the publishing of notice thereof." Section 2-4-302, MCA, outlines the procedures an agency must follow in adopting a new rule. This includes a written notice, an opportunity for hearing and the chance to offer views or arguments orally or in writing. Section 2-4-303, MCA, provides for procedures whereby an agency may adopt emergency rules. Section 2-4-301, MCA, provides that, " . . . nothing in this chapter [MAPA] confers authority upon or augments the authority of any state agency to adopt, administer, or enforce any rule." In other words, the MAPA alone does not confer authority to adopt rules. The MAPA merely outlines the correct procedure an agency must use once the agency has been granted statutory power to adopt rules. In this connection, one must look at the statute creating the Commission, section 49-2-201, et seq., MCA. Sec- tion 49-2-204, MCA, provides in part that " . . . Rulemaking procedures shall comply with the requirements of the Montana ~dministrative Procedures Act." The regulations which the Commission has adopted do not provide for a rehearing of a Commission decision. M.A.C. S24-3.9(1) - 0900, et seq. It is conceded by both parties that the Commission did not follow the MAPA procedures in adopting any rule concerning rehearings. Section 2-4-702(2)(a), MCA, provides: "Proceedings for [judicial] review shall be instituted by filing a petition in district court within 30 days after service of the final de- cision of the agency or, if a rehearing is requested, within 30 days after the decision thereon." (Emphasis added.) This Court must now decide whether the 30 day period began to run on June 29, 1978, when the Commission issued its final order or whether it began to run on September 15, 1978, when the Commission denied the requested rehearing. To this end we note the case of Burlington Northern, Inc. v. Public Service Commission of Montana, in the District Court of Lewis and Clark County. In Burlington Northern, the District Court considered the model rules which have been proposed by the Attorney General for the hearings of and disposition of contested agency cases. M.A.C. 51-1.6(1)-0600, et seq. Under a fact situation similar to the instant case, the District Court held that the agency had absolutely no power to grant a hearing under its enabling statute or its regulations "[tlherefore . . . if judicial review was to be sought, it must have been sought within thirty (30) days after the service date of the final decision of the Public Service Commission . . ." Burlington Northern at p. 8. Under M.A.C. S24-3.9(2)-P9116, the Commission has also adopted the model rules which were the subject of the Burlington Northern case. Because the Commission has no authority to grant a rehearing, the request for such a rehearing is an act of no significance and the date which begins the running of the 30 days within which an aggrieved party must seek judicial review is the date of the agency's final order. Since there was no possibility of a rehearing the Com- mission lost jurisdiction over the case as soon as its final order was made effective on June 29, 1978. Even if the Commis- sion had granted a rehearing, it would not have been legally binding under the MAPA. Therefore, the provisions of section 2-4-702(2)(a), MCA, concerning a requested rehearing do not apply as a date for measuring the 30 day period. In Burlington Northern the matter was stated in this language: " . . . Section 82-4216 ( 2 ) , R.C.M. 1947 [now section 2-4-702 (2) (a) , MCA] was passed before the state administrative agencies had adopted and published the rules of procedures the indi- vidual agencies would follow. The language found in the statute and relied upon by the respondent and intervenor merely anticipates that some administrative agencies would adopt rehearing procedures and establishes a method for judicial review in instances where an agency has a rehearing procedure as well as in instances where no rehearing procedure has been adopted by an agency. Section 82-4216, R.C.M. 1947 [now section 2-4-702(2) (a), MCA] does not grant any substantive right to a rehearing. Before the language relied upon by respondent and intervenor has effect, the administrative agency must first adopt a procedural rule allowing for a rehearing. In this case, no such rule allowing for a rehear- ing was adopted by the Public Service Commission. The Public Service Commission's jurisdiction ended when its Order No. 4148 was entered and it had no authority to grant a request for a rehearing. Therefore, in the present case, if judicial re- view was to be sought, it must have been sought within thirty (30) days after the service date of the final decision of the Public Service Commission, or within thirty (30) days after December 30, 1974. "There is one further reason which compels this Court to conclude that the Public Service Commis- sion does not have jurisdiction and did not retain inherent powers to provide for a rehearing. Were the Court to enter an order supporting that con- clusion, confusion would follow, unless the Court also decided that the time frame within which a rehearing could be requested, the manner in which a rehearing was to be requested, the reasons for which a rehearing could be requested and the length of time an administrative agency had to act upon the request and to act upon the hearing itself. Such an order would be a judicial substitution for a rule making-procedure which the Montana legislature has reserved for the administrative agency itself." Burlington Northern, at pages 8-9. While a District Court opinion is certainly not control- ling so far as this Court is concerned, the Burlington Northern case is a rational discussion of an identical problem. The final paragraph of the above quote is also a sound policy for this decision. If section 2-4-702(2)(a), MCA, may be triggered by a request for a rehearing where the agency has no rule providing for a rehearing there would be nothing to prevent a losing party in an agency decision from requesting a rehearing several months after what appeared to be an agency's final order. This Court is only called upon to decide whether or not the District Court had jurisdiction to consider Bradco's petition. It is not this Court's duty to consider the legal merits of that petition. Because the petition for judicial review was not filed within the statutory 30 day period, we hold that the District Court had no jurisdiction to hear the case. Bradco cites the case of State ex rel. Stowe v. Board of Administration (1977) , Mont . , 564 P.2d 167, 34 St.Rep. 349, for the proposition that a petitioner may not be held to a strict 30 day period where an agency has failed to comply with what is now section 2-4-623, MCA. It must be pointed out, however, that in Stowe, the relator was informed by a letter of an adverse de- cision. He was not even given an agency hearing. The letter did not contain findings of fact, but merely a final conclusion. This Court held that, "It is inconceivable under these circumstances that the PERS board would seek to hold Stowe to his remedy under the Montana Administrative Procedures Act while there was not even token compliance by the PERS board." (Emphasis added.) Stowe, Mont. at , 564 P.2d at 171, 34 St-Rep. at 354. There may be some circumstances where Stowe might provide relief for a petitioner who filed for judicial relief after 30 days of a purported "final decision", but this is not that case. The Stowe decision was limited to a set of circumstances wherein the agency did not even show a "token compliance" with the MAPA. In the instant case, the appellant was given the hearing as re- quired by the MAPA and the final decision substantially complied with section 2-4-623, MCA. Af f irmed. Chief Justice Justices L Y | August 9, 1979 |
0a7d6a3c-27be-4a69-a12a-7637297ff097 | ADAMS v CHILCOTT | N/A | 14592 | Montana | Montana Supreme Court | No. 14592 I N 'I'Hl3 s U I ? F E Z ! T J Z COuIiT OF THE: STATE OF mNTANA 1979 K . E . ?DAMS, Plaintiff and Respondent, -VS- WlLLIAMRICHARDcHmxIT, Defendant and Appellant. A p p l fm: D i s t r i c t Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellant: Stacey and Nye, Billings, hbntana Jeyrold L. Nye argued, Billings, Pbntana For Respondent: Anderson, Symnes, Brawn, Gerbase, Cebull and Jones, Billings, Pbntana James L. Jones arqued, Billings, Montana Suhnitted: M a y 3, 1979 Decided: j\iL 9 1 9 1 9 - - - L ' Filed: mi- 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. Both p a r t i e s appeal from a d e c l a r a t o r y judgment entered i n t h e ~ i s t r i c t Court f o r Carbon County, t h e Honorable C. B. Sande presiding without a jury. Pursuant t o Rule 2 3 ( h ) , M.R.App.Civ.P., defendant w a s s t i p u l a t e d as a p p e l l a n t and p l a i n t i f f a s respondent. Lying a t t h e r o o t of t h i s appeal i s a 640 a c r e ranch i n Carbon County which was sold by a p p e l l a n t t o respondent. The ranch was formerly p a r t of a l a r g e r property owned by appel- l a n t ' s grandfather. I n 1937 and again i n 1962, t h e grand- f a t h e r obtained water purchase c o n t r a c t s and stock subscrip- t i o n agreements which e n t i t l e d him t o buy c e r t a i n amounts of water from t h e Rock Creek Water U s e r ' s Association. There i s no d i s p u t e t h a t t h e s e r i g h t s w e r e owned i n conjunction with t h e undivided property. The record d i s c l o s e s t h a t t h e only a c t u a l use of water under t h e c o n t r a c t s w a s f o r i r r i g a - t i o n during a b r i e f period i n 1966. Upon t h e death of ap- p e l l a n t ' s grandfather i n 1969, t h e ranch and t h e c o n t r a c t water r i g h t s were divided equally between a p p e l l a n t and h i s cousin. A s t h i s c a s e does not concern t h e c o u s i n ' s " i n h e r i - tance," t h e t e r m s ranch o r property w i l l h e r e a f t e r r e f e r only t o t h a t which "passed" t o appellant. According t o a p p e l l a n t , h i s p o r t i o n of t h e c o n t r a c t water r i g h t s continued t o be owned with t h e ranch. his statement is born o u t by t h e f a c t t h a t when a p p e l l a n t mort- gaged t h e land i n 1969 t h e water r i g h t s were t r e a t e d a s ap- purtenant t o it. Attempts t o s e l l t h e ranch began i n 1971. Over s e v e r a l years it w a s l i s t e d with various a r e a r e a l t o r s and unsuccessful negotiations f o r s a l e w e r e begun with s e v e r a l prospective buyers. The p r i c e sought during t h i s period i s most o f t e n r e f e r r e d t o as being approximately $240,000. Appellant t e s t i f i e d t h a t sometimes t h i s f i g u r e included t h e c o n t r a c t water r i g h t s but sometimes d i d not. Further, he s a i d he never intended t o include a gravel d e p o s i t located on t h e ranch. This l a s t a s s e r t i o n was contradicted by an a r e a r e a l t o r who t e s t i f i e d t h a t a p p e l l a n t pointed t h e g r a v e l p i t o u t " a s a real a s s e t of t h e ranch" and i n d i c a t e d it was in- cluded with t h e rest of t h e property. I n l a t e 1975 respondent o f f e r e d t o buy t h e property, including " t h e g r a v e l p i l e s " and " a l l w a t e r r i g h t s " f o r $185,000. Even though a l o c a l bank, a s holder of t h e mort- gage on t h e property, p u t pressure on a p p e l l a n t t o accept t h e o f f e r , he r e j e c t e d it a s too low. A f t e r t h i s occurred, t h e n e g o t i a t i o n s between t h e p a r t i e s w e r e conducted by a t t o r n e y - r e a l t o r William Morse who represented respondent a s an undisclosed p r i n c i p l e . Morse t e s t i f i e d t h a t t h e c a t a l y s t f o r t h e s a l e was a p p e l l a n t ' s r e p r e s e n t a t i o n t h a t t h e r e w a s a c o n t r a c t with a t h i r d p a r t y f o r t h e sale of gravel from t h e ranch. Upon learning t h i s , respondent o f f e r e d $201,500 f o r t h e property. Appellant agreed, and a buy-sell agreement containing t h e following language w a s prepared and signed by both p a r t i e s : "All of t h e seller's r i g h t s , t i t l e s and i n t e r e s t i n and t o t h e above-described r e a l property s h a l l be deemed included i n t h i s s a l e , including a l l water, d i t c h and i r r i g a - t i o n r i g h t s which t h e seller has c u r r e n t l y used on t h e premises. "It is agreed t h a t t h e p a r t i e s a r e not aware of t h e exact s t a t u s of t h e o i l , gas and mineral r i g h t s on t h e premises a t t h e p r e s e n t t i m e . However seller agrees t o convey buyer 50% of a l l t h e o i l , gas and minerals on a l l t h e prem- ises i f seller owns a t l e a s t 50% thereof; i n t h e event seller owns less than 50% of a l l t h e minerals on a l l t h e lands he hereby agrees t o convey a l l such o i l , gas and mineral r i g h t s upon t h e premises a s he does own." A c o n t r a c t f o r deed was prepared by a p p e l l a n t ' s a t t o r - ney and signed by t h e p a r t i e s on May 11, 1976. I t made no mention of w a t e r r i g h t s but did include a clause dealing with t h e minerals i n s u b s t a n t i a l l y t h e same language a s t h e buy-sell agreement. Before t h e c o n t r a c t was signed t h e p a r t i e s disagreed as t o whether a p p e l l a n t was t o reserve 50% of t h e sand and gravel r i g h t s . They completed t h e sale b u t executed a supplementary agreement t o t h e e f f e c t t h a t t h e sand and gravel r i g h t s would be s e t t l e d l a t e r . A n a s s o c i a t e of a p p e l l a n t ' s attorney handled t h e de- t a i l s of t h e transaction and wrote a letter t o Morse which reads: "The buy-sell agreement does not s p e c i f i c a l l y set f o r t h t h e manner i n which t h e water i s t o be t r a n s f e r r e d , b u t I propose t h a t w e handle t h a t aspect a s follows: M r . - C h i l c o t t w i l l -- as- s i g n t o M r . Adams both t h e stock purchase --- -- agreements and water purchase c o n t r a c t s which he holds. M r . Adams w i l l then execute an as- - signment of those r i g h t s back t o M r . C h i l c o t t , which w i l l be held i n escrow f o r use i n t h e event of d e f a u l t . I f e e l t h i s arrangement is b e t t e r f o r your c l i e n t than merely placing t h e assignments from M r . C h i l c o t t t o M r . Adams i n escrow s i n c e t h e stock i n t h e Water Asso- c i a t i o n must be voted by i t s record owner, and I assume t h a t M r . Adams would not want t o wait t h e l i f e of t h e c o n t r a c t t o become record owner. The t r a n s f e r of t h e water c o n t r a c t agreements r e q u i r e s approval by t h e Board of Directors of t h e Water Association, b u t I have been i n contact with t h a t organization and a n t i c i p a t e no problems on t h a t end whatsoever." (Emphasis added.) Morse t e s t i f i e d a s follows: "Q. Did you have occasion t o discuss with M r . Barnard, attorney i n M r . T o l l i v e r ' s o f f i c e , a s t o how the water would be transferred? A. I did. "Q. Was t h e r e any question with r e s p e c t t o your conversation, e i t h e r before o r a f t e r t h i s l e t t e r with M r . Barnard, a s t o whether o r not t h e Cooney D a m [contract] water w a s t o be as- signed t o M r . Adams a s indicated i n M r . Barnard's l e t t e r ? A. Not i n t h e l e a s t , w e had gone over it i n d e t a i l with h i s o f f i c e , w e a l s o had some of t h e Cooney Dam, c a l l it Rock Creek Water Association, o r something l i k e t h a t , forms, t h a t are t o be used f o r t h a t s o r t of thing, and w e discussed it i n d e t a i l ; it w a s purely a perfunc- tory matter t h a t needed t o be done a s f a r a s I was concerned, and I was l e f t with t h e impres- s i o n t h a t w a s what he thought also." O n t h e day t h e c o n t r a c t was executed, respondent de- posited $57,500 i n escrow with i n s t r u c t i o n s not t o r e l e a s e it u n t i l adequate evidence of t i t l e w a s provided. Although t h e escrow money was released approximately two months l a t e r , we have not been presented with any information a s t o whe- t h e r evidence of t i t l e w a s a c t u a l l y presented. Respondent r a i s e d hay on the ranch i n 1976 and harvested tons i n t h r e e c u t t i n g s . The c o n t r a c t water was not needed t h a t year as o t h e r decreed water was s u f f i c i e n t . The next year, respondent spread f e r t i l i z e r on h i s hay pasture i n hopes of obtaining a 300 ton yield. The summer was par- t i c u l a r l y dry and t h e decreed water w a s not enough t o maxi- mize production. Appellant denied t h a t t h e c o n t r a c t water r i g h t s had been t r a n s f e r r e d and would not allow respondent t o have any of t h a t water u n t i l l a t e i n t h e summer. Only 68 tons of hay w a s c u t . C a t t l e w e r e allowed t o graze on p a r t of t h e crop land because, a s respondent a s s e r t s , t h e water came too late and t h e crop w a s already ruined. Ap- p e l l a n t contends t h e grazing c a t t l e w e r e t h e cause of t h e crop l o s s . I n August 1976 respondent f i l e d a declaratory judgment a c t i o n with regard t o t h e sand and gravel. The complaint was amended i n January 1978 and sought damages f o r appel- l a n t ' s f a i l u r e t o t r a n s f e r t h e water purchase c o n t r a c t s as w e l l a s f o r t h e crop damage alleged t o have been caused by t h a t f a i l u r e . Appellant answered, a s s e r t i n g a 50% i n t e r e s t i n t h e sand and g r a v e l and denying t h e t r a n s f e r of t h e water purchase c o n t r a c t s . After a nonjury t r i a l and pursuant t o f i n d i n g s of f a c t and conclusions of l a w , judgment was entered d e c l a r i n g respondent t o own t h e c o n t r a c t water r i g h t s buy only 50% of t h e sand and gravel. I n addition, a p p e l l a n t was found t o be l i a b l e f o r t h e crop damage caused by withholding t h e water and w a s ordered t o execute a warranty deed t o t h e premises. W e affirm. On appeal t h e following i s s u e s have been presented: 1. Whether t h e D i s t r i c t Court e r r e d i n ordering appel- l a n t t o execute a warranty deed. 2. Whether t h e D i s t r i c t Court e r r e d i n d e c l a r i n g re- spondent and a p p e l l a n t t o each own 50% of t h e sand and gravel. 3. Whether t h e D i s t r i c t Court e r r e d i n d e c l a r i n g t h e r i g h t s represented by t h e water purchase c o n t r a c t s t o be owned by respondent. 4. Whether t h e award of damages f o r crop l o s s was e r r o r . 5. Whether t h e D i s t r i c t Court e r r e d i n imposing on each p a r t y t h e duty t o pay i t s c o s t s and a t t o r n e y f e e s . W e note t h a t a p p e l l a n t counterclaimed f o r damages in- curred as a r e s u l t of t h e nonrelease of t h e escrow money. On appeal it is argued t h a t t h e t r i a l judge e r r e d i n n o t de- c i d i n g t h e i s s u e . N o evidence w a s presented on t h i s a s p e c t of t h e case, and we w i l l n o t consider it. Mont. Ass'n of Underwriters v. S t a t e (1977), Mont. , 563 P. 2d 577, 581, 34 St.Rep. 297, 302. The f i r s t i s s u e i s t h e propriety of t h e order t o appel- l a n t t o execute and d e l i v e r a warranty deed. The c o n t r a c t f o r deed c a l l e d f o r t h e delivery of such a deed i n escrow. I n addition t o t h e s p e c i f i c r e l i e f prayed f o r i n h i s com- p l a i n t , respondent sought "such o t h e r r e l i e f a s t o t h e Court may seem proper." W e note t h a t c o u r t s have " t h e power t o g r a n t complete r e l i e f under [ t h e i r ] equity power." Foy v. Anderson (1978), Mont. , 580 P.2d 1 1 4 , 116, 35 St.Rep. 811, 814. N o reason has been brought t o our a t t e n - t i o n why a warranty deed should not be executed and t h i s portion of t h e order w a s within t h e t r i a l c o u r t ' s jurisdic- tion. W e next t u r n t o t h e a s s e r t e d reservation by a p p e l l a n t of 50% of t h e sand and gravel r i g h t s . I n both t h e buy-sell agreement and c o n t r a c t f o r deed, 50% of a p p e l l a n t ' s " o i l , gas and mineral r i g h t s " w e r e reserved t o him i f , t o begin with, he owned more than 50% thereof. To be e f f e c t i v e , a reservation must be expressed. Section 67-1523, R.C.M. 1947, now s e c t i o n 70-1-520 MCA. There being no mention of sand and gravel on t h e f a c e of t h e document, t h e only way any r i g h t s t h e r e t o can be reserved is i f they a r e included i n t h e t e r m " o i l , gas and mineral." W e recognize t h a t t h e r e is a s p l i t of a u t h o r i t y on t h e question, 54 Am.Jur.2d ~ i n e s and Minerals 58, p. 192, b u t decline t o announce an appli- cable r u l e i n Montana. The s p l i t of a u t h o r i t y , t h e volumi- nous l i t i g a t i o n t h e i s s u e has caused and t h e absence of per- t i n e n t Montana case law i n d i c a t e t h a t t h e t e r m "mineral", as applied t o sand and gravel, i s inherently ambiguous. A s such, e x t r a care should be taken t o expressly include o r exclude sand and gravel from t h e term "mineral". Where an ambiguous t e r m is used, t h e i n t e n t of t h e par- ties w i l l govern i t s construction and e x t r i n s i c evidence can be used t o discover t h a t i n t e n t . H i l l C a t t l e Corp. v. K i l l o r n (1927), 79 Mont. 327, 340-41, 256 P. 497, 502. Appellant's mother and g i r l f r i e n d t e s t i f i e d t h a t a t one p o i n t i n t h e negotiations f o r sale, Morse asked them t o s t e p a c r o s s t h e street with a p p e l l a n t f o r coffee while he conferred with t h e undisclosed p r i n c i p l e . Upon t h e i r r e t u r n he informed them t h e p r i n c i p l e would go half and half on t h e minerals and sand and gravel. This i s s u f f i c i e n t evidence upon which t o conclude t h a t t h e p a r t i e s intended t h e t e r m "mineral" t o include sand and gravel. The next question f o r our consideration p e r t a i n s t o t h e t r a n s f e r of t h e c o n t r a c t water r i g h t s . The phrase "All of t h e seller's r i g h t s , titles and i n t e r e s t i n and t o t h e above-described real property s h a l l be deemed included i n t h i s s a l e , including a l l w a t e r , d i t c h and i r r i g a t i o n r i g h t s which t h e s e l l e r has c u r r e n t l y used on t h e premises," ap- pearing i n t h e buy-sell agreement i s t h e only reference t o w a t e r r i g h t s . It i n d i c a t e s what i s t o be t r a n s f e r r e d r a t h e r than what is t o be r e t a i n e d and because it does n o t expressly except t h e c o n t r a c t water r i g h t s , it cannot r e s e r v e them. Section 67-1523, R.C.M. 1947, now s e c t i o n 70-1-520 MCA. The c o n t r a c t water w a s used i n 1966 t o i r r i g a t e t h e land and w a s thus b e n e f i c i a l l y used i n connection with t h e ranch. By s t a t u t e , s e c t i o n 67-211, R.C.M. 1947, now s e c t i o n 70-15- 105 MCA, and by a long l i n e of cases, t h e most f i t t i n g of which i s Schwend v. Jones (1973), 163 Mont. 4 1 , 515 P.2d 89, t h e l a w is w e l l s e t t l e d i n Montana t h a t when a thing i s used f o r t h e b e n e f i t of land, it i s deemed appurtenant t o t h e land. I t i s accepted t h a t an appurtenant water r i g h t may be t r a n s f e r r e d a p a r t from t h e land which it b e n e f i t s . But, i f t h e property i s t r a n s f e r r e d without an express r e s e r v a t i o n of t h e appurtenant water r i g h t s , they accom- pany t h e land. Section 67-1523, R.C.M. 1947, now s e c t i o n 70-1-520 MCA; Schwend, supra, 163 Mont. a t 45; Yellowstone V. Co. v. Asso. Mtg. I n v e s t o r s (1930), 88 Mont. 73, 84, 290 P. 255, 70 A.L.R. 1002. This is as t r u e f o r c o n t r a c t r i g h t s a s it i s f o r appropriated o r decreed r i g h t s . Schwend, supra, 163 Mont. a t 45. I n a d d i t i o n , a p p e l l a n t , a c t i n g through h i s a t t o r n e y , o u t l i n e d how t h e c o n t r a c t r i g h t s would be t r a n s f e r r e d . This c r e a t e d a circumstance which l e d respondent t o a c t t o h i s detriment i n r e l i a n c e on t h e representation. Appellant i s thus estopped from a s s e r t i n g t h a t t h e r i g h t s i n question w e r e n o t t r a n s f e r r e d . Smith v. Krutar (1969), 153 Mont. 325, Having determined t h e water r i g h t s w e r e t r a n s f e r r e d with t h e ranch, it follows t h a t any withholding of them by a p p e l l a n t was wrongful and t h a t he i s l i a b l e f o r t h e damage caused by h i s a c t . The t r i a l c o u r t f i x e d damages a t $11,368 and on review, our function i s t o determine i f t h e r e i s 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 finding. Cameron v. Cameron (1978) , Mont. , 587 P.2d 939, 945, 35 St-Rep. 1723, 1729. Respondent's son-in-law t e s t i f i e d t h a t c a t t l e w e r e grazed i n t h e hay p a s t u r e only a f t e r t h e crop was ruined. There w a s testimony t h a t t h e average value per ton of hay w a s $70. Respondent t e s t i f i e d t h a t h i s production c o s t was $21 p e r ton. This i n d i c a t e s a $49 per ton l o s s . Respondent f u r t h e r t e s t i f i e d t h a t with t h e f e r t i l i z e r he applied, t h e land should have yielded 300 tons of hay. The contention t h a t it w a s impossible f o r respondent t o spread t h i s much f e r t i l i z e r f o r t h e c o s t incurred is made f o r t h e f i r s t t i m e on appeal and cannot be considered by t h i s Court. Respon- d e n t was a b l e t o c u t only 68 tons of hay and thus l o s t 232 tons. A t $49 p e r ton, t h i s comes o u t t o $11,368, t h e amount of t h e judgment. There is 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 f i n d i n g t h a t damage i n t h e amount of t h e judgment was caused by a p p e l l a n t wrongfully withholding t h e water. F i n a l l y , t h e c o n t r a c t f o r deed provided: " I f e i t h e r p a r t y t o t h i s agreement s h a l l i n s t i - t u t e s u i t a g a i n s t t h e o t h e r t o enforce r i g h t s o r d u t i e s under t h i s agreement and o b t a i n a v a l i d judgment, t h e l o s i n g p a r t y agrees t o pay a l l c o s t s , expenses, and a t t o r n e y ' s f e e s of t h e p r e v a i l i n g party." Since a p p e l l a n t l o s t on t h e water r i g h t s and damages i s s u e s , and respondent l o s t on t h e sand and g r a v e l question, t h e t r i a l c o u r t order t h a t each p a r t y bear h i s own c o s t s and a t - torney f e e s was proper. The judgment of t h e D i s t r i c t Court i s affirmed. The counterclaim f o r damages from nonrelease of t h e escrow money is remanded. W e concur: | July 9, 1979 |
e2ce3c6d-20e4-4154-aba7-41f50857a794 | MATTER OF JOHNSON | N/A | 14342 | Montana | Montana Supreme Court | No 14342 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MATTER OF ROBERT L. JOHNSON, Attorney at law, Respondent. ORIGINAL PROCEEDING : Counsel of Record: For Appellant: Richard F. Cebull, Billings, Montana Arnold Huppert, Jr., Livingston, Montana For Respondent: Robert L. Johnson and Torger Oaas, Lewistown, Montana Filed: Submitted: April 25, 1979 Decided: ?yL 1 8 1 9 1 9 - Mr. Justice John C. Sheehy delivered the Opinion of the Court. On June 8, 1978, the Commission on Practice (established by this Court in 1965 to aid the Court in its duty to discipline attorneys) filed a complaint against Robert L. Johnson, of Lewistown, Montana. Johnson has been admitted to practice in Montana since 1957. The complaint is framed in two counts. The first count relates to Edward V. Brabender and his wife Frances Brabender, who allege that they hired Johnson (hereafter "attorney") to represent them in connection with difficulty they were having with their mobile home which they had recently purchased. The Brabenders allege they were informed by the attorney that he had commenced a lawsuit on their behalf but that in fact the suit was not commenced until after the running of the statute of limitations; and that on a motion for summary judgment their suit was dismissed on that ground and others. The second count of the complaint relates to Lester J. Heller and his wife, Virginia Ann Heller of Winifred, Montana, who had in 1967 entered into a contract for deed as sellers with Arthur S. Osburnsen and Lucille F. Osburnsen, husband and wife, for the sale of a ranch located in Fergus County. The complaint alleges that a problem arose in interpreting the language of the contract. The Hellers had brought an action for declaratory judgment to determine the amount of money owed by Osburnsens to Hellers for the purchase of the ranch. The Hellers had prevailed in the District Court, and on three subsequent trips to the Montana Supreme Court as well as the Federal District Court in Montana and thereafter, on appeal to the Ninth Circuit Court of Appeals of the United States. The Hellers contend that the attorney violated the Canons of Professional Ethics by asserting a position and conducting defenses -2- on behalf of his clients which he knew would serve merely to harass or maliciously injure the Hellers. The attorney filed his answer to the complaint against him on June 29, 1978. He denied the essential allegation made by the Brabenders as to his representation of them, and with respect to the Hellers, denied their allegations and further contended that count 2 did not conform to the procedural requirements before the Commission on Practice and that the complaint had been filed against him at the sole instigation of Bradley B. Parrish, attorney for the Hellers, and not for any legitimate purpose of the Hellers. The hearing was set before the Commission on Practice in Great Falls, Montana, on Thursday and Friday, November 9 and 10, 1978. Thereafter the Commission rendered its report, findings of fact and recommendations with the Clerk of this Court on March 16, 1979. In its report, the Commission found that the charges leveled against the attorney were substantially true and recommended that the attorney receive a public censure in open court from this Court at a date and time to be set hereafter. The attorney filed his exceptions to the report, in essence denying the factual findings of the court, and denying that any of the findings of the Commission stated sufficient facts to constitute breaches of the Canons of Professional Ethics. What we said in Matter of Goldman (19781, Mont . , 588 P.2d 964, 974, 975, 35 St.Rep. 934, has pertinence here : "Ultimately, the discipline of a member of the Bar falls upon this Court. We have that power and duty inherently and by virtue of constitutional provisions (1972 Mont. Const., Art. VII, 52). It was to aid us in the exercise of that power and the performance of that duty that the Commission on Practice was established in 1965. Once the Commission has made its report and findings to us, it is still our duty to weigh the evidence upon which the findings rest.. . . It is the burden of the attorney to demonstrate that the findings are not supported by the evidence or the recommenda- tions are erroneous or unlawful. The attorney has the burden to show the charges are not sustained by convincing proof and to a reasonable certainty. "When, as here, the findings rest on testimonial evidence, we are reluctant to reverse the decision of the Commission, which is in a better position to evaluate conflicting statements after observing the demeanor of the witnesses and the character of their testimony. (Citing a case.)" We have reviewed the findings of fact of the Commission and the transcript and exhibits upon which those findings are based. The findings of the Commission are solidly supported in the evidence. Briefly, it appears that the Brabenders hired the attorney when they purchased a mobile home manufactured by Kit Manufacturing Company of Caldwell, Idaho, the purchase order agreement being made with Falls Mobile Home Center, Inc., of Great Falls, Montana. The mobile home was defective and in early December 1971 the Brabenders employed the attorney in connection with their difficulties over the mobile home. Representatives of the manufacturer and the mobile home dealer met and proposed repairs with the respondent Johnson. Brabenders contend that they were dissatisfied with the suggested repairs and wanted a lawsuit commenced respecting this. In the years subsequent to December 1, 1971, the Brabenders made frequent telephone calls and personal visits to learn the status of their supposed lawsuit. They were told by the attorney in 1972 that the lawsuit had been filed and in October 1972 the attorney told them it was "on the steps of the courthouse." The attorney told them to be patient, that the case was on the calendar, that the attorney was trying to "hurry it up" in the courts. On October 8, 1976, when the Brabenders were advised that there had been a levy on their bank account arising out of the mobile home contract, they got in touch with another attorney and learned that no lawsuit had been filed on their behalf until February 20, 1976. The Brabenders lost the suit in District Court. On appeal to this Court, in Brabender v. Kit Mfg. Co. (1977), Mont . , 568 P.2d 547, 34 St-Rep. 1004, they lost their appeal. The reasons given in our Opinion on that case relate to the statute of limitations, laches and failure to properly make recission as grounds for denying relief to the Brabenders. All of these defenses can be laid at the feet of the attorney here. The record shows that the Brabenders, concerned about their case, frequently made telephone calls and otherwise communicated with the attorney about the progress of their lawsuit. They were assured that an action had been filed, but that it was being delayed in the courts. As we indicated, the attorney did not institute a lawsuit on behalf of the Brabenders until after the applicable statute of limitations had run. In the Hellers' case, a dispute arose between the Hellers and the Osburnsens as to the amount that was due under the contract for the purchase of real estate. The Hellers commenced a declaratory judgment action in Fergus County against Osburnsens, who were represented by the attorney. The District Court rendered judgment which the Osburnsens, represented by the attorney, appealed to the Montana Supreme Court. There, this Court affirmed the District Court in Heller v . Osburnsen (1973), 162 Mont. 182, 510 P.2d 13. Thereafter, the Hellers petitioned the Fergus County District Court for an accounting. Osburnsens, represented by the attorney, again resisted. The Fergus County ~istrict Court rendered its findings of fact, conclusions and judgment which was again appealed by the Osburnsens through the attorney. The District Court was again affirmed in Heller v. Osburnsen (1975), 168 Mont. 232, 541 P.2d 1032. After this affirmance, a disagreement arose between the counsel representing Hellers, and this attorney, concerning the scope and meaning of the stipulation intended to facilitate settlement. This resulted in a third appeal, in 1976, wherein this Court again held in favor of the Hellers. Heller v. Osburnsen (1976), 169 Mont. 459, 548 P.2d 607. In that case, this Court assessed damages for a frivolous appeal in favor of Hellers' attorney in the sum of $1,000. The decision was rendered on April 12, 1976. Johnson refused payment on August 12, 1976, and on August 18, 1976, the attorney for Hellers filed a Motion for Disciplinary Action against the attorney. The $1,000 was then paid, as ordered, and those proceedings apparently terminated. On February 9, 1977, the attorney prepared a complaint the verified by his clients as plaintiffs, againsyHellels, The First National Bank of Lewistown, the District Court of the Tenth Judicial District and the Supreme Court of the State of Montana, its then Chief Justice, and caused it to be filed in the District Court of the United States for the District of Montana. The attorney asserted federal jurisdiction claiming deprivation of civil rights. He charged the Montana Supreme Court with being coercive and arbitrary, and disputed the findings in the previous Heller actions which related to the amount due under the Heller contract. The complaint was dismissed on the merits and with prejudice. Osburnsen v. Heller (1977), 34 St.Rep. 193. In addition to the findings by the Commission on Practice of this Court, the local Grievance Commission also examined the BrabenderS' cause, and found that this attorney had been employed by the Brabenders in late 1971, that he misled them in the belief that he had actually filed a case, and he represented -6- the delay in bringing it to trial was because of crowded dockets and court calendars. The Commission on Practice further found that the attorney failed to obtain full factual knowledge of the Brabender case as required by Canon 8, Canons of Professional Ethics, that he handled a legal matter without preparation adequate in the circumstances and he fully neglected a legal matter entrusted to him, both in violation of Disciplinary Rules 6-101 (A) (2) and ( 3 ) . The Commission found, in connection with Hellers, no factual or legal justification for the actim which he filed in Federal Court other "than a vitriolic venting of his anger". It found that in spelling out a diatribe against lawyers in his oral testimony and, in his various letters and pleadings, he did likewise with respect to fellow lawyers, the district judge, and the Supreme Court. Thereby he violated the Preamble in Canon 1, Canons of Professional Ethics and his actions were prejudicial to the administration of justice in violation of Disciplinary Rule 1-102(A)(5), Canons of Professional Ethics; that he violated Disciplinary Rule 7-102 (A) (1) and (2) by taking action that served merely to harrass or maliciously injure another and by advancing a claim or defense that is unwarranted under existing laws; that he apparently violated Disciplinary Rule 7-106(A) by advising that his client should disregard the rulings of the courts made in the course of a proceedings; that he violated Disciplinary Rule 7-106(C)(6) by engaging in undignified or discourteous conduct which is degrading to the Court; and that he violated the spirit at least of Disciplinary Rule 8-102(B) by making accusations against judges with no showing that they were true and that he was not making false accusations. In Goldman, we stated: "We start with the proposition that an attorney must during the period of his authority to practice before the Bar of this State so conduct himself that he evinces a good moral character, a trustworthy nature and a true commitment to fair dealing with his clients, and with others on behalf of his clients. Fair dealing and honesty should be the trademarks of an attorney.. . . These are the qualities which are essential for admission to the Bar, and if the attorney lapses from or ceases to possess those qualities, he or she is subject to our discipline, even to removal from the Bar." 588 P.2d at 974. The matters brought out in the record in this case indicate that the attorney does not possess, or has lapsed from, the qualities of honesty and fair dealing. It is certain that he was not honest in his representations to the Brabenders. It is equally certain that he lost his sense of fair dealing and trustworthiness in the Hellers case. The purpose of a lawsuit is to end the dispute among the parties, not to prolong it. When an attorney refuses to accept the decisions of the courts in which he practices, and by frivolous appeals and other actions, he continues to stir up new or fancied wrongs, he does not serve the best interests of his own clients, and he visits unnecessary expense and anxiety upon the adverse parties. Such actions call into question the temperamental fitness of the attorney to practice law. The Commission on Practice, having an opportunity to observe him, decided that the punishment of public censure in open court should be sufficient. It is apparent that the Commission on Practice is hopeful that an otherwise talented lawyer will have learned from the results of his own indiscretions. The attorney has no previous disciplinary record. We concur, therefore, in the findings and conclusions contained in the report of the Commission on Practice, and will order public censure of the attorney at a date and place to be set by us with a warning to the attorney that he is now on his good behavior as to his dealings with his clients, and as to his respect for the orderly disposal of legal proceedings. IT IS ORDERED, and it is the judgment of this Court that the attorney, Robert L. Johnson, of Lewistown, Montana, shall receive a public censure in open court on a date and at a time to be set hereafter. We Concur: Chief Justice -- ........................... Justices Justice u Mr. Justice John C. Harrison did not participate in this action. | July 18, 1979 |
a8a07691-044a-49e9-a69d-1650f4ea0466 | KEMP v ALLSTATE INSURANCE CO | N/A | 14386 | Montana | Montana Supreme Court | No. 14386 IN TKE SUPREME C O W OF THE STATE OF I"DNTANA LXEITA S. KEMP, Aihhistratrix, Representative and Successor in Interest to KIM KAFEL K E M P , Deceased, Plaintiff and Respondent, ATJSPATE INSURAXE COMPANY, a Corporation, and IynaELL A. PRIM, Defendants and Appellants. Appeal froan: D i s t r i c t Court of the Second Judicial District, Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellants: Henningsen, Purcell & Genzberger, Butte, mntana Mark Vucurovich argued and James E . Purcell appeared, Butte, mntana For Respondent: Poore Law F h , Butte, Mntana Urban Roth argued and Jams P. Harrington argued, Butte, &bntana Filed: ' . ' . ' ("9 :Zi Suhnitted: M a y 2, 1979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. Defendant Allstate Insurance Company appeals from a summary judgment entered in favor of the plaintiff in the District Court, Second Judicial District, Silver Bow County, applying Montana law to two insurance policies, one issued in New York and one issued in Vermont. The court "stacked" uninsured motorist coverages and construed other language in the policies to grant plaintiff a judgment of $200,000 against Allstate. Allstate contends that its liability under the policies is limited to $20,000. On July 17, 1976, on Interstate 15, near the Montana Street Interchange in Butte, Montana, 19 year old Kin Karel Kemp was a passenger in a car which was struck from the rear by a vehicle operated by Mitchell A. Prim. Kemp was thrown from the automobile and sustained multiple injuries from which she died about an hour later. The driver of the car in which Kim Kemp was a passenger, was a resident of Vermont, and the car was registered in Vermont. She had attended the University of Vermont for two years. Kim Kemp's parents are residents of New York. Mitchell A. Prim is a resident of Montana. It is conceded in this action that his negligence caused Kim Kemp's injuries. There is no doubt that Mitchell A. Prim was an uninsured motorist. Nevertheless, Kim Kemp's cause was in good hands. With Allstate as the issuing company, the vehicle in which Kim Kemp was a passenger was covered by an automobile insurance policy issued in Vermont, which policy included uninsured motorist coverage which Allstate concedes extended to Kemp. It also appears that Kim Kemp's parents, in New York, had a policy of insurance issued by Allstate. The Kemp policy covered family cars registered in New York. As with the Vermont policy, the New York policy contained uninsured motorist protection and Allstate again concedes this protection extended to Kim Kemp. In addition, the New York policy contained mandatory "no-fault" personal injury protection required under New York law. The policy issued in Vermont to the driver of the car in which Kemp was a passenger covered two vehicles, for each of which separate premiums for uninsured motorist protection were paid. The policy issued in New York to Kemp's parents covered at least three vehicles, for each of which separate premiums for uninsured motorist protection (as well as for "no-fault" protection) had been assessed and paid. At the time of the accident giving rise to this appeal, Montana's uninsured motorist statute required coverage in limits for bodily injury death of $25,000 for one person, on all policies issued in Montana, unless such coverage was rejected in writing by the insured. Section 40-4403, R.C.M. 1947, now section 33-23-201 MCA. In New York and Vermont, however, the statutory amount was $10,000 for one person, and this figure was the limit stated in each of the policies involved here as to each vehicle covered. The limit of liability was $50,000 per person for no-fault coverage in the New York policy. On December 29, 1976, a complaint was filed in the District Court, Silver Bow County, by the mother of Kim Karel Kemp, deceased, as administratrix, representative and successor in interest to the decedent, naming Allstate Insurance Company and Mitchell A. Prim as defendants, and stating claims in the nature of actions for wrongful death and survivorship. An amended complaint was later filed adding a claim for recovery under the "no-fault" provision of the New York policy. -3- On May 4, 1977, the District Court entered findings of fact, conclusions of law and judgment on behalf of the plaintiff against Mitchell A. Prim, upon evidence presented by the plaintiff in support of a default judgment. The judgment against Prim included $300,000, representing loss of future earnings and earning capacity, or in the words of the court, "extended economic loss in the sum of $300,000; general damages in the sum of $200,000; and punitive damages in the sum of $75,000 under section 93-2824, R.C.M. 1947;" additionally, the District Court entered judgment against Prim under section 93-2810, R.C.M. 1947, for the sum of $150,000, and for an additional punitive damages award in the sum of $75,000. The total judgment against Prim amounted After the judgment against Prim was entered, plaintiff moved for summary judgment against Allstate on the issue of the amount of coverage Allstate was obligated to provide under the two policies. Plaintiffs motion requested the court to order that Montana law controlled; that the uninsured motorist coverages for all the vehicles in both policies could therefore be "stacked"; that the "no fault" coverage in the New York policy was applicable and could also be stacked for each of the three vehicles conceded to be included under the New York policy; and that therefore plaintiff was entitled to judgment in the sum of $200,000. The $200,000 figure breaks down as follows: Vermont policy uninsured motorist coverage: 2 cars at $10,000 = $20,000 New York policy uninsured motorist coverage: 3 cars at $10,000 = $30,000 New York policy "no-fault" coverage : 3 cars at $50,000 = $150,000 TOTAL = $200,000 On April 27, 1978, an order granting plaintiffs motion for summary judgment was entered by the District Court. It granted all the relief requested in plaintiff's motion for summary judgment and awarded plaintiff the sum of $200,000, plus costs of the action. From that order of summary judgment, Allstate has brought this appeal. Implicit in the summary judgment is that the applicable amount of uninsured motorist coverage is the $10,000 figure provided in Vermont and New York rather than the $25,000 figure in the Montana statute. Plaintiff has not cross- appealed or otherwise raised any objection to the order. Plaintiff does contend in her brief on appeal, that "should the court decide that by operation of law, the uninsured limits are expanded to $25,000.00 per automobile, then the 9 sum of $125,000.00 would be due. . ." In other words, plaintiffs ideal total recovery would be $275,000; five stacked uninsured motorist coverages of $25,000 and three stacked coverages of the $50,000 limit under the New York policy "no-fault" provision. The threshhold issue we must address is whether the District Court erred in applying Montana law to the policies rather than applying New York law and Vermont law respectively. We conclude that it did not as to the uninsured motorist coverage. Allstate maintains that this case is controlled by the rule of -- lex loci contractus. Accordingly, Allstate would have us apply Vermont law to the Vermont policy and New York law to the New York policy. Plaintiff, on the other hand, contends that -- lex loci contractus is an archaic doctrine which has lost its usefulness and should no longer be adhered to. Plaintiff urges us to adopt the revisionist position of the Restatement (Second) of Conflict of Laws 56, whereby choice of law questions are resolved by analyzing the "contXacts" and applying the law of the state with the most significant relationship to the parties, the transaction or occurrence with regard to the issues in dispute. Neither party has correctly interpreted the affect in this case of section 13-712, R.C.M. 1947, now section 28-3- 102 MCA, which provides: "A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made." That statute is not a declaration of the rule of lex - loci contractus, as Allstate maintains. Rather, it is a declaration that generally a contract is to be interpreted under the rule of -- lex loci solutionis, the law of the place of performance. Under the statute, it is only when the contract does not indicate a place of performance that the interpretation would fall under the rule of -- lex loci contractus. In this situation, we look to the contract to determine if there is a place of performance indicated; if there is, the law of the place of performance controls under our statute, and there is no need to determine the law of the place where the contract was made, nor to adopt the "grouping of contacts", or "the center of gravity" approach to determine the applicable law. To determine the place of performance, we turn to the respective insurance contracts. Under the uninsured motorist coverage, the following language appears: "Allstate will pay all sums which the insured or his legal representative shall be legall entitled to recover as damages fromthe o w n : , or operator of an uninsured automobile because of bodily injury . . . including death . . . sustained by the insured, caused by accident arising out of the ownership, maintenance or use, of such uninsured automobile. . ." (Emphasis added.) The territory to which the uninsured motorist coverage applies is described thusly: "This coverage applies only to accidents which occur on and after the effective date hereof, during the policy period, and outside the State of New York but within the United States of America. its territories or possessions, - or Canada." (Emphasis added.) The payment of the loss by Allstate under the uninsured motorist coverage in this case comes under the following provision: "Payment of Loss % Allstate. Any amount due hereunder -- is payable . . . (d) to a person authorized by law to receive such payment or - to - a person legally entitled to recover the damages which the payment represents; - . . ." (~mphasis added.) In this case, the person legally entitled - to recover the damages against Prim is the plaintiff mother of the decedent, as administratrix, representative and successor in interest. Those damages have been fixed by the terms of a judgment entered the - District Court , Silver Bow - County, Montana, which judgment has become final. When Allstate makes payment under the uninsured motorist coverage, subrogation in the ordinary sense is, of course, inapplicable; however, Allstate has taken care to provide in the terms of its uninsured motorist coverage, that the plaintiff here, having received such payments, will hold in trust for the benefit of Allstate, all rights of recovery she may have against Prim, who resides in Montana, and those responsible for him or his insurers, to the extent of the uninsured motorist payments made by Allstate. Allstate's policies, under their terms, contemplate that an accident to which the uninsured motorist coverage will extend could occur in any state, including Montana. Allstate is obligated to pay all sums which the legal representative is legally entitled to recover as damages from Prim in this case. The legal representative has a judgment in Montana based on Montana law, determining the sums to which such representative is legally entitled to recover as damages. Montana, the place where the judgment was obtained, is thus the place of performance of Allstate's obligations under the uninsured motorist coverage. Norfolk and Western Railway Co. v. Hartford Acc. and Indem. Co. (N.D. Ind. 1976), 420 F.Supp. 92. -7- It is correctly stated in Norfolk, with respect to ordinary liability coverage, that: "It is important to note that, to an extent, the policy incorporates the substantive law of every state in which the insured's activities may take place. Within the category of compensatory damages, which the contract concededly covers, it could not be argued that only such forms of recovery as may be had in Missouri (the state in which the contract was made) are recoverable under the policy. The policy anticipates that the insurer will respond to whatever damages are made available by the applicable law of the state in which the insured's tort liability arises. In this context, it is important to observe that the insurance contract here has nationwide effect and that it is a standard contract issued by Hartford through diverse insurance agents across the country. . ." 420 F.Supp. at 94. We therefore determine that under section 28-3-102 MCA, quoted previously, and under the terms of Allstate's policies, Montana law is to be applied in determining the rights of plaintiff with respect to the uninsured motorist coverage provided in the Allstate policies, and not the law of either Vermont or New York. This ruling is in harmony with the longstanding rule that the law of place of performance of an insurance contract controls as to its legal construction and effect, but the law of the place where the contract was made governs on questions of execution and validity, unless the terms of the contract provide otherwise, or circumstances indicate a different intention. Blair v. New York Life Ins. Co. (C.A. Cal. 1940), 104 P.2d 1075, 1078. It is also in harmony with the Restatement (Second) of Conflict of Laws, 5206, which states that: " . . . issues relating to details of performance of a contract are determined by the local law of the place of performance." We recognize that some states have held otherwise. For example, Davis v . State Farm Mutual Ins. Co. (Ore. 1973) , - 507 P.2d 9; Aetna Casualty and Surety Company v . Enright ( ~ 1 4 19721, . 258 So.2d 472; Breen v. Aetna Casualty and Surety Company (Ct. 19661, 220 Atl.2d 254; Eagle Star Ins. Co. v. Parker (F1.App. 1978), 365 So.2d 780; and Government Emp. Ins. Co. v. Sheerin (N.Y. 1978), 410 N.Y.S.2d 641. Our conclusion here is based upon the plain meaning of section 28-3-102 MCA, which commands the application of the law of the place of performance. In applying Montana law, we determine that the uninsured motorist coverages are to be "stacked"; that is, in policies of insurance which cover two or more vehicles, if a separate premium has been charged and collected on each vehicle for uninsured vehicle coverage, the insured is entitled to recover under uninsured motorist coverage sums found legally recoverable unto the aggregate sum of the coverages on all the motor vehicles so insured. Sullivan v. Doe (1972), 159 Mont. 50, 495 P.2d 193; Mountain West Farm Bureau v. Neal t (1976), 169 Mont. 317, 547 P.2d 79; ChaBse v. U.S. Fid. & Guar. Co., et al. (1979), Mont . , 591 P.2d 1102, 36 St.Rep. 398. Since there are five such vehicles involved here in the two policies (plaintiff contended at trial for one more vehicle, but that is not before us here) and since the policies provided for $10,000 uninsured motorist on each vehicle, and since plaintiff's judgment exceeds the aggregate sum of such coverage, plaintiff is entitled to $50,000 under the uninsured motorist policy provisions. Plaintiff has also contended in briefs, that since Montana's uninsured motorist coverage statute, section 33-23-201 MCA, requires limits for bodily injury or death in at least the sum of $25,000, that we should also decide that in conformance with Montana law the New York and Vermont coverages should be construed to provide limits of $25,000 uninsured motorist coverage on each vehicle covered, and thereafter "stacked", to make a total recovery to the plaintiff on this coverage of $125,000. We do not find that the Montana law requires such a result. Montana's uninsured motorist statute is not mandatory, in the -9- sense that the insured has the right to reject in writing such coverage in policies issued in Montana. Section 33-23- 201(2) MCA. Moreover, neither the New York policy nor the Vermont policy was certified under either sections 61-6-133 MCA or 61-6-134 MCA as proof of financial responsibility under Montana law, nor does it appear that the insured had made himself subject to such a financial requirement. In that situation, we have no basis to raise the uninsured motorist coverage limits to $25,000, instead of the New York and Vermont limits of $10,000 for such coverage. See American Hardware Mut. Ins. Co. v. Bradley (N.J. Super. Ct. App. ~ i v . 1977), 379 A.2d 53. A final issue involved in this appeal goes to Allstate's liability under the "no-fault" provisions of the New York policy. That coverage is provided for in parts two and three issued to the Kemp's. Part two is entitled "Coverage VA- Mandatory Personal Injury Protection". TJnder that heading, the following pertinent language appears: "Allstate will pay first party benefits to reimburse for basic economic loss sustained by an eligible injured person on account of personal injuries caused by an accident arising out of the use or operation of a motor vehicle. This coverage applies only to motor vehicle accidents which occur during the policy period and within the State of New York." That section also defines the term "Basic Economic Loss": "Basic economic loss shall consist of medical expense, work loss and other expense. Basic economic loss shall not include any loss sustained on account of death. Basic economic loss of - each eligible injured person on account of any single accident shall not exceed the amount shown in the declarations." (Emphasis added.) Part three of the policy is captioned "Coverage VB-Additional Personal Injury Protection." Under that heading, it is provided that "[all1 of the terms and provisions applicable to Coverage VA shall also apply to Coverage VB except as modified herein." VB coverage includes the following: "Allstate will pay additional first-party benefits to reimburse for extended economic loss on account of personal injuries caused by an accident arising out of the use or operation of a motor vehicle and sustained by: "(a) a named insured or any relative; "(b) any other person occupying a motor vehicle owned by the named insured; and " (c) any other person occupying a motor vehicle (other than a public or livery conveyance) operated by the named insured or any relative. "Such coverage shall not apply to an accident arising out of the use or operation of a motor vehicle owned by the named insured or any relative with regard to which additional personal injury protection has not been purchased during the policy period; provided, however, that this coverage shall apply only if Coverage VB is shown in the declara- tions and a specific premium is charged therefor." (Emphasis added.) The VB section includes a definition of the term "[elxtended economic loss": "(a) basic economic loss sustained on account of - an accidentoccurring i n z h e r than - the State ----- of New York or in any p r o * ofanada; - "(b) the difference between " (i) basic economic loss; and "(ii) basic economic loss recomputed in accordance with the time and dollar limits set out in the declarations; and "(c) all reasonable and necessary funeral ex- penses up to the limit set out in the declar- ations." (Emphasis added.) Kim Kemp's parents had paid a separate premium for both VA and VB coverage for at least three cars under the New York policy involved here. The declaration sheet attached to the policy indicates that the limits of liability under the VB coverage are $50,000 each person, work loss maximum $1,000 per month, other expenses maximum $25 per day, and funeral expenses maximum $2,000. Allstate contends that the VB coverage is not applicable here because "basic economic loss" as defined in the policy does not include any loss sustained on account of death, and "Extended economic loss" under the VB coverage incorporates the definition of basic economic loss. Plaintiff argues that the definition of basic economic loss is modified by the VB coverage to include any loss sustained on account of an accident occurring outside New York, and that "basic economic loss" is defined by Montana law as including losses covered under Montana's survivorship statute, section 93-2824, R.C.M. 1947, now section 27-1-501 MCA. In the District Court, plaintiff's argument prevailed. The order of summary judgment appealed from interpreted the term "basic economic loss" to mean "loss of future earnings or earning capacity". Since the court had previously ruled in the default judgment against Mitchell A. Prim that plaintiff was entitled to $300,000 as damages for those elements in the survivorship claim, the summary judgment ordered that the entire VB coverage was applicable, stacked it for the vehicles, and awarded $150,000 in VB coverage. We do not find plaintiff's contentions so convincing. The nub of plaintiff's argument is that "basic economic loss" equates with damages under our survivorship statute. We do not find this to be so. The term "basic economic loss" derives from language peculiar to the New York "no-fault" law. The Insurance Law of the State of New York (S671, subd. 1). It is not a term of art for which Montana has a controlling definition, statutory or otherwise. A fair reading of the terms of the policy and the New York statute indicates that the District Court erred in its award. The "Coverage VB-Additional Personal Injury Protection" clearly incorporates the definition of "basic economic loss" from Coverage VA, which does not include loss sustained on account of death. Plaintiff cannot recover any damages on the survivorship claim under the VB coverage. The VB coverage does, however, extend to certain other elements of damages for which Allstate is contractually obligated. Since it incorporates the definition of "basic economic loss" from coverage VA, it necessarily includes the "medical expense, work loss and other expense" entailed in that definition, to the extent any such items of damages accrued prior to the insured's death. Further, paragraph (c) under "Extended Economic Loss" in the VB coverage contemplates reasonable and necessary funeral expenses. Therefore, Allstate is liable to plaintiff under the policy provisions for whatever sums have been incurred in these areas up to the applicable policy limits set forth in the declarations. It is clear from the record that these sums will not exceed nor even approach $50,000, and we therefore need not address the issue of stacking the "no-fault" coverages. The District Court order of summary judgment awarding plaintiff $200,000 is reversed. The cause is remanded with instructions to enter an order of summary judgment for plaintiff against Allstate as follows: Uninsured Motorist Coverage - Vermont Policy - $20,000 (stacked for 2 vehicles; 2 x $10,000) Uninsured Motorist Coverage - New York Policy - $30,000 (stacked for 3 vehicles; 3 x $10,000) "No fault" coverage under section VB - a.) medical expenses New York Policy (to the extent of incurred prior to declarations) death, if any; b . ) other expenses, if any; c . ) funeral expenses. In closing we note that there is a possible peripheral issue involved here which has not been addressed in this opinion. The question is whether under New York law an insured whose damages exceed the applicable limits is allowed recovery under both uninsured motorist coverage and no fault coverage. New York case law is clear that such recovery is proper. Adams v . Government Emp. Ins. Co. (1976), 52 App. Div. 2d 118, 383 N.Y.S.2d 319; Rabideau v. Aetna Cas. & Sur. Co. (1976), 54 App. Div. 2d 1055, 388 N.Y.S.2d 719. There is thus no prohibited "double-recovery" here in allowing plaintiff the limits of uninsured motorist coverage together with whatever sums are due for the enumerated items provided for under the New York policy's VB "no-fault" provisions. Affirmed in part and reversed and remanded in part. No costs to either party. We Concur: -,Chief Justice Mr. Chief Justice Frank I. Haswell concurs in part and dissents in part and will file his dissent later. | August 1, 1979 |
11b1fb18-b739-4956-8519-9a18624300b4 | STATE v DISTRICT COURT | N/A | 14739 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA No. 14739 THE STATE OF MONTANA, ex rel. THE BOARD OF PERSONNEL APPEALS, Relators, THE DISTRICT COURT OF THE ELEVENTH JUDICIAL DISTRICT, OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF FLATHEAD, AND THE HON. ROBERT SYKES, PRESIDING JUDGE, Respondents. AUG 15 1979 CLERK OF SUPREME COURT STATE OF MONTANA - OPINION AND ORDER This matter comes before us on the petition of the State of Montana through its Board of Personnel Appeals as relators, asking us either to stay or vacate by writ of supervisory control or otherwise, a writ of mandate issued against BPA out of the District Court, Eleventh Judicial District, Flathead County. In the District Court, Bigfork Teachers Association (BTA) had filed its petition for writ of mandate or other appropriate writ against Robert R. Jensen, as administrator of the Board of Personnel Appeals (BPA) requesting that he be ordered to hold a decertification election to determine that the Bigfork Area Education Association (BAEA) was no longer the bargaining agent for teachers employed in School District No. 38, Flathead and Lake Counties. It appears that BAEA had been recognized by School District No. 38 as the exclusive representative for collective bargaining for the teachers employed in the Bigfork schools. The parties had negotiated a two year contract, beginning July 1, 1976, and were engaging in collective bargaining for a successor contract during the spring and summer of 1978. BAEA and the School District failed to reach an agreement on such successor contract. BAEA had filed with BPA a number of unfair labor practice charges against the School District. These charges were pending before BPA at the time the petition for a decertification election was filed by BAEA. The administrator took the position, and notified the parties, that until the Board's investigation and decision on the unfair labor practice charges was completed, BPA would not schedule a decertification election until it was assured "that the necessary laboratory conditions are present." The Bigfork Area Education Association intervened in the District Court action as an interested party. The District Court, after hearing, argument, and submission of briefs by all parties, issued its writ of mandate requiring BPA to "forthwith conduct an election" to determine the question of the proper bargaining representative for the members of the teachers' unit. The application of BPA to this Court for an order to stay or vacate the writ of mandate followed. A writ of mandate is an extraordinary writ which, according to statute, may be issued by a District Court "to compel the performance of an act which the law specially enjoins as a duty resulting from an office." Section 27-26-102 MCA. Without a clear legal duty, mandamus does not lie. Cain v. Department of Health, Etc. (1978) , Mont . , 582 P.2d 332, 35 St.Rep. 1056. The basic question for our decision in this case therefore, is whether BPA has a present affirmative legal duty to hold a decertification election. We hold that it does not. The "laboratory conditions" under which BPA conducts a decertification election occur where there are no pending charges against the employer, of conduct constituting an unfair labor practice. The purpose of BPA in seeking laboratory conditions is to accomplish a fair election and to determine the uninhibited desires of the employees. In seeking the laboratory conditions, BPA is following the lead of the National Labor Relations Board which interprets and administers the Labor Management Relations Act under federal statutes, 29 U.S.C. S141 et seq. The NLRB has adopted what it calls the "blocking charge" rule to the effect that it will not conduct an election to determine the bargaining representative of a group where there is pending against the employer charges of unfair labor practice. Application of the "blocking charge" rule by NLRB has been held to be within its administrative procedural practices. Furr's Inc. v. N.L.R.B., (10th C.A. 1965), 350 F.2d 84, 59 LRRM 2769. It is said in Surprenant Mfg. Co. v. Alpert (1st C.A. 1963), 318 F.2d 396, 53 LRRM "Whenever, shortly prior to a representation election, it is charged that the employer has engaged in an unfair labor practice which might affect the outcome, the Board, upon investigation and a determination that the charge has prima facie merit, customarily postpones the election until it has been found that no unfair labor practice has been committed, or until the union waives any claim to rely upon the employer's conduct to invalidate the election. There is no provision in the statute, or even any regulation, which expressly authorizes such action, but, concededly, the Board has followed this 'blocking charge' procedure from the beginning. United States Coal and Coke Company, (1937), 3 NLRB 398; ' 7 1 1 5 ~ 1 Annual Report of the NLRB (1939) 143. So far as we can discover it has never been judicially overturned. " We held in State, Dept. of Hwys. v. Public Employees Craft Coun. (1974), 165 Mont. 349, 529 P.2d 785, and in Local 2390 of Amer. Fed., Etc. v. City of Billings (1976), 171 Mont. 20, 555 P.2d 507, 93 LRRM 2753, that it is appropriate for the BPA to consider NLRB precedents in interpreting and administering the Public Employees Collective Bargaining Act. BTA contends that it is improper for BPA to apply the "blocking charge" rule since it has not been adopted by regulation nor has the power been granted by statute to BPA. However, in view of the federal precedents, it appears to be proper and logical to determine that in the conduct of a certification election, BPA has certain discretionary powers in order to assure that an election for a bargaining agent, when held, will be held under the best possible conditions insofar as the freedom of choice of the employees involved is concerned. The legislature appears to have given BPA a broad discretionary power in this matter in section 39-31-202, MCA, wherein it is stated: "Board to determine appropriate u n i t Sctors to be considered. -- to assure employees the fullest freedom in exercising the rights guaranteed by this chapter, the board or an agent of the board shall decide the unit appropriate for the purpose of collective bargaining and shall consider such factors as community of interest, wages, hours, fringe benefits, and other working conditions of the employees involved, the history of collective bargaining, common supervision, common personnel policies, extent of integration of work functions and interchange among employees affected, and the desires of the employees." The duty of BPA on the presentation of a petition to determine the bargaining representative is set forth in section 39-31-207, MCA. There it is stated in pertinent part : " (1) The board or an agent of the board shall i n v e s t i g a t e wtifion ---- a n d 7 i f t h a s reasonable cause to believe - - that a question of representation exists, it shall provide for an appropriate hearing upon due notice whenever, in accordance with such rules as may be prescribed by the board, a petition has been filed: "(a) by an employee or group of employees or any labor organization acting in their behalf alleging that 30% of the employees: "(ii) assert that the labor organization which has been certified or is currently being recognized by the public employer as bargaining representative is no longer the representative of the majority of employees in the unit; or ". . . " (Emphasis added. ) In view of the discretionary provisions that are set forth in sections 39-31-202, MCA, and 39-31-207, MCA, BPA may not be required by writ of mandate to conduct an election forthwith, absent a showing of an abuse of discretion by BPA. There is therefore no clear legal duty on the part of BPA to conduct the decertification election forthwith. As long as the blocking charges are not being used simply to delay the decertification election, and until BPA is satisfied that the necessary laboratory conditions exist, BPA is under no clear statutory duty to conduct the decertification election. Section 39-21-207, MCA. Accordingly, IT IS ORDERED: 1. The writ of mandate dated March 12, 1979 by the District Court for the Eleventh Judicial District of the State of Montana, in and for the County of Flathead, in its cause no. DV-79-008, is hereby vacated and set aside. 2 . Copies of this opinion shall be served by the Clerk of this Court by ordinary mail upon the said District Court and counsel of record. r Justice " - J 4 We Concur: Chief Justice w .............................. Justices Mr. Justice Daniel J. Shea, deeming himself disqualified, did not participate. | August 15, 1979 |
57e1902f-2513-4100-a2d6-033a63bcb0c0 | GRIFALDO v STATE | N/A | 14778 | Montana | Montana Supreme Court | No 1 4 7 7 8 I N THE SUPREME COURT O F THE STATE O F MONTANA 1 9 7 9 GUADALUPE GRIFALDO , P e t i t i o n e r , -vs- STATE O F MONTANA, R e s p o n d e n t . STEVEN R. VANDERBECK, P e t i t i o n e r , STATE OF MONTANA, R e s p o n d e n t . ORIGINAL PROCEEDING: C o u n s e l of R e c o r d : For P e t i t i o n e r : Francis J. C o n t e , Missoula, M o n t a n a For R e s p o n d e n t : M i k e G r e e l y , A t t o r n e y General, H e l e n a , M o n t a n a H a r o l d H a n s e r , C o u n t y A t t o r n e y , B i l l i n g s , M o n t a n a Submitted on B r i e f s , June 15, 1 9 7 9 D e c i d e d : JU&- 1979 * ,279 Filed: Mr. Justice Daniel J. Shea delivered the Opinion of the Court. These consolidated cases come before this Court on petition for postconviction relief. Petitioners Grifaldo and Vanderbeck each claim that he is entitled to designation as a "nondangerous offender for purposes of parole eligibility" under the mandatory provisions of section 95-2206.16(1), R.C.M. 1947, now section 46-18-404(1) MCA. Designation as a nondangerous offender enables a prisoner to be eligible for parole after he has served one-quarter of his sentence. Grifaldo was charged with robbery, allegedly committed on August 20, 1977. Grifaldo pleaded guilty, and on October 27, 1977, was sentenced by the Yellowstone County District Court to fifteen years in prison. Vanderbeck was convicted by jury verdict in the Yellowstone County District Court of aggravated assault and unlawful restraint, allegedly committed on June 22, 1978. On November 1, 1978, Vanderbeck was sentenced to eight years for aggravated assault and six months for unlawful restraint, sentences to run concurrently. During the five years preceding commission of their offenses, neither Grifaldo nor Vanderbeck was convicted of, or incarcerated for, an offense for which a sentence in excess of one year could have been imposed. However, neither Grifaldo nor Vanderbeck was designated a nondangerous offender for purposes of parole eligibility. On March 2, 1979, at the request of the Montana Department of Institutions, the Montana Attorney General issued an opinion relating to parole eligibility of prisoners. 38 Atty. Gen. Op. No. 10. In pertinent part, the Attorney General held that a prisoner serving a time sentence who was not expressly designated "nondangerous" in connection with a crime committed after July 1, -2- 1977, is ineligible for parole until he has served one- half of his sentence, less good time. As a result, petitioners were classified as ineligible for parole until one-half of their sentences are served. Parole eligibility is governed by section 95-3214(1), R.C.M. 1947, now section 46-23-201(1) MCA, which provides: ". . . Subject to the following restrictions, the board shall release on parole by appropriate order any person confined in the Montana state prison, except persons under sentence of death and persons serving sentences imposed under 95-2206(3) (b), when in its opinion there is reason- able probability that the prisoner can be released without detriment to himself or to the community: "(a) No convict serving a time sentence may be paroled until he has served at least one-half of his full term, less the good time allowance provided for in 80-1905; except - - that a convict designated as a nondangerous offender under - 206.16' = b e paroled atter he has served one- - -- quarter of his full term, less the good time -------- allowance wrovided for in 80-1905. Any offender - - - serving a iime sentence may be paroledLafter he has served, upon his term of sentence, 17-1/2 years. "(b) No convict serving a life sentence may be paroled until he has served 30 years, less the good time allowance provided for in 80-1905." (Emphasis added. ) Petitioners contend that they are entitled to designation as nondangerous offenders under section 95-2206.16(1), R.C.M. 1947, now section 46-18-404(1) MCA, which provides: ". . . The sentencing court - - shall designate an offender a nondangerous offender for purposes of eligibility for parole under 95-3214 if: "(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; or - " (b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society." (Emphasis added. ) The State concedes that under the mandatory language of the above statute petitioners are entitled to designation as nondangerous offenders. The State argues, however, that in declining to do so, the sentencing courts impliedly determined that each petitioner represented a "substantial danger to other persons or society" under subsection (b). The State therefore urges that we remand these cases to the sentencing courts for determination of whether each petitioners parole eligibility should be limited pursuant to section 95-2206(3)(b), R.C.M. 1947, now section 46-18-202(2) MCA, up to one-half of their sentences. Section 95-2206(3)(b) permits the sentencing court to impose the restriction that a defendant be ineligible for parole for the full term of his sentence, not just half of it. It states: ". . . Whenever the district court imposes a sentence of imprisonment in the state prison for a term exceeding 1 year, the court may - also impose the restriction that the defendant be ineligible for parole and participation in the prisoner furlough program while serving his term. If such a restriction is to be imposed, the court shall state the reasons for it in writing. If the court finds that the restriction is neces- sary for the protection of society, it shall impose the restriction as part of the sentence and the judgment shall contain a statement of the reasons for the restriction." (Emphasis added. ) Under this provision, the sentencing court "may" impose the restriction of parole ineligibility, but in so doing, it must ("shall") state reasons for the restriction in writing. We can no more adopt the implication urged by the State-- that failure or refusal to designate petitioners as nondangerous offenders constituted a determination of their dangerousness-- than we can imply that failure to invoke section 95-2206(3)(b) constituted a determination that restrictions on petitioners' parole eligibility were inappropriate. Section 95-2206.16(1), R.C.M. 1947, now section 46-18-404(1) MCA, clearly provides that the sentencing court "shall" designate an offender a nondangerous offender if either of the conditions of subsection (a) "or" - (b) are met. This statute governed the District Court's conduct in sentencing petitioners Grifaldo and Vanderbeck. Both Grifaldo and Vanderbeck satisfied the condition specified in subsection (a), and therefore, the sentencing courts erred in failing to designate them as nondangerous offenders. The cases are remanded to the sentencing courts with directions to designate the petitioners as nondangerous offenders for purposes of parole eligibility. We Concur: Chief Justice r- \ G. up Justices | July 3, 1979 |
3aa6c57c-80fd-432a-999a-2a0caa2888c6 | VANDERBECK v STATE | N/A | 14779 | Montana | Montana Supreme Court | N o 1 4 7 7 8 I N THE SUPREME COURT O F THE STATE OF MONTANA 1 9 79 P e t rtroner, -vs- S"ATE O F NIONTANA, R e s p o n d e n t , SL7ET?EN R. VANDERBECK , P e t i t i o n e r , STATE O F MONTANA, R e s p o n d e n t . OItT(;INAJ, PROCEEDING: C o u n s e l of R e c o r d : For P e t i t i o n e r : Francis J. C o n t e , M i s s o u l a , M o n t a n a For R e s p o n d e n t : Mike 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 , Monta,n,a H a r o l d H a n s e r , C o u n t y A t t o r n e y , B i l l i n g s , Montana ! S u b m i t t e d on B r i e f s , ,Tune 15, 1.079 - Filed: M r . J u s t i c e Daniel J. Shea delivered t h e Opinion of t h e Court. These c o n s o l i d a t e d c a s e s come b e f o r e - t h i s Court or1 pet.itio:ii f o r p o s t c o n v i c t i o i ~ r e l i e f . P e t i t i o n e r s G r i f a l d o and Vanderheclt each c l a i m t h a t he i s e n t i t l e d t o d e s i g n a t i o n a s a "nondanqerous o f f e n d e r f o r purposes of p a r o l e e l i g i b i l i t y " under t h e nands.tory p r o v i s i o n s of s e c t i o n 95-2206.16(1), K.C.M. 1947, now s e c t i o n 46-3.8-404 (1) MCA. Designation as a nondanqerous o f f e n d e r e n a b l e s a p r i s o n e r t o be e l i g i b i e f o r p a r o l e a f t e r he h a s s e r v e d o n e - q u a r t e r of h i s s e n t e n c e . G r i f a l d o was charged w i t h r o b b e r y , a l l e g e d l y conimitted or1 Arlgust 20, 1977. G r i f a l d o pleaded g u i l t y , and on October 2 7 , 1977, w a s s e n t e n c e d by t h e Yellowstone County D i s t r i c t Court: t o f i f t e e n y e a r s i n p r i s o n . Vanderbeck was c o n v i c t e d by jury v e r d i c t i n t h e Yellowstone County D i s t r i c t Court of aggravated a s s a u l t and u n l a w f i ~ l r e s t r a i n t , a l l e g e d l y comn~itted on June 22, 1978. 011 November 1, 1978, Vanderl?eck w a s sentenced t:o e i g h t y e a r s f o r a g g r a v a t e d a s s a u l t and s i x months :for unl;~wfu?. r e s t r a i n t , s e n t e n c e s t o r u n c o n c u r r e n t l y . During t h e f i v e y e a r s p r e c e d i n g commi.ssion o f t h e i r o f f e n s e s , n e i t h e r G r i f a l d o nor Vanderbeck was c o n v i c t e d o f , o r i n c a r c e r a t e d f o r , an o f f e n s e f o r which a s e n t e n c e i n excess of one y e a r could have been imposed. However, n e i t h e r G r i f a i d o nor Vanderbeck was d e s i g n a t e d a nondangerous o f f e n d e r f o r purposes of p a r o l e e l i g i b i l i t y . O n March 2, 1979, a t t h e r e q u e s t of t h e Montana Department: of I n s t i t u t i o n s , t h e Montana Att.orney General i s s u e d an o p i n i o n r e l a t i n g t o p a r o l e e l i g i b i l i t y of p r i s o n e r s . 38 A t t y . Gen. Op. Yo. L O . in p e r t ] n e n t p a r t , t h e Attorney General h e l d t h a t a 9 r i s o n e r s e r v i n g a t i m e s e n t e n c e who was n o t e x p r e s s l y designated "nondanqerous" i n c o n n e c t i o n with a crime c o i m i t t e d a f t e r July I , -- 2 - 1977, i s i n e l i g i b l e f o r p a r o l e u n t i l he has served one- h a l f of h i s s e n t e n c e , less good t i m e . A s a r e s u l t , petit:.ioners were c l a s s i f i e d a s i n e l i g i b l e f o r p a r o l e u n t i l one-half of t h e l r s e n t e n c e s a r e served. P a r o l e e i i . g i h i l . i t y i s governed by s e c t i o n 95-32L4(1), R.C.M. 1947, now s e c t i o n 46-23-201(1) MCA, which provides: ". . . S u b j e c t t o t h e followiny r e s t r i c t i o n s , t h e board s h a l l r e l e a s e on p a r o l e by a p p r o p r i a t e o r d e r any person confined i n t h e Montana stat.e p r i s o n , e x c e p t persons under sentence of d e a t h and persons s e r v i n g sentenccs imposed under 95-2206(3) (b), when i n its opinion t h e r e is reason- a b l e p r o b a b i l i t y t h a t t h e p r i s o n e r can be r e l e a s e d without detrimc:nt t o himself o r to t h e co~ununity: " l a ) N o c o n v i c t s e r v i n g a t i m e s e n t e n c e may be p a r o l e d u n t i l he has served a t l e a s t one-half o f h i s f u l l t e r m , less t h e good t i m e allowance provided f o r i n 80-1905; except t h a t - a . c o n v i c t designated a s a nondangerous o f f e n d e r under V 5 = ' - Z Z m T - - K Z ~ 3 & - ~ r o E Z - a f - t e n 5 ~ s - s % . T e d -- - - one - ~. q u a r t e r of h i s f u l l term, less t h e good t i m e --- , -- - . . - - - - - -, allowance provided f o r - i n .- 80-1905. . . .- Any o f f e n d e r s e r v i n q a time sentence may be paroled a f t e r he has served, upon h i s t e r m of sentence, 17-l/2 y e a r s . " ( b ) N o c o n v i c t s e r v i n q a l i f e sentence may be paroled u n t i l he has served 30 y e a r s , l e s s t h e good t i m e allowance provided f o r i n 80-1905." (Emphasis added.) P e t i t i o n e r s contend t h a t they a r e e n t i t l e d t o d e s i y n a t l o n a s nondangerous o f f e n d e r s under s e c t i o n 95-2206.16(1.), R.C.M. 1947, now s e c t l o n 46-18-404li) MCA, whlch provides: ". . The sentencing c o u r t s h a l l - d e s i g n a t e an o f f e n d e r a nondangerous o f f e n d e r f o r purposes of e l i q i b i l i t y f o r p a r o l e under 95-3214 i f : " ( a ) during t h e 5 y e a r s preceding t h e commission of t h e o f f e n s e f o r which t h e o f f e n d e r i s being sentenced, t h e o f f e n d e r was n e i t h e r convicted of nor i n c a r c e r a t e d f o r an o f f e n s e committed i n t h i s s t a t e or any o t h e r j u r i s d i c t i o n f o r which a sentence t o a t e r m of imprisonment i n excess of l y e a r could have been imposed; or -- " (b) t h e c o u r t has determined, based on any presentence r e p o r t and t h e evidence presented a t t h e t r i a l and t h e s e n t e n c i n g h e a r i n g , t h a t t h e o f f e n d e r does n o t r e p r e s e n t a s u b s t a n t i a l danger t o o t h e r persons o r s o c i e t y . " (Emphasis added. ) ?'he S t a t e concedes t h a t under t h e mandatory lanwuage of t h e above s t a t u t e p e t i t i o n e r s a r e e n t i t l e d t o d e s i g n a t i o n a s nondanqerous o f f e n d e r s . The S t a t e a r g u e s , however, that i n d e c l i n i n g t o do s o , t h e s e n t e n c i n g c o u r t s i m p l i e d i y determined t h a t each p e t l t l o n e r r e p r e s e n t e d a " s u b s t a n t l a l danger t o o t h e r persons o r s o c l c t y " under subsection ( b ) . The S t a t e thi'refore u r q e s t h a t w e remand t h e s e c a s e s t o t h e sentencing c o u r t s f o r d e t e r m i n a t i o n of whether each p e t i t i o n e r s p a r o l e e l i g i b i l i t y should b e l i m i t e d p u r s u a n t t o s e c t i o n 95-2206(3) ( b ) , R.C.M. 1947, now s e c t i o n 46-18-202(2) MCA, up t o one-half of t h e z r s e n t e n c e s . S e c t i o n 95-2206 ( 3 ) ( b ) pernlits t h e seritenci-ng court. t o impose t h e r e s t r i c t i o n t h a t a defendant be i n e l i q i h l c f o r p a r o l e f o r t h e f u l l term of h l s s e n t e n c e , not j u s t halE o f i t , I t s t a t e s : ". . Whenever t h e d i s t . r i c t c o u r t imposes a s e n t e n c e of imprisonment i n t h e s t a t e p r i s o n f o r a term exceeding L y e a r , t h e c o u r t may a l s o impose t h e r e s t r i c t i o n t h a t t h e defendant be i n e l i q i b l e f o r p a r o l e and p a r t i c i p a t i o n i n t h e p r i s o n c r furlough program w h i l e s e r v i n g h i s term. I f such a r e s t r i c t i o n i s t o be i-mposed, t h e c o u r t s h a l l s t a t e t h e r e a s o n s f o r it i n w r i t i n g . -. I f t h e court f i n d s t h a t t h e r e s t r i c t i o n is neces- s a r y f o r t h e p r o t e c t i o n of s o c i e t y , it s h a l l impose t h e r e s t r i c t i o n a s p a r t of t h e s e n t e n c e and t h e judgment s h a l l c o n t a i n a statenient o f t h e r e a s o n s f o r t h e r e s t r i . c t i o n . " (Emphasis added. ) lJnder t h i s p r o m s i o n , t h e s e n t c n c r n 9 c o u r t "may" impose t h e r e s t r i c t i o n of p a r o l e i n e l i g i b i l i t y , b u t i n so doing, i t r n i ~ s t ( " s h a l l " ) s t a t e reasons f o r t h e r e s t r i c t i o n i n w r i t i n g . W e can no more adopt t h e implic:ation urged by t h e State-- that. f a i l u r e o r r e f u s a l t o d e s i g n a t e p e t i t i o n e r s a s nonda~nqerous o f f e n d e r s constitut.ed a determinat.ion of t h e i r dangerousness-- t h a n w e can imp1 y t h a t fni.Lure t o invoke s e c t i o n 515-2206 ( 3 ) (b) constituted a determsnation t h a t r e s t r l c t l o n s on p e t r t ~ o n e r s " p a r o l e e l i q i b i l i t y were i n a p p r o p r i a t e , S e c t i o n 95-2206.16(1), R.C.M, 1947, now s e c t i o n 46-18-404(li MCA, c l e a r l y provides t h a t t h e s e n t e n c i n g c o u r t " s h a l l " d e s i g n a t e an o f f e n d e r a nondangerous o f f e n d e r i f e i t h e r of t h e c o n d i t i o n s of s u b s e c t i o n ( a ) '"or" (b) are - met. T h i s s t a t u t e governed t h e D i s t r i c t C o u r t ' s conduct i n s e n t e n c i n g p e t i t i o n e r s G r i f a l d o and Vanderbeck. Both G r i f a l d o and Vanderbeck s a t i s f i e d t h e c o n d i t i o n s p e c i f i e d i n su.bsc?ei_io;:i ( a ) , and t h e r e f o r e , t h e s e n t e n c i n g c o u r t s e r r e d i n f a i l i n g t o d e s i g n a t e 'hem as nondanqerous o f f e n d e r s . ?'he c a s e s a r e remanded t o t h e s e n t e n c i n g c o u r t s w i t h d i r e c t i o n s t o d e s i g n a t e t h e p e t i t i o n e r s a s nondanyerous o f f e n d e r s f o r purposes of p a r o l e e l i g i b i l i t y . i,,..' I?e Concur: | July 3, 1979 |
4fea6121-8144-4a0e-a69b-93bf63160fb6 | NOTT v BOOKE HEIDEMA | N/A | 14665 | Montana | Montana Supreme Court | No. 14665 I N THE S U P F ! E M E C C O W OF THE STATE O F P J D ~ 1979 Plaintiffs and Appellants, GLEN BOOKE and VICKY BOOKE, husband a n d wife, and JACK D. HEIDEMA and JOHN A. HEIDENA, Defendants and Respondents. Appeal f m : D i s t r i c t Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellants: Fillner and Pitet, Billings, Wntana For Wspondents: Reno and Dolve, Billings, Wntaw Swandal, Douglass & Swandal, Livingston, mntana Filed: Suhitted on briefs: June 7, 1979 Decided: AUG 2 0 1979 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from a motion for summary judgment entered in favor of respondents Jack and John Heidema and Glen and Vicky Booke in the District Court of the Thirteen Judicial District. The granting of the motion in effect dismissed a complaint brought by the appellants, Lyle and Odeal Nott, seeking to quiet title to a disputed portion of land by a claim of adverse possession. Appellants and respondents are adjacent landowners in Carbon County, Montana, their land adjoining at appellants' southern and respondents' northern boundaries. In 1942, appellants purchased their property, which is described according to their deed as: The North Half of the Southwest Quarter (N1/2SW1/4), the Southwest Quarter of the Southwest Quarter (SW1/4SW1/4) , Lot 9 and the North 19 feet of Lots 10 and 11, all located in Section Four, Township Six South, Range 23 East, M.P.M. Respondents Bookes purchased their land in 1976 from respon- dents Heidemas. The land was originally owned by John and Genevieve Shupak. The legal description of the property is described as: Tract A of Certificate of Survey No. 885, situated in Lots 10 and 11, Section 4 and Lot 2, Section 9, Township 6 South, Range 23 East, M.P.M. The strip of land which is the center of dispute is located between appellants' and respondents' property. It is a triangular portion of land, approximately 1950 feet in length, 68 feet in width on the east end, 38 feet in width on the west end, and slightly over two acres in total area. It is also enclosed by a boundary line fence which was constructed by appellants in 1946. Appellants claim t i t l e t o t h e s t r i p of land under a deed executed i n 1946 t o Lyle B. Nott and h i s then spouse, ~ o s i a Nett, from t h e respondents' predecessor i n i n t e r e s t , John and Genevieve Shupak. That deed was t h e culmination of a n agreement s e t t l i n g a boundary l i n e d i s p u t e between t h o s e p a r t i e s . I n 1946 t h e Notts employed William Burke t o conduct a survey of t h e boundary l i n e between t h e i r p r o p e r t y and t h e Shupaks', whereupon a fence was c o n s t r u c t e d by t h e Notts along t h e l i n e a s l a i d o u t by Burke. A f t e r t h e c o n s t r u c t i o n of t h e fence, however, t h e Shupaks d i s a g r e e d a s t o t h e c o r r e c t placement of t h e fence and boundary l i n e . T h i s , i n t u r n , l e d t o t h e l a n d being resurveyed by Burke, who d i s - covered an e r r o r i n h i s c a l c u l a t i o n s and determined t h e proper boundary l i n e t o be 19 f e e t n o r t h of t h e fence. To settle t h e d i s p u t e , t h e Shupaks executed a deed f o r good c o n s i d e r a t i o n t o t h e N o t t s conveying t h e n o r t h 19 f e e t of Lots 10 and 11. The p a r t i e s t h e r e a f t e r occupied t h e i r l a n d s i n accor- dance w i t h t h e boundary fence. During t h i s t i m e , t h e Notts c u l t i v a t e d t h e l a n d , c o n s t r u c t e d f e n c e s and c o r r a l s f o r l i v e s t o c k and b u i l t a c o n c r e t e i r r i g a t i o n flume n e x t t o t h e fence and upon t h e a r e a of land which i s t h e s u b j e c t of t h i s d i s p u t e . Appellants w e r e a l s o a s s e s s e d and have p a i d t a x e s upon t h e i r land i n accordance with t h e d e s c r i p t i o n on t h e deed s i n c e 1946. Respondents Bookes purchased t h e i r land from respon- d e n t s Heidemas i n 1976. To comply w i t h t h e p r o v i s i o n s of t h e Subdivision and P l a t t i n g Act, a c e r t i f i c a t e of survey was made a f t e r t h e purchase. This survey, which was con- ducted i n 1977, c r e a t e d a f u r t h e r discrepancy between t h e boundary fence and Burke's second survey, giving rise t o t h e p r e s e n t l y disputed p o r t i o n of land. O n J u l y 6, 1977, a p p e l l a n t s f i l e d an a c t i o n a g a i n s t respondents Bookes t o q u i e t t i t l e t o t h e disputed p o r t i o n of land, proceeding on t h e theory of adverse possession. A n amended complaint f i l e d on August 16, 1978, added respon- d e n t s Heidemas, t h e record owners of t h e disputed property. A l l p a r t i e s t o t h e lawsuit t h e r e a f t e r f i l e d and requested motions f o r summary judgment. The D i s t r i c t Court granted respondents Bookes' motion on August 30, 1978, and respon- d e n t s Heidemas' motion on January 9, 1979. From t h e s e o r d e r s t h e Notts appeal. The f i r s t a l l e g a t i o n of e r r o r w e s h a l l consider i s whether t h e D i s t r i c t Court e r r e d i n granting respondents' motions f o r summary judgment. Rule 5 6 ( c ) , M.R.Civ.P., provides t h a t summary judgment s h a l l be granted i f : ". . . t h e pleadings, depositions, 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 , 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 as t o any m a t e r i a l f a c t and t h a t [ t h e moving] p a r t y i s e n t i t l e d t o judgment a s a matter of l a w . . ." I n construing t h e above r u l e , w e have previously 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 i s s u e a s 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 substan- t i v e p r i n c i p l e s which e n t i t l e d him t o a judgment a s a matter of l a w . W e have a l s o held t h a t t h i s i s a strict standard and t h a t , i f t h e r e is any doubt as t o t h e p r o p r i e t y of t h e motion f o r summary judgment, it should be denied. Fulton v. Clark (1975), 167 Mont. 399, 403, 538 P.2d 1371, 1373; Harland v. Anderson (1976), 169 Mont. 447, 450, 548 P.2d 613, 615; Cheyenne Western Bank v. Young (1978), Mont . , 587 P.2d 401, 404, 35 St.Rep. 1806, 1809. Our function in this appeal, then, is to determine whether there is a genuine issue of material fact precluding summary judgment, Appellants argue that the District Court erred because they have acquired title to the disputed strip of land by satisfying all of the elements of adverse possession. Included in these elements is the statutory requirement that an adverse claimaint pay all municipal, county and state taxes upon land he occupies and wishes to claim for a con- tinuous period of five years. Section 70-19-411, MCA, provides: "In no case shall adverse possession be considered established under this code unless it shall be shown that the land has been occupied for a peri- od of 5 years continuously and the party or per- sons, their predecessors, and grantors have during such period paid all the taxes, state, county, or municipal, which have legally been levied and as- sessed upon such land." While respondents admit that appellants have paid taxes according to their deed description, they argue that such payment does not satisfy the requirements of section 70-19- 411, MCA. Their primary contention is that the payment of taxes upon the north 19 feet of Lots 10 and 11 is not equi- valent to the payment of taxes upon a portion of land which is approximately 1950 feet in length, 68 feet in width on the east end, 38 feet in width on the west end, and slightly over two acres in total area. Therefore, because they argue that appellants have not satisfied - all of the elements of adverse possession, the motion for summary judgment was properly granted as a matter of law. This Court has had prior occasion to consider what kind of payment will suffice to meet the requirements of section 70-19-411, MCA. We have held that, where the evidence shows t h a t t a x e s have been paid on t h e b a s i s of t h e land descrip- t i o n i n t h e deed which does n o t include t h e s t r i p of prop- e r t y i n dispute, i n t h e absence of an agreement extending t h e boundary t o include t h i s s t r i p , such payment does n o t c o n s t i t u t e payment of t h e taxes on t h e disputed s t r i p . Townsend v. Koukol (1966), 148 Mont. 1, 8-9, 416 P.2d 532, 536; Stephens v. Hurly (1977), Mont. , 563 P.2d 546, 551, 34 St.Rep. 243, 249. However, where a boundary l i n e has been agreed upon o r fixed because of t h e uncer- t a i n t y of t h e p a r t i e s a s t o t h e t r u e boundary and t h e deed d e s c r i p t i o n does n o t include t h e disputed land, t h e payment of t a x e s according t o t h e deed d e s c r i p t i o n does c o n s t i t u t e a payment upon such land f o r t h e purpose of s a t i s f y i n g t h e s t a t u t e . Townsend v. Koukol, 148 Mont. a t 8, 416 P.2d a t 536. The question of f a c t which i s most c r u c i a l t o a d e t e r - mination of t h e i s s u e facing t h i s Court, then, i s whether an agreement e x i s t e d between a p p e l l a n t s and respondents, o r t h e i r predecessors i n i n t e r e s t , t h a t t h e disputed s t r i p of land l a y within an agreed upon o r f i x e d boundary. Appellants have f i l e d two pleadings which a l l e g e t h a t t h e "boundary l i n e d i s p u t e was s e t t l e d between . . . Nott and Shupak by an agreement being reached a s t o t h e c o r r e c t placement of t h e boundary l i n e on t h e fence l i n e a s con- s t r u c t e d by [Nott] . . . " Moreover, they have f i l e d t h e deposition of Lyle Nott i n which he answers t h e following questions: "Q. So sometime, then, a f t e r you bought, I under- stand t h e r e became a d i s p u t e between you and t h e Shupaks regarding t h e boundaries of t h e two ad- joining pieces of land? A. T h a t ' s r i g h t . "Q. A s a r e s u l t of t h a t survey, then, you and t h e Shupak's [sic] then s e t t l e d t h e d i f f e r e n c e of opinion on t h e boundaries of your property? A. W e d i d . "Q. And he deeded t o you, t o settle t h a t d i s p u t e , he deeded t o you t h e n o r t h 19 f e e t of Lots 10 and 1 1 i n S e c t i o n 4 ? A. T h a t ' s r i g h t . " Respondents, i n t u r n , have l e f t t h e above a l l e g a t i o n s uncontroverted i n t h e i r b r i e f s and have a l s o admitted t h a t t h e d i s p u t e d s t r i p i s "enclosed w i t h i n a . . . fence o r i g i n a l l y c o n s t r u c t e d by t h e [Notts] . " I n view of t h i s testimony, w e f i n d t h a t t h e pleadings, d e p o s i t i o n s and admissions p l a c e i n controversy a genuine i s s u e of m a t e r i a l f a c t , namely whether an agreement e x i s t e d between t h e N o t t s and Shupaks t h a t extended t h e boundary l i n e between t h e i r p r o p e r t i e s t o i n c l u d e t h e d i s p u t e d por- t i o n of land. T h i s q u e s t i o n may u l t i m a t e l y be determinative of t h e r e s u l t i n t h e case. Accordingly, we f i n d t h a t it was e r r o r f o r t h e District Court t o g r a n t respondents' motions f o r summary judgment, and we remand t h i s cause t o t h e D i s t r i c t Court f o r a f u l l hearing on t h e m a t t e r . W e concur: I I Chief J u s t i c e J u s t i c e s | August 20, 1979 |
c306fef7-995a-49e2-9338-aa19bc524e8f | MARRIAGE OF METCALF v METCALF | N/A | 14735 | Montana | Montana Supreme Court | No. 14735 IN THE SUPREME COURT OF THE STATE OF MONTANA IN RE THE MARRIAGE OF SHARON KAY METCALF, Petitioner and Respondent, -vs- RONALD RAY METCALF, Respondent and Appellant. Appeal from: District Court of the Thirteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: Lynaugh, Fitzgerald, Schoppert, Skaggs and Essman, Billings, Montana For Respondent: Berger, Anderson, Sinclair and Murphy, Billings, llontana Submitted on briefs: June 27, 1979 Decided: AUG 2 2 1979 Filed: W G 2 2 1979 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal arises out of a property settlement in a divorce action in Yellowstone County. Respondent wife and appellant husband were married in 1964 and have two children: Brett, age 11, and ~ania, age 14. During the marriage, appellant was employed as a mechanic, salesman and carpet installer. Presently appellant works as a salesman for a wholesale plumbing corporation. In increasing his sales area income approximately six-fold, appellant has earned the following steadily rising incomes: $18,101 in 1975; $27,758 in 1976; and $38,666 in 1977. Appellant also projected his annual income for 1978 as $42,000. Respondent has a high school education and has held various jobs throughout the marriage: sales clerk, dental assistant, and receptionist. Shortly after appellant se- cured his present job, respondent quit her full-time enploy- ment and has only worked occasionally since that time, selling vitamins to friends and relatives. During the course of the marriage, the parties acquired several assets: Family home Two lots Boat, trailer Dining room set Household property Car Motorcycle Guns Trampoline Horse and foal Value Obligation As of the fall of 1978, the total value of the marital estate was approximately $114,000 and was subject to approxi- mately $55,000 worth of secured and $12,000 worth of unsecured debts. A ~ S O , during the marriage, a $5,000 inheritance was received by appellant and used by both parties in the vari- ous expenses of the marriage. Respondent filed a petition for dissolution on April 17, 1978, and the matter came for hearing on October 24, 1978. The District Court entered its findings of fact and conclusions of law on December 6, 1978. Among the findings and conclusions, the court found that the dissolution should be granted, that the custody of the two children should be granted to respondent, that appellant should pay $400 per month child support and maintain health and medical insur- ance for the children, and that appellant should pay $200 per month maintenance until the court should further order or petitioner should remarry. The court also ordered the appellant to pay respondent's attorney fees of $1,620. With regard to the distribution of property, the court found that respondent should receive the home, the dining room set, the household property, and the car, and that appellant should receive the two lots, the boat and trailer, the horse and foal, the motorcycle, the guns and the trampo- line. The court further found that each party should be individually responsible for the obligations owing on the items received, except that appellant would be responsible for the second mortgage on the home. A judgment giving effect to the findings and conclu- sions was entered on December 12, 1978, and appellant filed a notice of appeal on January 11, 1979. Respondent there- after requested an allowance for attorney fees to defend the appeal. On April 19, 1979, the court granted respondent attorney fees in the amount of $2,000. Appellant also appealed this award. Three i s s u e s a r e r a i s e d on appeal: 1. Whether 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 in f a i l i n g t o consider $12,000 worth of unsecured debts i n a r r i v i n g a t a n e t worth of t h e m a r i t a l e s t a t e . 2. Whether t h e D i s t r i c t Court e r r e d because it d i d n o t make any f i n d i n g s a s t o a p p e l l a n t ' s inheritance. 3. Whether t h e D i s t r i c t Court awards of a t t o r n e y f e e s w e r e reasonable and supported by s u b s t a n t i a l evidence. Before discussing t h e f i r s t i s s u e , w e w i l l consider a preliminary matter. Respondent contends t h a t a p p e l l a n t has waived h i s r i g h t t o o b j e c t t o the D i s t r i c t Court's f a i l u r e t o include e i t h e r t h e unsecured d e b t s o r a p p e l l a n t ' s i n h e r i - tance i n t h e determination and d i s p o s i t i o n of t h e m a r i t a l e s t a t e . Respondent argues t h a t a p p e l l a n t should have brought t h e s e "oversights" t o t h e a t t e n t i o n of t h e c o u r t under Rules 4 6 and 5 2 ( b ) , M.R.Civ.P., by moving t o amend t h e f i n d i n g s and conclusions of t h e court. Since a p p e l l a n t f a i l e d t o f i l e a motion t o amend within t e n days of t h e n o t i c e of e n t r y of judgment, it i s argued t h a t t h e r e i s a waiver and t h a t t h e r e i s no r i g h t t o o b j e c t t o t h e s e matters on appeal. W e disagree. To begin with, t h e record r e v e a l s t h a t t h e matters r a i s e d by a p p e l l a n t w e r e n o t "oversights." Appellant informed t h e c o u r t i n h i s t r i a l memorandum t h a t respondent's proposed f i n d i n g s of f a c t w e r e n o t s u f f i c i e n t with r e s p e c t t o t h e i n h e r i t a n c e o r t h e unsecured debts. The c o u r t , however, chose t o adopt t h e f i n d i n g s d e s p i t e t h e s e objections. Under t h e s e circumstances, it i s u n l i k e l y t h a t a motion t o amend would serve any f u r t h e r purpose. Nor i s such a motion required by t h e r u l e s . A motion t o amend i s n o t , therefore, a precondition t o t h i s appeal, and t h e m a t t e r s r a i s e d by a p p e l l a n t may properly be considered by t h i s Court. Section 1-3-223, MCA. A p p e l l a n t ' s primary o b j e c t i o n on appeal i s t h a t t h e t r i a l c o u r t e r r e d because it d i d n o t c o n s i d e r , i n a r r i v i n g a t t h e n e t worth of t h e p a r t i e s , $12,000 worth of unsecured d e b t s . A t t h e hearing on October 24, uncontradicted evidence of t h e following unsecured d e b t s was introduced: S e a r s & Roebuck Co. 700.00 Bankers L i f e 1,938.07 M r s . R. J. Metcalf 8,500.00 D r . Greenlec 940.00 The t r i a l c o u r t , however, f a i l e d t o i n c l u d e t h e above unsecured d e b t s i n d i s t r i b u t i n g t h e m a r i t a l e s t a t e when i t adopted respondent's proposed f i n d i n g s and conclusions. It d i s t r i b u t e d t h e major a s s e t s of t h e m a r i t a l e s t a t e i n t h e following manner: T O PETITIONER T O RESPONDENT A s s e t s L i a b i l i t i e s A s s e t s p L i a b i l i t i e s Home 65,000 37,000 Two l o t s Boat Dining r m 2,400 1,300 Household 13,600 600 Car 3,000 Motorcycle Guns Trampoline Horse The District Court allowed respondent approximately $84,000 a s s e t s and $38,900 l i a b i l i t i e s , o r a n e t worth of $45,100. It allowed a p p e l l a n t $30,450 a s s e t s and $19,800 l i a b i l i t i e s , o r a n e t worth of $10,650. W e have previously held t h a t t o have a proper d i s t r i b u - t i o n of m a r i t a l a s s e t s , t h e t r i a l c o u r t must f i r s t 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. G r e n f e l l v. G r e n f e l l (1979), - Mont . , 596 P.2d 205, 207, 36 St-Rep. 1100, 1103; Vivian v. Vivian (19781, Mont. , 583 P.2d 1072, 1074, 35 St.Rep. 1359, 1361. I n a r r i v i n g a t n e t worth, t h e t r i a l c o u r t must consider t h e ". . . a s s e t s [and] l i a b i l i t i e s . . . of each of t h e p a r t i e s . . ." Section 40-4-202, MCA. The trial court has far-reaching discretion in resolving property divisions, and its judgment will not be altered unless a clear abuse of discretion is shown. In Re Marriage of Kramer (1978), Mont. I 580 P-2d 439, 442, 35 St.Rep. 700, 704; Zell v. Zell (1977), Mont. , 570 P.2d 33, 35, 34 St.Rep. 1070, 1074. In this case we believe the court abused its discretion. Before distributing the property, the court should have considered the $12,000 worth of unsecured debts in arriving at the net worth of the parties. Without this considera- tion, the property division was incomplete. Furthermore, the liability for the unsecured debts should have been considered because it could have greatly affected the burden of each party respecting his or her share of the estate. If, for example, appellant received the entire responsibility for the unsecured debts, his total liabilities would have exceeded his total assets and he would have experienced a total net deficit of $1,350. The assumption of the debt would have effectively reduced the 14 percent of the marital estate he actually received to nothing. This factor, if considered by the court, should have alerted it that the property distribution was inequitable. Likewise, if respon- dent assumed this debt, there may have been difficulty in meeting all the obligations she assumed. Accordingly, it is necessary to remand this case so that the unsecured debts may be considered in determining the net worth of the par- ties and that the assumption of debts may be viewed in the totality of the circumstances. These considerations should significantly affect the outcome of the property distribution. With respect to the second issue, appellant argues that the trial court was bound under a previous decision to make a s p e c i f i c f i n d i n g regarding a p p e l l a n t ' s i n h e r i t a n c e . Vivian, 583 P.2d a t 1074, 35 St.Rep. a t 1362. W e disagree. Contrary t o a p p e l l a n t ' s i n t e r p r e t a t i o n , Vivian r e q u i r e s only t h a t t h e c o u r t t a k e an i n h e r i t a n c e i n t o c o n s i d e r a t i o n i n d i v i d i n g t h e m a r i t a l e s t a t e , n o t t h a t it make a s p e c i f i c f i n d i n g regarding t h e i n h e r i t a n c e . ". . . This Court, i n Morse v. Morse . . . h e l d t h a t an i n h e r i t a n c e received during a marriage i s a m a r i t a l a s s e t . W e went on t o e x p l a i n t h a t t h i s holding meant t h a t an i n h e r i t a n c e had t o be taken i n t o c o n s i d e r a t i o n i n d i v i d i n g t h e a s s e t s . However, i n Morse, w e recognized t h a t no d e f i n i t e r u l e could be e s t a b l i s h e d a s t o how t h e t r i a l c o u r t was t o consider t h i s a s s e t . Each c a s e has t o be decided on i t s f a c t s . " Vivian, 583 P. 2d a t 1074, 35 St-Rep. a t 1362. Here, w e b e l i e v e t h a t t h e t r i a l c o u r t d i d consider a p p e l l a n t ' s i n h e r i t a n c e , a t l e a s t a s b e s t a s w a s p o s s i b l e given t h e circumstances. The c o u r t was faced, however, w i t h t h e i m p o s s i b i l i t y of t r a c i n g t h e s e funds. Appellant testi- f i e d t h a t h i s i n h e r i t a n c e was consumed by t h e expenses and a s s e t s of t h e marriage. Supporting t h i s testimony was t h e f a c t t h a t t h e i n h e r i t a n c e was received i n 1973 when t h e income of t h e p a r t i e s was below $10,000. Faced w i t h t h i s predicament, t h e c o u r t could do nothing more. ". . . W e do n o t f e e l t h a t t h e t r i a l judge must become an a p p r a i s e r , an accountant, a computer, and an all-around genius t o a p p r o p r i a t e l y de- c i d e t h e f a c t s a s e s t a b l i s h e d by t h e documenta- t i o n given a t trial. It i s t h e p a r t i e s ' d u t i e s t o a s s i s t t h e t r i a l c o u r t i n g e t t i n g t h i s i n f o r - mation s o a proper judgment i s made a s t o t h e i r m a r i t a l a s s e t s . " Downs v. Downs (1979), Mont. , 592 P.2d 938, 939, 36 St.Rep. 577, 579. Accordingly, w e f i n d t h a t t h e c o u r t d i d n o t err i n f a i l i n g t o make a s p e c i f i c f i n d i n g regarding t h e i n h e r i t a n c e . With r e s p e c t t o t h e i s s u e of a t t o r n e y f e e s , s e c t i o n 40- 4-110, MCA, v e s t s i n t h e District Court t h e d i s c r e t i o n t o award a reasonable amount f o r a t t o r n e y f e e s i n a d i s s o l u t i o n proceeding. In reviewing that discretion, we must determine whether there is substantial evidence to support the amount awarded. Allen v . Allen (1978), Mont. , 575 P.2d 74, 77, 35 St.Rep. 246, 249. Here the District Court awarded respondent attorney fees of $1,620 for the original proceeding and $2,000 for the appeal. Respondent demonstrated necessity. Whitman v. Whitman (1974), 164 Mont. 124, 132, 519 P.2d 966, 970. In view of the circumstances of this case, the record, and the documents and exhibits prepared by counsel, we believe the award of attorney fees for the original proceeding was supported by substantial evidence. However, the award of attorney fees for the appeal was excessive and unsupported by substantial evidence. The briefs were short, oral argu- ment was waived, and no novel issues were presented. Ac- cordingly, we vacate the award of attorney fees and remand to the District Court for a determination of these fees. This case is remanded to the District Court for further proceedings consistent with this opinion. We concur: 7 A & $ . w m Chief Justice CIA- e , Justices | August 22, 1979 |
3e8d278c-1b74-462a-879f-6576aa8e157f | CATTEYSON v FALLS MOBILE HOME CEN | N/A | 14239 | Montana | Montana Supreme Court | No. 14239 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 ROSEMARY F. CATTEYSON, Claimant and Respondent, -vs- FALLS MOBILE HOME CENTER, INC., Employer, and GLACIER GENERAL ASSURANCE COMPANY, Defendant and Appellant. Appeal from: Workers' Compensation Court Hon. William E. Hunt, Judge presiding. Counsel of Record: For Appellant: Jardine, Stephenson, Blewett and Weaver, Great Falls, Montana For Respondent: Barry Olson, Great Falls, Montana Submitted on briefs: April 12, 1979 Decided : AU G - 9 1979 M r . ~ 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. F a l l s Mobile Home Center, I n c . , and G l a c i e r General Assurance Company, defendants, appeal from t h e modified conclusions of law and judgment dated February 27, 1978, e n t e r e d by t h e Workers' Compensation Court. Respondent claimant was a t t h e t i m e of t h e i n d u s t r i a l a c c i d e n t employed by F a l l s Mobile Home Center, Inc. G l a c i e r General Assurance Company was employer's i n d u s t r i a l a c c i d e n t i n s u r e r . The Workers' Compensation Court by i t s judgment decided t h a t claimant w a s e n t i t l e d t o temporary t o t a l d i s a b i l i t y payments under s e c t i o n 39-71-701 MCA, from November 20, 1974, t o October 27, 1976, and temporary t o t a l payments from October 28, 1976, t o March 3, 1977, f o r t h e f a i l u r e of t h e carrier t o n o t i f y t h e Workers' Compensation Division of i t s i n t e n t i o n t o u n i l a t e r a l l y terminate b e n e f i t s . S e c t i o n 39- 71-609 MCA. The c o u r t f u r t h e r h e l d t h a t claimant s u f f e r e d 10 p e r c e n t permanent p a r t i a l i n j u r y under s e c t i o n 39-71- 116(12) MCA, e n t i t l i n g h e r t o b e n e f i t s pursuant t o s e c t i o n 39-71-703 MCA. F i n a l l y , t h e c o u r t awarded claimant a t t o r n e y f e e s pursuant t o s e c t i o n 39-71-612 MCA, i n t h e amount of $1500. S h o r t l y before 4:00 p.m. on November 20, 1974, claimant was i n j u r e d i n an automobile a c c i d e n t a s she w a s heading n o r t h on 1 3 t h S t r e e t North i n Great F a l l s , Montana. A t t h e t i m e of t h e a c c i d e n t , claimant had two jobs--one a s a handy person f o r F a l l s Mobile Home and one a s a d i s p a t c h e r f o r Black and White Cab. There w a s some d i s p u t e as t o what claimant was doing a t t h e t i m e of t h e a c c i d e n t . The c a r r i e r contended she was on h e r way t o h e r job a t Black and w h i t e Cab; claimant contended, and t h e Workers' Compensation Court found, t h a t she had been running an e r r a n d f o r F a l l s ~ o b i l e Home. On December 5, 1974, claimant filed for benefits and the compensation carrier for Falls Mobile Home began paying her benefits. Later, and while compensation benefits were being paid, the carrier notified claimant by letter that compensation would be discontinued when her doctor released her to work. Temporary total benefits were paid until June 25, 1976, when claimant was released for work. The payments were then discontinued and a "Compensation Advice Form" was sent to claimant on July 22, 1975, and forwarded to the Workers' Compensation Division. Thereafter, the parties corresponded for a period of ten months in an effort to determine whether claimant had suffered any permanent disability. Later claimant filed a petition with the Workers' Compensation Court for a hearing. Prior to the hearing, the carrier discovered that claimant may have been on her way to her second job at the time of the accident. It therefore withdrew its settlement offers and chose to defend on the ground that claimant had not suffered a compensable injury. The Workers' Compensation Court found in favor of claimant, and the carrier appeals. Initially we are asked to determine whether the evi- dence supports the Workers' Compensation Court's conclusion that the employee was injured in an industrial accident and, as a result, was permanently or partially disabled. We find that it does. While there was disputed evidence as to what claimant was actually doing at the time of the accident, the workers' Compensation Court found that she was running an errand for Falls Mobile Home. There is sufficient evidence in the record to support this finding: "Whether t h i s Court agrees i s of no moment. Since c r e d i b l e and s u b s t a n t i a l evidence ap- p e a r s i n t h e record i n support of t h e Workers' Compensation Court, w e a r e bound by i t s deci- s i o n on t h e f a c t s . " McGee v. Bechtel C o r ~ . (1979) Mont. , 595 P. 2d 1156, i158- 59, 36 St.Rep. 220, 224. There is a l s o s u f f i c i e n t c r e d i b l e evidence t o support a conclusion t h a t claimant w a s permanently p a r t i a l l y d i s a b l e d and e n t i t l e d t o b e n e f i t s under s e c t i o n 39-71-703 MCA. Next w e a r e asked t o decide whether t h e Workers' Com- pensation Court e r r e d i n holding t h a t t h e c a r r i e r had uni- l a t e r a l l y terminated c l a i m a n t ' s b e n e f i t s and t h a t termination was improper. I n support of i t s conclusions of law, t h e c o u r t c i t e d Clark v. Hensel Phelps Construction Company (1977), Mont. , 560 P.2d 515, 34 St.Rep. 61. I n Clark, t h e i s s u e presented t o t h i s Court was t h e n e c e s s i t y of giving claimant w r i t t e n n o t i c e and acquiring approval of t h e Divi- s i o n of Workers' Compensation p r i o r t o t h e termination of b e n e f i t s . The Court found t h e c o n t r o l l i n g s t a t u t e t o be s e c t i o n 92-615, R.C.M. 1947, now s e c t i o n 39-71-609 MCA, which o r i g i n a l l y read: ". . . I f t h e i n s u r e r determines t o i n i t i a l l y deny t h e claim, o r a f t e r a claim has been ac- cepted, terminates biweekly compensation bene- f i t s , it may do s o o n l y a £ ter £ i f teen (15) days w r i t t e n n o t i c e t o t h e claimant and t h e d i v i s i o n and a f t e r w r i t t e n approval of t h e d i v i s i o n . " This s e c t i o n has s i n c e been amended and no longer r e q u i r e s w r i t t e n approval of t h e Division. Section 39-71- 609 MCA. This amendment, however, has no e f f e c t on t h e Clark r u l e . The i s s u e i n Clark was one of f i r s t impression i n t h i s s t a t e . I n reaching our d e c i s i o n w e looked t o Xhode I s l a n d which had i n t e r p r e t e d a s t a t u t e s i m i l a r t o our p r e s e n t day s e c t i o n 39-71-609 MCA, and held: ". . . i f t h e employer does attempt t o u n i l a t e r - a l l y terminate t h e payment of b e n e f i t s such a t - tempted termination i s i n e f f e c t i v e . The employer remains l i a b l e f o r t h e payment of b e n e f i t s u n t i l t h e termination i s accomplished by following t h e s t a t u t o r y n o t i c e provision." Clark, 560 P.2d a t 517. Here, the c a r r i e r advised t h e employer and t h e Division some 27 days a f t e r termination and not 15 days before a s i s required by law. The Workers' Compensation Court was cor- r e c t i n i t s application of t h e Clark r u l e i n t h i s case. Once it has been determined t h a t s e c t i o n 39-71-609 MCA and Clark have been v i o l a t e d , t h e c a r r i e r "remains l i a b l e f o r the payment of b e n e f i t s u n t i l t h e termination is accom- plished by following t h e s t a t u t o r y n o t i c e provision. " Clark, 560 P.2d a t 517. The Workers' Compensation Court c o r r e c t l y found t h a t claimant was e n t i t l e d t o temporary t o t a l b e n e f i t s from t h e d a t e of t h e improper termination t o t h e d a t e of its order f o r t h e f a i l u r e of t h e c a r r i e r t o comply with s e c t i o n 39-71-609 MCA. The c a r r i e r contends t h a t even i f t h e n o t i c e of termi- nation was improper, t h a t claimant had waived her r i g h t t o notice. This contention i s without m e r i t . "No agreement by [claimant] t o waive any r i g h t s under t h i s chapter f o r an i n j u r y t o be received s h a l l be v a l i d . " Section 39-71-409 MCA . Furthermore, n o t i c e i s a l s o required t o be given t o t h e d i v i s i o n under section 39-71-609 MCA. There i s no evidence before t h i s Court t o i n d i c a t e t h a t t h e Division waived i t s r i g h t t o notice. The c a r r i e r questions whether t h e Workers1 Compensation Court can aggregate earnings from two separate and unrelated employments f o r t h e purpose of determining b e n e f i t s payable. This Court has r e c e n t l y approved t h e aggregation of wages from s e p a r a t e and u n r e l a t e d employments. Walker v. H. F. Johnson, I n c . (19781, Mont. , 591 P.2d 181, 35 F i n a l l y , t h e c a r r i e r o b j e c t s t o an award of a t t o r n e y f e e s . S e c t i o n 39-71-612 MCA provides t h a t i f : ". . . controversy r e l a t e s t o t h e amount of compensation due and t h e s e t t l e m e n t o r award is g r e a t e r than t h e amount p a i d o r tendered by t h e employer o r i n s u r e r , a reasonable a t - t o r n e y ' s f e e a s e s t a b l i s h e d by t h e d i v i s i o n o r t h e workers' compensation judge i f t h e c a s e has gone t o a hearing, based s o l e l y upon t h e d i f f e r e n c e between t h e amount s e t t l e d f o r o r awarded and t h e amount tendered o r p a i d , may be awarded i n a d d i t i o n t o t h e amount of compensation. " F u r t h e r , " [ t l h e f i n d i n g t h a t claimant is e n t i t l e d t o s e c t i o n 92-703.1 [now s e c t i o n 39-71-703 MCA] b e n e f i t s t r i g - g e r s s e c t i o n 92-618 [now s e c t i o n 39-71-612 M C A ] e n t i t l i n g claimant t o '. . . a reasonable a t t o r n e y ' s f e e a s e s t a b - l i s h e d by t h e d i v i s i o n o r workmen's compensation judge . . . 1 11 Walker, 591 P. 2d a t 185. Claimant c l e a r l y f i t s i n t o both of t h e above s i t u a - t i o n s . There i s a l s o nothing t o i n d i c a t e t h a t t h e compensa- t i o n judge d e v i a t e d from t h e formula set o u t i n s e c t i o n 39- 71-613 MCA. The judgment of t h e Workers' Compensation Court i s a£ firmed. t J u s t i c e / ' We concur: 7 A d b 4 wadq Chief Justice \.-:)i,.- t t \L~~L-/ Justices | August 9, 1979 |
dc88d317-3427-4779-a873-dfb96622d986 | MATTER OF T Y K D A W R | N/A | 14547 | Montana | Montana Supreme Court | No. 14547 I N THE S U P H E M E COUHT O F THE STATE O F MXJTANA 1979 I N THE MATTER O F DEXLMUNG T.Y.K. and D.A.W.R., Youths i n Need of Care. Appeal from: D i s t r i c t Court of the Eleventh Judicial D i s t r i c t , Honorable Robert Sykes, Judge presiding. Counsel of Record: For Appellant : Wbwt B. Allison, Kalispell, Mntana For Respondent: Randy K. Schwickert, Kalispell, Mntana Patrick D. Sherlock, Kalispell, Mntana Subitted on briefs: April 5, 1979 Decided: AUG - 9 1 9 ~ Filed: - . ; m Mr. Justice Gene B. Daly delivered the Opinion of the Court. This is an appeal by the parents of three minor children from a judgment of the District Court, Flathead County, the Honorable Robert C. Sykes presiding. Permanent custody of two of the minor children, T. K. and D. R., with right to consent to adoption was awarded to the Department of Social and Rehabili- tation Services (SRS) of the State of Montana. On March 31, 1977, D . R . suffered an oblique fracture of the right mid-femoral shaft, the large bone connecting the hip to the knee. At the time of this injury, D. R . was five and one-half weeks old. The mother immediately took the child to the hospital and the leg was placed in a cast. On October 7, 1977, D. R . suffered a spiral fracture of the humerus, the large bone between the shoulderand the elbow. He was again taken to the hospital for treatment. Both injuries occurred in the parents' home with no one present other than D . R., T.K. and the parents. On Friday, October 7, 1977, representatives of the Flat- head County sheriff's department and welfare department removed both children from the parents and placed them in foster care pending an investigation. On Tuesday, October 11, 1977, the Flathead County attorney filed a petition for temporary investigative authority and protective services, and an order was issued on October 13, 1977, granting the same. Early in the investigation the parents requested a poly~ graph examination. On October 28, 1977, the parents and their attorney stipulated and agreed with the deputy county attorney to submit to polygraph examinations and psychological stress evaluation tests. There was a further stipulation that the results of said tests could be entered into evidence by either party in this matter. All tests were conducted in accordance with the stipulation. On March 31, 1978, permanent custody was requested. A hearing was held on June 1 and 2, 1978, by the court sitting without a jury. Notice of the hearing by publication was given to T . K.'s natural father, E. V., on April 17, 24, and May 1, 1978. He failed to appear at the hearing and was de- faulted. The court issued its findings of fact and conclusions of law on June 21, 1978, stating in part: (a) that E. V. is unfit to have the care, custody or control of T. K. and that his rights as a parent should be terminated; (b) that the explanation of the 2arents of how the fractures were sustained by D. R. are contrary to and against any credible version of the cause of said fractures; (c) that the battered child syndrome doctrine of evidence applies and by reason thereof, by reasonable medical certainty, the fractures were sustained by traumatic blows caused by the father; (d) that the percentile in weight of both children at the time of foster care placement and the improvement of both children after foster home placement establishes emotional and physical damage to both children while in the custody of the parents; (e) that the children are of adoptable age and have sustained physical and emotional damage; (f) that the parents have abused and neglected D. R. and T. K., and are not fit and proper to have the care and custody of these children, and that their parental rights should be permanently terminated; (g) that as a result of the abuse and neglect, these children are youths in need of care and the custody of these children should be permanently awarded to the Welfare Department with the right to consent to their adoption. On June 26, 1978, the court issued its judgment and an order permanently awarding the care, custody and control of and the minor children to the Department of ~ocial/~ehabilitation Services of the State of Montana with authority to consent to their adoption. On July 6, 1978, the parents filed their motion to amend the findings and conclusions or a motion for a new trial on a number of grounds. All motions were denied by the court. The parents appeal from the judgment of the trial court. The following issues are before the Court: (1) Was the filing of the petition for temporary investigative authority and protective services prejudicial to the parents' rights? (2) Did the District Court err in awarding permanent custody of the children to the Montana Department of Social and Rehabilitation Services? In so ordering, did the court comply with policies set forth in section 41-3-101 et seq., MCA? (3) Was the admission of the results of a polygraph examination taken by stipulation of the parties proper? The October 11, 1977, filing of the petition for temporary investigative authority and protective services was timely and proper. Section 41-3-301(2), MCA, provides: "a petition shall be filed within 48 hours of emergency placement of a child. . ." Here, the petition was filed on a Tuesday although the children were removed on the preceding Friday. Rule 6 ( a ) , M.R.Civ.P., s t a t e s : "When t h e p e r i o d of t i m e p r e s c r i b e d o r allowed i s less than 7 days, i n t e r m e d i a t e Saturdays, Sundays and holidays s h a l l be excluded i n t h e computation." Using t h i s formula, t h e Department f i l e d t h e p e t i t i o n w i t h i n t h e 48-hour' l i m i t a t i o n . Therefore, t h e p a r e n t s ' o b j e c t i o n i s without m e r i t . W e n e x t consider t h e D i s t r i c t Court o r d e r of June 26, 1978, d e c l a r i n g both c h i l d r e n t o be abused and neglected and awarding permanent custody of t h e c h i l d r e n t o SRS. W e have discussed a t l e n g t h i n many r e c e n t d e c i s i o n s t h e pre- sumptions t h a t t h e D i s t r i c t Court i s presumed t o have a c t e d c o r r e c t l y i n t h e s e m a t t e r s and w e w i l l n o t d i s t u r b t h e judgment u n l e s s t h e r e is found t o be a mistake of law o r f i n d i n g s of f a c t n o t supported by c r e d i b l e evidence. When determining whether o r n o t a youth i s abused o r neglected t h e D i s t r i c t Court i s guided by s e c t i o n 41-3-102(2)(a), MCA, which provides: " ( 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 p h y s i c a l o r emotional development of a youth. Any exces- s i v e 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 medi- c a l 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 m a t e r i a l l y a f f e c t t h e normal development of t h e youth." The above g u i d e l i n e s allow t h e c o u r t t o look a t t h e " t o t a l i t y of t h e circumstances" surrounding a c h i l d ' s home environment before making a determination. I n R e Gore (1977) I Mont. , 570 P.2d 1110, 1 1 1 4 , 34 St-Rep. 1179. A t t h e custody hearing medical testimony was presented which showed t h a t D. R. had s u f f e r e d two broken bones which w e r e caused by s u b s t a n t i a l v i o l e n t f o r c e o r traumatic blows. Testimony of the doctors, social workers and polygraph experts was received, all of which linked the cause of D. R.'s injuries to the father. Other testimony showed physical and verbal abuse of T. K. by her stepfather. Psychological evaluations of the parents revealed that the father manifested long term paranoic trends as well as strong underlying hostile agressive trends which may cause him to do physical injury and harm to others, and that the mother suffers from long term emotional instability causedby a moderately high level of anxiety. Also received were conflicting statements by both parents. Testimony by a nutritionist revealed that after the placing of D. R. in a foster home, his weight and height increased. There was also testimony of satisfactory performance by the father at his job at the Handicapped Thrift Store, a position which required some measure of patience. Appellants' contention that there was insufficient evidence of abuse is of little merit when viewed with the family environment as a whole. Under section 41-3-102(2), MCA, abuse or neglect can take many forms--some violent, others more 2assive but just as injurious. This Court cannot hold the children hostage while awaiting the good behavior of the parents. It must protect the children's rights as well as the parents. In Re Gore, supra, 570 P.2d at 1114. In situations such as this, where the abuse of one child is less than the abuse of another, various jurisdictions have upheld the authority of a court to remove both children. The more enlightened majority rule appears to be that a parent does not have the privilege of inflicting brutal treatment upon each of his children in succession before they may individually obtain the protection of the state. In Re Miller (1952), 40 Wash.2d 319, 242 P.2d 1016. See also, In Re K.D.E. (1973), 87 S.D. 511, 210 NW.2d 907; People in the Interest of C. R., et al. (Colo. 1976), 557 P.2d 1225; and In the Interest of Brooks (1978), 63 Ill.App.3d 328, 379 Section 41-3-101 et seq., MCA, grants to the District Court the ability to make a determination of neglect and abuse as to all children in a family based on the policy that abuse of one child has a detrimental effect on the other children's development. The declared policy of Montana is found in section 41-3-101, MCA: "(a) insure that all youth are afforded an adequate physical and emotional environment to promote normal development; "(2) It is the policy of this state to provide for the protection of children whose health and welfare are adversely affected and further threatened by the conduct of those responsible for their care and protection. . . to seek to prevent further abuses, protect and en- hance the welfare of these children, and preserve family life wherever possible." The parents1 objection to the admission of the results of the polygraph examination is without merit under the circumstances here. The parents failed to object to the admission of the polygraph results in the District Court. An issue cannot be raised for the first time on appeal. Mont . Velte v. Allstate Ins. Co. (1979), - - , 593 P.2d 454, 36 St.Rep. 724. Therefore, we decline to comment on this issue. The r e c o r d c o n t a i n s s u f f i c i e n t 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 f i n d i n g s and judgment of t h e t r i a l c o u r t and, t h e r e f o r e , t h e judgment of t h e D i s t P i c t Court i s affirmed. , / /' J u s t i c e W e concur: ?Ld?Lgwq& Chief ~ u s t i ' c e | August 9, 1979 |
0984b96b-a49d-44dc-b62e-b64c5dbf5f23 | DREYER TOWNLEY v MIDRIVERS TELE | N/A | 14705 | Montana | Montana Supreme Court | No. 14705 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 ELMO DREYER and JUDSON TOWNLEY, et al., Applicants and Appellants, THE BOARD OF TRUSTEES OF MID-RIVERS TELEPHONE, INC., et al., Respondents and Defendants and Cross Appellants. Appeal from: District Court of the Seventh Judicial District, Honorable L. C. Gulbrandson, Judge presiding. Counsel of Record: For Appellants: I 1 . \ ' . t . . ' I $ Moses, Tolliver and Wright, Billings, Montana For Respondents: Church, Harris, Johnson & Williams, Great Falls, Montana Filed: Submitted on briefs: June 29, 1979 Decided: AUG 1 1979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. This is an appeal by Elmo Dreyer and Judson Townley, the applicants above named (Dreyer and ~ownley) and a cross-appeal by the Board of Trustees of Mid-Rivers Telephone Cooperative, Inc. , and the remaining respondents above named (collectively "Mid-Rivers") from certain of the orders contained in the judgment and decree of the District Court, Seventh Judicial District, McCone County, Montana, dated October 23, 1978. Mid-Rivers is a rural telephone cooperative incorporated under the "Rural Electric and Telephone Cooperative Act" (Ch. 18, Title 35 MCA). The cooperative consists of approxi- mately 5,000 member-patrons residing in some eighteen counties of eastern Montana. It is claimed that the cooperative serves an area of more than 22,000 square miles and is geographically the largest telephone cooperative in the world. Respondents are the trustees of Mid-Rivers, the cooperative itself, and its individual officers and trustees. Dreyer and Townley brought an action for themselves in- dividually, as representatives of and on behalf of themselves and all other members of Mid-Rivers. In a six-count application for relief in the District Court of McCone County, they sought from the District Court : COUNT I . To redistrict the existing residence districts of the cooperative used for establishing the residency qualifications of trustees of the cooperatives board. COUNT 11. To require that notice be given of a special meeting of the members of the cooperative in response to a petition asking for such a meeting signed by certain members of the cooperative. COUNT 111. To require the cooperative to hold an annual meeting of the membership in Circle, Montana rather than Winnett, Montana. COUNT IV. To restrict payment of fees and expenses paid to the respondent board members for their attendance at meetings of the board within or without the state of Montana. COUNT V. To require the cooperative to conduct the election of trustees of the cooperative on a voting district basis. COUNT VI. To declare the compensation and expenses previously paid to the respondent board members to be illegal and to require an accounting in repayment and the same to the cooperative and to hold that the 1976 and 1977 elections of the trustees were illegal and that the trustees were illegally elected. Dreyer and Townley sought a writ of mandamus from the District Court as to the first five counts. The issues with respect to count six were reserved by the District Court until the issues under the first five counts are finally decided. The October 23, 1978 judgment and decree of the District Court confirmed the court's earlier dismissal of the application with respect to counts one and two; kept in force an alternative writ of mandate with respect to count three; requires the cooperative to hold its annual meetings at Circle, Montana, until such time as its bylaws are amended; and dismissed the application with respect to counts four and five. Dreyer and Townley appeal from the adverse rulings on counts four and five. Mid-Rivers appeals from the adverse ruling on count three. Under Rule 23(h), Mont.R.App.Civ.P., Dreyer and Townley are regarded as appellants before this Court and Mid-Rivers collectively as respondents. After the start of the lawsuit by Dreyer and Townley, Mid- Rivers did on the 91st day before the planned 1978 annual meeting, redistrict the five areas in an attempt to correct the inequities as to the number of members represented in each district. The redistricting was done through the use of telephone exchanges (telephone prefix numbers). The District Court ruled that Mid- Rivers had complied with the applicable provision of the bylaws and dismissed count one. Dreyer and Townley do not appeal from that decision. As to the second count, on the contention of Dreyer and Townley that Mid-Rivers had failed to call a special meeting when petitioned by more than 200 of its members, it was found that a bylaw provision of Mid-Rivers which allowed for the calling of a special meeting on a petition of more than 200 member~~conflicted with a state statute which required that such a meeting could only be called by 10% of the members on petition. Ten percent of Mid-Rivers' members exceeds 200. Mid-Rivers took the position that they were therefore not required to call a special meeting as requested by the petition. Dreyer and Townley agreed with this position. The District Court dismissed count two, and no appeal was taken therefrom. COUNT FOUR -- Dreyer and Townley appeal from the order of-the District Court dismissing their application and refusing mandamus relief as to count four. The contention of Dreyer and Townley on this count is that, contra to section 35-18-311 MCA, the trustees of Mid-Rivers, under Art. V, Section 7 of its bylaws, have authorized for themselves a $75 fee each plus expenses for attendance at all board meetings held within and outside of the State of Montana. The applicable bylaw provides as follows: "Section 7 . Compensation. Directors [trustees] shall not receive any salary for their services as directors, except that by resolution of the Board a reasonable fixed sum per diem and expenses of attendance, if any, may be allowed for attendance at each meeting of the Board and for attendance at state, area, regional, national and other meetings on behalf of the c'ooperative where attendance is authorized by the Board. No director shall receive compensation for serving the Cooperative in any other capacity, nor shall any close relative of a director receive compensation for serving the Cooperative, unless the payment and amount of compensation shall be specifically authorized by a vote of the members or the service of such director or close relative shall have been certified by the Board as an emergency measure. Close relatives shall be deemed to include, but not necessarily limited to spouse, parent, children, brothers and sisters." The pertinent statutory provision is section 35-18-311(2) MCA which provides: "(2) Without approval of the membership, trustees shall not receive any salaries for their services as trustees and, except in emergencies, shall not be employed by the cooperative in any capacity involving compensation. The bylaws may, however, provide that a fixed fee and expenses of attendance, if any, may be allowed for attendance at each meeting of the board of trustees." The District Court found on this point that at the annual meeting of September 21, 1977, an auditor's report was presented to the members which included the per diem and expenses paid to the trustees during the years 1976 and 1977 and that these financial reports were approved by a motion duly seconded and carried. The court found as a fact that the $75 per diem rate had been established under Art. V, Section 7 of the bylaws of the cooperative and approved by the members of the 1977 annual meeting as a proper payment. Dreyer and Townley, in their appeal, do not quarrel with the idea that the past expenses or per diem paid to the trustees may have been ratified by the membership. They contend that prospective payments do not have the prior approval of the membership and that accordingly they are entitled to a mandate forbidding such possible prospective payments. A careful reading of section 35-18-311(2) MCA discloses that (1) without approval of the membership, the trustees are not allowed to receive salaries for their services; but (2) an exception to the approval requirement occurs when the bylaws provide that a fixed fee and expenses of attendance may be allowed the trustees. The language of the statute does not necessarily mean that the "fixed fee" must be set forth in the bylaw itself. Thus, if the bylaws of a telephone cooperative had provided, with respect to trustees, that "a fixed fee and expenses of attendance, if any, may be allowed for attendance at each meeting of the Board of Trustees," without more, such a provision could not be attacked as being against the statute because obviously it is in the language of the statute, even though the fixing of the fee would have to be done by the trustees, through a resolution. That is really what the situation is in this case. Art. V, Section 7 of the bylaws provides that "by resolution of the Board, a reasonable fixed sum per diem and expenses of attendance if any may be allowed for attendance at each meeting . . ." By that provision, the bylaws have provided for a "fixed fee and expenses of attendance." The further provision of the bylaws that such items should be fixed "by resolution of the Board" is simply a method for providing such fixed fees. We do not find therefore, that the bylaw provision offends section 35-18-311 (2) MCA. Thus, there is no clear legal duty on the part of the trustees to procure the prior approval of the membership to the resolution for reasonable fixed fees, since the bylaw provision of the statute is an exception to the approval requirement of section 35-18-311(2) MCA. Without a clear legal duty, mandamus does not lie. Cain v. Department of Health, Etc. (1978) , Mont . , 582 P.2d 332, 35 St.Rep. 1056. COUNT FIVE Under this issue, Dreyer and Townley contend that instead of cooperative-wide voting for trustees at any election, the cooperative should permit only voting for the respective trustees in voting districts, that is, district- wide voting. -6- Art. V, Section 1 of the bylaws of the cooperative provided for five districts, with each district to be represented by two trustees. The same section of the bylaws also provided that anytime not less than 90 days before any meeting of the members at which trustees were to be elected, the Board could redistrict or reconstitute the districts to make them nearly equal in number. At the meeting of the Board of Trustees, on June 27, 1978, the Board redistricted the districts according to telephone exchanges (decided by prefix numbers). The court found that the redistricting had occurred 90 days before the proposed election of September 27, 1978. Mid-Rivers contends that under the bylaws, a district plan is established to permit nominations of trustees from the respective districts, two for each district, but that voting for the trustees after the nominations have been made is to be on a cooperative-wide basis. Dreyer and Townley contend that under the provisions of section 35-18-313 MCA, when the cooperative is divided into districts, these are "voting districts" and as such the statute requires that the trustees from each district shall be elected by the members residing therein. The District Court concluded that section 35-18-313 MCA was not mandatory. It concluded that the districts were established as a means of enforcing the residence qualification of trustees or directors, and that section 35-18-313 MCA is not intended to mandate an exclusive manner in which districts can be used by a cooperative in the selection process of qualified trustees. We conclude that the District Court was correct on this point. The statute involved is not mandatory by its terms. Section 35-18-313 MCA provides in pertinent part: -7- "Notwithstanding any other provisions of this chapter, the bylaws may provide [for voting districts] . . . and that in respect to each such voting district: "(a) a designated number of trustees shall be elected by the members residing therein; II . . . The permissive words "may provide" of the foregoing statute applies "in respect to each such voting district." No clear mandatory duty arises out of the language of the statute. The District Court buttressed its conclusion by referring to section 35-18-103 MCA, which provides that the chapter respecting cooperative utilities is to be construed liberally and that "The enumeration of any object, purpose, power, manner, method, or thing shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods, or things." Further, we note that section 35-18-207 MCA, with respect to the bylaws of such a cooperative, states that the bylaws "may contain other provisions for the regulation and management of the affairs of the cooperative not inconsistent with -- this chapter . . ." A bylaw which is at variance with a permissive provision of the statutes is not "inconsistent" so as to require voiding the bylaw provision. We have found no case law directly in point with respect to these matters, nor has counsel for either side directed us to specific case law authority. The statutes in themselves are clear enough so that our interpretation of the wording appears to be sound, and within the statutory direction for construction under section 35-18-103 MCA. COUNT THREE With respect to count three, Mid-Rivers is the cross- appellant, contending that the District Court erred in requiring meetings of the cooperative to be held in Circle, McCone County, Montana. Here again, we face a matter of statutory interpretation. Section 35-18-303(3) MCA provides: "Meetings of members shall be held at such place as may be provided in the bylaws. In the absence of any such provision, all meetings shall be held in the city or town in which the principal office of the cooperative is located. " The principal office of the cooperative in this case is in Circle, Montana. The trustees proposed to hold the meeting of September 27, 1978 in Winnett, Petroleum County, Montana. Dreyer and Townley contend that this was improper. The District Court found such a proposed meeting place was improper and we agree. Art. IV, Section 1 of the cooperative bylaws does not name the town in which the annual meeting of the members is to be held but does provide that the annual meeting shall be held at such place in the project area as shall be determined by the Board of Trustees. The District Court concluded that because the bylaws failed expressly to name the place in which the annual meeting is to be held, the statutory provision controls the place of meeting and it must therefore be held in Circle, Montana. Section 35-18-303 (3.) I I C A , . ,supra. The District Court is correct on this point. As the District Court stated in its conclusions, nothing prevents the members of the cooperative from amending the bylaws so as to provide specifically for other places for the annual meeting. The appeals of Dreyer and Townley are denied; the cross- appeal of Mid-Rivers is denied. No costs to either party. We Concur: Chief Justice | August 1, 1979 |
f099bcb3-ea01-4ee1-a791-348d14287c8e | STATE v OWENS | N/A | 14416 | Montana | Montana Supreme Court | No. 14416 m THE SPREME m u m ' O F THE S T m O F M3m"ANA 1979 THE S T - OF PDYI'ANA, Plaintiff and Fkspondent, ALFRED V E R N m C P E N S , a/k/a AZ; O W E N S , Defendant and Appellant. Appeal fran: D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t , Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellant: John L. Adams, Billings, Mntana Leonard Haxby argued, Butte, Mntana For Respondent : Hon. Mike Greely, Attorney General, H e l e n a , PJbntana Sheri Sprigg argued, A s s i s t a n t Attomey General, Helena, Mntana Harold Hanser, County Attorney, Billings, Mntana Submitted: June 5, 1979 Decided: Filed : JUN ? 9 1979 . - JUN 2 3 M r . Chief J u s t i c e Frank I. H a s w e l l delivered t h e Opinion of the Court. Defendant Alfred Owens w a s convicted of t h e crimesf of mitigated d e l i b e r a t e homicide and robbery i n t h e ~ i s t r i c t Court of Yellowstone County following a jury trial. Defen- d a n t appeals. The information charged defendant Alfred Owens and h i s brother, L. D. Owens, with four counts: Count I charged t h e codefendants with d e l i b e r a t e homicide committed purposely o r knowingly. Alternatively, Count I1 charged t h e codefendants with d e l i b e r a t e homicide while engaged i n t h e commission of a felony. Count I11 charged t h e codefendants with robbery. Count I V charged t h e codefendants with aggravated kidnap- ping. L. D. Owens pleaded g u i l t y t o Counts I1 and 111. Counts I and I V w e r e dismissed as t o him. Commencing May 8, 1978, defendant Alfred Owens w a s t r i e d . The jury found him g u i l t y of mitigated d e l i b e r a t e homicide, a lesser included offense of Counts I and 11, and of robbery. I t found him n o t g u i l t y of aggravated kidnap- ping. On June 1 4 , 1978, defendant w a s sentenced. Some con- fusion r e s u l t e d , as t h e c o u r t minutes s t a t e defendant was sentenced t o 40 years on each count t o run consecutively, while t h e judgment states t h e sentences a r e t o run concur- r e n t l y . Defendant Alfred Owens appeals. The f a c t s leading t o t h i s appeal are a s follows. I n late 1977 defendant Alfred Owens, h i s older brother, L. D . Owens, and h i s b r o t h e r ' s g i r l f r i e n d , Betty Shipes, l e f t C a l i f o r n i a heading f o r Texas. By a c i r c u i t o u s r o u t e , t h e t r i o a r r i v e d i n Laurel, Montana, i n t h e afternoon of November 27, 1977, and rented a motel room. Sometime during t h e afternoon of t h e i r a r r i v a l , defen- dant, accompanied by h i s brother, purchased and signed f o r a box of .410 shotgun s h e l l s , ostensibly t o do some b i r d hunting and t a r g e t shooting. Neither defendant nor h i s brother purchased a hunting license. After dropping Shipes o f f a t a laundromat near t h e motel, defendant and L. D. went t o town where they s t a r t e d drinking i n various bars. About midnight, defendant, who estimated he had drunk a case of beer during t h e day, returned t o t h e motel room t o go t o bed. L. D . , a f t e r accompanying defendant back t o t h e room, l e f t again t o go eat breakfast. While o u t t h i s second t i m e , L. D. m e t Kenneth Olson and subsequently i n v i t e d him back t o t h e motel. Once there, a f t e r a s h o r t conversation, L. D. decided t o rob Olson, and drew t h e shotgun on him. Apparently, it w a s t h e sound of L. D. loading t h e gun t h a t woke defendant. During the robbery Shipes, who was feigning s l e e p , heard defendant t e l l Olson t h a t he had b e t t e r do what L. D. said. After emptying Olson's pockets, L. D . , defendant, and Olson l e f t t h e motel room. There i s some d i s p u t e over whether L. D. ordered defendant t o accompany him o r threatened him i n any manner. According t o Shipes, however, L. D. did n o t t h r e a t e n defendant i n any manner and merely s a i d " l e t ' s go" before a l l t h r e e l e f t . The t h r e e l e f t t h e motel room and g o t i n t o Shipes' c a r . Defendant was driving with Olson on t h e f r o n t s e a t next t o him and L. D. i n t h e back holding t h e shotgun. ~ l t h o u g h L. D. i n i t i a l l y indicated t h a t he intended only t o take Olson o u t somewhere and t i e him up, defendant conceded t h a t \ it soon became c l e a r t h a t L. D. intended t o k i l l Olson. ~ f t e r a running argument between defendant and L. D. while driving i n t o t h e country, defendant stopped t h e c a r , g o t o u t , and began walking back t o town. L. D. then drove t h e c a r a s h o r t distance, s t i l l holding t h e shotgun on Olson i n t h e f r o n t seat next t o him. L. D. then ordered Olson t o g e t o u t of t h e c a r and t o l i e face down on t h e ground, and then s h o t him a t l e a s t twice. Olson, s h o t i n t h e back of t h e head and lower back, died within minutes. L . D. turned t h e c a r around and on h i s way back i n t o town picked up defendant. I t is disputed whether, a f t e r L. D. had picked him up, defendant handed L. D. another s h e l l , saying t h a t they should shoot Olson again t o be sure. It i s a l s o disputed as t o what happened next. Both defendant's and L. D . ' s testimony a t t r i a l was i n t e r n a l l y contradictory and tended t o be i l l o g i c a l i n p o s i t i n g t h e next sequence of events. According t o t h e reading of t h a t testimony most favorable t o defendant, he dropped L. D. off downtown where t h e l a t t e r g o t Olson's v e h i c l e and drove it t o t h e Yellowstone River. After ransacking the v e h i c l e and stashing t h e s t o l e n goods under some bushes, L. D. then drove it i n t o t h e r i v e r and walked back t o t h e motel. Upon a r r i v i n g a t t h e motel, L. D. g o t Shipes' c a r , drove back t o t h e r i v e r alone, and packed t h e s t o l e n goods i n t h e trunk. H e then returned t o t h e motel where he met defendant who had been o u t walking t o c l e a r h i s head. According t o t h e testimony of t h e p o l i c e o f f i c e r ar- r e s t i n g defendant, however, defendant t o l d him t h a t he had followed L. D. o u t t o t h e r i v e r where they had both ran- sacked Olson's truck and then returned t o t h e motel. L o D. too t e s t i f i e d a t t r i a l (and i n an e a r l i e r statement) t h a t defendant helped ransack Olson's vehicle. A s noted, both L. D . ' S and defendant's testimony a t t r i a l tended t o be unclear as t o defendant's r o l e i n ransacking Olson's truck, e s p e c i a l l y on such points as L. D. walking t h e one and one- half o r two m i l e s back t o town from t h e site where he drove t h e v e h i c l e i n t o t h e r i v e r , and how L. D. managed t o d r i v e Shipes' c a r back t o pick up t h e goods when apparently de- fendant had one set of keys with him and Shipes had t h e o t h e r set i n her purse. I n any event, both L. D. and defendant returned a t t h e same t i m e t o t h e motel where they and Shipes packed up and l e f t town, headed f o r Texas. En route, according t o Shipes, defendant d i c t a t e d t o her a list of t h e r i f l e s taken from Olson's truck which she took down on her C a l i f o r n i a motor v e h i c l e code book. This book w a s eventually introduced i n t o evidence. Shipes f u r t h e r t e s t i f i e d t h a t defendant and L. D. p e r i o d i c a l l y discussed t h e i n c i d e n t after they had l e f t Montana. Along t h e way t h e p a r t i e s apparently pawned o r sold various r i f l e s and o t h e r i t e m s taken from Olson's truck. Although defendant denied t h a t he received any money from t h e sale of these i t e m s , he d i d concede " t h e money went i n t o t h e gas tank and such as that." Defendant a l s o admitted he wore Olson's wristwatch which L. D. had given him. The t h r e e stayed together u n t i l Kansas where, a f t e r L. D. and defendant had an argument, defendant separated from L o D. and Shipes. S i g n i f i c a n t l y , Shipes t e s t i f i e d t h a t t h e reason defendant gave her f o r leaving w a s t h a t he (defendant) was a f r a i d he would h u r t L. D. Eventually L. D. was a r r e s t e d i n Texas and gave a statement implicating defendant, i n order, he s a i d a t t r i a l , t o keep Shipes from incarceration. I n t h i s statement, which w a s used a t t r i a l t o impeach h i s testimony, L. D. s t a t e d t h a t defendant had, i n f a c t , accompanied L. D. and Olson t o t h e s p o t where t h e latter w a s s h o t and had ordered Olson t o l i e down j u s t before L. D. s h o t him. L. D. f u r t h e r s t a t e d t h a t while he, defendant, and Olson w e r e d r i v i n g o u t t o t h e country, he and defendant had robbed Olson again, apparently g e t t i n g h i s r i n g s and watch. Shipes, i n c i d e n t a l l y , was never charged i n t h i s matter. Defendant was subsequently a r r e s t e d i n Tucson, Arizona, where he too gave a statement t o a u t h o r i t i e s a s noted above. Upon t h e i r r e t u r n t o Montana, L. D. Owens pleaded g u i l t y t o charges of d e l i b e r a t e homicide and robbery and received a sentence of 140 years. Defendant Alfred Owens was t r i e d and found g u i l t y of mitigated d e l i b e r a t e homicide and robbery and received a sentence of 40 years on each count. Because of a c o n f l i c t between t h e c o u r t minute e n t r y and t h e judgment, it i s unclear as t o whether these sen- tences a r e t o run consecutively o r concurrently. Defendant appeals. The i s s u e s presented f o r review are: 1. W a s t h e r e s u f f i c i e n t corroboration of t h e testimony of L. D. Owens t o connect defendant t o t h e commission of t h e crimes? 2. Did t h e D i s t r i c t Court admit improper hearsay testimony? 3 . W a s t h e D i s t r i c t Court's r e f u s a l of defendant's offered i n s t r u c t i o n concerning compulsion r e v e r s i b l e e r r o r ? 4 . Was t h e D i s t r i c t Court's r e f u s a l of defendant's o f f e r e d i n s t r u c t i o n concerning accountability r e v e r s i b l e e r r o r ? 5. Did t h e D i s t r i c t Court sentence defendant t o two forty-year t e r m s t o run consecutively o r concurrently? ~ e f e n d a n t ' s f i r s t i s s u e concerns t h e requirement t h a t t h e testimony of an accomplice i n a criminal a c t must be corroborated by o t h e r independent testimony o r evidence which connects t h e defendant t o t h e commission of t h e crime before t h e defendant can be convicted of t h e crime. This requirement i s c o d i f i e d a s s e c t i o n 95-3012, R.C.M. 1947, now s e c t i o n 46-16-213 MCA: "A conviction cannot be had on t h e testimony of one responsible o r l e g a l l y accountable f o r t h e same offense, as defined i n 94-2-106, unless t h e testimony is corroborated by o t h e r evidence which i n i t s e l f and without t h e a i d of t h e testimony of t h e one responsible o r l e g a l l y accountable f o r t h e s a m e o f f e n s e tends t o connect t h e defendant with t h e commission of t h e offense. The corrobo- r a t i o n i s n o t s u f f i c i e n t i f it merely shows t h e commission of t h e o f f e n s e o r t h e circumstances t h e r e o f . " Defendant's argument b a s i c a l l y i s t h a t t h e r e w a s no evidence, o t h e r than t h e testimony of L. D. Owens, h i s convicted accomplice, t o connect him t o t h e commission of t h e offenses f o r which he was convicted. W e disagree. W e discussed t h e nature and q u a l i t y of t h e required corroborative evidence i n S t a t e v. Coleman (1978) , Mont. , 579 P.2d 732, 748, 35 St.Rep. 560, 576-77: "The r u l e on corroboration i s s t a t e d i n S t a t e v. Cobb (1926), 76 Mont. 89, 245 P. 265. I n t h a t case, w e held t h a t t h e corroborating evi- dence may be supplied by t h e defendant o r h i s witnesses; it may be c i r c u m s t a n t i a l evidence; it need n o t be s u f f i c i e n t t o s u s t a i n a conviction o r e s t a b l i s h a prima f a c i e c a s e of g u i l t ; and it need n o t be s u f f i c i e n t t o connect t h e defendant with t h e crime b u t must tend t o connect him with t h e crime. I n S t a t e v. Keckonen (1938), 107 Mont. 253, 84 P.2d 341, we held t h a t where t h e a l l e g e d corrobative evidence i s equally consonant w i t h a reasonable explanation pointing toward in- nocent conduct on t h e p a r t of defendant, then such evidence does n o t tend t o connect him with t h e commission of t h e offense and i s i n t h e realm of speculation, not corroboration. Where t h e claimed corroboration shows no more than an op- portunity t o commit a crime and simply proves sus- picion, it i s n o t s u f f i c i e n t corroboration t o j u s t i f y a conviction upon t h e testimony of an ac- complice. S t a t e v. Jones (1933), 9 5 Mont. 317, 26 P.2d 341." Applying t h e s e r u l e s , w e conclude t h a t t h e corroborating evidence presented a t t r i a l i s s u f f i c i e n t t o s u s t a i n defen- d a n t ' s conviction. From Brenda Dennis, a c l e r k i n a s t o r e i n Laurel, t h e jury heard t h a t on t h e afternoon before Olson was k i l l e d , defendant purchased and signed f o r a box of .410 shotgun s h e l l s of t h e type used t o k i l l Olson. Defendant's argument t h a t t h e lack of defendant's f i n g e r p r i n t s on t h e s h e l l s found a t t h e murder scene eliminates any corroborative value i s completely unpersuasive. L. D . ' s f i n g e r p r i n t s were not found on these s h e l l s e i t h e r , y e t he admitted t h a t he had used them t o k i l l Olson. From Betty Shipes, who was n o t an accomplice t o t h e crimes, t h e jury heard t h a t the defendant i n s t r u c t e d Olson t o do a s L. D. d i r e c t e d during t h e robbery i n t h e motel room; t h a t defendant made no attempt t o s t o p L. D. from robbing Olson; and t h a t L. D. never threatened o r ordered defendant t o a s s i s t him i n t h e robbery. Shipes a l s o testi- f i e d t h a t she heard defendant, L. D., and Olson leave t h e motel together; t h a t only L. D. and defendant returned, again together; and t h a t upon t h e i r r e t u r n , t h e p a r t y h a s t i l y packed up and l e f t town. She f u r t h e r t e s t i f i e d t h a t , a f t e r t h e group had l e f t town, defendant d i c t a t e d t o her a list of weapons t h a t had been taken from Olson's vehicle. From Robert Lough, t h e p o l i c e o f f i c e r who a r r e s t e d defendant i n Arizona, t h e jury heard during t h e S t a t e ' s re- b u t t a l t h a t defendant had admitted t h a t he had aided L. D. i n robbing t h e v i c t i m i n t h e motel room and t h a t he had l e f t t h e scene of t h e homicide only because he believed it w a s an inappropriate p l a c e as he thought they had stopped i n some- o n e ' s driveway, n o t because he n e c e s s a r i l y believed t h e a c t i t s e l f w a s wrong. Lough f u r t h e r t e s t i f i e d t h a t defendant s t a t e d t o him t h a t he had helped ransack and dispose of Olson's v e h i c l e and t h a t he had himself sold one of t h e shotguns taken from Olson's vehicle. F i n a l l y , from defendant himself, t h e jury heard t h a t he d i d purchase t h e shotgun s h e l l s used t o k i l l Olson. De- fendant a l s o admitted t h a t during t h e robbery of Olson i n t h e motel room, he had t o l d Olson t o do as L. D. d i r e c t e d . Defendant t e s t i f i e d t h a t he drove L. D. and Olson o u t i n t o t h e country almost t o t h e site where Olson was k i l l e d ; t h a t a f t e r hearing Olson being s h o t , he drove L. D. back i n t o town; and t h a t later he, L. D. and Shipes packed up hur- r i e d l y and l e f t town. Although defendant denied r e c e i v i n g any s p o i l s from t h e robbery, he d i d concede t h a t t h e money received from t h e sale of t h e s t o l e n i t e m s financed t h e group's journey toward Texas and t h a t , a f t e r t h e group had l e f t Montana, he w a s given Olson's wristwatch by L. D. A person may be convicted of d e l i b e r a t e homicide i f such homicide " i s committed while t h e offender i s . . . an accomplice i n t h e commission of . . . o r f l i g h t a f t e r com- m i t t i n g . . . any o t h e r felony which involves t h e use o r t h r e a t of physical f o r c e o r violence a g a i n s t any i n d i v i - dual." Section 94-5-102 (1) (b) , R.C.M. 1947, now s e c t i o n 45- 5-102 MCA. C l e a r l y , t h i s evidence tends t o connect defendant with t h e of t h e offenses of robbery and homicide as a participant in the actual robbery and as an accomplice in the commission of and flight after the deliberate homicide of Kenneth Olson after the robbery. The second issue presented for review concerns the introduction through the testimony of one witness of a prior inconsistent statement made by another witness. The State correctly states that, as defendant made no objection at trial to the introduction of any of the testimony he now claims was improperly admitted hearsay, he is barred from predicating error on its admission on appeal, and therefore this Court need not consider the issue. Rule 103 (a) (1) , Mont.R.Evid.; State v. Armstrong (1977), Mont . I 562 P.2d 1129, 1132, 34 St.Rep. 213, 216. In a recent case presenting very similar circumstances, we stated: " . . . At any rate, defendants never objected to Wicks' testifying to the Peterson statement nor did they move to strike it from the record. They may not now object to its introduction." State v. Cripps (1978), Mont . , 582 P.2d 312, 317, 35 St.Rep. 967, 972. The same rule applies to the instant case. In any event, were we to examine defendant's contention on the merits, our ultimate conclusion would be unchanged. See State v. Longacre (1975), 168 Mont. 311, 312, 542 P.2d 1221, 1222; State v. Mally (1961), 139 Mont. 599, 609, 366 P.2d The third issue presented for review concerns the re- fusal of the District Court to give defendant's requested instruction on the defense of compulsion which read: "You are instructed that a person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he per- forms 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." Defendant i s c o r r e c t i n s t a t i n g t h a t where t h e r e i s evidence i n support of any defense o f f e r e d by an accused which r a i s e s an i s s u e of f a c t f a v o r a b l e t o him, t h e t r i a l c o u r t should p r e s e n t t h e i s s u e by an a f f i r m a t i v e i n s t r u c t i o n which e x p l a i n s t h e p e r t i n e n t law. S t a t e v. Azure (1977), Mont. 573 P.2d 179, 182, 34 St.Rep. 1569, 1573. However, "[wlhere t h e r e i s no evidence i n t h e record sup- p o r t i n g each element of t h e [compulsion] defense, t h e c o u r t may p r o p e r l y r e f u s e t o i n s t r u c t t h e j u r y on t h e defense." S t a t e v. GallaNher (1978), Mont . , 580 P.2d 930, 935, 35 St.Rep. 848, 855. (Emphasis added.) The elements of t h e compulsion d e f e n s e a r e found i n s e c t i o n 94-3-110, R.C.M. 1947, now s e c t i o n 45-2-212 MCA. Under t h a t s t a t u t e , f o r a defendant t o a v a i l himself of t h e defense of compulsion, he must show t h a t : (1) he was compelled t o perform t h e o f f e n s i v e conduct (2) by t h e t h r e a t o r menace (3) of t h e imminent i n f l i c t i o n ( 4 ) of d e a t h o r s e r i o u s b o d i l y harm, and t h a t ( 5 ) he b e l i e v e d t h a t d e a t h o r s e r i o u s bodily harm would be i n f l i c t e d upon him i f h e d i d n o t perform such conduct, and ( 6 ) h i s b e l i e f was reasonable. W e have examined t h e t r i a l t r a n s c r i p t and conclude t h a t defendant f a i l e d t o produce evidence i n s u p p o r t of s e v e r a l of t h e s e elements. There was a b s o l u t e l y no testimony t h a t L. D. Owens t h r e a t e n e d defendant a t any t i m e with t h e i m m i - n e n t i n f l i c t i o n of d e a t h o r s e r i o u s b o d i l y harm; defendant d i d n o t t e s t i f y h e believed h i s o l d e r b r o t h e r would have s h o t him had he r e f u s e d t o comply w i t h h i s d i r e c t i o n s . L. D . ' s statement when he, defendant, and Olson l e f t t h e motel room, according t o B e t t y Shipes, was simply " l e t ' s go." P r i o r t o t h a t t i m e , defendant himself had d i r e c t e d Olson t o comply w i t h L. D.'s o r d e r s , doing s o under abso- l u t e l y no t h r e a t from L. D. Although defendant contends t h a t during t h e d r i v e o u t t o Olson's execution s i t e L. D. repeatedly t o l d defendant t o be q u i e t and keep d r i v i n g , he admitted t h a t L. D. never pointed t h e shotgun a t him. Defendant eventually g o t o u t of t h e car and s t a r t e d walking back t o town, apparently without f e a r of any physical harm. Shortly t h e r e a f t e r , he volun- t a r i l y g o t back i n t o t h e car and drove L. D. back t o Laurel where he a l l e g e d l y dropped him o f f t o pick up Olson's ve- h i c l e . A f t e r t h i s p o i n t , defendant had t h e shotgun i n h i s possession i n Shipes' c a r and L. D. w a s n o t around. Yet de- fendant f a i l e d t o inform any a u t h o r i t i e s a s t o t h e i n c i d e n t involving Olson and i n f a c t v o l u n t a r i l y continued h i s as- s o c i a t i o n with L. D. by helping him pack up and then leaving town with him. These a r e hardly t h e a c t i o n s of a person who has j u s t been compelled t o perform an odious criminal act by t h e t h r e a t of imminent i n f l i c t i o n of s e r i o u s bodily harm o r death. I n f a c t , it appears from defendant's testimony t h a t he w a s more frightened of t h e s i t u a t i o n because he had never p a r t i c i p a t e d i n anything l i k e it before r a t h e r than of anything L. D. might have done. Indeed, it appears t h a t defendant w a s n o t a f r a i d of L. D. a t a l l - - t h e reason he l e f t L. D. and Shipes i n Kansas w a s t h a t he was a f r a i d t h a t he - might end up hurting L. D. The compulsion defense i s a narrow defense. A s t h e Commission Comment t o s e c t i o n 94-3-110 s t a t e s : "The j u s t i f i c a t i o n does not extend t o a c t i o n under t h r e a t of damage t o property, o r of i n j u r y less than s e r i o u s bodily harm o r even of death o r s e r i o u s bodily harm which i s n o t imminent; b u t t h e person's reasonable f e a r of imminent death o r s e r i o u s bodily harm i f mistaken, i s within t h e p r i n c i p l e . (See 1 Bishop on Criminal Law ( 9 t h ed.) 1 1 1 1 3 4 6 t o 348.) "This e s t a b l i s h e d type of formulation has been c r i t i c i z e d . However, t o broaden t h e defense t o accord completely with t h e ' f r e e w i l l ' theory would be t o i n v i t e r o u t i n e contentions of some kind of pressure, such as ' t h r e a t s of harm t o property, r e p u t a t i o n , h e a l t h , general s a f e t y , and t o a c t s done under t h e o r d e r s , ' with accom- panying a s s e r t i o n of i n d i v i d u a l p e r s o n a l i t y weak- ness. (Newman and Weitzer, supra, a t 334.) Prof. Wharton, a f t e r s t a t i n g t h e e s t a b l i s h e d r e s t r i c t i o n s upon t h e defense, comments: 'It would be a most dangerous r u l e i f a defendant could s h i e l d himself from prosecution f o r crime by merely s e t t i n g up a f e a r from o r because of t h r e a t of a t h i r d person.' (1 Wharton's C r i m i - n a l Law (19th e d . ) , 11384.)" Defendant f a i l e d t o introduce any evidence t h a t he f e a r e d t h e imminent i n f l i c t i o n of death o r s e r i o u s bodily i n j u r y o r t h a t he reasonably believed t h a t , i f he f a i l e d t o do as L. D. d i r e c t e d , such i n j u r y o r death would be i n f l i c t e d . The proposed i n s t r u c t i o n was properly refused. The f o u r t h i s s u e f o r review concerns t h e D i s t r i c t C o u r t ' s r e f u s a l t o give defendant's proposed i n s t r u c t i o n on a c c o u n t a b i l i t y which s t a t e d : "You a r e i n s t r u c t e d t h a t some evidence has been introduced tending t o show t h a t a person o t h e r than t h e defendant, Alfred Owens, i s responsible f o r t h e crimes here charged. I f , a f t e r a con- s i d e r a t i o n of a l l t h e evidence, t h e r e remains i n your minds a reasonable doubt a s t o who i s respon- s i b l e f o r t h e crimes, then it i s your duty t o ac- q u i t . " The t r i a l c o u r t d i d g i v e t h e following i n s t r u c t i o n : "You a r e i n s t r u c t e d t h a t a person i s l e g a l l y ac- countable f o r t h e conduct of another when e i t h e r before o r during t h e commission of an offense, and with t h e purpose t o promote o r f a c i l i t a t e such commission, he s o l i c i t s , a i d s , a b e t s , agrees o r attempts t o a i d such person i n t h e planning o r commission of t h e offense." Sections 94-2-106 and 94-2-107, R.C.M. 1947, now sec- t i o n s 45-2-301 and 45-2-302 MCA, t h e s t a t u t e s on account- a b i l i t y , s t a t e i n p e r t i n e n t p a r t : "94-2-106. Accountability for conduct of another. A person i s responsible f o r conduct w h i z i s an element of an offense, i f t h e conduct i s e i t h e r t h a t of t h e person himself, o r t h a t of another and he i s l e g a l l y accountable f o r such conduct as provided i n s e c t i o n 94-2-107, o r both. "94-2-107. When a c c o u n t a b i l i t y e x i s t s . A person i s l e g a l l y accountable f o r t h e conduct of another when: " ( 3 ) e i t h e r before o r during t h e commission of an o f f e n s e , and w i t h t h e purpose t o promote o r f a c i - l i t a t e such commission, he s o l i c i t s , a i d s , a b e t s , a g r e e s o r a t t e m p t s t o a i d , such o t h e r person i n t h e planning o r commission of t h e o f f e n s e . " From a comparison of t h e s t a t u t e s w i t h d e f e n d a n t ' s proposed i n s t r u c t i o n , it i s c l e a r t h a t t h e proposed i n s t r u c - t i o n i s an i n c o r r e c t statement of t h e law. I t c r e a t e s t h e d i s t i n c t impression t h a t t h e defendant could n o t be held r e s p o n s i b l e f o r t h e crimes charged i f somebody else a c t u a l l y performed t h e o f f e n s i v e conduct. This i s c o n t r a r y t o t h e s t a t u t e and has been r e j e c t e d by t h i s Court a t l e a s t s i n c e 1914. S t a t e v. Chevigny (1914), 48 Mont. 382, 385-86, 138 P. 257, 258. The law on a c c o u n t a b i l i t y was c o r r e c t l y pre- sented i n t h e g i v e n i n s t r u c t i o n . Defendant's proposed i n s t r u c t i o n was p r o p e r l y refused. The l a s t i s s u e presented f o r review is n o t r e a l l y an i s s u e a t a l l . The S t a t e concedes t h a t t h e two forty-year sentences given defendant a r e t o r u n c o n c u r r e n t l y a s speci- f i e d i n t h e judgment r a t h e r than consecutively a s s t a t e d i n t h e minute book e n t r y . Absent s p e c i a l circumstances i n d i - c a t i n g otherwise, t h e f i n a l formal judgment a s e n t e r e d by t h e t r i a l c o u r t c o n t r o l s over an i n c o n s i s t e n t minute e n t r y . See, s e c t i o n 95-2404, R.C.M. 1947, now s e c t i o n 46-20-104 MCA; S t a t e v. Herndon (1965), 1 Ariz.App. 180, 400 P.2d 851, 852. The judgment of t h e D i s t r i c t Court i s affirmed. %AS@- Chief J u s t i c e We concur: | June 29, 1979 |
0743f81e-8623-4a1c-b9c4-b96bbe697e17 | HEREFORD v HEREFORD | N/A | 14502 | Montana | Montana Supreme Court | No. 14502 I N THE S U P R E M E COUFU' O F THE STATE O F KWTANA 1979 Plaintiff and Appellant, -VS- HEXEFDRD, Defendant and Respondent. Appeal f m : D i s t r i c t Court of the Fourth Judicial D i s t r i c t , Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Fppellant: Tipp, Hoven and Skjelset, Missoula, mntana For Respondent: Lee A. Jordan, Missoula, Plbntana S-tted on briefs: M a y 9, 1979 AUG - 5 vJT(J Filed : Mr. Justice John C. Sheehy delivered the Opinion of the Court. Plaintiff Charles W. Hereford appeals from a summary judgment entered in favor of the defendant Margaret Hereford, a nonmoving party. The summary judgment entered by the District Court, Fourth Judicial District, Ravalli County, the Honorable E. Gardner Brownlee presiding, was based on defenses not pleaded or argued. Charles and Margaret were formerly husband and wife. They were divorced on January 3, 1972. The divorce decree ordered Charles to pay $100 per month as child support until James, the minor child of the parties, reached legal age on December 4, 1977. The total amount due for child support under the divorce decree was $7,113.33. The divorce decree also ordered Margaret to apply for children's benefits under Charles' social security allowances. Any social security benefits she received were to be credited to Charles' support obligation reducing it by that amount per month. Margaret applied for and received social security benefits starting in February 1972, and allegedly totaling $5,558.10. Beginning January 1, 1972, Charles made payments of to the Clerk of Court in various amounts/less than $100. Charles believed such payments were the true amounts due after credit for social security benefits received by Margaret. The amounts paid by Charles allegedly totaled $4,042.88. On July 28, 1977, Charles filed this action for an accounting and a judgment for excess child support payments totaling $2,487.65. Charles alleged he overpaid his child support obligation because he did not receive full credit for the social security payments. The complaint also requested an accounting for certain certificates of deposit in the names of Charles and James. This accounting, however, is not in issue here. Margaret filed her answer admitting she had received payments from both Charles and the Social Security Administra- tion, but no amounts received by her were alleged. The answer contained no affirmative defenses under Rule 8 (b) , (c) , Mont. R. Civ.P. After interrogatories were filed and answered by the parties, Charles moved for summary judgment pursuant to Rule 56, M0nt.R.Civ.P. Margaret resisted the motion and pointed out areas of contested fact. She did not make any counter motion or request a summary judgment on her behalf. The District Court entered summary judgment for Margaret based on four grounds. First, Charles was guilty of laches; second, any overpayments were voluntary; third, Margaret had made personal sacrifices to assure Charles would have the full visitation rights entitled to him under the divorce decree; and fourth, both Charles and Margaret had a duty to support James, both had contributed to his supgort, and any and all support payments went for support of James. A motion to amend the judgment was made by Charles but denied. From these rulings a notice of appeal was filed. Charles raises three issues upon this appeal: 1. Did the District Court err in granting summary judgment to a nonmoving party without first giving Charles notice and an opportunity to defend against such judgment? 2. Is the summary judgment entered by the District Court in favor of Margaret supported by record? 3. Must the District Court grant Charles' motion for summary judgment? Could the District Court grant summary judgment in favor of Margaret, a nonmoving party, without first giving Charles notice and opportunity to prove the existence of a genuine issue of material fact? This Court has never ruled on this specific issue. We held in Graveley v. MacLeod (1978) , Mont . , 573 P.2d 1166, 35 St.Rep. 99, and State ex rel. Dept. of H. and E. S. v. City of Livingston (1976), 169 Mont. 431, 548 P.2d 155, that it was error to treat a motion to dismiss as a motion for summary judgment, in the absence of notice thereof to the complaining party and without affording that party a reasonable opportunity to oppose such motion. However, those decisions were based on the different functions of Rule 12(b), M0nt.R.Civ.P. and Rule 56, M0nt.R.Civ.P. By the great weight of authority, no formal cross- motion is necessary for a court to enter summary judgment. The invocation of the power of a court to render summary judgment in favor of the moving party gives the court power to render summary judgment for his adversary provided the case warrants that result. However, the court must be very careful that the original movant had a full and fair opportunity to meet the proposition,that there is no genuine issue of material fact and the other party is entitled to judgment as a matter of law. 6 Moore's Federal Practice, 1 1 56.12, pp. 56-331 and 56-334. The record here discloses that Charles was never given notice of either the District Court's intent to grant summary judgment in favor of Margaret, or the grounds upon which such judgment was to be based. He was not given an opportunity to present facts concerning the grounds upon which the District Court granted summary judgment. The only issue addressed by Charles' motion for summary judgment and the subsequent hearing thereon was the claimed excess payments. It was error for the District Court to grant summary judgment in favor of Margaret without first affording Charles' notice and a reasonable opportunity to be heard. Is the summary judgment entered by the District Court in favor of Margaret supported by the record? The general purpose of Rule 56, Mont.R.Civ.P., is to promptly dispose of actions which do not present genuine issues of material fact, thereby eliminating unnecessary trial, delay and expense. The purpose is not to resolve factual issues. Bonawitz v. Bourke (1977), Mont . - , 567 P.2d 32, 33, 34 St.Rep. 638, 640; Sillaway v. Jorgenson (1965), 146 Mont. 307, 310, 406 P.2d 167, 169. Considering the facts at hand, we find genuine issues of material fact still remain unresolved. There- fore, Margaret was not entitled to summary judgment as a matter of law. The District Court determined Charles was guilty of laches in delaying the ascertainment of the true amounts he should have paid for child support. Laches means negligence to the assertion of a right, and exists where there has been a delay of such duration as to render enforcement of an asserted right inequitable. Mountain View Cemetery v. Granger (1978) , Mont . - , 574 P.2d 254, 258, 35 St.Rep. 76, 81; Davis v. Steingruber (1957), 131 Mont. 468, 470, 311 P.2d 784, 785. A complainant can be charged with laches if, but only if he was either actually or presumptively aware of his rights. A ompl plain ant is presumptively aware of his rights where the circumstances of which he is cognizant are such as to put a man of ordinary prudence on inquiry. See Jeffrey v. Pioneer Placer Dredging Co. (D.Mont. 1943), 50 F.Supp. 43; and 27 Arn.Jur.2d Equity 8167, p. 710 and 711. There are no facts in the record before us which would establish Charles1 knowledge of his rights, either actually or presumptively. While Charles varied the amounts of his monthly payments, the record does not disclose on what basis Charles arrived at each monthly figure. Similarly, it is unclear from the record whether Charles continued to receive social security after his divorce from Margaret. The receipt of such checks might have put Charles on inquiry notice. The District Court also deemed any overpayments by Charles voluntary. As with laches, the record must disclose either actual or presumptive knowledge of overpayment before such payments may be deemed voluntary. The needed facts for such a conclusion are absent from the record. The third and fourth grounds for the ~istrict Court's summary judgment in favor of Margaret are not supported by the record. The third basis was the conclusion Margaret had made certain personal sacrifices. That is, it would be inequitable to grant restitution of any overpayments to Charles since Margaret had remained in Hamilton so Charles could enjoy the visitation rights granted him by the divorce decree. Such reasoning is untenable. Pursuant to the divorce decree, Margaret had a right to move to any city or state even though Charles1 visitation rights would be made more onerous, and any costs or expenses incurred in order to exercise visitation rights after such a move were to be borne solely by Charles. The District Court also felt it inequitable to require restitution of any overpayments since both Charles and Margaret had a duty to support James, both contributed to his support, and any and all support payments were used for James1 support. Generally, there can be no restitution where it was just that the payment should have been made and where, as be- tween the parties, it would be inequitable to require any repayment. Restatement of Restitution 861, p. 238 (1937): Here, however, Margaret has apparently received more money than the divorce decree deemed adequate to support James. The that record is devoid of any allegation/the child support amounts contained in the divorce decree were inadequate, and Margaret has apparently never made any attempt to increase the child support payments so decreed. Thus, restitution under the facts contained in the record can not be considered inequitable as between the parties. Must the District Court grant Charles' motion for summary judgment? In effect, Charles is requesting this Court to reverse sumiiary judgment in favor of Margaret and direct the District Court to enter one in his favor. Clearly, this Court has the power to take such action. See Swecker v. Dorn (1979) , Mont . , 593 P.2d 1055, 36 St. - Rep. 844 (by implication); and 6 Moore's Federal Practice, 1 1 56.12, p. 56-337. However, it does not necessarily follow that summary judgment in favor of Charles is proper because summary judgment in favor of Margaret was erroneous. Before this Court can establish- that judgment in favor of Charles should be entered as a matter of law, it must be very clear that all the facts bearing on the issues are before this Court. Otherwise, we should remand for further development of the case, which may or may not include further motions for summary judgment by the parties. 6 Moore's Federal Practice, 1 1 56.12, p. 56-338. The facts of this case are not so clear that this Court may direct the ~istrict Courk to enter summary judgment in favor of Charles. The order of the District Court granting summary judgment in favor of Margaret is reversed, and the cause is remanded for further proceedings consistent with this Opinion. We concur: ief Justice .............................. Justices Mr. Justice Daniel J. Shea concurring in the foregoing Opinion but with separate comments. I concur with the Opinion of the majority. The decision of the District Court was without question, erroneous. What bothers me however, is the failure of respondent's attorney to file a brief in this Court. This Court is, of course, obligated to render justice to the parties in the best way that it can. This task is made considerably more difficult when the attorney for the prevailing party fails to file a brief in defense of the judgment in the District Court, even though never repudiating the benefits of that judgment by admitting that the District Court was manifestly in error. This is not the way the practice of law should be practiced. | August 9, 1979 |
a3bae848-502e-4a57-85ba-cd22efcafd34 | MATTER OF ESTATE OF MAGELSSEN | N/A | 14201 | Montana | Montana Supreme Court | No. 14201 I N THE SUPREME CCWlT O F THE STATE OF MONTANA 1978 IJS' THE MA?TER OF THE ESTATE O F WILLIAM M A G E L S S E N , Deceased. Appeal f r m : D i s k 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 Appllant: Church, Harris, Johnson and W i l l i a m s , Great Falls, Mntana Douglas C. Allen argued, Great Falls Mntana George R. Crotty argued, Great Falls, Mntana For Respondent: John M. Schiltz argued, Kalispell, Pbntana Filed : suhitted: October 20, 1978 ~ecided: J U L 3 1 9 7 9 M r . J u s t i c e Daniel J. Shea delivered t h e Opinion of t h e Court. Paul McCann, t h e personal representative of t h e e s t a t e of William Magelssen, deceased, appeals from an order of t h e Yellowstone County D i s t r i c t Court determining attorney f e e s owed t o t h e law f i r m of Hutton, Sheehy and Cromley. This case arose when Paul McCann p e t i t i o n e d t h e D i s - t r i c t Court, pursuant t o s e c t i o n 91A-3-722, R.C.M. 1947, now s e c t i o n 72-3-634 MCA, f o r review of compensation owed t o t h e a t t o r n e y s f o r t h e e s t a t e , Hutton, Sheehy and Cromley. The D i s t r i c t Court determined t h a t t h e ordinary s e r v i c e s of probate w e r e 9 5 percent completed a t d a t e of discharge, and t h a t , according t o a c o n t r a c t of employment between Paul McCann and John C. Sheehy, t h e law firm agreed t o handle t h e ordinary s e r v i c e s t o t h e e s t a t e f o r a f e e of 3 percent of t h e e s t a t e valuation f o r f e d e r a l estate t a x purposes. Accordingly, t h e D i s t r i c t Court held t h a t t h e law firm was e n t i t l e d t o 95 percent of 3 percent of t h e e s t a t e value f o r f e d e r a l estate tax purposes. Paul McCann appeals from t h i s determination. The f a c t s giving rise t o t h i s controversy a r e a s f o l - lows. William Magelssen died on September 17, 1976, leaving an e s t a t e valued i n excess of t h r e e and one-half m i l l i o n d o l l a r s . H i s w i l l named J u l i a Magelssen, h i s sister, and Paul McCann a s co-personal representatives. The co-personal representatives engaged John C. Sheehy and h i s firm, Hutton, Sheehy and Cromley, t o provide l e g a l s e r v i c e s f o r them a s co-personal representatives of t h e estate. Later, on October 11, 1976, t h e co-personal repre- s e n t a t i v e s had a meeting i n which t h e attorney f e e s w e r e discussed, and as a r e s u l t of t h i s meeting, attorney Sheehy wrote a l e t t e r confirming t h e conversation and t h e agreed upon fee. The letter, dated October 13, 1976, read i n per- ti nen t p a r t : "Also discussed was our attorneys' f e e i n con- nection with t h e handling of t h e estate. Paul reported t h a t some h e i r s wanted t o hold down t h e c o s t of administration, p a r t i c u l a r l y the attorneys' fees. Paul a l s o s t a t e d he could see a possible ' c o n f l i c t of i n t e r e s t ' when t h e valu- a t i o n of t h e estate f o r inheritance taxes,oc.curs. Nonetheless I s t a t e d t h a t our firm would charge t h e f u l l 3% of t h e value of t h e e s t a t e f o r f e d e r a l e s t a t e t a x purposes f o r t h e ordinary s e r v i c e s t o t h e e s t a t e . " There being no response t o t h i s l e t t e r , t h e law firm continued representing t h e estate with t h e understanding t h a t t h e let- ter s t a t e d the agreed upon fee. Eight months l a t e r , on June 17, 1977, McCann signed t h e f e d e r a l e s t a t e t a x r e t u r n on which was recorded an amount f o r attorney f e e s , computed a t 3 percent of t h e value of t h e e s t a t e appraised f o r f e d e r a l e s t a t e t a x purposes. J u l i a Magelssen, one of t h e co-personal r e p r e s e n t a t i v e s , died on June 16, 1977, leaving Paul McCann a s t h e s o l e per- sonal representative. John C. Sheehy and h i s law firm continued t o represent t h e estate of William Magelssen u n t i l J u l y 27, 1977, when Sheehy and h i s law firm were discharged by McCann because of personal differences e x i s t i n g between McCann and attorney Sheehy. After t h e discharge, Paul McCann p e t i t i o n e d t h e c o u r t pursuant t o s e c t i o n 91A-3-722, R.C.M. 1947, now s e c t i o n 72-3-634 MCA, t o review t h e a t t o r - ney f e e s charged by Sheehy and h i s law firm. Pursuant t o t h i s p e t i t i o n t h e c o u r t held an evidentiary hearing. A t t r i a l , attorney Sheehy and h i s partner, George Hutton, t e s t i f i e d on t h e work already performed f o r t h e e s t a t e and t h a t which remained t o be done. Attorney Hutton t e s t i f i e d t h a t , i n h i s opinion, very l i t t l e work remained t o be done. Attorney Bjarne Johnson, who t e s t i f i e d on be- half of t h e personal representative, s t a t e d t h a t t h e r e was a s i g n i f i c a n t amount of work y e t t o be completed. Needless t o say, t h e r e w a s s i g n i f i c a n t disagreement between Sheehy and Hutton on t h e one hand and Bjarne Johnson on t h e o t h e r hand, a s t o what c o n s t i t u t e d ordinary s e r v i c e s and t h e com- p l e x i t y of t h e work entailed. During t h e course of t h e hearing Paul McCann moved t o r e q u i r e attorney Sheehy t o t e s t i f y a s t o t h e p r e c i s e number of hours t h a t h i s firm had worked on t h e e s t a t e of William Magelssen, but t h e c o u r t refused t o admit t h i s evidence and a l s o refused t o admit evidence on t h e number of hours needed t o complete t h e estate. The District Court took j u d i c i a l n o t i c e of t h e documents prepared and already f i l e d a s p a r t of t h e e s t a t e proceedings and of o t h e r a c t i v i t i e s engaged i n by t h e attorneys on behalf of t h e e s t a t e . The c o u r t ruled t h a t a c o n t r a c t f o r compensation was contained i n t h e October 13, 1976 letter from Sheehy t o McCann, and t h a t t h i s c o n t r a c t was later r a t i f i e d by McCann i n signing t h e estate t a x r e t u r n which specified t h e same f e e t o be paid. The c o n t r a c t w a s f o r ordinary s e r v i c e s a t a f e e of 3 percent of t h e e s t a t e value a s set f o r f e d e r a l e s t a t e t a x purposes. The c o u r t determined t h a t t h e ordinary l e g a l services f o r t h e e s t a t e were 95 percent completed, and set t h e f e e on t h a t basis. The f e e was computed t o be $106,464.42. The c o u r t order a l s o provided f o r adjustment of t h i s f e e i n t h e event t h e f e d e r a l taxing a u t h o r i t i e s revised t h e i r valuation of the e s t a t e . The personal representative makes several assignments of e r r o r . H e contends f i r s t t h a t a v a l i d c o n t r a c t f o r a t - torney f e e s did not e x i s t between t h e personal representa- t i v e s and the l a w firm, and therefore t h e proper measure of compensation should be based on guantum meruit. Secondly, he contends t h a t t h e D i s t r i c t Court d i d n o t apply t h e appro- p r i a t e standard of review under s e c t i o n 91A-3-722, R.C.M. 1947, now s e c t i o n 72-3-634 MCA. Third, he contends t h a t t h e evidence was not s u f f i c i e n t t o s u s t a i n t h e judgment of t h e D i s t r i c t Court. The personal r e p r e s e n t a t i v e f i r s t a t t a c k s t h e a l l e g e d c o n t r a c t between him and t h e a t t o r n e y s on t h e theory t h a t a c o n t r a c t f o r f e e s entered i n t o a f t e r t h e inception of t h e a t t o r n e y - c l i e n t r e l a t i o n s h i p i s void. The p r e v a i l i n g r u l e is t h a t a t t o r n e y f e e c o n t r a c t s made a f t e r t h e establishment of t h e f i d u c i a r y a t t o r n e y - c l i e n t r e l a t i o n s h i p a r e v a l i d i f they are " f a i r and equitable." See Annot., 13 A.L.R.3d 701, 710. Fairness i s determined by taking account of such rele- v a n t f a c t o r s a s good f a i t h and f u l l - d i s c l o s u r e i n t h e execu- t i o n of t h e c o n t r a c t , t h e amount of t h e f e e and t h e c l i e n t ' s maturity, i n t e l l i g e n c e , and understsnding, of t h e transac- t i o n . Annot., 13 A.L.R.3d 701, 711; Daniels v. Paddock (1965), 145 Mont. 207, 2 2 2 , 399 P.2d 740, 747; Coleman v. Sisson (1924), 71 Mont. 435, 443, 230 P. 582, 584. The bur- den of e s t a b l i s h i n g f a i r n e s s is on t h e attorney. Daniels v. Paddock, supra; 7 Am.Jur.2d Attorneys -- a t Law, S267. The record contains s u b s t a n t i a l evidence i n support of t h e f a i r n e s s of t h e agreed f e e . The t e r m s of t h e at- t o r n e y ' s employment were made unequivocally c l e a r i n t h e October 13, 1976 letter. The personal r e p r e s e n t a t i v e s acknowledged r e c e i p t of t h e l e t t e r and, a t t r i a l , personal r e p r e s e n t a t i v e McCann t e s t i f i e d t h a t he understood t h e mean- i n g of t h e letter. The r e p r e s e n t a t i v e s d i d n o t o b j e c t t o t h e s p e c i f i e d f e e arrangement f o r a t least seven more months, during which t i m e t h e a t t o r n e y s continued t o perform l e g a l services f o r t h e e s t a t e . Moreover, a t a l a t e r t i m e , per- sonal representative McCann signed t h e f e d e r a l e s t a t e t a x r e t u r n on which t h e 3 percent f e e was c l e a r l y s t a t e d . Nor does t h e evidence i n d i c a t e t h a t McCann w a s inexperienced i n t h e ways of t h e world. Personal representative McCann w a s an e x t r a o r d i n a r i l y well-educated and experienced man. He t e s t i f i e d t h a t he i s t h e o f f i c e r of a major corporation, a c e r t i f i e d public ac- countant and is licensed t o p r a c t i c e l a w i n two states, I l l i n o i s and North Dakota. H e entered i n t o t h e c o n t r a c t with h i s eyes open and with f u l l awareness of t h e implica- t i o n s . W e agree with t h e conclusion of t h e D i s t r i c t Court t h a t he r a t i f i e d t h e f e e agreement. Section 13-325, R.C.M. 1947, now section 28-2-503(2) MCA; Annot., 13 A.L.R.3d 701, 745. Next, t h e personal representative argues t h a t s e c t i o n 91A-3-722, R.C.M. 1947, now section 72-3-634 MCA, which provides f o r j u d i c i a l review of attorney fees, imparts an "overriding consideration of reasonableness" t h a t e f f e c t i v e l y i n v a l i d a t e s t h e t e r m s of any c o n t r a c t f o r probate-related services. This s e c t i o n provides: "Proceedings f o r review of employment of agents and cornpensat= o f s G a 1 r e p r e s e n t ~ i v e s and employees of e s t a t e -- c o u r t -- t o set disputed fee. Upon t h e f i l i n g of a motion f o r settlement of f e e s by t h e c o u r t f i l e d by an i n t e r e s t e d per- son, t h e personal representative o r t h e person employed by t h e personal representative and af- ter n o t i c e t o a l l i n t e r e s t e d persons, t h e pro- p r i e t y of employment of any person by a personal representative including any attorney, a u d i t o r , investment advisor o r o t h e r specialized agent o r a s s i s t a n t , t h e reasonableness of t h e compen- s a t i o n of any person so employed, o r t h e rea- sonableness of t h e compensation determined by t h e personal representative f o r h i s own s e r v i c e s , s h a l l be reviewed and determined by t h e court. I n any dispute concerning f e e s , t h e c o u r t s h a l l s e t t h e fee. Any person who has received exces- s i v e compensation from an e s t a t e f o r s e r v i c e s rendered may be ordered to make appropriate re- funds." The provision does not restrict the personal repre- sentative's capacity or freedom to contract, except that he may not contract for excessive fees. Nor can this section be read in isolation from other provisions of the probate code. Section 91A-3-713(21), R.C.M. 1947, now section 72-3- 613(21) MCA, specifically authorizes the personal representa- tive to employ, and therefore to contract for, the services of an attorney. Section 91A-3-720, R.C.M. 1947, now section 72-3-633 MCA, entitled "Compensation of Attorney" merely places a ceiling on the amount of compensation payable to an attorney for ordinary services. These provisions establish the boundaries of the personal representative's authority to contract for the services of an attorney. The fee in- volved in the instant case fits within these limits. Accord- ingly, the fee contract was valid under the applicable provisions of the Montana Uniform Probate Code. Personal representative McCann next argues that attor- ney fees based on a fixed percentage of the estate value are against public policy because the attorney will inflate the value of the estate in order to increase his fee. This Court's duty is to construe the law as it is written. Sec- tion 93-401-15, R.C.M. 1947, now section 1-2-101 MCA. If no ambiguity exists in a statute, the letter of the law will not be disregarded under the pretext of pursuing its spirit. Vaughn & Ragsdale v . State Board of Equalization (1939), 109 Mont. 52, 60, 96 P.2d 420, 424. The statutory provision governing compensation of attorneys in estate matters is section 91A-3-702, R.C.M. 1947, now section 72-3-633 MCA. In pertinent part it states that "if the services of an at- torney are engaged by the personal representative, the compensation of such attorney shall not exceed one and one half (1 1/2) t i m e s t h e compensation allowable t o t h e personal representative." The personal r e p r e s e n t a t i v e i s allowed a "reasonable compensation" not t o exceed 3 percent of t h e f i r s t $40,000 of t h e reported e s t a t e value and 2 percent of t h e value over $40,000. Section 91A-3-719, R.C.M. 1947, now s e c t i o n 72-3-631 MCA. W e f i n d no public policy i n these applicable s t a t u t e s t h a t would i n v a l i d a t e a fee c l e a r l y coming within t h e i r terms. W e next discuss t h e question of whether t h e D i s t r i c t Court's review of t h e attorney f e e s pursuant t o s e c t i o n 91A- 3-722 was proper. The personal r e p r e s e n t a t i v e contends t h a t by invocation of t h i s s t a t u t e t h e D i s t r i c t Court is required t o f i x a reasonable a t t o r n e y ' s f e e without reference t o t h e t e r m s of an e x i s t i n g contract. But w e see no reason t o t o t a l l y ignore t h e terms of a c o n t r a c t between an attorney and t h e personal representative. The following e d i t o r i a l comment appears under s e c t i o n " I n view of t h e broad j u r i s d i c t i o n conferred on t h e probate c o u r t by s e c t i o n [91A-3-1053 , de- s c r i p t i o n of t h e s p e c i a l proceeding authorized by t h i s s e c t i o n might be unnecessary. But, t h e code's theory t h a t personal representatives may f i x t h e i r own f e e s - and those of e s t a t e attorneys marks an important departure from much e x i s t i n g p r a c t i c e under which f e e s are determined by t h e c o u r t i n t h e f i r s t instance. Hence, it seemed w i s e t o emphasize t h a t any i n t e r e s t e d person can g e t j u d i c i a l review of f e e s i f he d e s i r e s it. Also, i f excessive f e e s have been paid, t h i s s e c t i o n provides a quick and e f f i c i e n t remedy." This comment focuses our a t t e n t i o n of t h e provision's p r i n c i - p a l u t i l i t y . I t provides i n t e r e s t e d persons with j u d i c i a l review t o guard a g a i n s t excessive f e e s set by a personal representative i n t h e exercise of h i s newly conferred discre- tion. I t is a s p e c i a l , formal proceeding i n which i n t e r e s t e d persons obtain a quick and e f f e c t i v e remedy a g a i n s t excessive compensation. Upon t h e f i l i n g of a p e t i t i o n under s e c t i o n 91A-3-722, t h e D i s t r i c t Court must determine i f t h e compensa- t i o n paid i s excessive i n l i g h t of a l l t h e circumstances. I n s o doing, the c o u r t is not s e t t i n g t h e f e e , it i s review- i n g t h e f e e arrangement. Naturally, t h e f a c t o r s bearing on reasonableness of court-awarded attorney f e e s must be taken i n t o account i n determining i f a p a r t i c u l a r f e e i s e i t h e r excessive o r reasonable. But under t h e probate code, it is t h e personal representative, not t h e c o u r t , who sets t h e f e e i n t h e first instance. I n explaining t h e national provision, Uniform Probate Code s e c t i o n 3-721, which i s v i r t u a l l y i d e n t i c a l t o s e c t i o n 91A-3-722, t h e Uniform Probate Code P r a c t i c e Manual s t a t e s : "The Code's t r a n s f e r of these matters t o the personal representative i n the f i r s t instance, with provision f o r review i n t h e case of dis- p u t e should tend t o promote p r i o r agreement between those i n t e r e s t e d i n estates, on t h e one hand, and those a s s i s t i n g i n administrations, on t h e other. I f more f e e agreements r e s u l t , d i s p u t e s and complaints about f e e s w i l l be fewer, whether t h e amounts involved remain t h e same, o r a r e increased o r decreased." Wellman, Uniform Probate Code P r a c t i c e Manual, 2d Ed. I Val- 1, p. 322. It is c l e a r t h a t a court, when reviewing a fee agreement under a s u b s t a n t i a l l y performed c o n t r a c t , cannot b l i n d i t s e l f t o t h e t e r m s of t h e c o n t r a c t and make i t s own determination of what i s reasonable. I n t h e present case, t h e D i s t r i c t Court determined t h a t s e c t i o n 91A-3-713(21) (which empowers t h e personal representa- t i v e t o employ an attorney) and s e c t i o n 91A-3-722 (which allows t h e c o u r t t o review t h e employment of attorneys and t h e i r f e e s ) , must be construed together so as t o give e f f e c t t o each provision and make them compatible with each other. D i s t r i c t Applying t h i s standard, the/ Court found t h e amount of t h e f e e t o be reasonable on i t s f a c e as it w a s within t h e l i m i t s of compensation provided f o r i n s e c t i o n s 91A-3-719, R.C.M. 1947, now s e c t i o n 72-3-631 MCA, and s e c t i o n 91A-3-720, R.C.M. 1947, now s e c t i o n 72-3-633 MCA. A f t e r determining t h a t t h e s e r v i c e s w e r e s u b s t a n t i a l l y performed, t h e c o u r t concluded t h a t i t s t a s k w a s t o apportion t h e agreed com- pensation according t o t h e percentage of ordinary s e r v i c e s completed by t h e a t t o r n e y s a s of t h e d a t e of t h e i r discharge. O n t h e o t h e r hand, t h e personal r e p r e s e n t a t i v e con- tends t h a t once an a t t o r n e y is discharged, he can only be compensated on t h e b a s i s of quantum meruit, whereby recovery i s l i m i t e d exclusively t o t h e reasonable value of s e r v i c e s rendered on an hourly b a s i s . Again, he would have t h e c o u r t t o t a l l y d i s r e g a r d t h e s u b s t a n t i a l l y performed c o n t r a c t be- tween t h e personal r e p r e s e n t a t i v e and a t t o r n e y . W e note moreover t h a t s e c t i o n 91A-3-722 sets f o r t h no such measure of compensation. A s i n d i c a t e d previously, t h e personal r e p r e s e n t a t i v e can c o n t r a c t f o r an a t t o r n e y ' s s e r v i c e s ( s e c t i o n 91A-3- 713(21)) and under s e c t i o n 91A-3-808, R.C.M. 1947, now sec- t i o n 72-3-612 MCA, t h e e s t a t e is bound by such c o n t r a c t s . Though t h e f e e c o n t r a c t i s open t o review under s e c t i o n 91A-3-722, R.C.M. 1947, now s e c t i o n 72-3-634 MCA, t h e amount of t h e f e e is n o t automatically converted i n t o a quantum meruit measure of compensation. Indeed, quantum meruit compensation is normally appropriate only where a v a l i d c o n t r a c t does n o t e x i s t . 7 Arn.Jur.2d Attorneys at a, 8232; H a r r i s v. Root (1903), 28 Mont. 159, 72 P. 429. W e emphasize t h a t t h i s i s n o t a case of a t t o r n e y f e e s assessed a g a i n s t an opposing p a r t y and awarded by t h e c o u r t pursuant t o a s t a t u t e . I n such case, t h e c o u r t determines t h e reasonableness of t h e f e e i n t h e f i r s t i n s t a n c e , and t h i s Court disapproves r e l i a n c e on contingency f e e c o n t r a c t s i n s e t t i n g t h e f e e . See e.g., S t a t e Department of Highways v. Schumacher (1979) , Mont. , 590 P.2d 1110, 36 St.Rep. 260, 266; S t a t e Highway Commission v. Marsh (1978), Mont. , 575 P.2d 38, 43, 35 St.Rep. 105, 110. I n t h i s case, however, t h e personal r e p r e s e n t a t i v e requested j u d i c i a l review and determination of compensation due under a v a l i d , s u b s t a n t i a l l y performed c o n t r a c t f o r s e r v i c e s . Under these circumstances t h e c o u r t must act as both f i n d e r of f a c t and as a r b i t e r between c o n t r a c t u a l l y bound p a r t i e s . W e do not b e l i e v e t h a t s e c t i o n 91A-3-722 was intended t o permit competent, f u l l y informed personal r e p r e s e n t a t i v e s t o disavow t h e i r otherwise enforceable c o n t r a c t s f o r a n a t t o r n e y ' s s e r v i c e s . Considering t h e p r i n c i p a l purpose of s e c t i o n 91A-3-722 and t h e exceptional circumstances surrounding i t s invocation i n t h i s case, t h e D i s t r i c t Court d i d n o t err i n r e f u s i n g quantum -- meruit a s t h e measure of compensation. The c o u r t ' s threshhold determination of reasonableness, followed by an apportionment of t h e agreed f e e t o t h e percentage of t h e job completed, w a s proper. Based on t h e s e f a c t o r s , w e see no e r r o r i n t h e exclusion of evidence a s t o t h e a t t o r n e y ' s a c t u a l t i m e expended i n pro- bate. W e note i n t h i s regard t h a t t h e t i m e f a c t o r has, g e n e r a l l y speaking, played a r e l a t i v e l y minor r o l e i n d e t e r - mination by a c o u r t of reasonable a t t o r n e y f e e s i n probate. See Annot., 58 A.L.R.3d 317, 325; 7 Arn.Jur.2d Attorneys - a t Law, 523%; I n re E s t a t e of Wood (Ohio App. 1977), 379 N.E. 2d - 256, 261. I n t h i s case, t h e ~ i s t r i c t Court was f u l l y ad- v i s e d as t o t h e work completed i n r e l a t i o n to t h e work t h a t remained t o be done. Although w e consider t i m e a c t u a l l y spent on probate s e r v i c e s t o be r e l e v a n t t o a determination of reasonableness, w e do n o t f i n d i t s exclusion under t h e f a c t s of t h i s case t o be r e v e r s i b l e e r r o r . Nor do we f i n d r e v e r s i b l e e r r o r i n t h e D i s t r i c t C o u r t ' s provision allowing an adjustment of t h e a t t o r n e y f e e s i n t h e event t h e e s t a t e value i s l a t e r revised upward o r downward by t h e f e d e r a l taxing a u t h o r i t i e s . The agreed upon considera- t i o n f o r t h e a t t o r n e y ' s s e r v i c e s was 3 percent of t h e e s t a t e value f o r f e d e r a l e s t a t e t a x purposes. Fixing t h e f e e i n proportion t o t h a t value was c o n s i s t e n t with t h e i n t e n t of t h e contracting p a r t i e s . The l a s t i s s u e r a i s e d by t h e personal r e p r e s e n t a t i v e i s t h a t t h e evidence d i d n o t support a f i n d i n g t h a t t h e con- t r a c t w a s 95 percent completed a t t h e t i m e of t h e a t t o r n e y ' s discharge. He contends t h e r e is s u b s t a n t i a l work t h a t re- mains t o be done. W e note t h a t t h e a t t o r n e y contracted t o perform t h e "ordinary services" f o r t h e e s t a t e . The evidence a t t r i a l w a s c o n f l i c t i n g a s t o whether t h e work remaining t o be done w a s of a n "ordinary" o r "extraordinary" nature. I t was t h e c o u r t ' s f a c t u a l determination which f i n a l l y set- t l e d on t h e finding of 95 percent completion. W e w i l l n o t s u b s t i t u t e our judgment f o r t h a t of t h e t r i a l c o u r t where t h e r e w a s s u b s t a n t i a l evidence t o support a finding of f a c t . Kosmerl v. Barbour (1979), Mont. , 589 P.2d 1017, 1019, 36 St-Rep. 210, 212-13; Gross v. Holzworth (1968), 151 Mont. 179, 185, 440 P.2d 765, 768. The D i s t r i c t Court heard testimony from both s i d e s and was n o t without i t s own knowledge on e s t a t e m a t t e r s i n general and t h i s e s t a t e i n p a r t i c u l a r . The judgment of t h e D i s t r i c t Court is affirmed. W e Concur: Cpief J u s t i c e / u & Q A m ~ o d . / ~ o e l G. Roth, D i s t r i c t ~ o u . h ! t Judge, s i t t i n g i n f o r M r . J u s t i c e John C. Sheehy | July 3, 1979 |
fc3cb89e-4ea5-422b-88b0-2dfa2118b603 | STATE v RIBERA | N/A | 14644 | Montana | Montana Supreme Court | No. 14644 I N THE SUPREME COURT OF THE STATE O F MXPANA 19 7 9 STATE O F MXTANA, Plaintiff and Respondent, -vs- JULIAN RIBERA, Defendant and Appellant. A p p e a l £ram: D i s t r i c t Court of the W l f t h Judicial D i s t r i c t , Honorable B. W. Thamas, Judge presiding. Counsel of Record: For Appellant: Wrrison, EXtien and Barron, Havre, Mntana Kathleen H. Richardson argued, Hawe, Wntana For Respondent : Hon. Mike Greely, Attorney General, Helena, Wntana Chris D. - t e n argued, Assistant Attorney General, Helena, Wntana Ronald Smith, County Attorney, argued, Havre, mntana Sdxdtted: June 4, 1979 - - - . , , 2 , . Filed: yJ!- - - 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. Defendant, J u l i a n Ribera, Jr., a p p e a l s from h i s convic- t i o n of one count of possession of dangerous drugs and one count of attempted sale of dangerous drugs following a nonjury t r i a l i n t h e D i s t r i c t Court of t h e Twelfth J u d i c i a l D i s t r i c t , H i l l County, t h e Honorable B. W. Thomas p r e s i d i n g . On February 24, 1978, James Owens, a s s i s t a n t p r i n c i p a l of Havre High School, received a n o t e from h i s s e c r e t a r y which she had j u s t received from a s t u d e n t . The s t u d e n t had w r i t t e n t h e following d e s c r i p t i o n along w i t h t h e l a s t f o u r d i g i t s of a l i c e n s e number on t h e paper: " s h o r t dark-skinned b l u e c o a t shoulder l e n g t h h a i r beard & mustache. peachy dark. 3759" The s e c r e t a r y wrote t h e following under t h e s t u d e n t ' s de- s c r i p t i o n : "Mr. Owens-- A s t u d e n t j u s t informed m e t h a t he saw a man t r y i n g t o sell drugs t o k i d s i n t h e w e s t parking l o t . B.P." Owens went t o t h e doorway of t h e w e s t f o y e r of t h e school where he could see t h e parking l o t . H e saw a man who f i t t h e d e s c r i p t i o n on t h e n o t e t a l k i n g t o some s t u d e n t s . H e a l s o saw a c a r i n t h e parking l o t . The last f o u r d i g i t s of t h e l i c e n s e matched t h o s e on t h e note. Owens r e t u r n e d t o h i s o f f i c e and c a l l e d t h e Havre P o l i c e Department. H e i d e n t i f i e d h i m s e l f , r e p o r t e d t h e i n c i d e n t , and asked t h a t p o l i c e be s e n t t o t h e school. A f t e r r e p o r t i n g t h e i n c i d e n t he r e t u r n e d t o t h e w e s t f o y e r of t h e b u i l d i n g and continued t o watch. A f t e r a s h o r t t i m e t h e s u s p e c t g o t i n t o t h e c a r along w i t h two companions, and they drove away. Owens a g a i n c a l l e d the p o l i c e t o t e l l them the suspect w a s leaving i n a c a r with two others. This information was relayed by r a d i o t o t h e two o f f i c e r s who were responding t o t h e c a l l . The o f f i c e r s met t h e c a r along t h e way and stopped it. A pat-down search w a s made of defendant and f i v e "Baggies" of what l a t e r proved t o be marijuana were found i n a pocket of h i s coat. The t h r e e were taken t o t h e p o l i c e s t a t i o n while one of t h e o f f i c e r s followed i n t h e i r car. A t t h e s t a t i o n t h e p o l i c e received t h e o r a l and w r i t t e n consent of t h e owner and d r i v e r of t h e c a r , Kenneth Berger, t o search h i s car. The subsequent search yielded an addi- t i o n a l f i v e Baggies of marijuana which had been placed i n a brown paper bag i n t h e backseat. Defendant's arrest and t h e subsequent search w e r e accomplished without a warrant. H e f i l e d a motion t o sup- p r e s s a s evidence a t t r i a l both t h e marijuana seized from h i s c o a t pockets and t h a t seized from t h e backseat of Berger's c a r . Following an evidentiary hearing, t h e c o u r t entered findings of f a c t , conclusions of law and an order denying defendant's motion. Defendant renewed h i s motion t o suppress a t t r i a l and a l s o moved f o r an a c q u i t t a l on Count I1 charging him with attempted s a l e . This l a t t e r motion, which was a l s o denied, alleged t h a t t h e evidence presented by t h e S t a t e was insuf- f i c i e n t t o show a d i r e c t unequivocal a c t committed by defen- d a n t toward the commission of a sale. The State had pre- sented t h r e e high school students a s witnesses. Kathy Barlow t e s t i f i e d : "He asked us i f w e wanted t o buy a bag." She f u r t h e r t e s t i f i e d t h a t although defendant did not ex- p l a i n h i s meaning, she understood him t o mean a bag of marijuana. H e d i d not show her t h e marijuana. The t e s t i - mony of t h e o t h e r high school s t u d e n t s was s u b s t a n t i a l l y s i m i l a r . N o one t e s t i f i e d t h a t they saw any marijuana a t t h e school. Defendant p r e s e n t s t h r e e i s s u e s f o r review which can be s t a t e d a s follows: 1. Whether t h e arrest of defendant w a s supported by probable cause? 2. Whether t h e subsequently s e i z e d evidence w a s t h e f r u i t of an i l l e g a l a r r e s t ? 3 . Whether defendant committed a direct unequivocal a c t s u f f i c i e n t t o support h i s conviction of t h e crime of attempted s a l e of dangerous drugs? PROBABLE CAUSE Defendant argues t h a t t h e o f f i c e r s d i d n o t have proba- b l e cause t o s t o p t h e automobile i n which defendant was r i d i n g because when Owens c a l l e d t h e p o l i c e , he d i d n o t i d e n t i f y t h e source of h i s information and t h e d i s p a t c h e r asked him no questions. The S t a t e responds by arguing t h a t t h e p o l i c e w e r e informed of t h e "underlying circumstances" giving rise t o Owens' t i p t o an e x t e n t s u f f i c i e n t t o support a f i n d i n g of probable cause. Both p a r t i e s cite Owens' testimony from t h e t r a n s c r i p t of t h e suppression hearing regarding t h e information he gave t h e p o l i c e during h i s f i r s t c a l l : "I s a i d I have information from one of m y s t u d e n t s t h a t he was approached i n t h e w e s t parking l o t t o buy drugs. H e r e i s t h e d e s c r i p t i o n of t h e i n d i - vidual. H e r e i s t h e l i c e n s e number of t h e c a r . I j u s t saw t h i s i n d i v i d u a l o u t t h e r e . Ask you t o g e t down h e r e as f a s t as possible." O f f i c e r F i s h e r , t h e dispatcher who received t h e c a l l , gave somewhat less extensive testimony regarding t h i s same ex- change: "Q. And can you s t a t e what M r . Owens s a i d t o you? A. Y e s . H e t o l d me t h a t t h e r e w a s an o l d e r model c a r , white, s i t t i n g i n t h e w e s t parking l o t of t h e high school s e l l i n g drugs t o kids. "Q. Did you ask M r . Owens any questions? A. No. He had t h e l i c e n s e number and he s a i d he d i d . 12- 3759. I gave t h a t t o them and they l e f t . "Q. And he gave you a d e s c r i p t i o n of t h e i n d i - vidual? A. Yes. The one t h a t w a s s e l l i n g t h e drugs was wearing a blue jacket. Long dark h a i r . Dark complected. "Q. And d i d he advise you t h a t t h e i n d i v i d u a l was s e l l i n g drugs t o him? A. No. To some kids. "Q. And d i d he g i v e any information about, t o ad- --- -- v i s e you of how he knew t h a t ? A. No." (Emphasis ----- - added. ) Included i n Finding of F a c t No. 1 i s t h e following: "He then returned t o h i s o f f i c e and c a l l e d t h e Havre P o l i c e Department. He i d e n t i f i e d himself, reported t h e i n c i d e n t and asked t h a t p o l i c e be s e n t t o t h e school. He then returned t o t h e foyer . . ." Finding of F a c t No. 6 included t h e following: "6. A t t h e t i m e t h e Berger c a r was stopped by of- f i c e r s Brown and Harada, personnel of t h e Havre P o l i c e Department possessed t h e following informa- t i o n : " ( c ) . Owens' r e p o r t was based on information which he had received from a student." Section 95-701, R.C.M. 1947, now s e c t i o n 46-5-101 MCA, provides i n p e r t i n e n t p a r t t h a t : "A search of a person, o b j e c t o r place may be made and instruments, a r t i c l e s , o r t h i n g s may be seized i n accordance with t h e provisions of t h i s chapter when t h e search i s made: "(a) A s an i n c i d e n t t o a lawful a r r e s t . " I f t h e a r r e s t i n g o f f i c e r s d i d n o t have probable cause t o s t o p t h e automobile, no evidence discovered a s a r e s u l t of a s e a r c h of defendant can be used t o j u s t i f y t h e a r r e s t . S t a t e v. Lahr (1977), Mont. , 560 P.2d 527, 34 I n S t a t e ex rel. Townsend v. D i s t . Court (1975), 168 Mont. 357, 360-61, 543 P.2d 193, 195, t h i s Court s t a t e d : " I t cannot be disputed t h a t hearsay information may b e considered t o e s t a b l i s h probable cause. [ C i t a t i o n s omitted.] But when hearsay informa- t i o n forms t h e j u s t i f i c a t i o n f o r a f i n d i n g of probable cause and t h e issuance of a s e a r c h war- r a n t , t h e two-pronged test set o u t i n Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, must be a p p l i e d and s a t i s f i e d : II 1 . . . t h e m a g i s t r a t e must be informed of some of t h e underlying circumstances from which t h e informant concluded t h a t t h e n a r c o t i c s w e r e where he claimed they were, and some of t h e underlying circumstances from which t h e o f f i c e r concluded t h a t t h e informant, whose i d e n t i t y need n o t be d i s c l o s e d , [ c i t a t i o n omitted] was " c r e d i b l e " o r h i s information "reliable.""' The argument i n t h e i n s t a n t c a s e c e n t e r s on t h e f i r s t prong of t h i s test: whether t h e o f f i c e r s who a r r e s t e d defendant were "informed of some of t h e underlying circumstances from which t h e informant concluded [ t h a t defendant was s e l l i n g drugs t o s t u d e n t s ] . " A s previously o u t l i n e d , t h e testimony v a r i e s on t h i s p o i n t . Our review of t h e r e c o r d i n t h i s c a s e does n o t estab- l i s h a s u f f i c i e n t b a s i s f o r f i n d i n g t h a t d e f e n d a n t ' s a r r e s t was supported by probable cause. The testimony of t h e a r r e s t i n g o f f i c e r s , a s w e l l a s t h e p o l i c e d i s p a t c h e r , re- v e a l s t h a t they d i d n o t have s u f f i c i e n t knowledge of t h e underlying circumstances of Owens1 t i p t o e s t a b l i s h probable cause t o arrest defendant. I n a s i t u a t i o n where p o l i c e o f f i c e r s expect t o make a w a r r a n t l e s s arrest, t h e arrest must be based on probable cause. When t h a t probable cause i s based on a t i p , spring- i n g from a n informant's p e r s o n a l observation, t h e i n f o r - mant's r e l i a b i l i t y becomes s i g n i f i c a n t . Where t h e reli- a b i l i t y of t h e informant i s assured, a s i n t h i s c a s e , b u t where h i s information i s based on someone else's s t a t e m e n t s , t h e p o l i c e must make some f u r t h e r i n q u i r y of t h e informant regarding t h e underlying circumstances of h i s conclusion t h a t it i s probable t h a t a n o f f e n s e i s being o r has been cornmi t t e d . While Owens d i d n o t have t o r e v e a l t o t h e p o l i c e t h e i d e n t i t y of t h e s t u d e n t who gave him t h e n o t e , t h e p o l i c e should have asked Owens a few q u e s t i o n s such a s whether he knew t h e s t u d e n t , whether t h e s t u d e n t had been p e r s o n a l l y approached by t h e s u s p e c t o r whether t h e s t u d e n t had over- heard a n o f f e r o r a c t u a l l y seen any drugs. I n view of t h e f a c t t h a t Owens p e r s o n a l l y observed no conduct on t h e p a r t of t h e s u s p e c t which could be c l a s s i f i e d a s c r i m i n a l conduct, t h i s b r i e f i n q u i r y by t h e p o l i c e would have reduced t h e p o s s i b i l i t y of a misunderstanding and s a t i s f i e d c e r t a i n minimum s t a n d a r d s f o r e s t a b l i s h i n g proba- b l e cause. Without t h e s e a d d i t i o n a l f a c t s e s t a b l i s h i n g probable cause t o a r r e s t , t h e D i s t r i c t Court should have suppressed t h e evidence s e i z e d as a r e s u l t of t h e arrest, t h a t being t h e contraband found on d e f e n d a n t ' s person. Mapp v, 0 h i o (1961), 367 U . S . 643, 655, 8 1 S.Ct. 1684, 1691, 6 L-Ed-2d 1081, 1090. Defendant's c o n v i c t i o n , t h e r e f o r e , i s r e v e r s e d , and t h e case i s remanded f o r a new t r i a l . W e w i l l a d d r e s s t h e two remaining i s s u e s , however, f o r t h e b e n e f i t of t h e D i s t r i c t Court. SUBSEQUENTLY SEIZED EVIDENCE Defendant argues t h a t t h e marijuana s e i z e d from B e r g e r ' s car should have been suppressed under t h e " f r u i t of t h e poisonous tree" d o c t r i n e , a s having been discovered as a r e s u l t of d e f e n d a n t ' s " i l l e g a l " a r r e s t . The S t a t e answers t h i s contention w i t h two arguments. F i r s t , t h e S t a t e contends t h a t defendant has n o t e s t a b l i s h e d t h a t t h e s e a r c h invaded d e f e n d a n t ' s Fourth Amendment r i g h t s . Second, t h e S t a t e contends t h a t t h e s e a r c h of Berger's car was n o t t h e f r u i t of a n i l l e g a l a r r e s t w i t h i n t h e meaning of Wong Sun v. United S t a t e s (1963), 371 U.S. 471, 83 S.Ct. The D i s t r i c t Court made a s p e c i f i c conclusion of law w i t h r e s p e c t t o t h i s i s s u e : "7. The s e a r c h of t h e Berger c a r was l e g a l l y made pursuant t o t h e v a l i d consent of t h e owner of t h e c a r . I n any event, defendant i s without standing t o challenge t h a t search." Addressing f i r s t t h e q u e s t i o n of d e f e n d a n t ' s standing t o challenge t h e s e a r c h of B e r g e r ' s c a r , w e f i n d t h a t h e was without standing t o challenge t h e search. The S t a t e p l a c e s g r e a t emphasis on a r e c e n t United S t a t e s Supreme Court c a s e i n support of t h e p o s i t i o n t h a t defendant l a c k s standing t o o b j e c t t o t h i s search. I n Rakas v. I l l i n o i s (1978), U . S. , 99 S.Ct. 421, 58 L.Ed.2d 387, t h e Supreme Court examined t h e r u l e of s t a n d i n g enunciated i n Jones v . United S t a t e s (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697: " I n Jones, t h e Court set f o r t h two a l t e r n a t i v e holdings: it e s t a b l i s h e d a r u l e of 'automatic' standing t o c o n t e s t an a l l e g e d l y i l l e g a l search where t h e same possession needed t o e s t a b l i s h s t a n d i n g i s a n e s s e n t i a l element of t h e o f f e n s e charged; and second, it s t a t e d t h a t 'anyone l e g i t i m a t e l y on premises where a s e a r c h occurs may challenge i t s l e g a l i t y by way of a motion t o suppress.' 362 U.S. a t 264, 267." Rakas, U.S. a t - , 99 S.Ct. a t 426, 58 L.Ed.2d a t 395-96. Though t h e Court i n Rakas a p p a r e n t l y r e s t r i c t e d t h e a p p l i - c a t i o n of t h e second a l t e r n a t i v e holding i n Jones, it went on t o e x p l a i n a t Footnote No.4 t h a t : "We have n o t y e t had occasion t o d e c i d e whether t h e automatic standing r u l e of Jones s u r v i v e s o u r d e c i s i o n i n Simmons v. United S t a t e s , 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See Brown v. United S t a t e s , 411 U.S. 223, 228- 229, 93 S.Ct. 1565, 1568-1569, 36 L.Ed.2d 208 (1973). Such a r u l e is, of course, one which may allow a defendant t o a s s e r t t h e Fourth Amendment r i g h t s of another." I n Brown, 4 1 1 U.S. a t 228, 93 S.Ct. a t 1569, 36 L.Ed.2d a t 213, t h e Supreme Court had s t a t e d : ". . . under t h e Simmons d o c t r i n e t h e defendant i s permitted t o e s t a b l i s h t h e r e q u i s i t e stand- ing- by claiming ' possession' of i n c r i m i n a t i n g evidence. I f he i s granted s t a n d i n g on t h e b a s i s of such evidence, he may then nonetheless p r e s s f o r i t s exclusion; b u t , whether he suc- ceeds o r f a i l s t o suppress t h e evidence, h i s testimony on t h a t s c o r e i s n o t d i r e c t l y admis- s i b l e a g a i n s t him i n t h e t r i a l . Thus, p e t i - t i o n e r s i n t h i s c a s e could have a s s e r t e d , a t t h e p r e t r i a l suppression hearing, a possessory i n t e r e s t i n t h e goods a t Knuckle's s t o r e with- o u t any danger of i n c r i m i n a t i n g themselves. They d i d n o t do so. "But it is n o t necessary f o r u s now t o d e t e r - mine whether o u r d e c i s i o n i n Simmons, supra, makes Jones' 'automatic' standing unnecessary. W e r e s e r v e t h a t q u e s t i o n f o r a c a s e where pos- s e s s i o n a t t h e t i m e of t h e c o n t e s t e d s e a r c h and s e i z u r e i s 'an e s s e n t i a l element of t h e of- f e n s e . . . charged.'" W e now determine whether t h e s e a r c h of B e r g e r ' s c a r , conducted pursuant t o h i s consent, v i o l a t e d t h e Fourth Amendment a s t h e " f r u i t of t h e poisonous t r e e " under Wong Sun v. United S t a t e s (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. I n Wong - Sun, t h e Supreme Court h e l d t h e "poisonous t r e e " r u l e a p p l i c a b l e t o t h e e v i d e n t i a r y f r u i t s of u n c o n s t i t u t i o n a l a r r e s t s . The Court went on, though, t o i n d i c a t e t h a t t h e t a i n t of i n i t i a l i l l e g a l i t y may be purged: " W e need n o t hold t h a t a l l evidence i s ' f r u i t of t h e poisonous tree' simply because it would n o t have come t o l i g h t b u t f o r t h e i l l e g a l a c t i o n s of t h e p o l i c e . Rather, t h e more a p t q u e s t i o n i n such a c a s e is 'whether, g r a n t i n g e s t a b l i s h m e n t of t h e primary i l l e g a l i t y , t h e evidence t o which i n s t a n t o b j e c t i o n i s made has been come a t by e x p l o i t a t i o n of t h a t i l l e g a l i t y o r i n s t e a d by means s u f f i c i e n t l y d i s t i n g u i s h a b l e t o be purged of t h e primary t a i n t . " Wong Sun, 371 U.S. a t 487-88. - Thus, under Wong Sun, two q u e s t i o n s must be answered: (1) Was t h e a r r e s t a cause-in-fact of t h e l a t e r discovery of evidence; and (2) i f s o , was t h e r e an i n t e r v e n i n g cause o r event s u f f i c i e n t t o a t t e n u a t e t h e t a i n t of t h e i l l e g a l a r r e s t ? I t is c l e a r t h a t a showing of " v o l u n t a r i n e s s " on B e r g e r ' s p a r t i s n o t s u f f i c i e n t t o a t t e n u a t e t h e t a i n t . See Schneckloth v . Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. Rather, adopting t h e r a t i o n a l e of Brown v. I l l i n o i s (1975), 422 U.S. 590, 598-99, 95 S.Ct. 2254, 45 L.Ed.2d 416, t h e S t a t e must show t h a t B e r g e r ' s consent w a s " s u f f i c i e n t l y a n a c t of f r e e w i l l t o purge t h e primary t a i n t . " While t h i s i s an admittedly heavy burden, t h e r e i s s u f f i c i e n t evidence i n t h e r e c o r d of t h e i n s t a n t c a s e t o f i n d t h a t t h e S t a t e has m e t it. Berger, t h e p a r t y who gave consent, t e s t i f i e d t h a t h i s consent was v o l u n t a r y and uncoerced. Moreover, Berger t e s t i f i e d t h a t he was unaware t h a t any drugs w e r e i n t h e c a r and t h a t he t h e r e f o r e had no reason t o deny consent. H e expected t h e s e a r c h of h i s car t o e s t a b l i s h h i s innocence and gave h i s consent w i t h t h a t i n mind. F i n a l l y , t h r e e f a c t o r s combine i n t h e i n s t a n t c a s e t o e s t a b l i s h t h a t B e r g e r ' s consent w a s " s u f f i c i e n t l y a n a c t of f r e e w i l l t o purge t h e t a i n t . " F i r s t , t h e r e i s a n absence of any e v i - dence of any t h r e a t s , promises, o r coercion by p o l i c e o f f i - cers. Second, t h e r e i s evidence t h a t B e r g e r ' s consent was knowing, i n t h a t he was advised of h i s r i g h t t o r e f u s e t o g i v e h i s consent. Third, Berger had thought he had every- t h i n g t o g a i n from t h e s e a r c h of h i s c a r s i n c e t o h i s knowl- edge t h e s e a r c h would y i e l d no drugs and t h u s advance h i s u l t i m a t e v i n d i c a t i o n . OVERT ACT REQUIREMENT Defendant argues t h a t mere conversation i s n o t a d i r e c t unequivocal a c t d i r e c t e d toward t h e commission of t h e of- f e n s e s u f f i c i e n t t o s u s t a i n a conviction f o r attempted s a l e of dangerous drugs. Furthermore, he argues t h a t an o v e r t a c t must go f a r enough toward t h e accomplishment of t h e o f f e n s e t o amount t o commencement of its consummation. S i n c e defendant never displayed any marijuana t o any of t h e t h r e e s t u d e n t s he o f f e r e d t o s e l l a "bag" t o , he argues t h a t a t no t i m e d i d he have t h e "apparent a b i l i t y " t o complete a s a l e . The S t a t e contends t h a t d e f e n d a n t ' s a c t i o n s w e r e more than mere a c t s of p r e p a r a t i o n , r a t h e r they w e r e a c t s of p e r p e t r a t i o n . The only t h i n g standing between defendant and a completed s a l e was h i s i n a b i l i t y t o f i n d a w i l l i n g buyer. S e c t i o n 94-4-103, R.C.M. 1947, now s e c t i o n 45-4-103 MCA, provides: "A person commits t h e o f f e n s e of a t t e m p t , when, w i t h t h e purpose t o commit a s p e c i f i c o f f e n s e , he does any a c t towards t h e commission of such o f f e n s e . " This Court has s t a t e d than an o v e r t a c t "must reach f a r enough toward t h e accomplishment of t h e d e s i r e d r e s u l t t o amount t o t h e commencement of t h e consummation." I n addi- t i o n , t h e Court s t a t e d t h a t " t h e r e must be some a p p r e c i a b l e fragment of t h e c r i m e committed, and it must b e i n such p r o g r e s s t h a t it w i l l be consummated u n l e s s i n t e r r u p t e d by circumstances independent of t h e w i l l of t h e attempter." S t a t e v . Rains (1917), 53 Mont. 424, 164 P. 540. I n t h i s c a s e it i s clear t h a t defendant intended t o make a s a l e of drugs. H e made o f f e r s t o t h r e e s t u d e n t s and had t h e drugs i n h i s possession a t t h e t i m e of t h e o f f e r s . F u r t h e r , testimony i n d i c a t e d t h a t defendant was t r a v e l i n g from Chinook t o Sidney when t h e s i d e t r i p t o Havre w a s taken. The e x t r a o r d i n a r y t r i p , approaching s t u d e n t s and making v e r b a l o f f e r s t o s e l l drugs are s u f f i c i e n t a c t s t o c o n s t i t u t e t h e crime of a t t e m p t c o n s i s t e n t w i t h t h e r a t i o n a l e of S t a t e v . Rains, supra. The c a s e i s reversed and remanded f o r f u r t h e r pro- ceedings c o n s i s t e n t w i t h t h i s opinion. W e concur: ~ A & J , u @ & Chief J u s t l c e - of M r . J u s t i c e Sheehy | July 18, 1979 |
0a19c027-465d-46fc-b348-11a68760b180 | HOLMSTROM LAND CO v NEWLAN CREEK | N/A | 13848 | Montana | Montana Supreme Court | No. 13848 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 HOLMSTROM LAND COMPANY, INC., a Montana Corporation, Plaintiff and Appellant, -vs- MEAGHER COUNTY NEWLAN CREEK WATER DISTRICT, Defendant, Appellant and Respondent, and WARD PAPER BOX CO., et al., Defendants and Respondents and Cross-Appellants. Appeal from: District Court of the Fourteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellants: Heath and Kirwan, Bozeman, Montana Peter M. Kirwan argued, Bozeman, Montana Patrick F. Hooks, Townsend, Montana Loble & Pauly, Helena, Montana Henry Lobleargued and Bruce Loble argued, Helena, Montana John V. Potter argued, White Sulhpur Springs, Montana Small and Hatch, Helena, Montana Floyd 0 . Small argued, Helena, Montana Gary Spaeth argued, Helena, Montana Robert T. Cumrnins appeared, Helena, Montana For Respondents: Berg, Angel, Andriolo and Morgan, Bozeman, Montana Ben E. Berg, Jr., argued, Bozeman, Montana Submitted: November 29, 1978 Filed: ..,,; 3 f.j73 . - Mr. Justice Daniel J. Shea delivered the Opinion of the Court. This is a multiple appeal from the findings of fact, conclusions of law and decree entered by the District Court, Meagher County, adjudicating water rights to Sheep Creek and its principle tributaries. Sheep Creek, which is located entirely in Meagher County, originates in the Little Belt Mountains. It flows from the mountains in a westerly direction to a point where it merges with the Smith River. Sheep Creek carries large quantities of water for a relatively short period each year, usually commencing in April and extending through the latter part of June. During this heavy flow period, and at other times during the year, many farmers and ranchers divert Sheep Creek water by means of gravity flow systems and utilize the water to irrigate their farm and ranch land. When gravity flow systems are used, the water is removed from a stream at a facility called a diversion point. The water is then transported through an irrigation ditch to the area to be irrigated. From 1935 to 1972, Holmstrom Land Company maintained the first diversion point on Sheep Creek. Holmstrom's diversion was located approximately 300 feet (Ward) upstream from Ward Paper Company's/ Mumbrue diversion. In 1972 Ward built what we will refer to as the Mumbrue Bypass. This concrete structure was built above Holmstrom's diversion point and allowed Ward to divert Sheep Creek water before it reached the Holmstrom diversion. The building of the Mumbrue Bypass precipitated the present lawsuit. In October 1972, Holmstrom Land Company instituted a suit in Meagher County District Court seeking an injunction prohibiting Ward's use of the Mumbrue Bypass, and a decree establishing the rights of all parties claiming water from Sheep Creek and its tributaries. In addition to Ward, Holmstrom Land Company joined: Dean 0. Thorson, Virginia Thorson, Porter Fender, Elmer V. Hanson, Walter Joyce, Axel M. Holmstrom, Jr., Rose Holmstrom, the Montana Resources Board of the State of Montana (Resources Board) and Meagher County Newlan Creek Water District (District). The individual defendants were joined because they all purportedly claimed vested water rights in Sheep Creek as a result of having used its water for beneficial purposes. The Resources Board and the District were joined as defendants because they claimed existing rights in Sheep Creek pursuant to filings under sections 89-121 and 89-810, R.C.M. 1947 (since repealed). After extensive pretrial discovery and numerous motions to dismiss, the case was set for trial before the District Court, sitting without a jury. The trial was held over a six month period, but only eight days of actual litigation were involved (November 19 and 20, 1974; May 14, 15 and 16, 1975; July 29, 30 and 31, 1975). At the conclusion of the trial all parties submitted proposed findings to the District Court. Thereafter, on February 3, 1977, the District Court entered findings of fact, conclusions of law and a decree establishing the relative rights and priorities of those parties claiming an interest in Sheep Creek and its tributaries. These findings were amended once to grant certain individuals additional water rights. Thereafter, the District Court denied all motions to further amend its findings. On August 30, 1977, the District filed a limited notice of appeal challenging the water rights granted to Ward and Dean and Virginia Thorson. The District's notice of appeal -3- also indicated that the District would seek to expand the water rights granted to it by the District Court. On September 9, 1977, Ward cross-appealed and challenged the propriety of the water rights granted to the following parties: Holmstrom Land Company, Dean and Virginia Thorson, Walter Joyce, Elmer and Hanson, Riverside Ranch Co., the Resources Board/the District. On September 15, 1977, Holmstrom Land Company filed a general notice of appeal and thus the entire decree is being challenged in some respect. The three parties filing notices of appeal have raised numerous issues for our review. We group the issues raised by the parties into four subheadings: (1) the sufficiency of the decree entered by the District Court; (2) the sufficiency of the evidence to support the awards granted to Ward, Holmstrom Land Company, Thorsons, Joyce,Hanson and the Riverside Ranch; (3) the propriety of the awards granted to the District and the Resources Board; and finally, (4) the sufficiency of the evidence to support injunctive relief in favor of Holmstrom Land Company. SUFFICIENCY OF THE DECREE -- The first issue to be discussed is the sufficiency of the decree entered by the District Court. The District argues that the water decree is insufficient because it fails to specify: (1) the exact acreage to which the water rights were appurtenant; (2) the seasonal and hourly limitations which should be imposed on the various water rights; and, (3) the exact location of the various diversion points. Without this information, the District alleges the water right decree will only foster further conflicts between the parties using Sheep Creek. Holmstrom Land Company joins the District in its claim that the decree is deficient. There is no doubt that the decree adjudicating Sheep Creek could have been more detailed. But, the question before this Court is whether the decree satisfies the statutory requirements, particularly section 89-815, R.C.M. 1947, which provides: "Rights settled -- in one action. In any action hereafter commenced for the protection of rights acquired to water under the laws of this state, the plaintiff may make any or all persons who have diverted water from the same stream or source, parties to such action, -- and the court may in one judgment settle the relative priorities and -- rights --- of all the parties to such action. When - -- damages are claimed for the wrongful diversion of water in any such action, the same may be assessed and apportioned by the jury in their verdicts, and judgment thereon may be entered for or against one or more of several plaintiffs, or for or against one or more of several defendants, and may determine the ultimate rights of the parties between them- selves. In any action concerning joint water rights, or joint rights in water ditches, unless partition of the same kind is asked by parties to the action, the court shall hear and determine such controversy as if the same were several as well as joint." (Emphasis added.) The District Court's decree is sufficiently definite to "settle the relative priorities and rights of all parties." The decree designates the owners of the various water rights, their priority dates, the amount of the awards in miners inches and the source of the water. This information is sufficient to allow a water commissioner to carry out the District Court's decree. We note that in the future, problems concerning the sufficiency of decrees should not arise because our new water laws will provide the District Court with precise guidelines for their decrees. For example, section 85-2-208 MCA (formerly section 89-877, R.C.M. 1947) provides: "Final decree. (1) The court shall, on the basis of the preliminary decree and on the basis of any hearing that may have been held, enter a final decree affirming or modifying the preliminary decree. If no request for a hearing is filed within the time allowed, the preliminary decree automatically becomes final, and the court shall enter it as the final decree. " ( 2 ) The final decree shall establish the exist- ing rights and priorities of the persons named in the petition for the source or area under consideration. "(3) The final decree shall state the findings of fact, along with any conclusions of law, upon which the existing rights and priorities of each person named in the decree are based. "(4) For each person who is found to have an existing right, the final decree shall state: " (a) the name and post-office address of the owner of the right; "(b) the amount of water, rate, and volume, included in the right; "(c) the date of priority of the right; "(d) the purpose for which the water included in the right is used; "(e) the place of use and a description of the land to which the right is appurtenant; "(£1 the source of the water included in the right; "(g) the place and means of diversion; "(h) the approximate time during which the water is used each year; "(i) any other information necessary to fully define the nature and extent of the right. " (5) The final decree in each existing right determination is final and conclusive as to all existing rights in the source or area under consideration. After the final decree there shall be no existing rights to water in the area or source under consideration except as stated in the decree. " With section 85-2-208 MCA as a guideline, district courts should have no difficulty determining what their final decrees must contain. The present suit, however, was determined under the old water laws and the decree entered by the District Court must be measured against water right decrees entered under those laws. We determine that it is sufficient. SUFFICIENCY -- OF THE EVIDENCE TO - SUPPORT VARIOUS AWARDS GRANTED TO THE INDIVIDUALS -- The awards granted to Holmstrom Land Company, Ward, Dean 0 . and Virginia Thorson (Thorsons), Walter Joyce and Elmer Hanson have been challenged by various parties to this appeal. Though we must review the propriety of each of the challenged awards, our review of the sufficiency of the evidence is limited. See: Luppold v. Lewis (1977) , Mont. , 563 P.2d 538, 540, 34 St.Rep. 227. We will begin our review with the water rights granted to Ward. The District Court awarded Ward 1,200 miners inches from Sheep Creek with priority dates in 1897, 1903 and 1906. This award is challenged by Holmstrom Land Company and the District. The challengers (appellants) claim Ward did not produce sufficient, competent evidence to support such a large award from Sheep Creek. We find that Ward produced sufficient evidence to support an award from Sheep Creek, but not to the extent granted by the District Court. Section 89-810, R.C.M. 1947 (repealed in 1973) provides: "Notice of appropriation. Any person hereafter desirinqto appropriate the waters of a river, - - - - or stream, ravine, coulee, spring, lake, or other natural source of supply concerning which there has not been an adjudication of the right to use the waters, or some part thereof, must post a notice in writing in a conspicuous place at the point of intended diversion, stating therein: "1. The quantity of water claimed, measured as hereinafter provided; "2. The purpose for which it is claimed and place of intended use; "3. The means of diversion, with size of flume, ditch, pipe, or aqueduct, by which he intends to divert it; "4. The date of appropriation; "5. The name of the appropriator. "Within twenty days after the date of appro- priation the appropriator shall file with the county clerk of the county in which such appro- priation is made a notice of appropriation, which, in addition to the facts required to be stated in the posted notice, as hereinbefore prescribed, shall contain the name of the stream from which the diversion is made, if such stream have a name, and if it have not, such a description of the stream as will identify it, and an accurate description of the point of diversion of such stream, with reference to some natural object or permanent monument. The notice shall be verified by the affidavit of the appropriator or some one in his behalf, which affidavit must state that the matters and facts contained in the notice are true." The legislature has established an incentive or reward for those parties who comply with the requirements of section 89-810. Section 89-814, R.C.M. 1947 (repealed in 1973) provided : "Record prima facie evidence. The record provided for in sections 89-810 and 89-813, when duly made, shall be taken and received in all courts of this state as prima facie evidence of the statements therein contained." Based on this statute, a person who is claiming an existing water right is allowed to introduce a notice of section appropriation which has been duly filed under/89-810, R.C.M. 1947, and said notice "shall be taken and received in all courts of this state as prima facie evidence of the statements therein." Relying on this statute, Ward introduced three notices of appropriation which were filed by Ward's predecessors in interest. These three notices established a prima facie case for an award of 2,500 miners inches from Sheep Creek. But, this prima facie showing did not completely discharge Ward's burden of proof. Ward still had the burden of showing that all the water claimed had been put to a beneficial use over a reasonable period of time. As we stated in Irion v. Hyde (1938), 107 Mont. 84, 95, 96, 81 P.2d 353, 358, statements made in notices of appropriation are not completely dispositive for purposes of decreeing the amount of a water right: "The rights of the parties were not to be measured entirely by what they claimed in their appropria- tion notices. They were to be measured and gauged by their beneficial use over a reasonable period of time after they initiated the appropria- tions. In establishing the prior right of the plaintiffs consideration must be given to the extent and manner of their use, the character of their land, and the general necessities of the case. 'To the extent of his appropriation his supply will be measured by the waters naturally flowing in the stream and its tributaries above the head of his ditch, whether those waters be furnished by the usual rains or snows, by extra- ordinary rain or snowfall, or by springs or seeDaae which directlv contribute.' (Beaverhead x. J - - - - . ,- - - - ~ - - - - Canal Co. v . Dillon etc. Co., 34 Mont. 135, 85 -- Pat. 880, 882.) It does not follow that plaintiffs were entitled to 1,000 inches because they designated that amount in their appropriation. Neither does it follow that defendants were of necessity entitled to the full amounts designated in their appropriation notices. All of these matters were subject to proof of use. (See Bailey v. - Tintinger, 45 Mont. 154, 122 Pac. 575; Peck v. -- Simon, 101 Mont. 12, 52 Pac. (2d) 164.)" The Irion decision requires that Ward, in addition to establishing a prima facie case through the notices, must also prove a "beneficial use over a reasonable period of time." Inherent in this burden of proof is the responsibility to prove the amount of water beneficially used. Ward proved a beneficial use and also provided the trial court with sufficient evidence to establish the amount of water beneficially applied. However, the District Court granted rights larger than Ward's evidence would support. The evidence indicates that Ward and its predecessors have continually used Sheep Creek to irrigate Ward's property. It was established that grain crops could not be grown on Ward's land unless water was available for irrigation purposes. Ward's evidence shows that approximately 735 acres are used now, and have in the past, been used for growing crops. This is sufficient evidence to establish a beneficial use over a reasonable period of time. See Hyde, supra. But, the District Court erred in determining the extent of Wards water rights in Sheep Creek, which were set at 1,200 miners inches. The most favorable evidence in Ward's favor came in as Ward's exhibit no. 94. A portion of that exhibit states: "The total direct diversion requirement from Sheep Creek is equal to 21.8 + 3.6 = 25.4 C.F.S." (cubic feet per second). This 25.4 C.F.S. figure converts into 1,016 miners inches of water. See: section 89-818, R.C.M. 1947, now section 85-2- 103 MCA. Accordingly, the 1,200 miners inches awarded to Ward by the District Court must be reduced by 184 miners inches. The Ward water rights have the following priority dates: 1,000 miners inches with priority of September 10, 1897; 16 miners inches with priority date of September 29, 1903. With these modifications, the judgment in favor of Ward is affirmed. The District Court awarded Holmstrom Land Company 3,000 miners inches from Sheep Creek with a priority date of 1935. Ward asserts that this award must be reduced for two reasons: (1) the narrowest point in Holmstrom Land Company's ditch will facilitate only 808 miners, inches and therefore the 3,000 miners inches granted to Holstrom Land Company must be reduced to 808 miners inches; (2) alternatively, Ward asserts that the award to Holmstrom Land Company must be reduced from 3,000 miners inches to 1,400 miners inches because Holmstrom's diversion facility can only divert a maximum of 1,400 miners inches. Ward relies heavily on Wheat v. Cameron (1922), 64 Mont. 494, 502, 216 P. 761, where we stated: "[aln appropriator cannot acquire a right to more water than his ditch will carry, and it is manifest it cannot carry a greater amount than that permitted by the headgate capacity." -10- The evidence supports a finding as the capacity of the ditch to carry 3,000 miners inches of water but does not support a finding that the Holmstrom Land Company diversion point is capable of diverting 3,000 miners inches of water. Therefore, it is necessary to reduce the award made to Holmstrom Land Company. Roger Perkins, an expert called by Ward, testified as follows: "Q. I am going to call your attention, Mr. Perkins, to Sheep Creek in the area of the by-pass, the Holmstrom diversion, and the Ward diversion. Did water going down Sheep Creek pass by the by-pass first as compared to the other installation. A. Yes. "Q. And from there where does it go? A. It then flows under the highway. There are three culverts under the highway. "Q. Would you also refer to the alternate place that it might flow instead of going under the high- way in through the culverts? A. Yes, in times of heavier flows there is a rock masonry dam immediately adjacent to the highway where Sheep Creek can overflow and run down the borrow pit of the highway. "Q. And if it runs over that masonry dam, it event- ually could get down, would it not, to the Ward diversion in the Mumbme ditch? A. That is correct. "Q. Now referring to the water that goes under the dam, I mean under the highway through the culverts, the water would flow down to where first? A. It would flow to the point of the Holmstrom diversion. "Q. And if it passes by there eventually where would it go thereafter? A. It then flows back under the highway and down to a point of the Mumbrue ditch diversion. "Q. It flows under the highway again, is that through culverts? A. That is through culverts. "Q. Does Holmstrom have a dam at the point of his diversion to raise the level of water and thus divert it into his ditch? A. Yes, he does. "Q. Would you describe that dam please? A. It's just a rock dam, rock randomly placed in the stream. "Q. Is it water-tight? A. No, it is not water-tight. "Q. Have you made any calculations as to how much water, by use of the facility which he has there now that Mr. Holmstrom could divert into his ditch? A. Yes, I have. "Q. Would you give us your calculations please? Do you have any documents or work papers which you use--you could use those and if they are necessary we'll introduce them. A. First of all, I took a look at the conditions associated with the maximum recorded flow in Sheep Creek, over 460 CFS. Of this 460 CFS approximately 90 CFS would flow under the highway. The remainder would go over the rock masonry dam and down the borrow pit adjacent to the highway. "Q. That which would flow under the highway would go down to the Holmstrom diversion, that would go over the masonry dam would it not, is that correct? A. Right, this is correct. "Q. All right. A. Now of that maximum flow of 90 CFS recorded, of the 90 CFS that could flow under the highway culverts during the maximum recorded flow of Sheep Creek, 35 CFS at a maximum could be diverted into the Holmstrom ditch. The remainder would flow over the rock dam and continue down its course in Sheep Creek. "Q. That is because of the nature of that rock dam? A. That is because of the nature of the rock dam." Robert Wertz, one of the principal owners of Holmstrom Land Company, was the only person to contradict Perkins' testimony. Wertz testified that in 1954 or 1956, he estimated the amount of water being diverted from Sheep Creek at the Holmstrom Land Company diversion, and it was his conclusion that the diversion point could divert at least 3,200 miners inches. The District Court, relying on Wertz's testimony, awarded Holmstrom Land Company 3,000 miners inches from Sheep Creek. Implicit in this award is a finding that the Holmstrom diversion point is capable of diverting 3,000 miners inches. This Courts function is to review the record to determine whether there is substantial evidence to support the District Court's findings and decree. As a general rule, we accept all evidence in the record as true "unless that evidence is so inherently impossible or improbable as not to be entitled to belief." Strong v. Williams (1969), 154 Mont. 65, 68, 460 P.2d 90, 92. Our review of the transcript and the exhibits convinces us that it is inherently improbable that the Holmstrom Land Company diversion point is capable of diverting 3,000 miners inches of water. Accordingly, we are not bound by the District Court finding, and are entitled to review the evidence to determine the proper award to be made to Holmstrom Land Company. Strong, supra. After an independent review of the transcript, we conclude that the District Court shculd have granted an award of only 1,400 miners inches (40 x 35 CFS) to Holmstrom Land Company. The evidence presented by Perkins establishes this as the upward limit of Holmstrom Land Company's water right. Accordingly, the District Court must reduce the Holmstrom Land Company award in conformity with this opinion. We turn now to the award granted to Dean 0 . and Virginia Thorson. The District Court awarded the Thorsons 337 miners inches from Sheep Creek, with a priority date of September 20, 1900. The court decree specified that Thorson's water rights were "to be diverted from [the] Mumbrue Ditch." The award to the Thorsons presents a somewhat unique question for this Court. The record indicates that Ward's predecessor in interest, D. P. Mumbrue, transferred and conveyed the right to use 337 miners inches from Sheep Creek to William Woolsey, Thorsons' predecessor in interest. This conveyance took place in 1900, and was in exchange for a right-of-way across Woolseys land. Thorson testified that neither he, nor his predecessors in interest, have ever used the full 337 miners inches for a beneficial purpose. This Court has always recognized that a valid appropriation may be sold separate from the land to which it is appurtenant: "We are committed to the rule that the appropria- tor of a water right does not own the water, but has the ownership in its use only. (Creek v. Bozeman Water Works Co., 15 Mont. 121, 38 P Z . 459; Allen v . Petrick, 69 Mont. 373, 222 Pac. 451; Verwolf v. ~ o w x i n e Irr. Co., 70 Mont. 570, 227 Pac. 68; ----- Tucker v. Missoula Light & Ry. Co., 77 Mont. 91, - - - 250 ~ a c . 1 1 ; Maclay v. Missoula Irr. Dist., 90 Mont. 344, 3 Pac. (2d) 2 8 6 ; ~ o c k Creek Ditch & Flume Co. v. Miller, 93 Mont. 24-7-Pat. 0 1 U 7 4 , - L. R. 200.) Likewise it is settled by the decisions of this court that such a right is property which may be disposed of apart from the land on which it has been used. (Smith v. Denniff, 24 Mont. 20, 60 Pac. 398, 81 Am. St. ~ e ~ T 4 0 8 , 50 L. R. A. 737; Lensing v. Day & Hansen Securit Co., 67 Mont. 382, 215 ~ ~ 3 9 9 ; ~ a c l a ~ d o ~ l a I r r . Dist . , supra. ) " Brennan v. Jones (1935), 101 Mont. 550, 567, 55 P.2d 697. When D. P. Mumbrue traded a portion of his water right to Thorsons predecessor in interest, he in effect sold 337 miners inches of his rights in Sheep Creek. But, it does not necessarily follow that these 337 inches are still vested in Thorson. Section 89-802, R.C.M. 1947, (repealed in 1973) provided : "Appropriation must be for a useful purpose-- abandonment. ~heppropriation must be tor some useful or beneficial purpose, and when the - - appropriator or -- his successor in interest abandons and ceases to use the water forsuch purpose, the right ceases; but questions of abandonment shall be questions of fact, and shall be determined as other questions of fact." (Emphasis added.) Review of the testimony convinces us that Dean 0 . Thorson and his predecessors abandoned a large portion of the 337 miners inches conveyed to them by D. P. Mumbrue. Thorson testified as follows: "Q. How many acres of ground do you presently irrigate from the Murnbrue ditch? A. At present, accoruing to the measurement, the Soil Conserva- tion measurement, there are 13 acres in this tract here which we have irrigated continuously. "Q. The 13 acres you are referring to on the map is that 13 acres. A. This is true. "Q. Now the other ground -- A. There is a 7-acre tract here which we haven't irrigated for the past three years. "Q. That is out of the Mumbrue ditch? A. Yes, but if it wasn't for the ditch, it would irrigate from Woolsey. "Q. A total of 20 acres, isn't it? A. Yes." Thorson also testified that there was no evidence that his predecessors in interest had irrigated any more than twenty acres from Sheep Creek. Seventy-five years of nonuse is sufficient to provide "clear evidence" of abandonment. This Court must therefore determine what portion of Thorson's water right remains intact. Taking the evidence in a light most favorable to Thorson, we determine that all but 80 miners inches were lost through abandonment. It was established that Thorson has used Sheep Creek water to benefit 20 acres of his land. Additional testimony established that it took up to 4 miners inches per acre to properly irrigate land which is similar to Thorsons. This evidence is sufficient to allow the granting of 80 miners inches to Thorsons with a priority date of September 20, 1900. Therefore, any award granted by the District Court in excess of 80 miners inches must be reduced to conform with the evidence produced at trial. We turn next to the water rights granted to Walter Joyce and Riverside Ranch Co. (the successor to Elmer D. Hanson's rights). The awards to Riverside and Joyce are contained in the District Court's amended decree dated July 15, 1977. The amended decree gave Walter Joyce three water rights from Sheep Creek, totaling 1,000 miners inches, with priority dates in 1907, 1912 and 1949. The same decree awarded Riverside Ranch Co. the following water rights: Amount 260 inches 50 inches 300 inches 150 inches 500 inches 100 inches 80 inches Source Little Sheep Cr. Coon Creek Sheep Creek Sheep Creek Sheep Creek Sheep Creek Horse Creek Prioritv Date Sept. 1888 Feb. 1903 Sept. 1, 1897 Jan. 16, 1903 Nov. 19, 1892 Sept. 3, 1935 June 10, 1928 Ward claims that all of the water rights granted to Riverside and Joyce must be stricken because they are not supported by the evidence. Riverside and Joyce argue that Ward has no standing to challenge their water rights because their rights do not conflict with those granted to Ward, and alternatively, that the awards are supported by substantial evidence. We determine that Ward has no standing to challenge the awards from Little Sheep Creek, from Coon Creek and from Horse Creek, but that it does have standing to challenge the awards from Sheep Creek. Rule 1, M0nt.R.App.Civ.P. provides that "a party aggrieved may appeal from a judgment or order." To be aggrieved by an order or judgment a party must have an interest in the subject matter of the litigation which is injuriously affected by the judgment or order. Estate of Stoian (1960), 138 Mont. 384, 393, 357 P.2d 41. Although Stoian was decided before this Court adopted the new rules of civil and appellate procedure, the new rules have not changed the definition of "aggrieved." Thus, Ward must be able to show an interest in the subject matter of the litigation which has been injuriously affected by the judgment or order. Ward has no interest in Little Sheep Creek, Coon Creek or Horse Creek; therefore, that portion of the District Court decree adjudicating those creeks cannot be challenged by Ward. On the other hand, that portion of the District Court decree which awards water rights from Sheep Creek to Riverside and Joyce is appealable by Ward. Ward, an appropriator from Sheep Creek, has an obvious interest in any water right granted from Sheep Creek. A water right which has a priority date earlier than Ward's water rights has a potentially injurious affect on Ward because the earlier appropriator could force Ward to forego his water until the earlier water right has been completely satisfied. Ward is equally interested in any award from Sheep Creek which has a priority date subsequent to Ward's priority dates, because these later rights deplete Sheep Creek and make it unlikely that Ward would ever be -16- able to increase his rights in Sheep Creek. Unquestionably, Ward has an interest in this subject matter. Getting to the merits of the water rights awarded to Riverside and Joyce, we determine that some of the awards are not supported by substantial evidence. Certain evidence upon which the District Court relied, admitted over Ward's objections, was clearly not admissible. The exhibits introduced by Riverside and Joyce to support their water rights were notices of appropriation filed pursuant to section 89-810, R.C.M. 1947, which provides: "Notice of appropriation. Any person hereafter desiring70 appropriate the waters of a river, or stream, ravine, coulee, spring, lake, or other natural source of supply concerning which there has not been an adjudication of the right to use the waters, or some part thereof, must post a notice in writing in a conspicuous place at the point of intended diversion, stating therein: "1. The quantity of water claimed, measured as hereinafter provided; "2. The purpose for which it is claimed and place of intended use; "3. The means of diversion, with size of flume, ditch, pipe, or aqueduct, by which he intends to divert it; "4. The date of appropriation; "5. The name of the appropriator. tained in the notice are true. (Emphasis added.) If the notice provided for in section 89-810 is duly made and filed, then it "shall be taken and received in all courts of this state as prima facie evidence of the statements therein contained." Section 89-814, R.C.M. 1947. This Court has strictly construed the provisions of section 89-814. We have held that any nonconformance with section 89-810 renders the notice of appropriation inadmissible as evidence: "Many years after the use of the water through this ditch, the then present owners of these rights caused to be recorded a notice of their water rights.. . . It is argued that these notices were evidence, prima facie, of the extent of these rights. The notices did not comply with the statute as to the time of record (secs. 7102-7104 Rev. Codes). If the statute was complied with, such notices were prima facie evidence. (Wills v. Mones, 100 ~ont. 514, 50 P.2d 862.) Since these notices did not comply with the statute as to the -- -- --- time of their recording, they are of no evidesiary value in provlng thea=unf or date of an appropriation. (Peck v. ~ i m o c 101 --- Mont. 12, 52 P.2d 164.) " (Emphasis added.) Galahan et al. v. Lewis et al. (1937), 105 Mont. 294, 298, 299, 72 P.2d 1018. This Court reaffirmed Galahan in Shammel v . Vogl (1964), 144 Mont. 354, 396 P.2d 103. Under Galahan and Shammel, a party cannot rely on defective notices of appropriation to prove the extent of his water rights or their priority dates. In the present case, Ward properly objected to the introduction of many of Riverside's and Joyce's notices of appropriation because they were not filed within twenty days of the date of appropriation. The notice of appropriation contained in exhibit nos. 1, 3, 29, 30 and 36 was filed more than 20 days after the appropriator took water from Sheep Creek. This being so, each cannot be used as evidence to establish the amount or date of any water right. Without these notices, there is insufficient evidence to support several of the awards made to Riverside and Joyce. We find the following awards are not supported by the evidence and must be stricken: INADMISSIBLE PARTY AWARD SOURCE EXHIBIT NO. DATE Riverside rfiPafgf s ide Riverside 150 in. sheep Creek Jan. 16, 1903 Riverside 100 in. Sheep Creek Sept. 31, 1935 PROPRIETY OF THE AWARDS TO THE DISTRICT AND DEPARTMENT -- -- We turn now to the portion of the District Court decree which established that the District had an existing right to 3,000 miners inches of Sheep Creek. The District is, and at all times relevant hereto was, a corporation incorporated pursuant to the Montana Water District Act. The District plans to divert all available, excess water from Sheep Creek and transport it through Holmstrom's irrigation ditch to a multi-purpose reservoir in the Newlan Creek Watershed. There, the water will be stored until it can be beneficially used by the District or its customers. It is important to note that the District has not actually diverted any water from Sheep Creek; the District is only a prospective user of Sheep Creek. We must determine whether the District complied with the applicable statutes to establish its rights to future use of the excess water. The District contends that its 3,000 miners inches right can be sustained under two alternative statutes. First, that it obtained an "existing right" in Sheep Creek on or about June 29, 1973, when the Resources Board assigned its rights in Sheep Creek to the District. The ResourcecBoard's rights in Sheep Creek stemmed from a July 25, 1969 filing made by the ResourcgBoard under section 89-121, R.C.M. 1947. The District contends that the written assignment, dated June 29, 1973, was effective to transfer the Resources Board's existing rights to "all of the inappropriated water of Sheep Creek and its tributaries" to the District. The District's alternate claim, which was permissively raised during trial, is predicated on a section 89-810 filing made by the District on July 11, 1969. In the documents filed with the Meagher County Clerk, the District claimed an existing right to 75 cubic feet (3,000 miners inches) from Sheep Creek. The only party challenging the award made to the District is Ward. Ward contends that the District does not have any - existing rights in Sheep Creek and that the District Court's findings to the contrary must be reversed. We shall begin by discussing the District's rights under section 89-121, R.C.M. 1947 (since repealed). Section 89-121 provided : "Appropriation - of waters--recording of notice-- date of right. In acquiring the rights and -- administering the terms of this act herein prescribed and established, the board shall not be limited to the terms of the statutes of the state of Montana relating to water rights heretofore enacted; but, in addition thereto, may initiate a right to the waters of this state by executing a declaration in writing of the intention to store, divert or control the unappropriated waters of a parti- cular body, stream or source, designating and describing in general terms such waters claimed, means of appropriation and location of use, and cause said notice to be filed in the office of the county clerk and recorder of the county where the major portion of the means of diversion or control will be located, which right shall vest in such board on the date of the filing of such declaration. It shall be the duty of the county clerk and recorder of each county of the state of Montana on presentation to receive, record and index such declaration, without charge, in the manner prescribed by law relating to notice of water rights. "A certified copy of the record of said declaration shall be received as competent evidence in all courts and deemed to be prima facie proof of all matters therein recited. "The priority of right shall -- date and continue from the time of such filing or recording, provided ----- the means of actual appropriation shall be com- i i E i i c m bytual work -- ot c o n s t r u c t i o n i ~ i ~ u r (4) years ---- from the date of original recording. Change in means or place of diversion or control shall not affect the right of priority, if others are not thereby injured." Ward advances three arguments to support its claim that the District did not obtain any existing rights in Sheep Creek by the June 29, 1973 assignment. First, that the "Declaration of Intention to Store, Control and Divert Water" which was Board filed by the Resources/ on July 25, 1969, was invalid because it was executed by an agent of the ResourcesBoard rather than by the chairman of the ResourceSBoard. Ward claims execution of the documents by an agent was expressly prohibited by section 89-135, R.C.M. 1947. Next, Ward argues that the ResourcesBoard had no authority to assign its existing rights in Sheep Creek. Ward argues that any assignment by the ResourcesBoard would be an impermissible delegation of its rights and authority. Finally, Ward argues that the District and the ResourcesBoard do not have any existing rights in Sheep Creek because they failed to commence actual work of construction on a means of diversion within four -- - - - 2.C.M. 1947 years from the date of the original section 89-12l/recording We find that Wards third argument is dispositive for purposes of interpreting section 89-121. Section 89-121 clearly states that "the means of actual appropriation shall be commenced by actual work of construction within four (4) years from the date of original recording." In this case, the original recording took place on July 25, 1969. There is no testimony in the record which establishes that any actual construction took place on or before July 25, 1973. Accordingly, the District cannot claim any existing rights under section 89-121, R.C.M. 1947. Any findings or conclusions inconsistent with this opinion must be stricken. However the District also claims water rights by virtue of section 89-810 et seq., R.C.M. 1947. Ward concedes that the District properly filed its notice under section 89-810, R.C.M. 1947. The chief controversy is whether the District complied with the terms of section 89-811, R.C.M. 1947 (since repealed), which provided: "Diligence in appropriating. Within forty days after posting such notice, the appropriator must proceed to prosecute the excavation or construction of the work by which the water appropriated is to be diverted, and must prosecute the same with reasonable diligence to completion. If the ditch or flume, when constructed, is inadequate to convey the amount of water claimed in the notice aforesaid, the excess claimed above the capacity of the ditch or flume shall be subject to appropriation by any other person, in accordance with the provisions of this chapter." We interpreted section 89-811 in the recent case of the Department of Natural Resources v. Intake Water Co. (1976), 416, 171 ~ont.1558 P.2d 1110. In the Intake decision, we clarified the requirements and purpose of section 89-811: "The purpose of section 89-811 is to require reasonable diligence in completing the appropriation or forfeiture of the priority of the appropriation as of the day of posting the notice of appropriation. What constitutes reasonable diligence must be determined on an ad hoc, case-by-case basis. The law in this area is summarized by a leading authority, Clark, Waters & Water Rights, Vol. 6, § 514.1, pp. 308, 309, in this language: "What constitutes due diligence is a question of fact to be determined by the court in each case. Diligence does not require unusual or extraordinary effort, but it does require a steady application of effort-that effort that is usual, ordinary and reasonable under the circumstances.* * * So long as the applicant prosecutes the construction of works in good faith with a steady effort, he should be held to have prosecuted with diligence." Intake, 171 Mont. at 434. "We hold therefore that the meaning of the words ' * * * proceed to prosecute the excavation or con- struction of the work by which the water appropriated is to be diverted * * * ' is not confined to the commencement of actual on-site excavation or construction of the diversion works, but that it encompasses the steady on-going effort in good faith by Intake to prosecute the construction of the project under the circumstances disclosed here." Intake, 171 Mont. at 436. In the present case the District Court held that the District had fully complied with the specifications contained in section 89-811, R.C.M. 1947: "That within the fort days following the District's postin-recordof its said ~ o t i F o f Water - - a --- - - - Kight, work done by and on behalf of the zstrict ----- -- consisting of damsite investigations, engineering decisions bygeologists, - and project plan review and recommendations federal agencies constituted a sufficient commencement of the construction of - -- the work by which Sheep Creek waters were to b e -- a p p r o p r l a t e d a n d d i v e r t e d c o m p l y withthe -- require- ments of Section 89-811 R.C.M., 1947. That the actions by andon behalf of the District thereafter in making surveys and geologic investigations, completing plans, entering into cooperative agreements, soil testing, core drilling, land and easement acquisition and obtaining financing and entering into a contract for the dam construction, which continued through the dates of trial of this action, constitutes prosecution of the construction of the project with reasonable diligence sufficient to comply with the provisions of Section 89-811 R.C.M., 1947. "That a letter was written to Montana Water Resources Board dated August 11, 1969, pointing out conflict between the ~istrict' s 89-811- filing- -- and the Board's 89-121 filing, requesting the Board's release of its filing to the District. "That the Montana Water Resources Board replied by letter dated August 15, 1969, agreeing to release the Board's filing to the District when 'the project reaches the construction stage.' "That ments Ricrht the District fullv com~lied with - in posting and filing its Notice Appropriation on - July 11, -- 1969. legal require- of Water "That the District proceeded to prosecute the excavation or construction of the diversion works within forty (40) days after July 11, 1969, pursuant to Section 89-811 R.C.M., 1947." It is, of course, this Court's duty to determine if these findings are supported by substantial evidence and in this regard the evidence must be viewed in the light most favorable to the prevailing party in the District Court. It is for the District Court to determine credibility and the weight of the testimony. The record discloses that the following activity took place during the first forty days following the posting of the District's notice of appropriation: "(1) The District filed a copy of their notice of appropriation with the Meagher County Clerk. "(2) Raymond Smith, a design engineer for the Soil Conservation Service (SCS) testified that his agency was actively involved in the Newlan Creek project during the first forty days after the District posted its notice. " (3) Frank Faranchek testified that the watershed economist completed an economic report on the overall project during the first forty days after the District's posting. "(4) Mr. Faranchek testified that engineering reports reviewing the work done on the Newlan Creek Watershed were submitted to his office on July 11, 1969. Farancheck indicated that these reports refined some of the cost estimates and the technical data prepared for the project. " (5) Mr. Faranchek also testified that data was collected on the recent sales prices of property around and near the Newlan Creek Reservoir. This data was collected so the District might have some working knowledge of the land prices which would be involved in future condemnation or purchase transactions. "(6) It was also established that the District and the Montana Department of Natural Resources were corresponding during the first forty days in an effort to clarify the District's rights vis a vis the Department ' s . " We agree that the evidence produced by the District is less convincing than the evidence before this Court in the Intake case. But Intake also establishes that "what constitutes reasonable diligence must be determined on an ad hoc, case- by-case basis." Intake at 434. We determine that the evidence is sufficient to support the District Court's finding that the District had proceeded to prosecute the excavation or construction of the work within the first forty days of posting its notice of appropriation. Therefore, the 3,000 miners inch existing right was properly awarded to the District and is hereby affirmed. We will now consider the "uncertain" right granted to the Resources Board. At the outset we would note that the Resources Board, like the District, can only claim an "existing right" to Sheep Creek. An existing right is defined as: "a right to the use of water which would be protected under the law as it existed prior to July 1, 1973." Section 89-867(1), R.C.M. 1947, now section 85-2-102(7) MCA. Section 36- 2.14J (1) -S1400 M.A.C., further provides: " (e) 'Existing right', in addition to the definition given the term by section 89-867(4) of the Act, includes any appropriation of water commenced prior to July 1, 1973, - if completed according to the law as it existed when the appropriation was begun." ----- -- Since the Resources Board filed its notice of appropriation on June 23, 1973, an existing right in Sheep Creek was acquired on that date. However, under the law their right would expire unless "the means of actual appropriation . . . [was] commenced by actual work of construction within four (4) years from the date of original recording." Section 89- 121, R.C.M. 1947. When the District Court entered its findings (February 3, 1977), the Resources Board had until June 23, 1977 to begin work to comply with the statute. Accordingly, the District Court was correct in awarding the ResourcesBoard an uncertain right in Sheep Creek. Events subsequent to the District Courts findings must be used to determine whether the Resourcg,Board's existing right has become vested or has expired. All we decide today is that the District Court did Board not err in awarding the Resources/ an uncertain right on February 3, 1977. SUFFICIENCY OF THE EVIDENCE TO SUPPORT INJUNCTIVE RELIEF -- - The final major issue is the District Court's refusal to enjoin Ward's use of the Mumbrue Bypass. As previously stated, the Mumbrue Bypass was built by Ward in 1972; the bypass allows Ward to divert Sheep Creek water before it passes Holmstrom's diversion point. The original complaint -25- filed by Holmstrom alleged that the llumbrue Bypass injured Holmstrom because it lowers the water level at Holmstrom's diversion point, and thereby renders it less usable. Holmstrom's complaint asked the District Court to permanently enjoin Ward's use of the Murnbrue Bypass. Holmstrom now claims that the District Court erred when it refused to enjoin Wards use of the Mumbrue Bypass. This issue is controlled by section 89-803, R.C.M. 1947 (not recodified) which provided: "Point of diversion may -- be changed--change of use. ~ h e person entitled to the use of water may change the place of diversion, if others are not thereby injured, and may extend the ditch, flume, pipe, or aqueduct, by which the diversion is made, to any place other than where the first use was made, and may use the water for other purposes than that for which it was originally appropriated." This Court long ago established that the burden is on the party claiming to be injured to plead and prove that the change in location will adversely affect him: "While, of course, one may not change the point of diversion any more than the place of use or the character of use, to the prejudice of other appropriators (Rev. Codes, sec. 4842), it does not follow that any such change is to be taken, in limine, as prejudicial. -- On the contrary, - the burden --- is on the party claiming - - to be prejudiced by such change, to allege and prove the facts. -- (Hansen v. ~arsen, 44 Mont. 350, 120 Pac. 229.)" Lokawich v. City of Helena (1912), 46 Mont. 575, Although Holrnstrom Land Company properly raised the diversion issue in its original complaint, Holmstrom failed to prove injury during the course of the trial. At most, Holmstrom's testimony indicated that their "rock diversion" might need to be revamped if the bypass was used; however, this testimony does not show injury sufficient to warrant injunctive relief. Accordingly, the District Court did not err when it refused to enjoin the use of the Mumbrue Bypass. The briefs of the parties have brought a number of additional, minor issues to our attention. We have reviewed these issues and find them to be without merit. The judgment of the District Court must be modified to conform to this opinion. As so modified, the judgment is affirmed. Jus We Concur: d i e £ Justice Justices IN THE SUPREME COURT OF THE STATE OF MONTANA No. 13848 HOLMSTROM LAND CO., INC., a Montana corporation, Plaintiff, Respondent and Cross-Appellant, MEAGHER COUNTY NEWLAN CREEK WATER DISTRICT, Defendant and Appellant, and F E N 2 1,980 WARD PAPER BOX CO-I et al-I Defendants, Respondents and of. SUPREME COURT cross-~ppellants. STATE OF MONTANA ORDER ON PETITION FOR REHEARING In the petitions for rehearing, we are reminded that even though there has been no compliance with the statutes regulating appropriations by record, where water has actually been diverted from streams and applied for beneficial use, a right to the use of that water for beneficial use is established. In discussing the effect of recording statutes in water appropriation matters, this Court said in Murray v. Tingley (1897), 20 Mont. 260, 268, 269: "Questions of priority, however, as well as of the original capacity, etc., of ditches, depended chiefly on oral testimony,--on the memory of eyewitnesses, often at fault through lapse of time. Confusion and insecurity to vested rights resulted. To obviate this as much as possible, the statute was enacted. It required a notice of location to be posted at the point of diversion, to apprise others who contemplated the acquisition of water rights from the same stream that the locator had taken his initial step to appropriate water. It required a recorded notice of appropriation, in order that a record might be supplied, giving the history in detail of each appropriation, which would inure to the benefit of their successors in interest, as well as to the appropriator's, and not leave them dependent upon the mere memory of witnesses when conflicts should arise. In enacting this law the legislature did not contem- plate that one who failed to comply with the terms of the statute, but who, in the absence of any conflicting adverse right, had nevertheless actually diverted water and put it to a beneficial use, should acquire no title thereby. The essence of an appropriation--a completed ditch, actually diverting water, and putting it to a beneficial use--remained the same as it had been before. The object of the statute was to preserve evidence of rights, and also to regulate the doctrine of relation back. It follows that the statute controls this doctrine of relation back, and that one who seeks to avail himself of it since the passage of this act can only do so by a compliance with the statutory requirements. "Again, we are satisfied that the legislature did not intend that one who failed to comply with the statute, but who had nevertheless actually diverted water, could be deprived of it by another who com- plies with the statute at a time subsequent to the former's completed diversion. (Citing cases.)" As to Elmer Hanson (Riverside Ranch), and Walter Joyce, although their written and posted notices are deficient, and therefore not admissible in evidence to establish the dates thereby of their beneficial rights in the waters in Sheep Creek, the evidence is uncontroverted that each of these parties did actually divert..from Sheep Creek, and use beneficially upon their lands those waters. Their lands are downstream from the other claimants, and their rights would be junior to any of the other claimants, so therefore, there are no adverse interests claiming this same water now being beneficially used by Riverside Ranch and by Joyce. The evidence is further clear that since 1949, the appropriation of waters for these purposes by Hanson (Riverside Ranch) and Joyce has been ongoing. Therefore, even though their evidence of earlier diversion through the recorded notices is not admissible, under the other evidence in this case, they have established a beneficial use of waters from Sheep Creek at least since 1949. In the case of Riverside Ranch, this amounts to 1,050 inches and in the case of Walter Joyce, an additional 200 inches out of Sheep Creek. Our original opinion therefore, of August 2, 1979 in this case is modified to allow out of Sheep Creek 1,050 inches to Riverside Ranch and an additional 200 miners inches out of Sheep Creek to Walter Joyce, each beginning June 1, 1949 which date is probably the latest first date for the irrigating season for that year. As so modified, our opinion of August 2, 1979 is otherwise confirmed, and the petitions for rehearing are otherwise denied. DATED this day of February, 1980. ~ C h i e f Justice y - - L @ 2 Justices | August 2, 1979 |
9eddada7-8532-46ec-9201-78e6c62effec | MATTER OF LITTLE LIGHT | N/A | 14367 | Montana | Montana Supreme Court | No. 14367 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN THE MATTER OF CLOYCE GILBERT LITTLE LIGHT, Petitioner. ORIGINAL PROCEEDING : Counsel of Record: For Appellant: Towe, Ball, Enright and Mackey, Billings, Nontana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana James Seykora, County Attorney, Hardin, Montana I.?'? UuL_I; & ; a Filed: Submitted: April 25, 1979 Decided : J U L 1 6 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. This is an original petition for a writ of habeas corpus by Cloyce Gilbert Little Light, an inmate of the State Prison serving a 25-year sentence for rape. On receipt of the petition we referred it to the senten- cing court for determination in the first instance. The District Court of Big Horn County held an evidentiary hearing thereon on October 11, 1978. The District Court issued findings of fact, conclusions of law and an order denying the petition on November 20, 1978. A week later we issued an order to show cause why the petition should not be dismissed. Thereafter a transcript of the District Court's evidentiary hearing was filed on March 15, 1979, briefs were filed by counsel and the matter submitted to this Court for decision on April 25, 1979. The underlying crime for which petitioner was convicted and sentenced was the forcible rape of an elderly woman in Hardin, Montana, on March 31, 1964. Petitioner, 19 years old at the time, was taken into custody on the Crow Reservation the following day by sheriff's deputies of Big Horn County and jailed in Hardin. He was arraigned before a justice of the peace, waived preliminary hearing, and was bound over to the District Court. On April 9, an Information was filed against petitioner charging him with the crime of rape. The minutes of the court disclose that petitioner was arraigned on that date; waived his right to counsel and trial by jury; and entered a plea of guilty. The minutes disclose that the court desired more time for evi- dence to be secured, set the time for pronouncing judgment on April 23, and fixed bail in the sum of $3,000. On April 23 defendant again appeared before the District Court, requested more time, and indicated he would be able to secure counsel. Further proceedings were continued to May 7. On that date petitioner again appeared without counsel, and the court appointed an attorney to represent him. Petitioner was rearraigned with counsel, and the matter continued to May 21. On May 21 petitioner appeared with court appointed counsel before the District Court. The minutes of the court disclose that he "requested the court to grant him some addi- tional time (an hour or so) and at this time the court set the continuance of the hearing at 1230 o'clock p.m. this same date, May 21, 1964." At 1:30 p.m. on May 21, 1964, witnesses were sworn and testified. Petitioner again entered a plea of guilty. Petitioner was sentenced to 25 years in the State Prison and is presently serving that sentence. T'he gist of the present petition is twofold; (1) The state District Court lacked jurisdiction, and (2) petitioner was &nierdsubstantive and procedural due process in the state court proceedings. Petitioner contends that the crime with which he was charged, convicted and sentenced occurred on the Crow Reservation in "Indian Country" and was therefore under the exclusive criminal jurisdiction of the United States. He cites the Fort Laramie Treaty of 1868 with the Crow Tribe, 15 Stat. 649, and argues that the subsequent removal of the City of Hardin from the Reservation by Act of Congress is "null and void for lack of constitutionality." This contention cannot be sustained. It is directly con- trary to the decision of the United States District Court in Hawkins v. Crist, (January 27, 1978), CV-76-99-BLG. That decision held that the agreement between the Crow Tribe and the United States ratified by Act of Congress of April 27, 1904, 33 Stat. 352, wherein the Tribe agreed to "cede, grant and relinquish" the tract of land in question, disestablished this tract as "Indian Country" thereby rendering it subject to state criminal jurisdiction. The City of Hardin, where the crime occurred, simply is not within the exterior boundaries of the Crow Reservation. Additionally, petitioner contends that the District Court lacked jurisdiction because he was arrested illegally on the Crow Reservation. Petitioner argues that the Organic Act of the Territory of Montana and the Enabling Act of the State of Montana recognize the provisions of the Fort Laramie Treaty of 1868 which prohibits the intrusion of state law enforcement authorities onto the Crow Reservation and provides a mandatory form of extradition procedure which was not followed in arrest- ing petitioner. Petitioner's contention lacks merit. The Crow Tribe had no extradition procedures. State ex rel. Old Elk v. District Court (1976), 170 Mont. 208, 552 P.2d 1394. -- Old Elk further held that the arrest of an Indian on a reservation for crime committed off the reservation was a valid arrest. Petitioner's contention that he was denied substantive and procedural due process in the District Court proceedings is bottomed on two propositions: (1) That petitioner's plea of guilty was not voluntary, and (2) that the absence of a court reporter and a verbatim transcript of his arraignment, entry of plea and sentencing precludes meaningful review. The requirements of verbatim records of arraignment, plea and sentencing in criminal proceedings are of recent origin, State ex rel. Biebinger v. Ellsworth (1966), 147 Mont. 512, 415 P.2d 728. Any attempt to make them retroactive to cover this 1964 proceeding violates the principles set forth in Highpine v. Estelle (9th Cir. 1972), 470 F.2d 721. Although this proceeding is labeled a petition for a writ of habeas corpus, the focus of petitioner's complaint is that his plea was not voluntary. The record discloses no evidence to support this other than the testimony of petitioner himself, while the record is replete with evidence that his plea of guilty was voluntary. At the evidentiary hearing, the presiding district judge found petitioner's testimony "incredulous." The credibility of witnesses is a matter to be determined by the trial court. State v. Kirkaldie (1978), - Mont . - , 587 P.2d 1298, 35 St.Rep. 1532. Petitioner argues that our decision in State v. Azure (1977) I - Mont. - , 573 P.2d 179, 34 St.Rep. 1569,requires the trial judge to inquire into specific matters in regard to a guilty plea to insure the voluntariness of that plea. Such re- quirements are not to be applied retroactively. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d. 274; Highpine v. Estelle, supra. The District Court's denial of leave to withdraw a plea of guilty can be overturned only if it abused its dis- Mont . cretion. State v. Lewis (1978), - - , 582 P.2d 346, 35 St.Rep. 1089. Here the District Court held an evidentiary hearing and concluded that the plea of guilty was voluntary. There is substantial evidence in the record to support this finding. Petitioner was sentenced over fifteen years ago. Most of the principal witnesses are dead. Some cannot be located. Petitioner's claim must stand or fall on the record before us. In this case a meaningful review can be accomplished on the record, and the claims now raised by petitioner are demonstra- bly without merit. We have examined the other contentions of petitioner and find them to be without merit and unnecessary to discuss in detail in this opinion. For the foregoing reasons, the petition for writ of habeas corpus by Cloyce Gilbert Little Light is denied and dismissed. Chief Justice Justices | July 16, 1979 |
9e3b0003-bcf4-4488-9389-6a5e64e784cd | STATE v PATTON | N/A | 14482 | Montana | Montana Supreme Court | No. 14482 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF YONTANA, Plaintiff and Respondent, -vs- TER-RANCE DWAYNE PATTON, Defendant and Appellant. O R D E R Counsel for the Appellant, having filed a Motion To Strike, and good cause appearing therefrom; IT IS HEREBY ORDERED that the names of the minor children con- tained in this Court's opinion of September 11, 1979 be stricken from such opinion. DATED this %j7@. day of Axn,kKy&\ ,13 7 9. No. 14482 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, Plaintiff and Respondent, -vs- TERRANCE DWAYNE PATTON, Defendant and Appellant. Appeal from: District Court of the Third Judicial District, Honorable Robert J. Boyd, Judge presiding. Counsel of Record: For Appellant: Greg Skakles argued, Anaconda, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Richard Larson argued, Assistant Attorney General, Helena, Montana James Masar, County Attorney, Deer Lodge, Montana Submitted: September 11, 1979 - Decided: 3E? 5 1979 Filed: - $ E i 2 -- 2 !$Tz Mr. Justice Gene B. Daly delivered the Opinion of the Court. This is an appeal from a judgment of conviction after a jury verdict for sexual assault in the Third Judicial Dis- trict, County of Powell. Defendant was charged by information with two counts of sexual assault in violation of section 45-5-502, MCA. To each charge, defendant pleaded not guilty. Trial by jury commenced on February 27, 1978, and resulted in a hung jury on the first count and a finding of guilty on the second. On April 27, 1978, the Honorable Robert J. Boyd sentenced defendant to twenty years' imprisonment in the state prison. Defendant appeals from the judgment of conviction on the second count of sexual assault. At the time of the incidents giving rise to the charges, defendant was 41 years of age. The complaining witness was 13 years of age and lived next door to defendant and was a frequent visitor at defendant's residence. Count I charged the defendant with sexual contact with the prosecutrix on December 17, 1977, at defendant's residence. Regarding this first incident, the prosecutrix testified that she went to defendant's residence to return a fish net. Defendant was alone at the time, and he invited her to stay and watch television, which she declined to do. The prosecutrix testified that defendant grabbed her by the arm, dragged her into his living room, forced her down on a couch, and as- saulted her. She was able to break away from defendant and ran out the door. Defendant denied all of the foregoing, and the jury was unable to reach a verdict on this charge. Defendant was convicted on the second charge, which stems from an incident occurring on January 21, 1978, in a garage shared by defendant and t h e p r o s e c u t r i x ' s f a t h e r . The prosecutrix t e s t i f i e d t h a t she was i n t h e garage a t approximately 9:00 t o 10:OO p.m. looking f o r a cookbook when defendant entered t h e garage, turned o f f t h e l i g h t and s h u t t h e door. She t e s t i f i e d t h a t defendant grabbed her and pushed her a g a i n s t a bench, forceably lowered her pants and h i s own and unsuccessfully attempted t o have sexual i n t e r - course with her, touching her b r e a s t s and touching between her l e g s with h i s hand. She f u r t h e r t e s t i f i e d t h a t she managed t o g e t away from defendant and p u t her pants on and t h a t her f a t h e r opened t h e garage door and turned on t h e l i g h t as she was about t o go o u t t h e door. The f a t h e r t e s t i f i e d t h a t he opened t h e p a r t i a l l y opened garage door, turned on the l i g h t s and observed h i s daughter walking toward t h e door and defendant standing by t h e bench i n s i d e t h e garage. H e t e s t i f i e d t h a t when he asked her what was going on she d i d n o t r e p l y ; she t e s t i f i e d t h a t she r e p l i e d "nothing" because she was embarrassed. Defendant's testimony w a s t h a t he entered t h e garage t o g e t a grease gun without turning on t h e l i g h t s because t h e r e w a s s u f f i c i e n t l i g h t from t h e l i g h t s i n h i s residence coming through t h e window, t h a t he saw t h e p r o s e c u t r i x who s a i d h e l l o t o him and t h a t a s he was leaving t h e garage, her f a t h e r came i n . H e denied t h a t he ever touched o r a s s a u l t e d t h e prosecutrix. Before t r i a l , defendant's a t t o r n e y f i l e d a motion i n limine t o suppress any testimony by two proposed prosecution witnesses regarding an a l l e g e d previous i n c i d e n t of sexual c o n t a c t between t h e defendant and another apparently under- aged female: "COMES NOW the defendant through his attorney and moves in limine that the testimony of prosecution witness G .. a & + + - M relating to an al- lesed prior criminal act of the Defendant against G M be suppressed on the grounds that such testimony would be wholly irrelevant or that if at all relevant for any purpose the prejudi- cial effect of such testimony outweighs its proba- tive value in light of the actual need of the prosecution to introduce it." The following colloquy took place in chambers: "THE COURT: Let the record show the following motions are held in chambers and outside the presence of the jury panel. Mr. Boggs? "MR. BOGGS: Your Honor, I would like to file the defendant's motion in limine for suppression of certain evidence, copies of which have been pre- viously served on Mr. Masar and I also have for filing on behalf of Mr. Masar a memorandum in opposition to that motion. "THE COURT: Let the record show that the matter was presented by way of oral argument in chambers on Friday of last week at which time the Court considered the testimony and its provative [sic] value and concluded that the motion for suppres- sion should be granted. In granting the motion I intend in no way to restrict the State from any proper rebuttal matters which may arise in the course of the defense of the case. "MR. MASAR: For clarification, your Honor, I would ask -- it is my understanding that the mo- tion in limine restricts any testimony by the two named witnesses, the MI children, as op- posed to any testimony with reference to those children? "THE COURT: That is correct. "MR. MASAR: Is that all, Mr. Boggs? "MR. BOGGS: That is all at this time." It is evident from this exchange that defendant's motion was granted and that this ruling precluded any testimony - by the two named prosecution witnesses. It did not preclude all testimony whatsoever with reference - to those witnesses. Defendant's attorney made no objection to the scope of this ruling, or any objection whatsoever at this time. Neither of the two proposed State's witnesses testified at trial. During t h e examination of t h e p r o s e c u t r i x , t h e S t a t e brought o u t t h a t defendant had o f f e r e d h e r a sweater-suit i n r e t u r n f o r sexual f a v o r s and t o l d h e r t h a t i f she d i d n o t submit, he would g i v e it t o "O " who had a l r e a d y performed such a n a c t w i t h him: "Q. And he o f f e r e d you t h e sweater. Did he e v e r make suggestions you c o u l d n ' t g e t t h e sweater o r you wouldn't r e c e i v e t h e sweater? A. H e would say t h a t he t r i e d w i t h another g i r l , G , which i s -- I d o n ' t know, and t h e n -- "Q. That was 6c I ? A. Y e s . And i f I wouldn't go up i n t h e camper, he could g i v e t h e s u i t t o rJ,' because G d i d [ i t ] once with him." Defendant's counsel d i d n o t o b j e c t t o any of t h e f o r e - going q u e s t i o n s o r testimony. A f t e r t h i s testimony was presented, t h e s h e r i f f was c a l l e d t o t h e s t a n d and asked i f t h e name "G " was mentioned i n a statement given by t h e p r o s e c u t r i x , t o which he r e p l i e d "yes" and identified--(;- 2 9 . Defendant's counsel made no o b j e c t i o n t o any ques- t i o n s asked of t h e s h e r i f f . The s o l e i s s u e presented on appeal i s whether o r n o t t h e D i s t r i c t C o u r t ' s f a i l u r e t o exclude evidence of a l l e g e d p r i o r unlawful a c t s of t h e defendant c o n s t i t u t e s r e v e r s i b l e e r r o r . The challenged evidence i s testimony by t h e prose- c u t r i x on d i r e c t examination, set f o r t h above, a s t o a statement made t o h e r by defendant t h a t he had had sexual r e l a t i o n s w i t h "G ," another underaged female. Defen- d a n t contends t h a t t h i s evidence i s inadmissible under Rule 4 0 4 ( b ) , Mont.R.Evid., a s evidence of another c r i m e , and t h a t h i s f a i l u r e t o o b j e c t t o it a t t r i a l does n o t preclude a p p e l l a t e review because h i s motion i n limine t o suppress preserved t h e o b j e c t i o n and because t h e admission of t h i s testimony was " p l a i n e r r o r . " ÿ he procedural a s p e c t of t h i s appeal w i l l be considered f i r s t . Defendant made no objection a t t r i a l t o t h e testimony upon which t h i s appeal i s based. There can be no doubt t h a t a D i s t r i c t Court w i l l n o t be put i n e r r o r where it was n o t accorded an opportunity t o c o r r e c t i t s e l f . S t a t e v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300. The a d m i s s i b i l i t y of evidence t o which no objection i s made cannot be reviewed on appeal. S t a t e v. Armstrong (1977), 172 Mont. 296, 562 P.2d 1129, 1132; S t a t e v. Dillon (1951), 125 Mont. 24, 30, 230 P.2d 764. The f a i l u r e t o o b j e c t t o o r t o move t o s t r i k e testimony precludes o b j e c t i o n on appeal. S t a t e v. Cripps (1978) , Mont. , 582 P.2d 312, 317, 35 St.Rep. 967. Notwithstanding h i s f a i l u r e t o o b j e c t t o t h e testimony a t trial, defendant contends t h a t h i s motion i n limine t o suppress preserved h i s objection f o r purposes of appeal, 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 . I t i s n o t necessary f o r t h i s Court t o decide whether o r n o t t h i s r u l e a p p l i e s i n Montana, because it has no a p p l i c a t i o n t o t h e f a c t s i n t h e p r e s e n t case. Although defendant contends t h a t t h e D i s t r i c t Court was apprised o f , and r u l e d a g a i n s t , defendant's p o s i t i o n a t t h e t i m e it considered t h e motion i n limine t o suppress, so as t o make any o b j e c t i o n a t t h e time of t r i a l f u t i l e , t h i s contention i s n o t borne o u t by t h e record. Defendant's motion requested only t h a t t h e c o u r t suppress any testimony by t h e two proposed prosecution witnesses. This motion w a s granted, and t h e two witnesses d i d n o t t e s t i f y a t t r i a l . I n t h e exchange which took place i n chambers a t the t i m e of t h e D i s t r i c t C o u r t ' s r u l i n g on t h e motion, set f o r t h above, t h e D i s t r i c t Court made it c l e a r t h a t i t s o r d e r d i d -- n o t preclude a l l testimony whatsoever with reference - t o t h e two proposed prosecution witnesses, only testimony by those witnesses. - Defendant's attorney did not object or give any indication that he opposed the scope of this ruling. Defendant's second argument is that the alleged error committed by the District Court is reviewable under the "plain error" doctrine which is contained in the following statute: "Any error, defect, irregularity, or variance which does not affect substantial rights shall (Emphasis added.) The sheriff was asked on direct examination if he had been able to determine who "G " was, whereupon he replied "yes" and provided her last name. The defendant did not object to this testimony. He now asserts that it could only be based on secondhand knowledge, i.e., the statements of the victim, and that it was hearsay evidence which precluded cross-examination and deprived defendant of his constitu- tional right to confrontation. Therefore, defendant con- tends, it should be reviewable under the plain error doc- trine as enacted by statute, despite defendant's failure to object at trial. These contentions are without merit. The sheriff's testimony was not hearsay as defined in Rule 801(c), Mont.R.Evid., and defendant was not deprived of his constitutional right of confrontation. There was no plain error which would justify this Court's review of the matter. Although evidence of other crimes is generally inadmis- sible under Rule 404(b), Mont.R.Evid., there is an exception which makes such evidence admissible for the purpose of proving intent. Rule 404 (b) , Mont. R. ~vid. , provides: "Evidence of o t h e r crimes, wrongs, o r a c t s i s n o t admissible t o prove the c h a r a c t e r of a per- son i n order t o show t h a t he a c t e d i n conformity therewith. It m a y , however, be admissible f o r o t h e r purposes, such a s p r o o f o f motive, oppor- t u n i t y , i n t e n t , preparation, plan, knowledge, i d e n t i t y , o r absence of mistake o r accident." ( ~ m ~ h a s i s added. ) This r u l e of evidence i s c o n s i s t e n t with p r i o r Montana case law: "The general r u l e i s t h a t evidence of crimes o t h e r than t h e one f o r which a defendant i s on t r i a l i s n o t admissible, b u t t o t h i s general r u l e t h e r e a r e exceptions, and one i s where evidence i s m a t e r i a l a s tending t o show t h e i n t e n t o r motive of t h e defendant i n t h e com- mission of t h e offense f o r which he i s on t r i a l , notwithstanding ------- t h e f a c t t h a t it a l s o tends t o prove t h e commission --- by him of another offense." S t a t e v. Hollowell (1927), 79 Mont. 343, 349, 256 P. 380, 382. (Emphasis added.) The offense of sexual a s s a u l t with which t h e defendant w a s charged required proof t h a t he knowingly made sexual c o n t a c t f o r t h e purpose o f arousing o r g r a t i f y i n g t h e sexual d e s i r e of e i t h e r party. "A person who knowingly s u b j e c t s another n o t h i s spouse t o any sexual c o n t a c t without con- s e n t commits t h e offense of sexual a s s a u l t . " Section 45-5-502, MCA. "'Sexual c o n t a c t ' means any touching of t h e sexual o r o t h e r i n t i m a t e p a r t s of t h e person of another f o r t h e purpose of arousing o r g r a t i - fying t h e sexual d e s i r e s of e i t h e r party.' Sec- t i o n 45-2-101 ( 5 4 ) , MCA. Due process r e q u i r e s t h a t t h e S t a t e must prove every element of t h e o f f e n s e a s t h a t o f f e n s e i s defined by state law. P a t t e r s o n v. New York (1977), 432 U.S. 197, 210, 97 I n re Winship U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368; S t a t e v. Cooper (1979), Mont. , 589 P.2d 133, 135, 36 St.Rep. 30, 32. Therefore, t h e element of i n t e n t was i n i s s u e a s a matter of l a w . This was n o t changed by t h e f a c t t h a t defen- d a n t completely denied committing t h e a c t s , r a t h e r than admitting the acts but denying that he had the requisite intent as in State v. Jensen (1969), 153 Mont. 233, 238, 455 P.2d 631, where a chiropractor was convicted of a similar sexual offense after defending on the grounds that his acts with the prosecutrix were for the purpose of treatment. The question then becomes one of whether or not the testimony of the prosecutrix is relevant to the issue of intent, and whether or not its probative value is outweighed by the danger of unfair prejudice. The rationale underlying Rule 404(b) and prior case law is that the evidence of other crimes generally should be excluded because it is irrelevant to the offense charged and highly prejudicial, and because the defendant may not be prepared to meet the extraneous charges. State v. Tiedemann (1961), 139 Mont. 237, 242, 362 P.2d 529; State v. Merritt (1960), 138 Mont. 546, 357 P.2d 683, 684; State v. Jensen, supra. In the present case, the challenged testimony was relevant because defendant's statements to the prosecutrix regarding the sweater and his sexual relations with "Glenda" were evidence of his sexual desire for the prosecutrix and his intention to gratify it. This testimony was not offered to establish that defendant had committed other crimes; it was offered to prove that before he forceably assaulted her, defendant had verbally attempted to seduce the complaining witness. This being so, it was not crucial that the State demonstrate "similarity of crimes or acts, nearness in time, and tendency to establish a common scheme, plan or system," to establish the relevance of the evidence of defendant's other crimes. Jensen, 153 Mont. at 239, 455 P.2d at 633. State v . Tiedemann (1961), 139 Mont. 237, 362 P.2d 529, relied on by defendant, is clearly distinguishable. In Tiedemann t h e defendant was charged w i t h attempted r a p e of a 16 year o l d g i r l . During cross-examination, t h e prosecutor was allowed t o q u e s t i o n t h e defendant concerning a p r i o r statement i n which he admitted t h a t he had been warned about going o u t with g i r l s under t h e age of 18 and t h a t he could have been charged w i t h s t a t u t o r y r a p e i n another i n c i d e n t . T h i s w a s c l e a r l y an a t t e m p t t o introduce evidence of o t h e r l i k e crimes having no relevance t o t h e c a s e being t r i e d and was p r o p e r l y condemned by t h i s Court. Defendant's f i n a l contention i s t h a t t h e testimony, even i f it was r e l e v a n t , should n o t be received because i t s p r e j u d i c i a l n a t u r e f a r outweighed any p r o b a t i v e value. Rule 403, Mont.R.Evid., provides: "Although r e l e v a n t , evidence may be excluded i f i t s p r o b a t i v e v a l u e i s s u b s t a n t i a l l y outweighed by t h e danger of u n f a i r p r e j u d i c e . . ." This r u l e has a p p l i c a t i o n t o evidence of o t h e r crimes: "The D i s t r i c t Court a s w e l l a s t h i s Court, is o b l i g a t e d t o look v e r y c a r e f u l l y a t t h e r e l a t i v e p r o b a t i v e v a l u e of t h e e v i - dence of o t h e r o f f e n s e s . . . and weigh t h i s a g a i n s t t h e p r e j u d i c e i n h e r e n t i n t h i s type of evidence i n l i g h t of t h e a c t u a l need t o i n t r o d u c e such evidence by t h e S t a t e . " S t a t e v. Skinner (1973), 163 Mont. 58, 64, 515 P.2d 81, 84. The testimony i n t h i s c a s e , while having t o do w i t h another claimed v i c t i m of defendant, was a conversation c r e d i t e d t o defendant while i n t h e a c t of seduction of t h e p r o s e c u t r i x h e r e and was p r o p e r l y admitted t o demonstrate d e f e n d a n t ' s i n t u i t i o n i n t h e m a t t e r . This Court h a s recognized a d i s t i n c t i o n between testi- mony t h a t tends t o prove t h a t a defendant committed an u n r e l a t e d crime and testimony t h a t t h e defendant claimed he committed such an o f f e n s e . S t a t e v. C o l l i n s (19781, Mont. , 582 P.2d 1179, 35 St-Rep. 993, 998. The l a t t e r may be admissible as " r e l e v a n t a s a p a r t of t h e whole f a c t u a l s i t u a t i o n . " C o l l i n s , 35 St.Rep. a t 998. Such was t h e s i t u a t i o n i n t h e p r e s e n t case. The judgment of t h e t r i a l c o u r t i s affirmed. /. ' ; i w z / J u s t i c e W e concur: Chief J u s t i c e | September 25, 1979 |
15ea2bdc-e4f9-4226-83c3-028dab476d4a | NORTHWESTERN NATIONAL CASUALTY CO | N/A | 14411 | Montana | Montana Supreme Court | No. 14411 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 NORTHWESTERN NATIONAL CASUALTY COMPANY, a corporation, Plaintiff and Respondent, BERNHARDT W. PHALEN, WILLIAM PHALEN and THU DUC VO, Defendants and Appellants. Appeal from: District Court of the Fifth Judicial District, Honorable Frank E. Blair, Judge presiding. Counsel of Record: For Appellants: Torger S. Oaas argued, Lewistown, Montana John Jardine, Whitehall, Montana For Respondent: Keller, Reynolds and Drake, Helena, Montana Glen L. Drake argued, Helena, Montana Thomas Johnson argued, Helena, Montana Submitted: February 9, 1979 Decided: J U N 1 8 1979 Filed: j l i N 1 8 Mr. Justice John C. Sheehy delivered the Opinion of the Court. This appeal is from a summary judgment entered in favor of Northwestern National Casualty Company in the District Court, Fifth Judicial District, Jefferson County, determining that no insurance coverage existed under a policy issued by the insurance company in an incident involving the defendant. Northwestern had issued for a consideration a homeowner's policy to Bernhardt W. and Josephine Phalen for a one year term beginning November 3, 1976. The policy provided public liability insurance to the limit of $50,000 for each "occurrence" during its term. Defendant William Phalen is the son of Bernhardt and Josephine Phalen, a resident of their household, under the age of twenty-one years and as such an "insured" under the policy. An "occurrence" is defined in the policy as an accident which results in bodily injury or property damage. The policy excludes from public liability coverage bosily injury which "is either expected or intended from the standpoint of the insured". On January 29, 1977, William Phalen was involved in an altercation with Thu Duc Vo near the Windsor Bar near Boulder, Montana. Two weeks before, the same two persons had been involved in another altercation in which Thu Duc Vo hit William Phalen over the head with a beer bottle. On January 29, a Sunday, at 1:30 a.m., William Phalen walked into the Windsor Bar and saw Thu Duc Vo in the company of a young woman. At closing time, when everyone was leaving the bar, William Phalen went out with Vo and his woman companion. In a deposition, William Phalen described what happened then: "Q. What happened after you left the bar? A. He was walking on the street. I walked down the street, and I started talking to him, and I had my arm around [the young woman] , and Thu was there. I kind of had my arm around him, too, just talking to him. We were having a verbal disagreement. He grabbed my arm, twisted it, wanted me t o r e l e a s e , and I h i t him once. Then, I w a s going t o h i t him again, and I grabbed h i s c o a t , and he slipped o u t from me. He r a n around h i s c a r , and he r a n back towards t h e b a r , and Harry Johnson t r i p p e d him up, and he f e l l o f f t h e curb and h i t t h e pavement. "Q. O.K., and you t e s t i f y you h i t him only once. A. Y e s . "Q. Then would you pick up your s t o r y from t h e r e please? A. Yeah, w e l l , I was going t o h i t him twice, b u t when I went t o swing, he jumped away and I grabbed h i s c o a t , and he run away from me. I had ahold of h i s c o a t , and he ran away from m e and ran around h i s c a r , and then he ran r i g h t p a s t m e again and t h a t is when Harry Johnson t r i p p e d him up. "Q. Now, w e r e you chasing him o r was someone r e s t r a i n i n g you o r what? A. [The young woman] was r e s t r a i n i n g me, but I s t a r t e d a f t e r him; I made a few s t e p s toward him, I guess. "Q. So, he was a t l e a s t running because he was a n t i c i p a t i n g you chasing him; is t h a t c o r r e c t ? A. Y e s , sir. "Q. And while he was running, Harry Johnson apparently t r i p p e d him? A. Yes. "Q. What happened a f t e r he was t r i p p e d , then? A. W e l l , he h i t t h e pavement p r e t t y hard. I was--I looked a t him, you know, and p r e t t y soon a l l t h e s e women j u s t came h o l l e r i n g and running s o we decided w e b e t t e r g e t o u t of t h e r e , and s o w e went down t o m y house. "Q. I believe you t e s t i f i e d before t h a t t h e way--you f e l t it was s o r t of an accident, t h e e x t e n t of h i s i n j u r i e s was-- "(Objected t o as a leading question; t r y i n g t o lead t h e witness.) "Q. G o ahead and answer. A. W i l l you ask m e again? "Q. I b e l i e v e you t e s t i f i e d before t h a t this--the way he g o t h u r t and t h e e x t e n t of h i s i n j u r i e s was accidental? A. Accidental t o m e because I d o n ' t f e e l l i k e I h u r t him." Subsequently, William Phalen was charged i n t h e D i s t r i c t Court, J e f f e r s o n County, with felony aggravated a s s a u l t . I n t h e a f f i d a v i t of t h e county a t t o r n e y f o r leave t o f i l e t h e information it i s r e c i t e d t h a t Thu Duc Vo attempted t o run away b u t t h a t Harry Johnson tripped him, who then fell to the pavement and lost consciousness. The witnesses further stated to the county attorney that Thu Duc Vo was bleeding from the head and mouth and appeared to be choking on his own blood and having difficulty breathing. The injuries suffered by Thu Duc Vo were substantial. The main fractures he sustained are to the zygoma and its attachment to the maxillary bone along the lower rim of the left orbit under his eye. He lost his left central incisor tooth and had swelling along the lower left side of his jaw and a laceration two millimeters long over the left corner of his mouth. He underwent surgery to realign the displaced fractured bones. He was treated by Dr. William Simic, of Helena, whose testimony showed: "Q. Let me go back for a minute, Doctor. I want to clear up something. When I asked you about the amount of trauma to the face, is it possible that one blow to the face from a fist could cause that type of break? A. It would be possible, if I might qualify this-- "Q. Yes. A. It could be possible to have a fracture like this result from one blow. I would not think that the overall injury pattern to the face was the result of one blow. By that, I mean the injury to the eye, the cheek, the teeth, and of course, the fracture itself. "Q. Let me phrase it this way, Doctor. It isn't likely that one blow to the cheek would cause this type of injury? Is that a fair statement? A. No, that's highly unlikely." When Vo was tripped by Johnson, he fell flat on his face in the street. Later, it was found that the lower orbital rim of Vo's left eye was displaced internally fifteen millimeters. In discussing this Dr. Simic testified: "Q. Could this type of displacement be caused by falling down and hitting your face on a hard object like a pavement or cement or something like that? Is it possible? A. This particular fracture could. We will sometimes see this. The injury picture as a whole, I would think not. "Q. But was there some peculiar thing about this type of fracture that would indicate that it could have been caused by falling down? A. No. No, what I meant was that the other injuries to the eyelid, the laceration of the cheek, along with this, would indicate that it was more than a simple fall of the cheek area." William Phalen was represented in the criminal proceedings against him by attorney John H. Jardine. In what appears to be the result of a plea bargain, Phalen entered a plea of guilty to the charge of aggravated assault, and was given a three year sentence deferred subject (1) to the usual parole rules; (2) that he pay Jefferson County the sum of $500 for the cost of the proceedings; and, (3) that he make restitution to Vo of one-half of Vo's medical and dental expenses to the limit of $900, and to the extent that such expenses were not covered by insurance. Judgment on Phalen's guilty plea was entered July 21, 1977. In the meantime, Vo had commenced a civil action against William Phalen and Harold Johnson for the injuries which he sustained in the incident. On May 6, 1977, he amended his complaint to provide two counts. In count I, he charged the willful, malicious and wrongful assault upon him by the defendants; and in count 11, he charged the defendants as follows: "On or about January 29, 1977 upon and about property known as the Windsor Bar in the city of Boulder, county of Jefferson, state of Montana defendant did then and there negligently, carelessly, and wrongfully assault, strike, beat and bruise plaintiff, and d i d n e g l i g e n t l y and c a r e l e s s l y cause p l a i n t i f f personal injuries hereinafter more particularly described, all without cause or provocation on the part of the plaintiff." Attorney Jardine also represented William Phalen in connection with the civil action brought by Vo. On or about June 14, 1977, the attorney called Jalmer 0 . Carlson, claims manager for Northwestern, and advised him of the Vo suit against Phalen, and indicated the policy coverage might attach. Carlson asked about the status of the civil litigation. Attorney Jardine testified that it was his impression that "he [Carlson] told me to go ahead with the defense and that Northwestern would take care of that", although nobody said that specifically. Carlson, in his testimony, denies hiring the attorney to look after Northwestern's interest. How- ever, Carlson did on June 27, 1977, send by certified mail a letter to all of the insureds as follows: "Dear Mr. Phelan [sic]: "This letter is to inform you that the Northwestern National Casualty Company is reserving the rights afforded both you and the company under policy no. NHO 44 80 42 in regard to an incident which took place on February 18, 1977 involving injuries to Thu Duc Vo. We are making this reservation so that the investigation may continue, that possible compromise settlements might be made and that any eventual litigation can be accomodated without prejudice to the rights of either party to the policy. "This reservation of rights is being served because the above mentioned incident does not appear to meet the policy definition of occurance [sic] and for other reasons. "The service of this notice does not deprive you of any rights you may have against this company. This action for declaratory judgment was not filed until September 16, 1977 because attorney Jardine wanted some time to see if he could "work something out". In this action, cross-motions for summary judgment were made by the parties and on May 3, 1978, the District Court entered its declaratory judgment that there is no coverage for William Phalen under the Northwestern policy of insurance, arising out of the incident,and that Northwestern had no duty to defend the action brought by Thu Duc Vo against Phalen. Phalen, the insured under Northwestern's policy, took no active part in the proceedings before the District Court nor in this appeal. Thu Duc Vo, as appellant, contends that the grant of summary judgment to Northwestern was improper. We agree with appellant Vo, as we determine that there is a fact question upon which coverage under Northwestern's policy may depend. THE POLICY COVERAGE We note that in no provision of Northwestern's policy, does the word "assault" appear, nor "intentionally inflicted", nor "committed by or at the direction of the insured". Accordingly, cases construing policies with those types of provisions do not reflect what the state of the law is or should be under the coverage extended in Northwestern's policy. The policy in this case extends personal liability coverage to the insureds for damages caused by an "occurrence". The policy defines an occurrence as an accident resulting in bodily injury or property damage, excluding only bodily injury or property damage, which is either expected or - intended -- from the standpoint of -- the insured. In Grand River Lime Company v . Ohio Casualty Company, (19721, 32 Ohio App. 2d 178, 289 N.E.2d 360, it was held that the term "occurrence" is a broader term than "accident" where occurrence is defined in a policy as meaning an incident in which property damage is neither expected nor intended from the viewpoint of the insured. There is no reason why the same meaning should not be applied where personal injury damages are involved instead of property damages. The word "occurrence" instead of the word "accident" in the insuring clause means that the word "occurrence" is in fact broader than the word "accident" and is so intended by the insurer. In such case, the intent of the policy is to insure the acts or omissions of the insured, including his intentional acts, excluding only those in which the resulting injury is either expected or intended from the insured's standpoint. It is clear therefore, that the insured here would be debarred from coverage in those cases where his deliberate acts or assaults resulted in injuries which would be expect- ed or intended by him to result from his deliberate acts. - - -- But what about coverage where the results of his acts (even though deliberate) are unexpected or not intended by the insured? The answer under such a policy provision is that (1) the event is an occurrence; (2) since it results in bodily injury it is an accident under the definition of the policy, and (3) since it is unintended or unexpected, it is within the coverage of the policy. Such a construction of the insurance policy is not strained or forced, but rather is an interpretation of the plain, ordinary and popular meaning of the words used by the insurer in defining the coverage extended. It should be interpreted in that sense. Conlon v. Northern Life Insurance Company (1939), 108 Mont. 473, 92 P.2d 284. Exclusions and words of limitations must be strictly construed against the insurer. Kansas City Fire and Marine Insurance Company v. Clark (D.C. Mont. 1963), 217 F.Supp. 231. We do not consider this provision to be ambiguous; the possibility of unintended bodily injury brings that result within the policy coverage, even though Phalen's actions may have been intentional. - 8- In interpreting the policy thusly, we have given consideration to the cases cited by Northwestern in support of its position that no coverage exists here. Most of the cases cited by Northwestern relate to a policy provision which excluded acts or injuries caused "intentionally by or at the direction of the insured". On that basis, and on the factual basis on which those cases were decided, they can be distinguished from the case at bar. Some of those cases include the following: In Transamerica Insurance Company v . Cannon-Lowden Company (D.C. Mont. 1975), 400 F.Supp. 817, the jury found by special verdict that the insured had committed suicide when she drove her automobile at a speed in excess of 60 miles per hour out of her lane of traffic and directly into the path of a tractor-trailer unit driven by another. The court felt that the risk of damages from the insured's acts were so certain that it could be said as a matter of law that the damage was intentional and expected. The exclusion in the policy related to bodily injury and property damage caused "intentionally by or at the direction of the insured." In Home Insurance Company v. Neilsen (Ind. 1975), 332 N.E.2d 240, again the exclusionary clause excluded bodily injury caused "intentionally by or at the direction of the insured". In that case, the insured claimed he did not intend to inflict the injuries of which plaintiff complained, and that his actions were performed in self-defense. The decision of the court that coverage did not apply, turned on the court's construction of the word "intentionally" as used in the policy. 332 N.E.2d 242. In Caspersen v. Webber (Minn. 1973), 213 N.W.2d 327, the policy excluded "bodily injury . . . caused intentionally - 9- by or at the direction of the insured." The insured pushed a hatcheck girl, who struck her back against a metal message rack attached to the wall. The insured stated he had no intention to harm her. The jury found that the insured had assaulted the hatcheck girl, and that he was negligent, and awarded general and punitive damages. The trial court refused judgment against the insurance company, saying the injuries were the direct result of the assault so that no coverage applied. The appellate court reversed, saying that the insurer is liable when the act is intended but the resulting injury is not. 213 N.W.2d at 230. More to the point are cases which have construed policies which contained language excluding coverage for bodily injuries "either expected or intended from the standpoint of the insured." In determining the effect of this exclusionary clause, we note that it is a relatively recent provision used by insurers in this type of coverage. 79 A.L.R.3d 1125. On its face, the clause requires a two-fold test to determine coverage: (1) was the injury intended, or (2) was the injury to be expected by the insured? In Farmers Automobile Insurance Association v . Medina (Ill. 1975), 329 N.E.2d 430, it appears a minor boy intentionally flipped matches upon a gasoline spot directly below a parked automobile. The gasoline ignited and burned the automobile. In considering the clause identical to the one at bar, the Illinois court said: "In examining the various court decisions both in this state and from other jurisdictions, we find that the courts have considered this exclusionary clause, and a most comparable one, which reads as follows: "'To injury . . . caused intentionally by or at the direction of the insured.' "It is to be noted that the exclusionary clause in the case before us contains the expression or word 'expected'. -- The term 'expected' has -- been judicially construed to mean a high degree of certainty. (Citing - -- ~ a s s In several cases which have considered exclusionary clauses containing the term 'expected' in addition to the term 'intended' the court's have failed to find that the addition of the term 'expected' affected the outcome of the case. (Citing cases.) It is possible to envision situations in which the inclusion of the term 'expected' in an insurance exclusionary clause could alter the outcome of a suit which required interpretation of the clause, however, in view of the result we reach herein, we find that further discussion of the distinctions between the terms 'intended' and 'expected' is unnecessary." 329 N.E.2d at 432. (Emphasis added. ) The Illinois court, in Medina, relying on the New Jersey case of Lyons v . Hartford Insurance Group (N.J. 1973), 310 A.2d 485, decided that the general rule is that coverage exists under an exclusion clause identical or similar to this one for the unintended results of an intentional act but not for damages assessed because of an injury which was intended to be inflicted. No clear rule has yet emerged from those cases which have specifically considered and turned on this particular exclusionary clause. In State Farm Fire and Casualty Company v . Muth (Neb. 1973), 207 N.W.2d 364, in an action for declaratory judgment between the insurer, insured and judgment creditor of the insured, it appeared that the insured, a minor, had fired a b.b. gun from an automobile toward the judgment creditor and the pellet struck the judgment creditor in the eye, causing loss of sight. The trial judge in the declaratory judgment action found that when the minor caused the gun to discharge in the direction of the judgment creditor, the minor did not intend or expect to do bodily injury to him; therefore, it found the minor was negligent and the exclusion did not apply. In interpreting the exclusionary language, the Nebraska court said that bodily injury is excluded "if the insured acted with a specific intent to cause harm to a third party". 207 N.W.2d 366. Other cases involving the same exclusionary clause include Armstrong v. Security Insurance Group (Ala. 1973), 288 So.2d 134, where the husband and wife were the named insureds as the operators of a sandwich shop, and it was held that the clause excluded coverage for the husband who shot a patron but did not exclude coverage for the wife who was standing nearby. In Terito v . McAndrew (Louis. 1971), 246 So.2d 235, it was held that the owner of a hotel bar, who knocked the patron from a barstool "to shut his mouth" and who had fallen on the patron after he fell off a barstool so that the patron's knee was injured, did not have coverage under this clause. In Commercial Union Insurance Company v. City of Montpelier (Vt. 1976), 353 A.2d 344, it was held that the insurer owed the City a defense where police officers were charged with assaults upon the plaintiff, again with the same clause. After examination of the cases, and the exclusion itself, we would interpret the clause to mean that it precludes coverage for bodily injuries or damages, though not specifically intended by the insured, if the resulting harm was within the expectation or intention of the insured from his standpoint. That statement more precisely fits the language of the coverage provided by the insurer. Out of that interpretation a question of fact exists in this case as to whether coverage should apply in view of the alleged accompanying and concurrently negligent acts of Harry Johnson which may have exacerbated the injuries Vo received. THE FACT ISSUE --- From the medical testimony, it appears that the massive injuries to Vo's face could have resulted from the fall to the pavement, or from the single blow that Phalen admits -12- he struck, or from a combination of both. Dr. Simic did not believe that a single blow would cause the injuries which extended from the lower orbital rim of the left eye where a fifteen millimeter displacement occurred, to the left corner of Vo's cheek, where his lip was lacerated. The part of Vo's injuries, if any, which resulted from the fall to the street, were proximately caused, apparently, by the fact that Phalen was chasing Vo when Vo was tripped by Johnson and the fall to the street ensued. Even if Phalen's act of chasing is deemed to be intentional, the intervening act of Johnson in tripping Vo and the resulting injuries may not have been expected or - intended by Phalen. At least a fact issue as to that element of the claim exists. A situation is presented where Phalen's act of chasing could be considered by a jury to be concurrently negligent with the negligence of Johnson in tripping Vo. Where one defendant's negligence is a contributing proximate cause of injury, and neither defendant is responsible for the other, each defendant is liable, provided the injury would not have been sustained but for his negligence. Marinkovich v. Tierney (1932), 93 Mont. 72, 17 P.2d 93; Bensley v. Miles City (1932), 91 Mont. 561, 9 P.2d 168. Where several causes producing injury are concurrent and each is an efficient cause without which the injury would not have occurred, the injury may be attributed to all or any of the causes, and recovery may be had against either or all of the responsible persons, though one of them was more culpable and the duty owed by them to the injured person was not the same. See Daly v. Swift and Company (1931), 90 Mont. 52, 300 P. 265. A fact question exists as to whether Phalen in chasing or offering to chase Vo, would have expected - or intended that Johnson would trip him and crash him on his face to the pavement. If the trier found that Vo's injuries were unexpected by Phalen, certainly Northwestern's policy extended coverage for the incident. -13- If Phalen's chasing were a proximate cause of the eventual injuries, it would be the accompanying act of the concurrently negligent Johnson that brought about the unexpected and unintended result, a result which Phalen himself testified he did not intend. The proper place for the determination of this fact issue is in the original action brought by Vo against Phalen and Johnson. Whether Vo's injuries were expected or intended by Phalen can be determined in that case through the use of special interrogatories to the jury, or if the case is tried by a judge without a jury, through findings made by the court. WAIVER BY NORTHWESTERN - Thu Duc Vo also contends that Northwestern waived any right to dispute coverage by assuming the defense of the action on behalf of Phalen. Vo also contends that Northwestern's letter of June 27, 1977, is an inadequate reservation of rights under the case of Henry v . Johnson (Kan. 1963), 381 P.2d 538. In view of our determination that a fact issue exists which requires reversal, we do not need to determine at this time the question of such waiver, or whether Thu Duc Vo, as a claimant, can take advantage of a waiver by Northwestern to its insured Phalen. NORTHWESTERN'S DUTY TO DEFEND -- In its brief, Northwestern contends this Court should address the issue of the duty of Northwestern to defend Phalen in the action brought by Vo. Northwestern claims that because of its position that no coverage applies, there is no duty to defend Phalen under the policy under Reliance Insurance Company v . Fischer (1974), 164 Mont. 278, 531 P.2d 193. In Reliance, we stated that there was no obligation on the part of the insurance company to undertake the defense of the insured, if under the policy, the insurance company had no duty -14- to pay any judgment secured against the insured. In this case, the duty of Northwestern to pay a judgment on behalf of Phalen may not be determined until the original action has been completed. In the meantime, the pleadings themselves, particularly count 11, stated a cause which fits within the policy coverage and in that situation, Northwestern has a duty to extend a defense of Vo's action to Phalen. St. Paul Fire and Marine Insurance Company v . Thompson (1967), 150 Mont. 182, 433 P.2d 795. Phalen's plea of guilty to felony assault is not conclusive either as to his policy coverage or the duty of Northwestern to defend him in a tort action. Teitelbaum Furs, Inc. v . Dominion Insurance Company (1962), 25 Cal. Rptr. 559, 375 P.2d 439, 441; Brohawn v. Transamerica Insurance Company (Md. 1975), 347 A.2d 842, 848. The proper case for determining whether Phalen intended or expected the injuries Vo received is in the tort action, and not in the declaratory judgment action. (Brohawn, 347 A.2d at 848, 849.) Moreover, the duty to provide a defense is not affected by Phalen's showing little interest in either the tort action or the declaratory judgment suit. This court held in McLane v. Farmers Insurance Exchange (1967), 150 Mont. 116, 432 P.2d 98, that the injured party's rights as a claimant vested at the time of the accident and could not be affected by nondefense of an action brought by the insurer to rescind the insurance policy. Here, Vo's rights can not be affected by the action or nonaction of persons over whom Vo has no control. See Peterson v . Western Casualty and Surety Company (Utah 1967), 425 P.2d 769. DISPOSITION The applicability of Northwestern's coverage cannot be determined until the factual issues concerning the intention and expectation of Phalen as to Vo's injuries is decided in the tort action. Therefore, summary judgment in favor of Northwestern in the declaratory judgment case at bar was -15- improper. Kemmer v. City of Bozeman (1971), 158 Mont. 354, 492 P.2d 211; Duchesneau v. Silver Bow County (1971), 158 Mont. 369, 492 P.2d 926. Reversed and remanded to the District Court with instructions to dismiss the declarator 'J We Concur: | June 18, 1979 |
af19a0ae-ea7a-446c-b1ff-2d2c541ed48d | FORD v UNIVERSITY OF MONTANA | N/A | 14587 | Montana | Montana Supreme Court | N o . 14587 IN T H E SUPHEME C O W O F T H E STATE OF MXJTANA 1979 BONNIE FORD, Plaintiff and Respondent, THE UNIVERSITY OF MXUNA, a n d MISOULA TYPOGRAPHICAL UNION N O . 277, Defendants and Appellants. Appeal f m : District Court of the Fourth Judicial District, Honorable Ehad Dussault, Judge presiding. Counsel of Record: For Appellants: Steven A . Veazie argued, Helena, Mntana Skelton and Knight, Missoula, Mntana Robert Skelton argued, Missoula, Mntana For Respondent: Jon E . Ellingson argued, Missoula, Pbntana Subitted: June 12, 1979 Filed: - 3 \?j?g h* - Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. The plaintiff, Bonnie Ford, brought this action against her public employer, the University of Montana (University), and her exclusive collective bargaining unit, the Missoula Typograph- ical Union No. 277 (Union). Bonnie Ford claimed that she was wrongfully assigned to a night shift by the Union and wrongfully terminated from employment by the University when she refused to work the night shift. Before the plaintiff presented any evidence, the defendant Union moved the District Court to dismiss for lack of jurisdiction. At the close of plaintiff's case, the defendant Union moved the District Court to dismiss as to the defendant Union because the plaintiff had not introduced any evidence which showed that the Union breached any duty it owed to plaintiff. Both motions were denied. The case was tried without a jury and judgment was entered for plaintiff Bonnie Ford and against the Union and the University. Plaintiff was awarded monetary damages for lost wages and benefits. The Union and the University appeal from this judgment. On November 1, 1972, plaintiff Bonnie Ford was hired as an apprentice by the University of Montana Print Shop. On Nov- ember 13, 1972, another worker, A1 Devore was hired at the Print Shop. Devore had been a journeyman printer since 1948. Workers at the University Print Shop were represented at all times relevant to this case by defendant Union. At the time Bonnie Ford and A1 Devore were hired, the bylaws of the In- ternational Typographical Union (ITU) were such that apprentices had no "priority standing", that is, no seniority for choice of jobs, and other privileges until completion of their apprentice- ship and attainment of journeyman status. On January 1, 1973, however, the bylaws of the ITU were amended so that apprentices were granted priority standing at the beginning of their second year of apprenticeship on November 1, 1973. Under the amended bylaws, she thus attained priority status as of that date. A1 Devore, a journeyman when he was hired, had priority status as of the date of his hiring, November 13, 1972. In 1975, the University and the Union entered into negotiations for a new Collective Bargaining Agreement. Under the new agreement executed on October 28, 1975, premium pay for night shift work was eliminated. Therefore, in order to allow employees of senior status who had chosen night jobs for the extra pay to change jobs if they so desired, all jobs were de- clared open to be reassigned in order of choice by seniority. Article VI, section E of the new agreement provided for this procedure as follows: "(Shift and Vacation Preference) Employees may claim new shifts, new starting times, new slide days, if qualified, and have choice of vacation schedules, in accordance with their seniority standing. Upon execution of this agreement, and for one time only, the board will be opened and employees may claim existing day or night shift situations in accordance with their seniority." Other pertinent provisions in the new agreement in this regard were : "ARTICLE I - Recognition "The Employer recognizes the Union as the exclusive bargaining representative of all employees covered by this agreement, the words 'employee' and 'em- ployees' when used in this contract apply to iournevmen and awwrentices." (Em~hasis added.) "ARTICLE VI - Seniority and Probation "Section A . (Seniority) Seniority means an employee's length of continuous service with the Employer since his last date of hire. An employee's seniority shall be broken only by termination of employment or a layoff which exceeds six (6) calendar months. Employees who are laid off and request payment of unused sick leave and/or with- drawal of PERS contributions shall be considered as having terminated employment." (Emphasis added.) On November 1, 1975, Bonnie Ford acquired journeyman status. On the same day, the Union posted the priority standings listing A1 Devore as senior to Bonnie Ford. Both Devore and ~ o r d requested day shift positions. The last day shift job went to Devore and Ford was placed on the night shift. Working the night shift did not agree with Bonnie Ford. She began suffering from general malaise, insomnia and depres- sion. After having worked the night shift for approximately a year, plaintiff was advised by her physician that her symptoms would not improve unless she could get placed on day shift or find another job at which she could work daytime hours. In the meantime, plaintiff had been designated as Chapel Chairman, or representative for the Union, at the university Print Shop. In conjunction with the duties of Chapel Chairman, in December, 1976, plaintiff requested and obtained from the Print Shop a list of the dates of hiring of all the employees. She dis- covered that she had been hired before A1 Devore and concluded that under the new agreement she rather than he should have been awarded the last day shift job. Shortly thereafter, she advised the presi- dent of the local Union and the University that she believed her seniority to be greater than that of A1 Devore and that she should be given a day job. On March 2, 1977, plaintiff filed a grievance, through her attorney, with the Union. A special meeting of the Union was immediately held, with plaintiff in attendance, where her griev- ance was discussed. The members concluded that A1 Devore had greater seniority than plaintiff and the plaintiff's claim was barred in any event by a clause in the agreement that grievances must be submitted within twenty days after the occurrence of the event giving rise to the grievance. The members voted by majority vote to reject the grievance as without merit. After this meet- ing, the president of the local Union advised plaintiff she could write to the International for a further opinion, but this plaintiff did not do. On February 22, 1977, plaintiff stopped going to work. She requested sick leave, but her sick leave had previously been used up. On March 23, 1977, the manager of the print shop informed plaintiff by letter that her continued absence was causing a serious personnel shortage and that if she did not return to work on her normal shift by April 4 , 1977, she would have to be terminated and replaced. Plaintiff did not return and was terminated on the date specified. On April 29, 1977, plaintiff began a new job working the day shift at Gateway Printing Company (Gateway) in Missoula, Montana. Plaintiff's complaint in this matter was filed on April 6, 1977. The central allegation is that "because of being forced to work the night shift, the Plaintiff has suffered extreme mental strain and emotional distress which manifest themselves in physical disorders; that she has advised the Defendants of these problems but the Defendants have failed and refused, and continue to fail and refuse, to provide her with a day shift posi- tion which selection by seniority would have provided her." The prayer for relief requests, in pertinent part, that "Defendants be enjoined to employ plaintiff on the day shift" and that plain- tiff recover lost wages from February 22, 1977, the day she stopped going to work. After a period of discovery, trial of the matter was held before Judge Edward T. Dussault, sitting without a jury, on February 9,1978. At the start of trial, counsel for defendant Union moved to dismiss the case for lack of jurisdiction on the grounds that plaintiff, an employee of the State of Montana, had not presented her grievance to the Board of Personnel Appeals, and thus had failed to exhaust her administrative remedies. The motion was denied and trial proceeded. Subsequent to trial, on June 13, 1978, findings of fact and conclusions of law were entered identical to proposed findings and conclusions submitted by plaintiff, granting all the relief requested in the complaint. Both defendants thereafter sub- mitted motions to amend, and defendant University also moved for a new trial. Argument on the motions was had on July 31, 1978, and it was orally stipulated that the findings and con- clusions reinstating plaintiff in her job and ordering her to be given a day shift position be deleted. The motion to amend was otherwise denied, as was the motion for new trial. Judgment was entered for plaintiff for lost wages due to sickness attrib- utable to forced night work; lost wages from January 1, 1977 to April 29, 1977 (the period wherein the plaintiff was absent from work for a substantial amount of time until she found new employ- ment at Gateway); and for lost sick leave and vacation benefits, all in the total sum of $4,470.25. From that judgment, defendants appeal. The issues presented on appeal are: By appellant Union: (1) Whether the District Court erred in denying the Union's motion to dismiss for lack of jurisdiction. (2) Whether the District Court's finding that the Union had breached a duty to plaintiff, and the consequent denial of the Union's motion to dismiss at the close of plaintiff's case, was supported by substantial evidence. (3) Whether the District Court erred (a) in making cer- tain conclusions of law, and (b) in failing to make certain find- ings of fact. By appellant University: (4) Whether the District Court erred in its conclusion of law that plaintiff's employment had been wrongfully terminated by the University, entitling her to lost wages and benefits. ( 5 ) Whether lost wages and benefits were not recover- able in any event because the circumstances giving rise to the loss here were neither contemplated by the parties to the collec- tive bargaining agreement nor likely to result from its alleged breach. There is no disagreement here as to whether Bonnie Ford is a public employee covered by Title 39, Chapter 31 MCA, "Collective Bargaining for Public Employees." The issue is whether under these circumstances that Act is plaintiff's exclusive remedy. Unfair labor practices by labor organizations for which the Act provides a remedy are defined at section 39-31-402 MCA as follows: "Unfair labor practice of labor organization. It is an unfair labor practice for a labor organization or its agent to: "(1) restrain or coerce employees in the exer- cise of the right guaranteed in 39-31-201 or a public employer in the selection of his representative for the purpose of collective bargaining or the adjustment of grievances; "(2) refuse to bargain collectively in good faith with a public employer if it has been designated at the exclusive representative of employees; "(3) use agency shop fees for contributions to political candidates or parties at state or local levels." There is no prior Montana case law construing this provi- sion. The plain meaning on a fair reading of this provision, however, indicates that it does not contemplate the situation presented here as one for which the Act provides a remedy. Sec- tion 39-31-201 MCA referred to in the provision is the statute protecting the right of public employees to self-organize. This case does not involve a situation where plaintiff was denied her right "to form, join or assist any labor organization", or where she was denied any of her other rights protected by section 39- 31-201, MCA. This is not a case where the Union has refused to bargain collectively in good faith with a public employer, or has misused shop fees. Defendant Union's argument that the ~istrict Court had no jurisdiction here because plaintiff's exclusive remedy was under the Collective Bargaining for Public Employees Act lacks merit; that Act, in fact, provides no remedy at all for the controversy at issue here. In essence Bonnie Ford is charg- ing that the Union breached a duty it owed to her by its failure to fairly represent her grievance. Section 39-31-402, MCA doe$ not encompass this situation. Plaintiff further argues that the District Court had jurisdiction by analogy to 29 U.S.C. 5158(b) of the National Labor Relations Act (NLRA). The language in section 39-31-402 closely parallels certain portions of that section of the NLRA. The United States Supreme Court has held in Vaca v. Sipes (19661, 386 U.S. 171, 87 S.Ct. 903, 17 L Ed 2d 842, that the preemption doctrine is not rigidly applied to cases in which it cannot be inferred that Congress intended exclusive jurisdiction to lie with the NLRA. 386 U.S. at 179. The preemption doctrine is a doctrine whereby the state and federal courts will not assume jurisdiction over suits directly involving "activity [which] is arguably subject to 57 or 58 of the [NLRA]." San Diego Building Trades Council v . Garmon (1959), 359 U.S. 236, 245, 79 S.Ct. 773, 780, 3 L Ed 2d 775, 783. Vaca allowed an employee access to the courts to pursue a remedy for an alleged breach of duty by a Union in wrongfully refusing to process a grievance, which is similar to the facts of the instant case. Vaca and its progeny however, are questionable authority for jurisdiction in the state District Court here because they involve section 301 of the Labor Management Relations Act, 29 U.S.C. S185. That statute gives venue to District Courts of the United States in "[sluits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . ." Section 301 "carves out exceptions to the [NLRA's] exclusive jurisdiction," Vaca, 386 at 179, and "permits suits for breach of a collective bargaining agreement regardless of whether the particular breach is also unfair labor practice within the jurisdiction of the Board." Vaca, 386 U.S. at 179-80. There- fore, federal labor law grants jurisdiction to the federal courts in certain situations where Montana law does not grant jurisdiction to state courts because Montana does not have a statute that parallels 8301. In Vaca, the Court decided to "assume for present pur- poses that such a breach of duty of fair representation by the union [in its handling of an employee's grievance] is an unfair labor practice" within the meaning of 29 U.S.C. S158(b). 386 U.S. at 186. If this Court were to hold that a breach of duty was section an unfair labor practice within the meaning of /39-31-402, MCA, the District Cart would be denied jurisdiction in this case be+ cause Montana does not have a statute that parallels 8301. It must be noted, however, that the provisions defining unfair labor practices in 29 U.S.C. S158(b) are very comprehensive and cover a much broader scope than does section 39-31-402 which is limited to three circumstances which may be more strictly construed than the federal law. Therefore, we reject the assumption that re- fusal to process a grievance is an unfair labor practice within the meaning of section 39-31-402 and hold that the District Court had jurisdiction in this matter. We next face the issue of whether the Union breached a duty which it owed to Bonnie Ford. We have decided above that a failure to represent is not an unfair labor practice under section 39-31-402; however, section 39-31-205, MC~,provides tha standard of duty the Union owed its members, viz. that it may not discriminate between its members in its duty to fairly rep- resent the member's grievance. TO impose such a duty is to protect "an individual employee from arbitrary abuses of procedures for the settlement of grievances by providing him with recourse against both his employer and the union." 48 Am Jur 2d Labor and Labor Relations S 398. In order to hold a union liable for breach of this duty in regard to processing employee grievances, most cases require a finding of fraud, arbitrariness, bad faith, or other misconduct with respect to its handling of a grievance. Annot. 34 ALR3d 884. Although the United States Supreme Court's decisions in this area are not binding on this Court because they are constru- ing a different statute, the standard which they have adopted in fair representation cases is persuasive. In Hines v. Anchor Motion Freight, Inc. (1976), 424 U.S. 554, 96 S.Ct. 1048, 47 L Ed 2d 231, the Court discusses the case of Humphrey v . Moore (1964), 375 U.S. 335, 84 S.Ct. 363, 11 L Ed 2d 370. In Hines. the Court states: "Our conclusion in [Humphrey v . Moore] was not that the committee's decision was un- reviewable. On the contrary, we proceeded on the bases that it was reviewable and vulner- able if tainted by breach of duty on the part of the union, even though the employer had not conspired with the union. The joint committee's decision was held binding on the complainins employees only after we determined that thedunion had not been guilty of malfeasance and that its conduct was within the range of acceptable per- kormance by a collective bargaining agent . . ." 424 U.S. at 568. (Emphasis added.) In short, the Court has to find that the union's action was in some way a product of bad faith, discrimination, or arbitrariness. See Ruzicka v. General Motors Corp. (1975, 6th Cir.), 523 F.2d 306. The following is a general statement of this principal of law and the policy which underlies it. " . . . A union's action is non-arbitrary and in performance of its duty of fair representation to members where such action is based upon relevant, permissible union factors which exclude the possi- bility of its being based upon motivations such as personal animosity or political favoritism, where it is a rational result of consideration of those factors, and where it includes fair and impartial consideration of the interests of all employees. "There is no breach of a collective bargaining agent's duty of fair representation in taking a good-faith position contrary to that of some individuals whom it represents, or in supporting the position of one group of employees against that of another." 48 Am Jur 2d Labor and Labor Relations 5398. "A wide range of reasonableness must be allowed to a statutory bargaining representative in serving the unit it represents, subject always to its com- plete good faith and honesty of purpose in the exercise of its discretion. A union has great dis- cretion in processing its members grievances, and only in extreme cases of abuse of discretion will the court interfere with the union's decision; in certain cases some individual rights may be com- promised for the greater good of the members as a whole . . ." 48 Am Jur 2d Labor and Labor Relations 5399. "Although a union breaches its duty of fair repre- sentation by arbitrarily ignoring a meritorious grievance, or processing it in a perfunctory way, a union does not breach its duty of fair represen- tation merely because it settles a grievance short of the final grievance procedure step of arbitra- tion, even if a court should later decide that the grievance was meritorious. And although the ignor- ing or perfunctory processing of a grievance may violate the duty of fair representation, such duty does not require a union to exhaust every theoreti- cally available procedure simply on the demand of a union member, the decisive question being whether the union's conduct is arbitrary, discriminatory, or in bad faith. In its role as the exclusive agent for all employees in a bargaining unit, the union has the power to sift out frivolous grievances, abandon the processing of a grievance which it deter- mines in good faith to be meritless, and to settle a dispute with the employer short of arbitration . . ." 48 Am Jur 2d Labor and Labor Relations 5401. In the instant case, the complaint does not allege any fraud or bad faith on the part of the Union. Nor was there any evidence presented at trial that the vote of the Union members, which determined that plaintiff's grievance was without merit, was in any way improper, dishonest, or the product of bias or conclu- sion. There must be evidence that would support a conclusion that one of these elements tainted the Union vote. The mere fact that Bonnie Ford disagrees with the decision of the [Inion is not sufficient basis for a finding of breach of the duty of fair representation absent these factors. Annot. 34 ALR3d 884 $37. Defendant Union's motions to dismiss at the close of plaintiff's case should have been granted. The central problem in this case is the District Court's conclusion that Bonnie Ford had greater seniority than A1 Devore under the new Collective Bargaining Agreement. Before the new agreement went into effect, length of job service was referred to within the Union in terms of "priority". It is undisputed that under that system, A1 Devore, a journeyman, had "priority" as of his date of hire, November 13, 1972, and plaintiff did not get "priority" until commencement of her second year of apprenticeship on November 1, 1973. Under the new agreement effective July 1, 1975, however, the term "seniority" was used and was defined as "an employee's length of service from date of hire." The new agreement does not differentiate between appren- tices and journeymen. Plaintiff was hired as an apprentice be- fore A1 Devore was hired as a journeyman. Thus, the issue is whether the new collective bargaining agreement abrogates the previously followed priority system and replaces it with something different so that plaintiff now has a higher choice-of-job status? The vote of the Union members rejecting plaintiff's grievance indicates that they concluded it did not. In the previous issue it has held that a Union will not be liable for refusing to process a grievance so long as such a refusal is not arbitrary, the product of bad faith, or discrimin- atory. Similarly, a Union may interpret its own union rules and this will not be overturned by the courts unless there is some fact presented which would show that interpretation was tainted. "The construction of a union's constitution and laws is for the union, through its appropriate board or officers; and the courts will accept such construction in the absence of fraud, illegality or improper exercise of the power of construction." 87 C.J.S. Trade Unions S13. "The constitution and bylaws of a union cannot retroactively infringe established rights." " . . . [Tlhe interpretation of rules fixing the senior- ity rights of members will not be interfered with by the courts where it appears that the construction placed thereon is a reason- able one, arrived at in good faith and in a legal decision . . ." 87 C.J.S. Trade Unions S38. The meaning of provisions in collective bargaining agree- ments may be construed according to existing circumstances and condition. "The court has no power to read into the contract any terms or conditions with respect to seniority which were not com- prehended and intended by the parties when contracting. On the other hand it is proper to look to the common law of the shop to bring to bear those considerations which were not expressed in the contract as criteria for judgment. Seniority provisions should be construed in an objective manner, in the light of the surround- ing circumstances, the nature of the operations contemplated and regulated thereby, and the objects sought to be accomplished . . ." 51 C.J.S. Labor Relations S251. Plaintiff here introduced no evidence that the parties to the new agreement intended to restructure their choice-of-job status. On the contrary, the only testimony on this point was that there was no such intention. Even though the new agreement may on its face appear to redefine the matter, the union member- ship chose to interpret it differently. In the absence of some evidence that the vote was tainted by bad faith, or that it was discriminatory, or arbitrary, the Union's interpretation of its own documents must stand. Under the foregoing authorities, the conclusion that plaintiff had preference over A1 Devore was error. The remaining issues raised by the Union are likewise meritorious. They flow from our resolution of the preceding issues in defendant Union's favor. Having so resolved that issue, under such circumstances further detailed discussion of the alleged errors would be superfluous. The next issue is whether Bonnie Ford was wrongfully terminated. Plaintiff absented herself from work on the strength of her belief that she had been wrongfully deprived of a day shift job. The foregoing discussion indicates that plaintiff was wrong in this belief. Plaintiff also maintains that her absence was at the advice of her doctor and was therefore "sick leave". However, testimony at trial established that plaintiff had exhausted her sick leave and that her absence from work was not authorized. There is a provision in the Collective Bargain- ing Agreement that if the employee has exhausted her sick leave, absence may be charged to vacation or leave without pay at her option. However, this provision still requires approval by the employer, which was neither sought nor given here. The evidence shows that plaintiff was terminated only after full compliance with the termination requirements of the agreement. The conclu- sion by the trial court that the University wrongfully terminated plaintiff is not supported by the evidence. Hence, this conclu- sion of law is error and must be vacated. The final issue raised by the University concerning lost wages and benefits is moot in view of our holding that plaintiff was not wrongfully terminated. In summary, the District Court's findings and conclusions in this case are not supported by the evidence. There is no evidence that the Lniorfs rejection of plaintiff's grievance was arbitrary or in bad faith. The construction placed on the new seniority provision by the Union was consistent with a long es- tablished practice and was a reasonable and fair conclusion. It is unfortunate that plaintiff suffered ill effects from her night shift job, but her attempt at forcing the union to adopt her construction of the new agreement lacks merit. Even though her construction of the agreement is plausible, it was not the one intended by the Union members, as evidenced by their vote on the matter. Plaintiff's illnesses were a consequence of a job assignment properly given to her, rather than the result of any wrongful act of either of the defendants. Reversed and dismissed. Chief Justice We concur: Justices i | August 9, 1979 |
bf6ef1aa-7b16-4923-88f2-93a477e9cc49 | STATE v DISTRICT COURT | N/A | 14640 | Montana | Montana Supreme Court | No. 14640 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA ex re1 JUNE RHODES, DON DIEHL and DELBERT GRIFFIN, Relators, THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF MISSOULA, AND THE PJXESIDING JUDGE OF DEPARTMENT 1 thereof, Respondents. ORIGINAL PROCEEDING: Counsel of Record: For Relators: Garlington, Lohn and Robinson, Missoula, Montana For Respondents: Murray and Holt, Missoula, Montana Submitted on briefs: April 2, 1979 Decided : AUG - 9 1919 Filed: - 9 f m 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. On February 2 1 , 1975, respondent c o u r t granted a summary judgment i n favor of r e l a t o r s i n a s u i t brought by Richard F. Winter and Linda L e e Winter. The c o u r t ' s r u l i n g was based on t h e holding i n Fiscus v. Beartooth Electric Cooperative, Inc. (1974), 164 Mont. 319, 522 P.2d 87. N o appeal was taken by t h e Winters. S h o r t l y a f t e r t h i s Court overruled Fiscus i n Piper v. Lockwood Water Users Association (1978), Mont. , 573 P.2d 646, 35 St.Rep. 9, t h e Winters f i l e d a motion pursuant t o Rule 60(b) (5) and ( 6 ) , M.R.Civ.P., t o set a s i d e t h e judg- ment e n t e r e d i n 1975 on t h e b a s i s of t h e o v e r r u l i n g of Fiscus. On February 2 1 , 1978, t h e District Court vacated t h e 1975 judgment, and r e l a t o r s appealed. This Court dismissed t h e appeal on January 29, 1979, b u t without p r e j u d i c e t o t h e f i l i n g of a n a p p l i c a t i o n f o r a w r i t of supervisory c o n t r o l . Winter v. Rhodes (1979), Mont. , 589 P.2d 1021, 36 St.Rep. 217. R e l a t o r s then a p p l i e d f o r a w r i t of supervisory c o n t r o l which a p p l i c a t i o n was accepted February 8, 1979. R e l a t o r s bring t h i s m a t t e r b e f o r e t h e Court on a w r i t of supervisory c o n t r o l seeking t o o v e r t u r n respondent c o u r t ' s o r d e r of February 21, 1978, vacating an e a r l i e r o r d e r g r a n t i n g summary judgment i n favor of r e l a t o r s (February 2 1 , 1975). The p e r t i n e n t f a c t s a r e t h a t on o r about March 11, 1971, Richard F. Winter w a s i n j u r e d i n a logging a c c i d e n t . A t t h e t i m e Winter was employed by Charles F. K e l l e r , an indepen- d e n t c o n t r a c t o r , who hauled logs f o r r e l a t o r s Rhodes and Diehl. A f t e r t h e a c c i d e n t Winter received Workers' Compen- s a t i o n b e n e f i t s through t h e carrier f o r h i s employer, Charles Keller. Relator G r i f f i n was, a t t h e t i m e of t h e a c c i d e n t , a n employee of r e l a t o r s Rhodes and Diehl. Winter f i l e d s u i t on March 8, 1974, a g a i n s t r e l a t o r s seeking damages f o r personal injury. The question presented here is whether Rule 60(b)(5) and ( 6 ) , M.R.Civ.P., allows vacation of a judgment solely on the basis that the case upon which the judgment was founded has been overruled. Relators contend that it does not. We agree. The facts in the instant case are almost parallel to those this Court addressed in Fiscus v. Beartooth Electric Cooperative, Inc. (1979) , - Mont . - , 591 P.2d 196, 36 St.Rep. 333 (Fiscus 11). Fiscus was initially denied relief in 1974 in Fiscus v . Beartooth Electric Cooperative, Inc. (19741, 164 Mont. 319, 522 P.2d 87 (Fiscus I). Four years later this Court overruled Fiscus I in Piper v. Lockwood Water Users Association (1978), - Mont . - , 573 P.2d 646, 35 St.Rep. 9. Based on this reversal Fiscus moved to vacate the earlier judgment. This motion was denied, and the denial was upheld by this Court in Fiscus 11, supra. In Fiscus I1 this Court stated ". . . only in an extra- ordinary case should Rule 60(b) be granted. There is con- siderable authority holding that when a decision is later overruled by a court, that it is not extraordinary . . ." 591 P.2d at 199 (citing cases). We went on to note: ". . .that while 60 (b) (5) authorized relief from a judgment on the grounds that a prior judgment upon which it is based has been reversed or otherwise vacated, it does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding. . . (citations omitted). . . there is ample support in the federal courts. . . that when a decisional law change occurs, subsequent to final judgment in a particular case . . . final judgment should not be altered." 591 P.2d at 200. A s t h i s Court i s bound by i t s d e c i s i o n i n F i s c u s 11, f u r t h e r d i s c u s s i o n i s unnecessary. I n v a c a t i n g t h e summary judgment, t h e D i s t r i c t Court exceeded its scope of a u t h o r i t y under Rule 60(b) (5) and ( 6 ) , M.R.Civ.P. W e , t h e r e f o r e , r e v e r s e and o r d e r t h e District Court t o r e s c i n d i t s o r d e r v a c a t i n g summary judgment and r e i n s t a t e summary judgment i n favor of t h e r e l a t o r s . J u s t i c e b h / A W e concur: Chief J u s t i c e /'- . | August 9, 1979 |
c1a12ef5-e716-4938-aad0-752e997cabdf | JAPPE v CO-OP SUPPLY INC | N/A | 14510 | Montana | Montana Supreme Court | N o . 14510 I N THE S U P F B l k E C O W O F THE STATE O F MXfTANA 1979 WILLIAM B. JAPPE and MAWARET L . JAPPE, Plaintiffs and Respondents, -vs- m P S U P P L Y , IW., a Corporation, Defendant and Appellant. Appeal frm: D i s t r i c t Court of the Fifth Judicial District, Honorable Frank E. B l a i r , Judge presiding. Counsel of Record: For Appellant: Corette, Smith and Dean, Butte, mntana R. D. Corette argued, Butte, Montana Schulz, Davis and Warren, Dillon, Mntana C a r l Davis argued, Dillon, Montana For Respondents: Poore, McKenzie, Roth, Robischon & Robinson, Butte, Montana Robert Poore argued David Wing argued, Butte, I%xkma SuhLtted: M a y 1, 1979 Decided: - - - 1 M9 Filed: -- - ' ; F ' , 5.'. 6 . - Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Plaintiffs William and Margaret Jappe sought specific performance of a 1976 contract providing for payment of commissions and an option to purchase a self-service, gas- convenience store. Co-op Supply, the defendant, has appealed a judgment for the plaintiffs entered by the Beaverhead County District Court. This appeal raises the following issues: (1) whether the plaintiffs refused to perform their management duties called for by the 1976 contract, and if so, whether their refusal excused defendant's nonperformance of the contract; (2) whether the defendant terminated the 1976 contract by discharging the plaintiffs from their employment positions; and, (3) whether there was sufficient evidence to support the District Court order for specific enforcement of the 1976 contract provisions for payment of commissions and option to purchase. The defendant, Co-op Supply, Inc. is the owner of petroleum plants, gas stations and convenience stores in Dillon, Montana. In 1966, William Jappe was employed as general manager of defendant's main store in Dillon, Montana. Two years later, Jappe's wife, Marge, was hired as Co-op Supply's bookkeeper. The employment of the Jappes was by oral agreement. In 1972, the plaintiffs became interested in developing their own service station-convenience store. William Jappe developed plans for the store and negotiated a "hold" on property located in northern Dillon. He presented these plans to Co-op Supply, and Co-op Supply became interested in the project. Thereafter the "hold" on the Dillon property became a lease to Co-op Supply and William Jappe as joint lessees. During the next four years, the parties operated under the written agreement providing that William Jappe provide the management and Co-op Supply provide the capital for the business, which was called Mini Co-op (Mini I). The agreement also stated that the Jappes should be compensated by receiving monthly gasoline commissions and an option to purchase the property should it be sold or otherwise disposed. The business was so successful that expansion was planned. Jappes and Co-op Supply decided to build a larger store on company-owned ground. To facilitate the development of the project, the Jappes purchased land and innovated special features for the new store. The contract which governed the rights and duties of the parties towards Mini I was rewritten to pertain to the new site and to reimburse the Jappes for their cost in purchasing the site. This contract was executed on August 10, 1976. The new site is referred to as Mini 11. Mini I1 began operating in the fall of 1976 and the parties operated without problems under the 1976 contract until the following summer. In June 1977, a dispute arose between the Board of Directors and the Jappes concerning the size of bonuses to be paid to employees. The dispute came to a head at a Board meeting on July 5, 1977, when the Jappes, disgusted with the Board's rejection of their recommendations concerning employee bonuses, made statements to the effect that they felt like quitting. The Board interpreted these comments as resignations. Whatever the case, in the next few days the Jappes decided to seek rein- statement of their employment positions. At subsequent meetings unattended by the Jappes, the Board decided that reinstatement would be permitted only if the Jappes signed an agreement cancelling their prior written -3- agreements with Co-op Supply. On August 9, 1977, the Jappes refused to sign the cancellation agreement and the Board agreed their "resignation" was thereafter effective. Jappes left their keys at the office and departed. The following day, Marge Jappe resumed her usual bookkeeping duties at Co-op Supply's main store. She continued working until she received a letter signed by Supply's president telling her that she had been terminated. Approximately one week later, William Jappe returned to Mini I1 to perform his management duties but at the request of the directors he left the premises. The Jappes were not paid any commissions on gasoline sales after August 26, 1977 and by writing on September 26, 1977, advised Co-op Supply that they elected to exercise their option. Thereafter, the Jappes instituted this suit to enforce the commission and option provisions of the 1976 contract. The first issue raised by Co-op Supply is whether the trial court erred in concluding that the 1976 contract is valid and enforceable, and governs the rights of the parties concerning Mini 11. The 1976 contract stated that it "embraced the operation and management" of Mini I1 and that the facility "is . . . managed by Jappe." Co-op Supply argues that the contract is not in effect because the Jappes abandoned any good faith performance of their management duties. There is substantial evidence to support the trial court's conclusion that at all times the Jappes stood ready and willing to perform their management duties. Co-op Supply would have this Court find that the Jappes' expressions of disappointment at the July 5, 1977 meeting was a refusal to perform their duties under the 1976 contract. The trial court found that the Jappes' "resignation" related only to their employment -4- positions with Co-op Supply. The evidence shows that the Jappes wished to continue working at Mini I1 and William Jappe did resume such work until he was requested to leave. Thus, the evidence supports rather than preponderates against the trial court's finding that the Jappes were willing to continue managing Mini 11. Co-op Supply also argues that the 1976 contract was only in effect as long as the Jappes remained as employees and therefore that the contract ceased to be effective on August 9, 1977 when the Board accepted the Jappes' resignations. But, the trial court found that Co-op Supply's 1976 contract with the Jappes was not contingent upon their continued employment at the main store. The Jappes were employed by oral agreement to work at the main store while their duties at Mini I1 were governed by the 1976 contract which stated that Jappes' management of Mini I1 shall be "in addition to their other and normal duties as employees of Co-op Supply, Inc." Additional language in the 1976 contract suggests that it was a property agreement, not an employment contract. Paragraph two of the contract provides that the Jappes shall be compensated not for their duties but for "their contribution to CO-OP SUPPLY, INC. in the matter of acquiring, promoting, developing, and establishing said Mini Co-op.. . ." This language along with the testimony of William Jappe that he understood the contract to be a form of partnership agreement is ample evidence that the contract was not dependent on the Jappes employment at Supply's main store and did not cease to be effectlve when Co-op Supply terminated the Jappes employ- ment. The next issue is whether the trial court was correct in granting the Jappes specific performance of the option to purchase Mini 11. The 1976 contract stated in paragraph six that Co-op Supply agreed that if for any reason it should -5- ever "sell or otherwise dispose" of Mini 11, that Jappes would have the exclusive option to purchase the facility. Co-op Supply contends that since it never sold the facility, and has continued to operate Mini 11, that the option cannot be exercised. The District Court held that Co-op Supply had wrongfully ousted the Jappes from their position as managers of Mini 11, and that this wrongful oust was a "disposal" of the premises which triggered the operation of the Jappes' option rights. The court concluded that the contractual wording "sell or otherwise dispose" is ambiguous and therefore looked to the surrounding circumstances as permitted by section 28-3-402, MCA. We cannot hold as a matter of law that the language was clear by its very tenor; therefore, it was proper for the trial court to consider the surrounding circumstances. The circumstances surrounding the execution of the contract support the trial court's conclusion that the Jappes intended Mini I1 to be a joint venture with Co-op Supply. The "sell or otherwise dispose" clause was inserted at William Jappe's insistence to protect his property interest in Mini 11, in the event that Co-op Supply should release him from his position as Mini I1 manager. On the other hand, construction offered by Co-op Supply towards the language "sell or otherwise dispose" is not clear. Although the 1976 contract was signed by Co-op Supply's president, Peter Rebish, it was not read or discussed by the Board members prior to July 5, 1977. Based on this evidence, we cannot say that the evidence clearly preponderates against the construction of the language reached by the District Court. The final issue is whether the Jappes are entitled to any unpaid gasoline commissions under the 1976 contract. Co-op -6- Supply has f a i l e d t o pay t h e Jappes any commissions s i n c e August 26, 1977. The t r i a l c o u r t ordered Co-op Supply t o pay commissions f o r t h e period between August 26, 1977 and t h e d a t e when t h e Jappes obtained possession of Mini I1 from Co-op Supply. The c o n t r a c t provides t h a t t h e Jappes s h a l l "during t h e t e r m of t h e agreement" be compensated by r e c e i v i n g g a s o l i n e commissions. The c o n t r a c t does n o t set o u t d e f i n i t e d a t e s f o r t h e term of t h e agreement b u t it provides t h a t t h e "agreement s h a l l remain i n f u l l f o r c e and e f f e c t u n t i l terminated by w r i t t e n agreement of t h e p a r t i e s . . . " It is undisputed t h a t t h e c o n t r a c t has n o t been terminated by w r i t t e n agreement. A s a l r e a d y discussed, t h e r e is ample evidence t o support t h e t r i a l c o u r t ' s f i n d i n g t h a t t h e c o n t r a c t was n o t terminated by Co-op Supply's f i r i n g of t h e Jappes o r by any a c t i o n on t h e p a r t of t h e Jappes. Therefore, t h e t r i a l c o u r t was c o r r e c t i n f i n d i n g t h a t t h e c o n t r a c t is i n f u l l f o r c e and e f f e c t and t h a t t h e Jappes a r e e n t i t l e d t o commissions. The judgment of t h e District Cour affirmed. W e Concur: Chief J u s t i c e , " M r . J u s t i c e John Conway Harrison d i s s e n t i n g : I d i s s e n t . F i r s t , I f i n d t h e f i n d i n g s of f a c t and conclusions of law and opinion reached by t h e t r i a l c o u r t both d i f f i c u l t t o understand and c o n t r a r y t o t h e evidence a s I view it. The evidence, a s I see it, c l e a r l y showed t h a t t h e Jappes q u i t t h e i r p o s i t i o n s due t o t h e i r disagreements w i t h t h e Board. M r . Jappe q u i t on a disagreement over p o l i c y of pay t o c e r t a i n employees. Such policymaking d e c i s i o n s a r e a major f u n c t i o n of t h e Board, and it i s e v i d e n t t h a t M r . Jappe was attempting t o go beyond h i s power a s a paid employee of Co-op Supply. H i s d u t i e s were t o recommend c e r t a i n o p e r a t i o n s of Co-op, b u t n o t t o set p o l i c y . TOO, t h e f a c t t h a t he w a s d r i n k i n g and was abusive t o h i s employers was reason enough t o f i r e him. The Jappes, both by t h e i r o r a l s t a t e m e n t s , a c t s and conduct, c l e a r l y abandoned any good f a i t h performance of t h e i r agreements w i t h Co-op Supply. They d i d n o t perform t h e i r managerial d u t i e s w i t h t h e l o y a l t y and f a i t h f u l n e s s expected. See Garden C i t y F l o r a l v. Hunt (1953), 126 Mont. 537, 255 P.2d 352; 53 Am.Jur.2d Master and Servant SS101-103. A s I view t h e evidence, M r . J a p p e ' s employment was t h a t of g e n e r a l manager of a l l of t h e Co-op f a c i l i t i e s , which included t h e s e r v i c e s t a t i o n , t h e Mini f a c i l i t y , t h e bulk and o i l business, t h e proposed business and Key-Trol S t a t i o n , and a l l branch f a c i l i t i e s of Co-op Supply i n illo on. The D i s t r i c t Court noted i n i t s memorandum t h a t "[wlhen w e say p l a i n t i f f s w e r e f i r e d on August 9, [19771, w e r e f e r t o t h e i r employment a t t h e Service S t a t i o n a c r o s s t h e street from t h e County Courthouse a t which they w e r e employed under an o r a l , month t o month, c o n t r a c t . " T h e r e a f t e r , t h e D i s t r i c t Court attempted t o t r e a t t h e r e s i g n a t i o n and subsequent discharge a s being s o l e l y r e l a t e d t o t h e p o s i t i o n s of manager and bookkeeper of Co-op Supply and having nothing t o do w i t h t h e p r e s e n t s u i t on t h e Mini c o n t r a c t . The D i s t r i c t Court then treats t h e r e s i g n a t i o n and d i s c h a r g e a s " p a r t of t h e series of e v e n t s which became t h e t r i g g e r i n g mechanisms f o r t h e wrongful a c t i o n s of Co-op Supply i n endeavoring t o f o r c e and p r e s s u r e t h e Jappes i n t o r e l i n q u i s h i n g a l l p r o p e r t y r i g h t s " under t h e Mini c o n t r a c t . I do n o t understand how t h e c o u r t a r r i v e d a t t h i s d e c i s i o n which allows Jappe, a f t e r r e s i g n a t i o n and discharge from managing Co-op Supply's o t h e r business, t o remain a s manager of t h e Mini f a c i l i t y . I can f i n d no reason t o allow t h e Jappes t o continue under t h e Mini c o n t r a c t when they had v i o l a t e d t h e i r f i d u c i a r y d u t i e s and o b l i g a t i o n s t o Co-op Supply I would r e v e r s e and d i s m i s s t h e cause. i | September 6, 1979 |
d5b3277a-4b51-4993-991d-afe6554e87c6 | STATE EX REL DEPT OF HEALTH v L | N/A | 14457 | Montana | Montana Supreme Court | No. 14457 IN THE SUPREME COURT O F THE S T A T E O F MNTANA STATE ex rel. DEPAKIT@2W O F HEALTH AND - A L SClEKEs, Plaintiff and Appellant, DONNA LASORI'E, Clerk and Recorder of Glacier County et al., Defendants and Respondents. Appeal fram: D i s t r i c t Court of the N i n t h Judicial D i s t r i c t , Honorable R. D. W h i l l i p s , Judge presiding. Counsel of Record: For Appellant: Stan Bradshaw argued, Helena, Wntana For Respondents: Smith, l31~mns, Baillie and Walsh, Great Falls, Pbntana James R. Walsh argued, Great Falls, Wntana J a m e s C. Nelson,County Attorney, Cut Bank, Pbntana For Amicus Curiae: Hon. Mike Greely, Attorney General, Helena, Pbntana Mike Karter argued, Assistant Attorney General, Helena, Mntana Filed: Suhnitted: March 21, 1979 Decided: J U N 1 8 1979 Honorable John M . McCarvel, District Judge, sitting in place of Mr. Justice Sheehy, delivered the Opinion of the Court. Plaintiff appeals from an order of the Glacier County District Court dismissing its amended complaint. On June 10, 1977, William and Mary Kessner of Great Falls, Montana, initiated a series of twenty-six conveyances involving a 14.457 acre tract of land in Glacier County. They transferred the entire 14.457 acre parcel to Kenneth and Mary Kessner by warranty deed. Kenneth and Mary Kessner, in turn, transferred 13.446 acres to Louis Fontana, and at the same time deeded the remaining 1.034 acres back to William and Mary Kessner. Louis Fontana then made a similar conveyance, transferring all but approximately one acre of land to the third party and quit- claiming the remaining acre back to William and Mary Kessner. A chain of conveyances continued until the original owners held title to the entire tract of land again, but instead of hold- ing the original deed, they had thirteen deeds, evidencing thirteen separate and distinct parcels of land. The twenty-six deeds were all dated June 10, 1977, and were recorded in sequence on June 16, 1977, together with certificates of survey for each of the thirteen new lots. These certificates of survey were characterized as certificates of survey for occasional sales. The Department reviewed none of the transactions. It is obvious from the foregoing that the transactions thus made were designed to evade the provisions of the Montana Subdivision and Platting Act, section 11-3859 et seq., R.C.M. 1947, now section 76-3-101 et seq. MCA, and the Sanitation in Subdivisions Act, section 69-5001 et seq., R.C.M. 1947, now section 76-4-101 et seq. MCA. The amended complaint and the issues raised in the lower court by the appellant were directed only to alleged violations of the Sanitation in Subdivisions Act, section 69-5001 et seq., R . C . M . 1947, now section 76-4- 101 et seq. MCA. The District Court entered judgment dismissing the amended complaint with prejudice on August 7, 1978. The Dis- trict Court based its dismissal on the fact that section 69-5003(1) of the Sanitation in Subdivisions Act gives the Department authority to approve plats before filing, but not certificates of survey, and that certificates of survey were properly used in this case because the transfers were "occa- sional sales" under the Montana Subdivision and Platting Act, section 11-3859 et seq., R.C.M. 1947, now section 76-3-101 et. seq. MCA. Notice of appeal was filed by the Department on August 10, 1978. On August 24, 1978, Mike Greely, Attorney General of the State of Montana, filed a motion in this Court request- ing that he be permitted to appear and participate in the case on appeal as amicus curiae, due to his interest in the enforce- ment of the Subdivision and Platting Act. The motion was granted on August 25, 1978. On appeal, the Department raises two issues: 1 . Does the word "plat" as it is used in the Sanitation in Subdivisions Act, contemplate review of certificates of survey by the Department of Health and Environmental Sciences? 2. Does the Department of Health and Environmental Sciences have the authority under the Sanitation in Subdivisions Act (as it existed prior to the 1977 amendments) to review certificates of survey for occasional sales? In his role of amicus curiae, the Attorney General is con- cerned with only one issue: Were the conveyances in the instant case made in an attempt to evade the purposes of the Subdivision and Platting Act and therefore not subject to the "occasional sales" excep- tion? At the outset, we note that the critical facts of this case arose prior to July 1, 1977, the effective date of sub- sequent amendments to the Act. The Montana Subdivision and Platting Act, section 11-3859 et seq., R . C . M . 1947, now section 76-3-101 et seq. MCA, was enacted in 1973 for the purpose of promoting the public health, safety, and general welfare by regulating the subdivision of land. It requires that every subdivision of land (a division of land which creates one or more parcels containing less than twenty acres) shall be surveyed and platted in conformance with the Act. County clerks and recorders are prohibited from re- cording any instrument which purports to transfer title to or possession of a parcel of land which is required to be surveyed by the act unless the required certificate of survey or sub- division plat has been filed with the Clerk and Recorder. The terms "certificate of survey" and "plat" are given distinct definitions under the act: "'Certificate of survey' means a drawing of a field survey prepared by a registered sur- veyor for the purpose of disclosing facts pertaining to boundary locations." Section 11-3861(1), R . C . M . 1947, now section 76-3- 103(1) MCA. "'Plat' means a graphical representation of a subdivision showing the division of land into lots, parcels, blocks, streets, and alleys, and other divisions and dedications." Section 11-3861 (6) , R.C.M. 1947, now section 76-3-103 (9) MCA. A plat must be filed for every subdivision of land, but a certificate of survey need only be filed when required by section 11-3872, R.C.M. 1947, as amended, now section 76-3-404 MCA. "11-3872. Certificate of survey--when re- quired--contents--form. (1) Within one hundred eighty (180) days of the completion of a survey the registered land surveyor responsible for the survey, whether he is privately or publicly employed, shall prepare and file for record a certificate of survey in the county in which the survey was made if the survey: "(a) provides material evidence not appear- ing on any map filed with the county clerk and recorder or contained in the records of the United States bureau of land management; " (b) reveals a material discrepancy in such map ; "(c) discloses evidence to suggest alternate locations of lines or points; "(d) establishes one or more lines not shown on a recorded map the positions of which are not ascertainable from an inspection of such map without trigonometric calculations." Certain divisions of land are exempt from the Act's numerous requirements for subdivisions. One such division of land is the "occasional sale". An occasional sale is "one sale of a division of land within any twelve month period." Section 11-3861(13), R . C . M . 1947, now section 76-3-103(7) MCA. The statutory exemption applies unless the occasional sale is adopted for the purpose of evading the Act. Section 11-3862(6), now section 76-3-207 MCA. If an occasional sale is made in an attempt to evade the Act, then the division of land is treated as any other subdivision. Section 69-5001 et seq., R.C.M. 1947, now section 76-4- 101 et seq. MCA, commonly referred to as the Sanitation in Sub- divisions Act, was passed in 1967, and rewritten in 1973 to conform with the Montana Subdivision and Platting Act. The Act's definition of subdivision is identical to that found in the Subdivision and Platting Act. However, the terms "certificate of survey" and "plat" are not defined. Administration and enforcement of the Sanitation in Subdivisions Act rests with the Department of Health and Environ- mental Sciences. Section 69-5003(1), R.C.M. 1947, now section 76-4-123 MCA states: "69-5003. Approval of plans for facilities in subdivisions. (1) A person may not file a subdivision plat with a county clerk and recorder, make disposition of any lot within a subdivision, erect any building or shelter in a subdivision which requires facilities for the supply of water or disposal of sewage or solid waste, or occupy any permanent building in a subdivision until the department has indicated that the subdivison is subject to no sanitary restriction." Additional review authority is granted to the Depart- ment under section 69-5003(3), R . C . M . 1947, now section 76- 4-124 MCA: "When a subdivision as defined in this chapter is excluded from the provisions of Title 11, Chapter 38, section 11-3862, R.C.M. 1947, [e.g. occasional sales] except section 11- 3862(8), R.C.M. 1947 and the subdivision is otherwise subject to the provisions of this chapter, plans and specification of the sub- divisions shall be submitted to the department and the department shall indicate by certifi- cate that it has approved the plans and specifi- cations and that the subdivision is not subject to a sanitary restriction." The Department relies on sections 69-5003(1) and (3), (as they appear above in the form prior to the 1977 amendments) in its attempt to block the filing of the certificates of survey in this case. Although section 69-5003 makes no mention of certificates of survey, the Department published MAC (ARM) 16-2.14 (10) - S14340, adopted April 9, 1976, subsection (1) (j) defined "plat" as follows: "'Plat', for the purposes of this rule and Sec- tion 69-5003, R . C . M . 1947, means a graphical representation of a subdivision showing the division of lots, parcels, blocks, streets, alleys, and other divisions and dedications, and any document which geographically describes a division of land, including a certificate of survey." (Emphasis added.) The Department's definition of "plat" is in direct con- flict with statutory definitions which distinguish plat and certificate of survey. The Department's contention that it has broad authority in defining the term plat by virtue of the lack of a statutory definition under the Sanitation in Subdivisions Act is without merit. "Whenever the meaning of a word or phrase is defined in any part of [the] code, such definition is appli- cable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears." Section 12-215, R.C.M. 1947, now section 1-2-107 MCA. The definition of plat found under the Montana Subdivision and Platting Act is clearly applicable to the Sanitation in Subdivisions Act. The significance of the distinction between plats and certificates of survey was discussed in State ex rel. Swart v. Stucky (1975), 167 Mont. 171, 174, 175, 536 P.2d 762: "The terms 'certificate of survey', 'plat', and 'subdivision' have important technical meanings that are established by the definition section of the Act . . . "The classification of the instrument as a sub- division 'plat' or as a 'certificate of survey' is important since the Act requires different treatment, depending upon the classification. If the instrument is classified as a 'plat', it must be submitted to the city or town govern- ing body for review and approval prior to filing. The governing body can approve or reject the plat within 60 days after it has been submitted and after a public hearing has been held. Section 11-3866, R.C.M. 1947." Two years ago, in State ex rel. Swart v . Casne (1977) Mont. , 564 P.2d 983, 34 St-Rep. 394, this Court determined that the Department of Health and Environmental Sciences had im- properly relied on the Department of Community Affairs' regula- tions which were in direct conflict with section 11-3862 of the Subdivision and Platting Act. The invalid regulations eliminated the statutory exemption as applied to "resubdivisions or redesign" of platted and recorded subdivisions. They required an amended plat reviewed and approved by the governing body to be filed with the Clerk and Recorder in direct contradiction to the statutory exemption. They engrafted additional and contradictory requirements on the statute in the guise of defining and implementing the eva- sion of statutory requirements. Finally, they frustrated the pur- pose of the "occasional sale" exemption of the Act. In striking down the regulations, the Court said: "It is axiomatic that a statute cannot be changed by administrative regulations." (Citation omitted.) "An administrative agency is not a 'super legislature' empowered to change statutory law under the cloak of an assumed delegated power." Nor can an administrative agency engraft additional and contradictory requirements on the statute under the guise of definition. M.A.C. 516-2.14 (10) - S14340, subsection (1) (j) , being in direct conflict with the statutory distinction between "plat" and "certificate of survey", is hereby declared to be void on its face. Section 69-5003(1) , R . C . 1 5 . 1947, now section 76-4- 123 MCRgives the Department authority "to indicate that [a] sub- division is subject to no sanitary restriction" only before a plat is filed. We hold that the word "plat", as it is used in the Sani- tation in Subdivisions Act does not contemplate review of certifi- cates of survey by the Department of Health and Environmental Sciences. The Department finds support for its contention that section 69-5003(3) R.C.M. 1947, gives the Department authority to review certificates of survey in the Casne decision. The Court, after excising a paragraph of the Casne opinion, inserted the following paragraph on June 9, 1977: "While MDH has the statutory authority under section 69-5003(3) to review a certificate of survey regarding sanitary restrictions, this provides no justification either for the MDH br the clerk-and recorder to refuse to process relator's certificate of survey. MDH's author- ity to review a certificate of survey under section 69-5001 et seq., R.C.M. 1947, relates to sewage disposal, water quality and avail- ability, solid waste disposal and other environ- mental factors such as recreation and wildlife. Section 69-5001, R.C.M. 1947. Here it is ad- mitted that no such problems existed with res- pect to relator's certificate of survey. Rather, the sole reason for MDH's refusal to process relator's certificate of survey was its reliance on the invalid DCA regulations." (Emphasis added.) Section 69-5003(3), R.C.M. 1947, does not - give the De- partment authority to review certificates of survey. Only "plans and specifications" of facilities are to be submitted to the Department for review under subsection (3). Although the precise holding of Casne was well-founded (that the sole reason for the Department's refusal to process relator's cer- tificate of survey was its reliance on the invalid DCA regula- tions) the amended language of the opinion incorrectly expands the statutory authority of the Department. We hold that the Department had no authority under the Sanitation in Subdivisions Act (as it existed prior to the 1977 amendments) to review certificates of survey for occasional sales. The Attorney General has maintained two roles in the instant case. The pleadings were filed in District Court by the Department through the Attorney General pursuant to section 69-4111, R.C.M. 1947, now section 50-1-102 MCA, which names the Attorney General as the legal advisor to the Department. The suit was brought to enforce the Sanitation in Subdivisions Act. On appeal, the Attorney General has been permitted to par- ticipate as amicus curiae due to his interest in the enforce- ment of the Subdivision and Platting Act. Throughout the proceedings, counsel for the Department (who are acting as special assistant attorney generals) have contended that the Department has authority to review certifi- cates of survey under the Sanitation in Subdivisions Act. The Department has not challenged Kessner's method of disposition as being adopted for the purpose of evading the Subdivision and Platting Act. The Attorney General is counsel of record in this case. However, the Attorney General chose to raise this challenge for the first time as amicus curiae in the appellate court. An amicus curiae cannot raise separate issues not raised by the parties. Montana Department of Social and Rehabilitation Services v . Angel (1978) , Mont . , 577 P.2d 1223, 35 St. Rep. 532. | June 18, 1979 |
38458eee-27dc-4534-bea5-f3e14e6fabc4 | NATIONAL GYPSUM CO v JOHNSON | N/A | 14343 | Montana | Montana Supreme Court | No. 14343 I N THE S U P H E M E C O W O F THE STATE O F MNI!ANA 1979 NATIONAL G Y P S U M COMPANY, Plaintiff and Appellant, -VS- RICHAIiD I. "DICK" JOHNSON, Defendant and Respondent. Appeal from: D i s t r i c t Court of the Fourth Judicial D i s t r i c t , Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: William George Harris, Missoula, Montana For Respondent: Turnage and McNeil, Polson, Ibntana Sukmitted on briefs: March 29, 1979 Decided: juN 1 1 1979 d r. Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiff appeals from a summary judgment entered in defendant's favor in the District Court for Ravalli County. Defendant Richard Johnson was the holder of a Califor- nia contractor's license which permitted him to bid on and engage in certain types of construction work. He was also president of Pacific Plastering Corp., a California corporation which in its own right, held a contractor's license. A joint venture license was issued which allowed the two entities to "jointly submit . . . bid[s] or otherwise act in the capacity of a contractor." West's Cal. Bus. & Prof. Code, 87029. The record does not disclose which contracting classif- ications could be separately performed. However, by combination, plastering, lathing and dry wall work could be done under a single bid. In addition, the joint venture license "provided greater and added financial stability which enable[d] Pacific Plastering to provide bonds", according to the affidavit of S. R. Murphy, General Manager of Pacific Plastering. Defendant agreed, but by affidavit said: "This license . . . was never actually utilized on or for any project in which I was involved to the extent of performance under contract." Plaintiff, National Gypsum Co., is a dealer in building materials and transacted a substantial amount of business with Pacific Plastering through its subsidiary, Commercial Lathing Co. Over a period extending from December, 1970, to February 1971, plaintiff sold Pacific Plastering $40,254.67 worth of build- ing supplies for use in various construction jobs. On April 2, 1974, a check payable to National Gypsum in the above amount was drawn on Pacific Plastering's general account. Because of nonsufficient funds, the check was not honored and the debt has remained unsatisfied. Johnson retired in 1973 and moved to Hamilton, Montana, where he now lives. In July 1975, National Gypsum filed a complaint seeking to hold Johnson individually liable on the debt. Plaintiff's theory, both in District Court and on appeal, is that Johnson as a joint venturer with Pacific Plastering is personally responsible for the debt. After discovery and the filing of affidavits, summary judgment was granted in defen- dant's favor. The sole issue before this Court is whether the District Court erred in finding that, as a matter of law, there was no joint venture between Johnson and Pacific Plastering. "The elements which are essential to a joint ven- ture are commonly stated to be: (1) an agree- ment, express or implied among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control." Sumner v. Amacher (1968), 150 Mont. 544, 437 P.2d 630. The California definition is substantially similar. See e.g. Goldberg v. Paramount Oil Company (1956), 143 CZLApp.2d 215, 300 P.2d 329, 332. Rule 56, M.R.Civ.P. has frequently been discussed by this Court. Upon motion, summary judgment will be rendered if: " . . . the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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), M.R.Civ.P. Thus, summary judgment is proper in this case only if, as a matter of law, there is no joint venture. Included in the law pertinent to summary judgments is a principle announced in the following language: "The initial burden of establishing the absence of any genuine issue of material fact is imposed upon the moving party. Mustang Beverage Company, Inc. v. Jos. Schlitz Brewing Company (1973), 162 Mont. 243, 246, 511 P.2d 1 . But where the record discloses no genuine issue of material fact, the party opposing the motion is required to produce evidence sufficient to raise a genuine issue of fact before the trial court. "In light of Rule 56, M.R.Civ.P., the party oppos- ing a motion for summary judgment on a record which reveals no issue of material fact must present facts of a substantial nature. Conclu- sory or speculative statements are insufficient to raise a genuine issue of material fact." Barich v. Ottenstror (1976), 170 Mont. 38, 41-42, 550 P.2d 395. In addition: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of 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." (Emphasis added.) Rule 56(e), M.R.Civ.P. The record in this case is barren of facts indicating that defendant joint ventured with Pacific Plastering in accord- ance with the license which allowed him to do so. Thus, this Court's inquiry must focus on the facts that plaintiff, as the opponent of the motion, has shown to exist. In answer to an interrogatory asking plaintiff to disclose the proof it would rely on at trial in linking the joint venture license to the projects which underlie the debt, plaintiff replied it would "rely on the State of California License authorization power to allow Defendant to operate as a joint venture entity and upon its accounting records and documents to substantiate that the said [joint venture] license #255715 was involved in projects utilizing the materials and supplies [which are the subject of the debt]." Pursuant to a court order, the answer was supplemented to the effect that in addition to its own records plaintiff would rely on the testimony of certain contractors. Much of plaintiff's brief is spent discussing the exis- tence of the joint venture license and the authority of the State of California to issue such licenses. The mere issuance and pro- curement of such a license is insufficient to indicate that it was actually used or that a joint venture existed. A license is a permit to do something. Blatz Brewing Co. v. Collins (1945), 69 Cal.App.2d 639, 160 P.2d 37, 39. Its possession is not the same as actually doing the authorized act. The records which plaintiff asserts show that the joint venture license was used indicate only that materials and supplies were sold to Comrner- cia1 Lathing. No mention of a joint venture or any indication that it existed was included. The statement that certain con- tractors would testify to the existence of the joint venture is an unsupported conclusion. In answer to defendant's interrogatories, plaintiff said the joint venture agreement between Johnson and Pacific Plastering was oral. Plaintiff was then asked to "give the date of the alleged agreement, place where the agreement was entered into, who the agreement was entered with, witnesses to the agree- ment, and substance of the agreement." The answer referred to a Dun and Bradstreet report. No particular segment of the re- port was cited as relevant; the portion which is closest to the mark reads: "Operates as lathing and plastering contractor under Calif License #135302-C35, performing work for general contrac- tors on routine progress payments basis." License no. 135302-C35 refers only to the license held by Pacific Plastering. There is no mention of Johnson's license or the joint venture license. None of the foregoing indicates the existence of any fact which could support plaintiff. His assertions are conclu- sions of law rather than indications of fact. As such they are insufficient to prevent summary judgment. Barich v. Ottenstror, supra; see also, Price v . Wrather (Tex.Civ.App. 1969), 443 S.W.2d 348, 343. Affirmed. Chief Justice We concur: / ' I Justices | June 11, 1979 |
b26408c3-0f9f-446c-9a6e-91b0f18b3811 | FISHER v CRIST | N/A | 14312 | Montana | Montana Supreme Court | No. 14312 I N THE S U P R E W E C O W O F THE S T A T E OF M%JTANA 1979 AIBEXF KENNE;TH FISHER, Petitioner, -VS- KlQR CRIST, Respondent. ORIGINAL PFacEmING: Counsel of Record: For Petitioner: Gregory J. Skakles, Anaconda, Mntana A l b e r t Kenneth Fisher, Pro Se, D e e r Lodge, Mntana For Respondent: Hon. Mike Greely, Attorney General, Helena, Mntana Nick Rotering, Helena, Mntana Ted Mizner , County Attorney, Deer I d g e , Mntana Filed : M&; ' : 1979 Submitted: April 30, 1979 Decided : 'KAY 2 2 1 9 x 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 e t i t i o n e r , A l b e r t Kenneth F i s h e r , f i l e d a p e t i t i o n f o r w r i t of habeas corpus i n t h i s Court on May 17, 1978. W e appointed counsel t o r e p r e s e n t him and subsequently stayed t h e proceedings i n t h i s Court pending a n e v i d e n t i a r y hearing i n 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 , Powell County. The hearing was held on December 7, 1978, b e f o r e t h e Honorable Robert J. Boyd, and r e s u l t e d i n an o r d e r dated January 19, 1979, g r a n t i n g respondent's motion t o quash and d i s m i s s t h e p e t i t i o n . The o r d e r c o n s t i t u t e d 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 and conclusions of law. P e t i t i o n e r f i l e d an amended p e t i t i o n f o r w r i t of habeas corpus i n t h i s Court on A p r i l 6, 1979. A response t o t h e amended p e t i t i o n w a s f i l e d A p r i l 30, 1979, by a S p e c i a l A s s i s t a n t Attorney General f o r t h e Department of I n s t i t u - t i o n s . Because t h e o r i g i n a l p e t i t i o n was f i l e d some t i m e ago, p e t i t i o n e r w a s excused from compliance w i t h t h i s C o u r t ' s r e c e n t l y adopted requirements with r e s p e c t t o habeas corpus r e l i e f . On J u l y 9, 1974, p e t i t i o n e r was sentenced t o s e r v e t e n y e a r s i n t h e Montana S t a t e P r i s o n a f t e r pleading g u i l t y i n t h e D i s t r i c t Court, G r a n i t e County, t o t h e o f f e n s e of bur- g l a r y . On May 13, 1976, p e t i t i o n e r w a s paroled t o S e a t t l e , Washington, pursuant t o t h e p r o v i s i o n s of t h e Uniform A c t f o r Out-of-State P a r o l e e Supervision, s e c t i o n s 95-3201 through 95-3202.4, R.C.M. 1947, now s e c t i o n s 46-23-1101 through 46-23-1106 NCA. I n September 1976 p e t i t i o n e r was a r r e s t e d i n Spokane, Washington, and charged w i t h a felony. P e t i t i o n e r pleaded g u i l t y t o "misdemeanor t h e f t t h r e e " a t t h e suggestion of a Washington p a r o l e o f f i c e r who agreed t o recommend t o t h e Montana a u t h o r i t i e s t h a t he be continued on p a r o l e i n r e t u r n f o r h i s p l e a . The recommendation was a p p a r e n t l y approved by t h e Montana a u t h o r i t i e s . P e t i t i o n e r was r e l e a s e d from t h e Spokane j a i l on January 3 , 1977. About s i x weeks a f t e r h i s r e l e a s e h e began t h e journey back t o S e a t t l e b u t was re- a r r e s t e d along t h e way i n Ellensburg, Washington, t h i s t i m e f o r h i t c h h i k i n g . H e was r e l e a s e d i n about a week and pro- ceeded t o S e a t t l e . On A p r i l 19, 1977, p e t i t i o n e r ' s Spokane p a r o l e o f f i c e r i s s u e d a r e p o r t of v i o l a t i o n which p r e c i p i t a t e d p e t i t i o n e r ' s e v e n t u a l r e t u r n t o Montana. The r e p o r t s p e c i f i e d two vio- l a t i o n s : " V i o l a t i o n No. 1: F i s h e r v i o l a t e d h i s p a r o l e - - by f a i l i n g t o r e p o r t a s i n s t r u c t e d t o t h e Spo- kane D i s t r i c t O f f i c e i n Spokane, Washington on 4-12-77. " V i o l a t i o n - - No. 2: F i s h e r v i o l a t e d S p e c i a l Condition 1 o f h i s p a r o l e r u l e s by f a i l i n g t o cooperate f u l l y w i t h t h e S e a t t l e I n d i a n Alcoholism Program i n S e a t t l e , Washington d u r i n g February and March of 1977." The r e p o r t was w r i t t e n by t h e same Spokane p a r o l e o f f i c e r who had recommended F i s h e r ' s continuance on p a r o l e t h e previous September i n r e t u r n f o r h i s g u i l t y p l e a . H e had a p p a r e n t l y p e r m i t t e d p e t i t i o n e r t o r e t u r n t o S e a t t l e on t h e c o n d i t i o n t h a t he r e p o r t t o him by m a i l and p a r t i c i p a t e i n t h e a l c o h o l program. Following t h i s r e p o r t , a warrant was i s s u e d by t h e Montana a u t h o r i t i e s , and on May 5, 1977, p e t i t i o n e r was a r r e s t e d i n S e a t t l e . P e t i t i o n e r was n o t g i v e n a p r e l i m i n a r y o n - s i t e o r probable cause hearing i n Washington o r else- where. P e t i t i o n e r was r e t u r n e d t o t h e Montana S t a t e Prison on June 16, 1977, following a b r i e f e x t r a d i t i o n proceeding i n Washington i n which he was represented by counsel. On June 30, 1977, t h e Board of Pardons conducted a p a r o l e revocation hearing and issued a decision revoking p e t i - t i o n e r ' s parole. N o record w a s k e p t of t h e hearing except f o r a minute e n t r y noting t h e revocation. A f t e r h i s revocation hearing, p e t i t i o n e r was provided with t h e following f o u r reasons f o r h i s p a r o l e revocation: "Your p a r o l e was revoked because you f a i l e d t o r e p o r t ; d i d n o t cooperate with t h e S e a t t l e Indian Alcohol Program t o t h e e x t e n t t h a t they terminated you from t h e program (completion of t h e program w a s a s p e c i a l condition of t h e Board); f a i l e d t o appear i n c o u r t on warrant issued f o r misdemeanor charge; and w e r e con- v i c t e d of misdemeanor robbery and w e r e given 6 months i n t h e county j a i l . You w e r e passed t o discharge. " P e t i t i o n e r p r e s e n t s a number of i s s u e s i n h i s p e t i t i o n , b u t w e f i n d one t o be d i s p o s i t i v e of t h i s case: whether t h e f a i l u r e t o provide p e t i t i o n e r with a preliminary, o n - s i t e hearing v i o l a t e d p e t i t i o n e r ' s Fourteenth Amendment r i g h t t o due process. W e f i n d t h a t it did. P e t i t i o n e r argues t h a t he was e n t i t l e d t o a preliminary o n - s i t e hearing i n Washington and t h a t absent such a hearing t h e revocation procedure followed i n t h i s c a s e f a i l e d t o s a t i s f y t h e d i c t a t e s of Morrissey v. B r e w e r (1972), 408 U . S . 471, 92 S.Ct. 2593, 3 3 L.Ed.2d 484, a s w e l l as t h e a p p l i - c a b l e s t a t u t e s . The S t a t e presents two arguments i n t h e f a c e of t h i s . F i r s t , t h e S t a t e argues t h a t a parolee may waive t h e preliminary o n - s i t e hearing and t h a t t h e D i s t r i c t Court found such a waiver. Second, t h e S t a t e argues t h a t absent a waiver, p e t i t i o n e r ' s parole w a s properly revoked because conviction of a new offense obviated t h e n e c e s s i t y of a preliminary on-site hearing. Addressing t h e waiver argument f i r s t , we note t h a t s e c t i o n 95-3202.1, R.C.M. 1947, now s e c t i o n 46-23-1103 PICA, provides i n p e r t i n e n t p a r t : "Where supervision of a parolee . . . i s being administered pursuant t o t h e i n t e r s t a t e compact f o r t h e supervision of parolees . . . t h e appro- p r i a t e j u d i c i a l o r a d m i n i s t r a t i v e a u t h o r i t i e s i n t h i s s t a t e s h a l l n o t i f y t h e compact adminis- t r a t o r of t h e sending s t a t e whenever, i n t h e i r view, consideration should be given t o r e t a k i n g o r re-incarceration f o r a p a r o l e . . . v i o l a t i o n . P r i o r t o t h e giving of any such n o t i f i c a t i o n , a hearing s h a l l be-held i n accordance with t h i s - ---- -- a c t within a reasonable t i m e , unless such hear- i n g i s waived & t h e parolee . . ." (Emphasis -- added. ) I n t h e i n s t a n t c a s e t h e D i s t r i c t Court made t h e following finding regarding waiver: "According t o t h e testimony of t h e Defendant he w a s afforded counsel i n t h e S t a t e of Washington following h i s a r r e s t and challenged h i s e x t r a - d i t i o n . I t i s d i f f i c u l t t o determine whether t h e P e t i t i o n e r o r h i s counsel a t t h a t time made any request o r demand f o r an o n - s i t e hearing and it appears t h a t t h e o b j e c t i o n s w e r e t o t h e e x t r a d i t i o n r a t h e r than a preliminary revocation of parole hearing. The ~ o b r t t h e r e f o r e f i n d s and concludes t h a t t h e P e t i t i o n e r waived his ---- r i g h t - - - t o an o n - s i t e hearing." (Emphasis added.) -A*- - - - - - - - - - - -- - r i g h m n - s i t e - - - hearing. " (Emphasis added. ) A f t e r reviewing t h e t r a n s c r i p t of t h e proceedings i n t h e lower c o u r t , w e f i n d no evidence t o support t h i s conclu- sion. The f a i l u r e t o demand an o n - s i t e hearing cannot be construed t o be a waiver of t h a t r i g h t nor can such a waiver be presumed t o r e s u l t under t h e s e f a c t s . Absent an express waiver appearing i n t h e record, we are l e f t with t h e S t a t e ' s a s s e r t i o n t h a t p e t i t i o n e r ' s Spokane conviction was s u f f i - c i e n t t o s a t i s f y t h e preliminary hearing requirement. This i s not so. I n Morrissey t h e Supreme Court s t a t e d t h e following with r e s p e c t t o t h e requirement of a preliminary hearing: ". . . t h e parolee should be given n o t i c e t h a t t h e hearing w i l l t a k e place and t h a t i t s pur- pose i s t o determine whether t h e r e i s probable cause t o b e l i e v e he has committed a p a r o l e vio- l a t i o n . The n o t i c e should s t a t e what p a r o l e v i o l a t i o n s have been alleged. A t t h e hearing t h e parolee may appear and speak i n h i s own behalf; he may bring l e t t e r s , documents, o r i n d i v i d u a l s who can g i v e r e l e v a n t information t o t h e hearing o f f i c e r . O n r e q u e s t of t h e parolee, a person who has given adverse i n f o r - mation on which p a r o l e revocation i s t o be based i s t o be made a v a i l a b l e f o r questioning i n h i s presence. However, i f t h e hearing o f f i c e r determines t h a t an informant would be sub- jected t o r i s k of harm i f h i s i d e n t i t y were disclosed, he need n o t be subjected t o confron- t a t i o n and cross-examination." Morrissey, 408 U.S. a t 486-87, 92 S.Ct. a t 2603, 3 3 L.Ed.2d a t 497-98. P e t i t i o n e r was never n o t i f i e d t h a t t h e S t a t e intended t o r e l y on h i s Spokane conviction t o revoke h i s parole. H e w a s t o l d t h a t he was charged with two v i o l a t i o n s , both of which he contested and should have been t h e s u b j e c t of a probable cause hearing i n S e a t t l e where he could have had t h e oppor- t u n i t y t o p r e s e n t witnesses and, perhaps, r e f u t e t h e a l l e - gations. With r e s p e c t t o t h e Spokane conviction, p e t i t i o n e r had already been excused from t h e revocation sanction f o r t h a t o f f e n s e on t h e condition t h a t he plead g u i l t y and serve a s h o r t sentence. For t h e s e reasons, p e t i t i o n e r ' s p a r o l e revocation d i d n o t s a t i s f y t h e requirements of Morrissey o r t h e a p p l i c a b l e s t a t u t e s , and h i s p a r o l e must be r e i n s t a t e d . The Board of Pardons i s given t h i r t y days from t h e d a t e of t h i s d e c i s i o n t o help p e t i t i o n e r develop and t o approve a new p a r o l e plan f o r p e t i t i o n e r . I f a plan has n o t been approved within t h i r t y days, p e t i t i o n e r nevertheless s h a l l be r e l e a s e d from prison a s a parolee s u b j e c t t o t h e super- v i s i o n of t h e appropriate a u t h o r i t i e s . We concur: 4"n4Jm%4 CW/f Justice QfL Q . % L J - , / Justices | May 22, 1979 |
e4d929f2-61f7-4c70-966b-96caf97b219e | ESTATE OF SCHANBACHER | N/A | 14605 | Montana | Montana Supreme Court | No. 14605 THE s U P F ? E R E C O W O F THE STATE O F MXI?ANA -- I N THE IWlTER OF THE ESTATE RALPH I . scxmEAm, Deceased. Appeal f m : D i s t r i c t Court of the Thirteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant : Robert L. Stephens, Jr., Billings, mntana For Respondent : Berger, Anderson, Sinclair & Murphy, Billings, l~ntana Efmer Dolve, Billings, mntana Suhnitted on briefs: Nbrch 29, 1979 Decided: MAY 3 0 1979 Filed: . MAY 8 9 198 - . - 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. T h i s appeal i s from a summary judgment of t h e D i s t r i c t Court, 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 , County of Yellowstone, t h e Honorable N a t Allen p r e s i d i n g . The summary judgment was dated September 19, 1978, and was g r a n t e d on a motion on behalf of E d i t h E l l i s , t h e personal r e p r e s e n t a t i v e h e r e i n , i n i t s e n t i r e t y and dismissing t h e p e t i t i o n s of E l s i e L e s t e r , Margaret Joan Lester, and Roberta Louise Lester with p r e j u d i c e . The c o u r t a l s o denied a motion f o r summary judgment of E l s i e L e s t e r , Margaret Joan L e s t e r , and Roberta Louise L e s t e r . I n t h i s opinion, Ralph I. Schanbacher, t h e deceased h e r e i n , w i l l be r e f e r r e d t o a s "Ralph" and E l s i e Jane L e s t e r , one of t h e a p p e l l a n t s , w i l l be r e f e r r e d t o a s " E l s i e " . Ralph I. Schanbacher, a l s o known a s Ralph I. L e s t e r , married Norvall Fern Johnson on November 8, 1916, i n Newton, Kansas. There were f o u r c h i l d r e n born of t h i s marriage including E d i t h E l l i s , t h e p e r s o n a l r e p r e s e n t a t i v e h e r e i n . This marriage continued u n t i l F e r n ' s d e a t h i n B i l l i n g s , Montana, i n September 1973. Throughout h i s l i f e Ralph was a c a t t l e buyer. H e a l s o owned and operated s e v e r a l ranch p r o p e r t i e s and a f e e d l o t a t Lewistown, Montana. I n t h i s business he was r e q u i r e d t o spend considerable t i m e on t h e road and away from h i s family. This was s o n o t only during h i s marriage t o Fern, b u t l a t e r , i n h i s l i v i n g arrangement w i t h E l s i e . E l s i e was t h e widow of Norman Lester, and was introduced t o Ralph by Norman L e s t e r , who introduced Ralph a s h i s cousin Ralph L e s t e r . E l s i e m e t Ralph i n 1947 when s h e was working i n a c o f f e e shop i n Amarillo, Texas, b u t it w a s n o t u n t i l a f t e r t h e death of her husband Norman t h a t they began t o d a t e , some- t i m e i n t h e year 1952. Ralph t o l d E l s i e t h a t he had been married b u t t h a t h i s wife w a s deceased. After going together f o r a period of t i m e , they discussed marriage and, according t o E l s i e , they went t o Clovis, New Mexico, where on November 1 4 , 1952, a wedding ceremony w a s performed i n t h e home of a congrega- t i o n a l m i n i s t e r . A year o r s o l a t e r , E l s i e found o u t t h a t Ralph d i d have another wife and t h a t h i s name was Schan- bacher. When confronted with t h i s information, Ralph t o l d E l s i e t h a t he d i d n o t l i v e with Fern, d i d not c a r e f o r h e r , and t h a t he merely used t h e name of Schanbacher as a busi- ness name. I n her deposition, E l s i e s t a t e d t h a t when she g o t t h i s information, she was worried about a p o s s i b l e bigamy charge a g a i n s t Ralph, t h a t they loved each o t h e r , and t h a t because he assured her t h a t he d i d n o t c a r e f o r h i s f i r s t wife and was n o t l i v i n g with her, she d i d n o t t a k e any l e g a l a c t i o n . A t t h e beginning of her r e l a t i o n s h i p with Ralph, E l s i e had t h r e e c h i l d r e n , two boys by her f i r s t marriage which had ended i n a divorce, and a g i r l by her marriage t o Norman L e s t e r , who was k i l l e d i n an automobile accident. Through- o u t t h e period t h a t she l i v e d with Ralph, he supported t h e s e c h i l d r e n and claimed them a s h i s own. Ralph and E l s i e a l s o had two c h i l d r e n , Margaret Joan Lester born June 7 , 1956, i n Amarillo, Texas, and Xoberta Louise L e s t e r born September 1 4 , 1960, i n Amarillo. O n both b i r t h c e r t i f i c a t e s t h e name Ralph I. Lester i s given as t h e f a t h e r . Ralph and E l s i e l i v e d together i n Amarillo, Texas, where they purchased a home and l i v e d u n t i l 1957; they l i v e d i n Austin, Texas, b r i e f l y ; and they l i v e d i n ~ i l l i n g s i n a motel f o r a s h o r t p e r i o d of t i m e and l a t e r r e n t e d a home, although Ralph continued t o t r a v e l e x t e n s i v e l y i n h i s cattle buying ventures. A f t e r 1957 t h e couple l i v e d i n Amarillo, Texas; Denver, Colorado; ~ i l e s C i t y , idontana; Great F a l l s , Montana; ~ ~ I i s s o u l a , Montana; Casper, Wyoming; and a t one t i m e , they l i v e d for a p e r i o d of two y e a r s i n Lewistown, Montana, where they pur- chased a home. I n a d d i t i o n , they owned a home i n Florence, Montana, and r e n t e d property i n Butte, Bozeman, and Cheyenne, Wyoming. A l l of t h i s property was purchased o r r e n t e d under t h e name of Ralph I. Lester. I n 1972 Ralph s u f f e r e d a s t r o k e i n B i l l i n g s , and E l s i e came t o B i l l i n g s and stayed w i t h him a t t h e Ponderosa Inn. She r e t u r n e d f o r a s h o r t p e r i o d of t i m e t o Cheyenne, where they had been l i v i n g , and then r e t u r n e d t o B i l l i n g s a t which t i m e they r e n t e d a mobile home. During t h i s t i m e Ralph's f i r s t w i f e d i e d , which was i n September 1973. I n March 1974 Ralph and E l s i e moved t o 3304 Winchell Lane i n B i l l i n g s , where they r e n t e d an apartment and l i v e d t o g e t h e r a s husband and w i f e u n t i l h i s death. While l i v i n g i n t h i s apartment under t h e name of L e s t e r , Ralph had a n u n l i s t e d telephone number i n s t a l l e d under t h e name Schan- bacher f o r business purposes. A f f i d a v i t s w e r e submitted by neighbors and f r i e n d s of Ralph and E l s i e t o t h e e f f e c t t h a t they s o c i a l i z e d w i t h Ralph and E l s i e , had d i n n e r s t o g e t h e r , v i s i t e d each o t h e r ' s f a m i l i e s , and t h a t t h e s e f r i e n d s and neighbors recognized E l s i e and Ralph a s husband and wife and t h a t they held themselves o u t t o be t h e same. During t h e 24 y e a r s t h a t Ralph and E l s i e l i v e d to- g e t h e r , according t o E l s i e , he provided f o r h e r very w e l l and a l s o f o r h e r c h i l d r e n . While they d i d have f i n a n c i a l hardships, he had never wanted h e r t o work. While l i v i n g i n ~ i l l i n g s , Ralph r e f e r r e d t o h i s f i r s t wife, Fern, a s "Aunt Fern", and h i s daughter Joan knew h e r a s Aunt Fern. A f t e r F e r n ' s death, Ralph wanted t h e family t o move i n t o h i s home on Delphinium Avenue, b u t E l s i e s a i d s h e w a s r e l u c t a n t t o move t h e r e because t h e home contained F e r n ' s f u r n i t u r e and possessions. Also, t h e house was used by t h e c h i l d r e n of h i s o t h e r marriage a s a stopover p l a c e while v i s i t i n g i n B i l l i n g s . However, Ralph, E l s i e and Joan d i d c a r e f o r t h i s second home and went t h e r e a t l e a s t once a week t o c l e a n it and c a r e f o r t h e yard. From 1952 u n t i l h i s death, Ralph and E l s i e Lester h e l d themselves o u t a s husband and wife. Various expenses which w e r e incurred during t h e course of t h i s r e l a t i o n s h i p w e r e p a i d f o r and r e c e i p t e d i n t h e name of Ralph Lester. During Ralph's f r e q u e n t buying t r i p s he s e n t money t o E l s i e and t h e c h i l d r e n by Western Union a s Ralph Lester. Friends and neighbors knew Ralph and E l s i e as husband and wife. They received Christmas c a r d s , wedding i n v i t a t i o n s , and o t h e r mail addressed t o M r . and M r s . Ralph Lester. The p u b l i c school system recognized t h e marriage of Ralph and E l s i e i n connection with t h e education of t h e i r c h i l d r e n , and t h e family medical records i n d i c a t e t h e marriage s t a t u s of Ralph and E l s i e as do t h e b i r t h c e r t i f i c a t e s of t h e two c h i l d r e n . Ralph and E l s i e L e s t e r were l i s t e d i n t h e 1975 and 1976 B i l l i n g s C i t y Directory a s husband and wife. It w a s n o t u n t i l Xalph's last i l l n e s s t h a t E l s i e m e t any of h i s c h i l d r e n of h i s marriage t o Fern. An a f f i d a v i t submitted f o r t h e c o u r t ' s consideration by a n u r s e ' s a i d s t a t e d t h a t because E l s i e had been i n such c o n s t a n t a t t e n - dance of Ralph during h i s l a s t i l l n e s s , s h e asked ~ l s i e , i n t h e presence of Ralph's c h i l d r e n by Fern, what r e l a t i o n s h i p s h e was. E l s i e i d e n t i f i e d h e r s e l f a s a " f r i e n d " and n o t a s t h e wife of Ralph. E l s i e answers t h a t she d i d n o t want t o embarrass t h e c h i l d r e n of t h e f i r s t marriage by r e v e a l i n g t h e r e l a t i o n s h i p she had had w i t h t h e i r f a t h e r . A t t h e t i m e of Ralph's death, h i s o l d e s t daughter E d i t h took charge of t h e f u n e r a l , and he was buried b e s i d e h i s f i r s t w i f e Fern. Ralph f i l e d a j o i n t income t a x under t h e name of Schan- bacher and g i v i n g h i s w i f e ' s name a s Fern u n t i l 1972. T h e r e a f t e r , he f i l e d a s a " s i n g l e man." I n 1975 Ralph made a W i l l i n which he f a i l e d t o mention t h a t he had a wife, t h e a p p e l l a n t E l s i e , and t h a t he had two c h i l d r e n by h e r . Following Ralph's d e a t h on November 11, 1976, t h i s W i l l was submitted t o probate. The W i l l was submitted by E d i t h E l l i s , one of h i s daughters, who f i l e d an a p p l i c a t i o n f o r a n informal p r o b a t e of t h e W i l l and t o be appointed personal r e p r e s e n t a t i v e t h e r e i n . On November 15, an o r d e r of i n - formal probate of t h e W i l l and t h e appointment of t h e p e r s o n a l r e p r e s e n t a t i v e w a s signed by t h e c l e r k of t h e D i s t r i c t Court and letters w e r e i s s u e d t o E d i t h E l l i s a s p e r s o n a l r e p r e s e n t a t i v e . On February 2, 1977, t h e demand f o r bond and t h e demand f o r n o t i c e w e r e f i l e d by E l s i e as a s u r v i v i n g wife of Ralph and t h e mother of t h e two s u r v i v i n g c h i l d r e n , Margaret Joan L e s t e r and Roberta Louise Lester. On t h e following day, a p e t i t i o n f o r supervised a d m i n i s t r a t i o n and a n o t i c e of claim and p e t i t i o n by p r e t e r m i t t e d c h i l d r e n w e r e f i l e d . An amended v e r i f i e d p e t i t i o n f o r supervised a d m i n i s t r a t i o n , and t h e amended n o t i c e of claim and p e t i t i o n by p r e t e r m i t t e d c h i l d r e n w e r e served i n t h i s m a t t e r on February 10, 1977. hereafter, E l s i e f i l e d on May 4 , 1977, a p e t i t i o n f o r family allowance, p e t i t i o n f o r exempt property, p e t i t i o n f o r a homestead allowance, and a widow's e l e c t i v e s h a r e t h e r e i n . On August 18, 1977, t h e d e p o s i t i o n of E l s i e was taken i n t h i s matter. On November 3, 1977, t h e personal representa- t i v e f i l e d a memorandum and motion f o r summary judgment. Hearing on t h e motion was s e t f o r November 28, 1977, b u t t h e hearing was n o t held. The m a t t e r was f i n a l l y heard i n Se2tember 1978, a t which t i m e f i n d i n g s of f a c t and conclu- s i o n s of law w e r e made by t h e D i s t r i c t Court. On October 13, 1978, a b r i e f hearing was h e l d i n t h e chambers on p e t i - t i o n e r ' s motion t o amend t h e f i n d i n g s of f a c t and conclu- s i o n s of law, which was denied by t h e D i s t r i c t Court on October 13, 1978. W e need n o t set f o r t h t h e i s s u e s a s s t a t e d by counsel on appeal, b u t set them f o r t h below a s w e see c o n t r o l l i n g i n t h i s case. Here t h e r e a r e genuine i s s u e s of m a t e r i a l f a c t precluding summary judgment on t h e two following i s s u e s : 1. Whether t h e r e was a common law marriage between Ralph and E l s i e a f t e r t h e d e a t h of Fern? 2. Are t h e two c h i l d r e n of t h e r e l a t i o n s h i p of Ralph and E l s i e t o be considered i s s u e of t h e marriage of t h e decedent? While t h e 1952 marriage between t h e s e p a r t i e s was p r o h i b i t e d by v i r t u e of Ralph's p r e e x i s t i n g marriage t o Fern, upon her death i n September 1973, a f a c t q u e s t i o n of whether t h i s impediment t o t h e marriage was removed i s r a i s e d by our s t a t u t e . See Stevens v. Woodmen of t h e world (1937), 105 Mont. 121, 71 P.2d 898, 905. From documents submitted by E l s i e , t h e r e was evidence t h a t , a f t e r t h e d e a t h of Fern, Ralph and E l s i e l i v e d t o g e t h e r a s man and w i f e , f i r s t i n a mobile home i n t h e Lockwood a d d i t i o n , and then i n a n apartment a t 3304 Winchell Lane. They l i v e d a t t h i s r e s i d e n c e u n t i l Ralph's d e a t h on November 11, 1976. Fol- lowing F e r n ' s d e a t h , t h e c h i l d r e n of t h e second union and E l s i e and Ralph cared f o r t h e r e s i d e n c e t h a t had been pur- chased by Ralph f o r h i s wife Fern, looking a f t e r t h e lawn, etc., and maintaining t h e property u n t i l Ralph's death. From t h e record b e f o r e t h e c o u r t , t h e s e f a c t s w e r e n o t c o n t e s t e d by t h e personal r e p r e s e n t a t i v e . Therefore, a q u e s t i o n a r i s e s under s e c t i o n 48-310(2),R.C.N. 1947, now s e c t i o n 40-1-401(2) MCA, a s t o whether o r n o t E l s i e and Ralph w e r e l a w f u l l y married. I n 1975, t h e Montana L e g i s l a t u r e enacted t h e n a t i o n a l d r a f t of t h e Uniform Marriage and Divorce A c t , which became s e c t i o n s 48-301 through 48-341, R.C.M. 1947, now s e c t i o n s 40-1-101 through 40-4-220 MCA. S e c t i o n 48-302, R.C.M. 1947, now s e c t i o n s 40-1-101 and 40-4-101 MCA, set f o r t h t h e pur- pose of t h e A c t a s follows: "This a c t s h a l l be l i b e r a l l y construed and ap- p l i e d t o promote i t s underlying purposes, which a r e t o : " ( 1 ) provide adequate procedures f o r t h e solemni- z a t i o n and r e g i s t r a t i o n of marriage; " ( 2 ) s t r e n g t h e n and p r e s e r v e t h e i n t e g r i t y of marriage and safeguard family r e l a t i o n s h i p s ; " ( 3 ) promote t h e amicable s e t t l e m e n t of d i s p u t e s t h a t have a r i s e n between p a r t i e s t o a marriage; " ( 4 ) m i t i g a t e t h e p o t e n t i a l harm t o t h e spouses and t h e i r c h i l d r e n caused by t h e process of l e g a l d i s s o l u t i o n of marriage; " ( 5 ) make reasonable p r o v i s i o n f o r spouse and minor c h i l d r e n during and a f t e r l i t i g a t i o n ; and " ( 6 ) make t h e law of l e g a l d i s s o l u t i o n of marriage e f f e c t i v e f o r d e a l i n g w i t h t h e r e a l i t i t e s of ma- t r i m o n i a l experience by making i r r e t r i e v a b l e break- down of t h e marriage r e l a t i o n s h i p t h e s o l e b a s i s f o r i t s d i s s o l u t i o n . " Section 48-310 ( 2 ) , R.C.M. 1947, now s e c t i o n 40-1-401 (2) MCA, provides : " ( 2 ) P a r t i e s t o a marriage prohibited under t h i s s e c t i o n who c o h a b i t a f t e r removal of t h e impediment a r e lawfully married a s of t h e d a t e of t h e removal of t h e impediment." The above s t a t u t e s embody a progressive policy long followed by such c o u r t s a s t h e C i r c u i t Court of Appeals of t h e D i s t r i c t Columbia which held i n Matthews v. B r i t t o n (D.C. C i r . 1962), 303 F.2d 408, 409: "Nevertheless, a s long a s t h e impediment of E a r n e s t i n e ' s lawful marriage t o Johnson e x i s t e d , she and Harry Matthews could n o t lawfully be o r become husband and wife. However, it i s s e t t l e d t h a t i f p a r t i e s agree t o be husband and wife i n ignorance of an impediment t o lawful matrimony, then t h e removal of t h a t impediment r e s u l t s i n a common-law marriage between t h e p a r t i e s i f they have continued t o cohabit and l i v e together a s husband and wife . . . t h e same r e s u l t o b t a i n s even i f p a r t i e s have knowledge of t h e impediment a t t h e t i m e they agreed t o be married. I t i s n o t t o be expected t h a t p a r t i e s once having agreed t o be married w i l l deem it necessary t o agree t o do s o again when an earlier marriage i s terminated o r some o t h e r ban t o union i s eliminated." See, t h e Commission Comment t o Section 207(b), Uniform Marriage and Divorce Act, 9 U.L.A. 470. I n a d d i t i o n , had n o t s e c t i o n 48-310(2) been enacted, t h e f a c t remains t h a t E l s i e could, under t h e f a c t s i t u a t i o n presented t o t h e Court here, s t i l l have been a surviving widow of Ralph by v i r t u e of a v a l i d common law marriage a f t e r t h e death of Fern i n 1973. Montana has long recog- nized t h e v a l i d i t y of common law marriages and t h i s i s c a r r i e d forward i n t h e Uniform Marriage and Divorce Act i n s e c t i o n 48-314, R.C.M. 1947, now s e c t i o n 40-1-403 NCA. The second i s s u e of whether t h e c h i l d r e n of t h e union of t h e s e two people a r e i s s u e of t h e decedent i s a f a c t i s s u e which cannot be decided by summary judgment. When t h e Uniform Marriage and Divorce Act was adopted by our l e g i s l a - t u r e , s e v e r a l s e c t i o n s w e r e devoted t o t h e p r o t e c t i o n of t h e c h i l d r e n of a marriage. These relate t o strengthening and p r e s e r v i n g t h e i n t e g r i t y of marriage and safeguarding family r e l a t i o n s h i p s ; t o t h e promotion of s e t t l e m e n t of d i s p u t e s ; t o m i t i g a t i o n of harm t o spouses and t h e i r c h i l d r e n caused by process of l e g a l d i s s o l u t i o n of marriage; and t o reason- a b l e p r o v i s i o n s f o r a spouse and minor c h i l d r e n a f t e r liti- g a t i o n . These i t e m s should be considered i n t h e f a c t s i t u a - t i o n w e have here. The q u e s t i o n t o be decided on a motion f o r summary judgment i s whether t h e r e i s a genuine i s s u e of m a t e r i a l f a c t and n o t how t h a t i s s u e should be determined. Baylor v. Jacobson (1976), 170 Mont. 234, 552 P.2d 55; Fulton v. Clark (1975), 167 Mont. 399, 538 P.2d 1371. W e have f u r t h e r noted t h a t summary judgment i s n o t a proper t o o l f o r r e s o l v i n g d i s p u t e d i s s u e s of f a c t and i s accordingly improper whenever a m a t e r i a l f a c t u a l m a t t e r i s i n d i s p u t e . Engebretson v. Putnam (1977), Mont. , 571 P.2d 368, 34 St.Rep. 1241; Duncan v. Rockwell I'lfg. Co. (1977), Mont. I 567 P. 2d 936, 34 St.Rep. 821; Bahm v. Dormanen (1975), 168 Mont. 408, 543 P.2d 379. I n Engebretson, t h i s Court noted: "The purpose of t h e summary judgment procedure i s t o encourage j u d i c i a l economy through t h e e i l i m i n a t i o n of unnecessary t r i a l , d e l a y and expense. [ C i t a t i o n s omitted.] Summary judgment i s n o t a s u b s t i t u t e f o r t r i a l , however, and i s i n a p p r o p r i a t e when genuine i s s u e s of m a t e r i a l f a c t remain t o be l i t i g a t e d . . ." 571 P.2d a t 370. For t h e reasons above set f o r t h , t h e summary judgment of t h e D i s t r i c t Court i s reversed. The m a t t e r i s remanded f o r t r i a l on t h e m e r i t s . We concur: Ch' f Justlce t g | May 30, 1979 |
21ca3ba4-58b1-416e-8c8f-ad5609df7331 | LYLE v MOORE | N/A | 14461 | Montana | Montana Supreme Court | No. 14461 IN THE SUPREME @ J U F ! ! l ' O F THE STATE O F KNIANA 1979 IlEAN LYLE, Plaintiff and Respondent, MAX S. M3OIIE and PEARL m R E , Defendants and Appellants. Appeal frm: D i s t r i c t Court of the Twelfth Judicial D i s t r i c t , Honorable B. W. Thcmas, Judge presiding. Counsel of Record: For Appellants: Jardine, Stephenson, B l e w e t t and Weaver, Great Falls, Mntana Ion Holden argued, G r e a t Falls, Mntana For Respondent: Bunn and Brown, Chester, Mntana Bruce Brawn argued and Gregory G. Parrott argued, Chester, Mntana S W t t e d : May 2, 1979 Decided: 3C)L 2 3 1979 Filed : m L " r 19'4 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. This appeal i s from a judgment i n p l a i n t i f f ' s favor e n t e r e d i n t h e Twelfth J u d i c i a l D i s t r i c t Court, ~ i b e r t y County, t h e Honorable B. W. Thomas p r e s i d i n g without a jury. P l a i n t i f f , Dean Lyle, i s a real estate broker and one- t i m e c l o s e f r i e n d of defendants, Max and P e a r l Moore. I n e a r l y 1975, Lyle l e a r n e d through a t h i r d p a r t y t h a t t h e Moores w e r e considering s e l l i n g t h e p o r t i o n of t h e i r farm l o c a t e d i n t h e Province of Saskatchewan, Canada. Lyle c o n t a c t e d t h e Moores and t o l d them, among o t h e r t h i n g s , t h a t h e knew a p r o s p e c t i v e purchaser who would pay more f o r t h e farm than they were t h i n k i n g of asking. On March 3, 1975, t h e p a r t i e s signed a r e a l e s t a t e b r o k e r ' s c o n t r a c t f o r t h e s a l e of t h e farm. The c o n t r a c t was a one-page document which was t o e x p i r e A p r i l 1, 1975. The c o n t r a c t contained t h e following language: ". . . you hereby a r e granted t h e a b s o l u t e , s o l e and e x c l u s i v e r i g h t t o s e l l o r exchange t h e s a i d d e s c r i b e d property. I n t h e e v e n t of any s a l e , by m e o r any o t h e r person . . . during t h e t e r m of your e x c l u s i v e employment, o r i n case I withdraw t h e a u t h o r i t y hereby given p r i o r t o s a i d e x p i r a t i o n d a t e , I a g r e e t o pay you t h e s a i d commission j u s t t h e same as i f a s a l e had a c t u a l l y been consummated by you." The c o n t r a c t f u r t h e r provided t h a t Lyle would r e c e i v e 6 p e r c e n t of t h e $220,000 s e l l i n g p r i c e , o r $13,200 f o r h i s s e r v i c e s . Lyle then brought Gene Foulks, t h e p r o s p e c t i v e pur- c h a s e r , from Kansas t o Montana t o view t h e property. Lyle, Foulks and Max Moore i n s p e c t e d t h e p r o p e r t y on March 4 and v i s i t e d a Canadian a t t o r n e y . The a t t o r n e y advised t h e p a r t i e s t h a t a sale of t h e Moores' farm t o Foulks and h i s w i f e would n o t be l e g a l under t h e Saskatchewan Farm Owner- s h i p A c t of 1974. However, a f t e r some d i s c u s s i o n , it ap- peared t h a t a s a l e would be p o s s i b l e t o Foulks and h i s b r o t h e r o r f a t h e r . Foulks r e t u r n e d t o Kansas t o work o u t t h e d e t a i l s , and t h e Moores v i s i t e d t h e i r accountant t o d i s c u s s t h e t a x consequences of t h e i r s a l e . During t h e i r conversation, t h e accountant asked why t h e Moores were n o t s e l l i n g t h e farm t o t h e i r sons. They t o l d him they had thought such a sale would b e i l l e g a l b u t would now c o n t a c t t h e i r sons. On March 10, 1975, t h e Moores withdrew L y l e ' s a u t h o r i t y t o s e l l t h e property and subsequently s o l d t h e property t o t h e i r sons. Lyle brought t h i s a c t i o n recover t h e commission provided f o r i n t h e c o n t r a c t . Following a t r i a l i n t h e D i s t r i c t Court, judgment was e n t e r e d i n h i s favor i n t h e amount of $13,200 p l u s $7,500 a s a t t o r n e y ' s f e e s and $155 f o r o t h e r c o s t s . From t h i s judgment, t h e Moores appeal. One i s s u e presented by defendants i s determinative on appeal. That i s s u e i s whether t h e l i s t i n g agreement signed by defendants was i n v a l i d because p l a i n t i f f used it t o t a k e advantage of defendants without t h e i r consent o r knowledge. The D i s t r i c t Court made two p e r t i n e n t f i n d i n g s of f a c t w i t h r e s p e c t t o t h i s i s s u e : "10. P l a i n t i f f and defendants on March 3, 1975, had been long-time f r i e n d s and neigh- bors. Defendants had confidence i n p l a i n - t i f f ' s i n t e g r i t y and h i s p r o f e s s i o n a l a b i l i t y and when p l a i n t i f f asked them t o s i g n t h e employment c o n t r a c t they d i d s o without tak- i n g t i m e t o read it. They had no previous experience w i t h such agreements. They d i d n o t understand t h a t , under t h e withdrawal c l a u s e quoted i n Finding 3 , they would be l i a b l e t o p l a i n t i f f f o r t h e f u l l amount of h i s commission i f they withdrew h i s a u t h o r i t y before t h e e x p i r a t i o n d a t e . Nor d i d they understand t h a t they could n o t make a sale on t h e i r own during t h e t e r m of t h e agreement. Otherwise, they do n o t claim t h a t t h e t e r m s of t h e l i s t i n g agreement do n o t conform w i t h t h e i r understanding. "11. N o fraud, misrepresentation o r undue influence on t h e p a r t of p l a i n t i f f induced t h e execution of t h e employment c o n t r a c t by defendants. The circumstances a r e i n s u f f i - c i e n t t o excuse t h e f a i l u r e of defendants t o read t h e employment c o n t r a c t before signing i t . " I t i s t h i s l a t t e r finding with which w e t a k e i s s u e . I n Carnell v. Watson (1978), Mont. , 578 P.2d 308, 312, 35 St.Rep. 550, 555, we recognized a f i d u c i a r y r e l a t i o n s h i p between a r e a l estate broker and h i s c l i e n t . This f i d u c i a r y r e l a t i o n s h i p between a broker and h i s c l i e n t has been found t o encompass a "duty of f u l l d i s c l o s u r e " by a number of courts. I n Batson v. Strehlow (1968), 68 Cal.Rptr. 589, 4 4 1 P.2d 1 0 1 , 109-10, t h e C a l i f o r n i a Supreme Court found: "The law imposes on a r e a l e s t a t e agent ' t h e same o b l i g a t i o n of undivided s e r v i c e and loy- a l t y t h a t it imposes on a t r u s t e e i n favor of h i s beneficiary. ' [ C i t a t i o n s omitted. 1 This r e l a t i o n s h i p n o t only imposes upon him t h e duty of a c t i n g i n t h e h i g h e s t good f a i t h towards h i s p r i n c i p a l b u t precludes t h e agent from obtaining any advantage over t h e p r i n c i - p a l i n any t r a n s a c t i o n had by v i r t u e of h i s agency. [ C i t a t i o n omitted.] 'Such an agent i s charged with t h e duty of t h e f u l l e s t d i s - c l o s u r e of a l l material f a c t s concerning t h e t r a n s a c t i o n t h a t might a f f e c t t h e p r i n c i p a l ' s d e c i s i o n . ' [ C i t a t i o n s omitted.] "When t h e p r i n c i p a l questions t h e a c t s done by t h e agent i n t h e course of t h e agency t h e burden is cast upon t h e l a t t e r t o prove t h a t he acted with t h e utmost good f a i t h toward t h e p r i n c i p a l and t h a t p r i o r t o t h e transac- t i o n he made a f u l l d i s c l o s u r e of a l l t h e f a c t s r e l a t i n g t o t h e a c t s under a t t a c k . " A duty t o f u l l y d i s c l o s e p e r t i n e n t f a c t s has likewise been recognized i n Zwick v. United F a r m Agency, Inc. (Wyo. 19761, 556 P.2d 508, 511; MacDonald v. Dormaier (1975), 272 O r . 122, 535 P.2d 527, 529; Jennings v. L e e (1969), 105 Ariz. 167, 461 P.2d 161, 167; Holland Realty Investment Co. v. S t a t e Dept. of Commerce (1968), 84 Nev. 91, 436 P.2d 4 2 2 , The duty includes t h e duty t o r e v e a l t h e nature and e x t e n t of t h e b r o k e r ' s f e e s t o t h e c l i e n t . Rushing v. Stephanus (1964), 64 Wash.2d 607, 393 P. 2d 281, 284. Furthermore, because of t h e f i d u c i a r y r e l a t i o n s h i p between a broker and h i s c l i e n t , t h e broker "must make a f u l l and understandable explanation t o t h e c l i e n t before having him s i g n any c o n t r a c t s , p a r t i c u l a r l y when t h e c o n t r a c t s a r e with t h e broker himself." Starkweather v. Shaffer (1972), 262 O r . 198, 497 P.2d 358, 360. I n a d d i t i o n t o t h i s w e have recognized t h a t : "The provisions of t h e Real E s t a t e License A c t [ s e c t i o n 37-51-101 e t seq. M C A ] set a standard of conduct t o which licensed brokers and salesmen must conform. "While a breach of a duty may a l s o be a vio- l a t i o n of t h e l i c e n s i n g a c t , it may a l s o c o n s t i t u t e an independent reason t o deny a commission t o t h e broker o r agent--perhaps t h e most e f f e c t i v e d e t e r r e n t of a l l . " C a r - n e l l v. Watson, 578 P.2d a t 311-12, 35 St.Rep. a t 554-55. Along t h e s e l i n e s , two r e l e v a n t p o r t i o n s of p l a i n t i f f ' s own testimony i n d i c a t e t h a t he d i d n o t f u l l y d i s c l o s e t o defendants t h e f a c t t h a t he would be e n t i t l e d t o h i s com- mission i f they withdrew h i s a u t h o r i t y t o s e l l p r i o r t o t h e A p r i l 1st deadline. F i r s t , defendants' counsel had t h e following exchange with p l a i n t i f f : "Q. And d i d you t e l l them a t t h a t t i m e t h a t i f they s o l d t h e property during t h e l i s t i n g period t h a t you would be e n t i t l e d t o your f u l l commission? A. I d o n ' t r e c a l l t h a t I d i d , no. "Q. Did you inform them of t h e e x i s t e n c e of t h i s withdrawal c l a u s e t h a t says i f they would withdraw your a u t h o r i t y during t h e l i s t i n g period they would have t o pay you a f u l l commission j u s t a s i f you had s o l d t h e property f o r them? A. I d o n ' t r e c a l l i f I went i n t o it o t h e r than t o read through it. I w a s s u r e t h e r e w a s no problem with t h e s i t u a t i o n . The p a r t i e s w e r e going t o buy it o r n o t buy it and t h a t was i t . " L a t e r , p l a i n t i f f i n d i c a t e d he had reviewed t h e proposed t e r m s of t h e s a l e w i t h defendants b u t when asked s p e c i f i c a l l y about any d i s c u s s i o n r e l a t i n g t o t h e p r i n t e d language on t h e form, he could n o t r e c a l l any such d i s c u s s i o n . That p l a i n t i f f ' s f a i l u r e t o p o i n t o u t t h e p o t e n t i a l e f f e c t of defendants' e a r l y withdrawal of a u t h o r i t y might s e e m l i k e a small o v e r s i g h t i s n o t borne o u t by t h e amount of t h e judgment i n t h i s case. It was a s i g n i f i c a n t p a r t of t h e c o n t r a c t which defendants signed and should n o t have been overlooked. There i s f u r t h e r testimony which i n d i c a t e s t h a t p l a i n t i f f h u r r i e d defendants' s i g n i n g and even encour- aged them n o t t o r e a d t h e c o n t r a c t b e f o r e s i g n i n g it. Defendant Max Moore t e s t i f i e d on d i r e c t examination as follows : "Q. Did you and your w i f e and M r . Lyle d i s - c u s s whether t h a t agreement should be r e a d by you and your wife? A. W e l l , I d i d n ' t , and--but m y w i f e asked M r . Lyle, s h e s a i d a t t h a t t i m e , s h e s a i d , a f t e r I had a l r e a d y signed it, t h a t maybe s h e should read t h e f i n e p r i n t b e f o r e she signed h e r name t o something and t h a t ' s , M r . Lyle kind of laughed and he s a i d t h a t wasn't necessary. H e s a i d , I j u s t want t h i s t o show t h e Kansas man. So then she signed it. But she d i d n ' t r e a d any- t h i n g . "Q. Did M r . Lyle a t t h a t t i m e review t h e l i s t i n g agreement w i t h you? A . No. The only t h i n g he reviewed was t h e w r i t i n g he p u t on it. H e never d i d review any of t h e f i n e p r i n t typed on it. J u s t what he wrote on t h e r e , himself. "Q. Your testimony then i s t h e p r i n t e d lan- guage of t h e l i s t i n g agreement was n o t reviewed w i t h you a t t h a t t i m e , i s t h a t c o r r e c t ? A. T h a t ' s t r u e . "Q. Did M r . Lyle a t t h a t t i m e inform you t h a t by t h e agreement he had t h e e x c l u s i v e r i g h t t o sell t h e p r o p e r t y a t t h a t time? A. No. " Q . Did you a t t h a t t i m e b e l i e v e you s t i l l had t h e r i g h t t o sell t h a t property? A . Oh, I thought I d i d . "Q. Did h e a t t h a t t i m e inform you t h a t he could c o l l e c t h i s f u l l commission i f , i n f a c t , you made a s a l e of t h a t property, y o u r s e l f , d u r i n g t h e l i s t i n g period? A. No. "Q. Did h e inform you a t t h a t t i m e t h a t i f you withdrew h i s a u t h o r i t y d u r i n g t h e l i s t i n g p e r i o d t h a t he would be e n t i t l e d t o h i s f u l l commission i n t h e amount of t h i r t e e n thousand two hundred d o l l a r s ($13,200.00)? A. No. "Q. Were you given a n opportunity t o r e a d t h e c o n t r a c t a t t h a t time? A. No. "Q. Why not? A. W e l l , he was i n , seemed t o be i n a hurry. Wanted t o g e t it signed and then, of course, I d i d n ' t ask him t o r e a d it b u t m y wife had mentioned it and he s a i d it was, t h e r e was no reason t o read i t . " A s w e have noted, t h e r e a r e t i m e s when t h e l a w imposes a duty upon a p a r t y t o speak r a t h e r than t o remain s i l e n t and thereby t o d i s c l o s e information t o p l a c e t h e person w i t h whom he i s d e a l i n g on a n equal f o o t i n g w i t h him. The f a i l u r e t o speak i n such a c a s e amounts t o t h e suppression o f a f a c t which should have been d i s c l o s e d and c o n s t i t u t e s f r a u d . Wheeler v. Missouri P.R. Co. (1931), 328 Mo. 888, 42 S.W.2d 579, 583; Dirks T r u s t and T i t l e Co. v. Koch (1913), 32 S.D. 551, 143 N.W. 952, 953. Here t h e f i d u c i a r y r e l a t i o n s h i p which e x i s t s between a broker and h i s c l i e n t , imposed upon p l a i n t i f f a duty t o d i s - c l o s e a number of f a c t s which w e r e n o t d i s c l o s e d . These i n - cluded t h e f a c t t h a t defendants could n o t withdraw p l a i n - t i f f ' s a u t h o r i t y under t h e agreement without f o r f e i t i n g a s i z e a b l e commission, nor could they sell t h e p r o p e r t y on t h e i r own during t h e t e r m of t h e agreement. The 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 e r e was no f r a u d involved i n t h e execution of t h e employment c o n t r a c t and t h e judgment of t h e D i s t r i c t Court must be reversed. With r e s p e c t t o a t t o r n e y f e e s , w e n o t e t h e following p r o v i s i o n i n t h e b r o k e r ' s c o n t r a c t : " I n case of s u i t o r a c t i o n on t h i s c o n t r a c t , I agree t o pay such a d d i t i o n a l s u m as t h e c o u r t may adjudge reasonable a s p l a i n t i f f ' s attorneys fees." By v i r t u e of s e c t i o n 28-3-704 MCA, t h i s contractual r i g h t t o attorney f e e s i s reciprocal. Therefore, t h e case i s remanded f o r determination of and an order awarding reasonable a t t o r - ney f e e s t o defendants. Reversed and remanded. 2 b - ~ ~ $ k d Chief J u s t i c e W e concur: Mr. Justice John C. Sheehy dissents: It is straining the theory of fiduciary relationships a bit to hold that between a realtor and a seller of real property, the relationship exists before the execution of an enforceable listing agreement or earnest money agreement. A fiduciary relationship was held to exist before the signing of an earnest money agreement in Starkweather v. Shaffer (Ore. 1972), 497 P.2d 358, 360, but that was a case involving intentional deceit on the part of the realtor. A fiduciary relationship applies when the parties are not on equal footing, which does not appear to me to be the case here. However, we have held that as between a realtor and the seller, a fiduciary relationship does arise, especially after the listing agreement has been signed. Carnell v. Watson (1978), Mont. , 578 P.2d 308, 35 St.Rep. 550. I would concede, for the sake of argument here, that prior to the execution of the listing agreement, a fiduciary relationship existed between the owners (Moore) and the real estate agent (Lyle), although this has not been specifically held to be true in Montana until now. Even so, the duty of the fiduciary (Lyle) to make full disclosure to his beneficiary (Moore) does not apply where the beneficiary has equal and full opportunity, or the means at hand, to acquire knowledge of the facts on his own. It is stated in Lee v. Stockmen's Nat. Bank (1922), 63 Mont. 262, 284, 207 P. 623, 630, that: "When it appears that a party, who claims to have been deceived to his prejudice, has investigated for himself, br that the means were at hand to ascertain ITietrutE . . ---- . . - . of anv re~resentations made to him, his - - -.-- A -- - - -- reliance upon such representations made to him, however false they may have been, affords no ground of complaint (citing cases)." See also, Lowe v. Root (1975), 166 Mont. 150, 156, 531 P.2d 674, 677. - 9- Here, the Moores, each of whom can read, and of whom the husband especially has a long experience in contractual matters, had before them in its entirety, the one-page listing agreement with its terms set out for their reading. In that situation they are in no different position than any other prospective contractor, absent fraud or coercion, in their duty to read and know the contents of any agreement they sign. It will not suffice for them to say later they never read the instrument before affixing their signatures, or did not under- stand the obligations imposed by the contract. Guthrie v. Halloran (19311, 90 Mont. 373, 380, 3 P.2d 406, 408. The exceptions to the rule, of course,xe fraud or coercion. It is injudicious to hold that the plaintiff here defrauded the Moores. The District Court did not find so, and under ordinary appellate rules, we are bound by fact determinations of the District Court. Rule 52(a), M0nt.R.Civ.P. The record does not show any act or representation by Lyle which led the husband Moore to sign without reading. The grounds relied on by the majority to show the wife was misled are paper-thin, and were rejected by the District Court. In fact, the husband testified he read over the listing agreement a few days later and understood it. It was with that knowledge that he withdrew from the contract before the time expired. He did not move to rescind the contract. Rather Moore testified emphatically that the reason he withdrew Lyle's authority was that Moore had reached the conclusion the sale to the Kansan was void under Canadian law. It should be made clear that the Moores were at all times aware of the size of the commission involved for a total selling price of $220,000 under their agreement. The husband Moore had in his possession defendant's exhibit 2, which he produced at trial, and which was given to him by Lyle prior to the execution of listirgac_i~ement, which shows on it "commission 6% of selling price $13,200.00." -10- The majority opinion that Lyle committed a fraud goes against the warp of the evidence. There is every indication that he acted fairly: He found a buyer who would pay $15 more per acre than the Moores could find on their own; the length of time of the listing agreement was 28 days, certainly not a long time for an exclusive listing; he procured an attorney to ascertain what the Canadian law required. The listing agreement which he presented to the Moores was a standard one, and its provisions respecting withdrawal are the common provisions one finds in the real estate business in Montana. For doing business in the ordinary way, he has been found fraudulent. Not only does he lose the commission, his attorney fees and costs, but he has now been subjected to attorney fees for the other side. I cannot agree with that result. I concur in the foregoing dissenting Opinion. A------ Justice | July 23, 1979 |
aa336fd7-3387-4f42-9d71-2351d7b0edeb | LABELLA v NORTHERN INC | N/A | 14493 | Montana | Montana Supreme Court | N o . 14493 I N THE SUPREME COUKC O F THE STATE: O F M3JTCANA 1979 MICHAEL A. L A B - , J R . , Plaintiff and Appellant, BmIN- NORrHE.RN, m., a corporation, Defendant and Respondent. Appeal frm: D i s t r i c t Court of the First J d i c i a l D i s t r i c t , Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Hoyt and Lewis, Great Falls, frlontana John C. Hoyt argued, Great Falls, Wntana F o r Respondent: Kurt W . Kroschel argued, Billings, Wntana Suhnitted: March 26, 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Plaintiff appeals from an order of the District Court for Lewis and Clark County dismissing his complaint on the ground that suit was brought in an inconvenient forum. Plaintiff is a resident of Spokane, Washington and has been employed by defendant railroad since 1947. Defendant, a Minnesota corporation, is a common carrier doing business in Montana and throughout the northwest. Plaintiff alleges that while inspecting and engaging air hoses between freight cars in defendant's Spokane train yard he tripped on some loose boards and was seriously injured. He filed a personal injury suit in Lewis and Clark County District Court under the Federal Employer's Liability Act (FELA), 45 U.S.C. §51 et seq., and de- fendant moved to dismiss on the ground of forum non conveniens. After argument on the motion and consideration of both partys' affidavits, the District Court issued a memorandum decision and ordered the action dismissed. The trial judge noted the pertinent Montana case law and concluded that the applica- tion of forum non conveniens was within his discretion. State ex rel. Great Northern Ry. v . District Court (1961), 139 Mont. 453, 365 P.2d 512; Bracy v . Great Northern Ry. (1959), 136 Mont. 65, 343 P.2d 848. The issue on appeal is whether a District Court of this state may dismiss a FELA action because it deems itself an inconvenient forum. We hold that it may not. Simply stated: "The rule of forum non conveniens is an equit- able one embracing the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action before it may be more appropriately and justly tried elsewhere." Leet v. Union Pac. R. Co. (1944), 25 Cal.2d 605, 609, 155 P.2d 42, 44. Under the doctrine, "a court may resist imposition upon its juris- diction even when jurisdiction is authorized by the letter of a general venue s t a t u t e . " Gulf O i l Corp. v. G i l b e r t (1947), 330 U.S. 501, 507, 91 L.Ed 1055, 1062, 67 S.Ct. 839, 842. The p o l i c y behind t h e r u l e i s t o allow t h e c o u r t t o dismiss an a c t i o n when it f e e l s t h e cause can be more e a s i l y disposed of i n another court. Once dismissed, t h e a c t i o n i s normally com- menced anew i n a d i f f e r e n t , more convenient forum. The a p p l i c a b i l i t y of forum non conveniens t o FELA ac- t i o n s has previously been before t h i s Court. S t a t e ex rel. Great Northern Ry. v. D i s t r i c t Court, supra; Bracy v. G r e a t Northern Ry., supra. I n those cases defendant r a i l r o a d moved t o dismiss on t h e ground of forum non conveniens and i n each i n s t a n c e t h e t r i a l c o u r t denied t h e motion. I n Bracy a t 68, t h e t r i a l c o u r t "expressed doubt a s t o whether t h e d o c t r i n e . . . has any a p p l i c a t i o n i n Montana," b u t r u l e d i f it d i d , t h e f a c t s of t h e case d i d n o t warrant its a p p l i c a t i o n . O n appeal, t h i s Court ex- p r e s s l y declined t o decide i f t h e d o c t r i n e was v i a b l e . Bracy, supra a t 68. The b a s i s of t h e decision w a s t h a t , assuming t h e d o c t r i n e ' s e x i s t e n c e , t h e r e was no abuse of d i s c r e t i o n i n f a i l i n g t o dismiss. I n S t a t e ex rel. Great Northern Ry., supra, Bracy was followed. The c o u r t s t a t e d : "We do n o t f e e l j u s t i f i e d i n t h i s i n s t a n c e t o e s t a b l i s h t h e r u l e . " S t a t e ex r e l . Great Nor- thern Ry., supra, a t 457. This is t h e only case t o come before us where a ~ i s t r i c t Court has dismissed an a c t i o n on t h e ground it considers i t s e l f an inconvenient forum. W e a r e thus f o r t h e f i r s t t i m e squarely faced with t h e r e l a t i o n of forum non conveniens t o FELA a c t i o n s . Section 6 of t h e FELA, 45 U.S.C. 856, reads a s follows: "Under t h i s chapter an a c t i o n may be brought i n a d i s t r i c t c o u r t of t h e United S t a t e s , i n t h e d i s t r i c t of t h e residence of t h e defendant. o r i n which t h e cause of a c t i o n a r o s e , o r i n which t h e defendant s h a l l be doing business a t t h e t i m e of commencing such action. The i u r i s d i c - - - - t i o n of t h e c o u r t s of t h e United s t a t e s under t h i s chapter s h a l l be concurrent with t h a t of the courts of the several States." (Emphasis added. ) The District Courts of Montana clearly have jurisdiction. Whether they have discretionary power to dismiss is determined by state policy, as discussed infra, and by an examination of Congressional intent in enacting and later in amending the FELA. Ch. 149, 81 et seq., 35 Stat. 65 et seq. (1908), amended Ch. 143, S1, 36 Stat. 291 (1910). The refusal of the nation's railroads to compensate injured workmen was notorious; in a 1907 message urging Congress to pass the FELA, President Theodore Roosevelt noted: "The practice of putting the entire burden of loss to life and limb upon the victim or the victim's family is a form of social injustice in which the United States stands in unenviable prominence." 45 Cong.Rec. 4040 (1910). The United States Supreme Court has repeatedly noted that the FELA is to be given a liberal construction in favor of injured railroad employees so that it may accomplish humanitarian and remedial purposes. See Urie v. Thompson (1949), 337 U . S . 163, 69 S.Ct. 1018, 43 L.Ed 1282; Coray v. Southern Pacific Co. (1949), 335 U.S. 520, 60 S.Ct. 275, 93 L.Ed 208; McGovern v . Philadelphia & Reading R . R . (1914), 235 U.S. 389, 35 S.Ct. 127, 59 L.Ed 283; Steinberg, The Federal Employer's Liability Act and Judicial Activism: Policymaking by the Courts, 12 Willamette L.J. 79 (1975). In a Senate Committee Report, the purpose of the amend- ment to section 6 H.R. 17263, 61st Cong., 2d Sess. (1910), was said to be: " . . . to make entirely manifest the good faith of the legislature in the enactment of the employer's liability law, which places such stringent liability upon the railroads for in- juries to their employees as to compel the high- est safeguarding of the lives and limbs of the men in this dangerous employment. The tremen- dous loss of life and limb on the railroads is appalling . . . "It was the intention of Congress in the enact- ment of this law originally and it may be pre- sumed to be the intention of the present Congress to shift the burden of the loss resulting from these casualties from 'those least able to bear it' and place it on those who can . . . 'measurably control their causes'." Sen.Rep. No. 432, 61st Cong., 2d Sess., (1910), 45 Cong.Rec. 4041 (1910). In reporting the bill out of committee, Senator Borah stated his objection to the law as it existed: "Plaintiff may sometimes be compelled to go a great distance in order to have his cause of action against the defendant by reason of the fact that now the action must be brought in the district in which the defendant is an inhabitant . . . " . . . If this bill should be passed the law will be remedied in that respect, enabling the plaintiff to bring his action where the cause of action arose or where the defendant may be doing business. The bill enables the plaintiff to find the corporation at any point or place where it is actually carrying on business and there lodge his action, if he chooses to do so." 45 Cong.Rec. 4034-4035 (1910). The strength of the policy behind section 6 can be further gleaned from Congress' refusal to pass the Jennings Bill in 1947. It would have repealed most of section 6 and limited the forum choices of injured railroad workers to the district where the cause of action arose or where the plaintiff resided. If process could not be served in either of those places, an action could be brought where defendant was doing business. H. R. 1639, 80th Cong., 1st Sess., (1947). In the leading case on forum non conveniens, Gulf Oil Co. v . Gilbert, supra at 505, the United States Supreme Court noted : "It is true that in cases under the Federal Employers' Liability Act we have held that plain- tiff's choice of a forum cannot be defeated on the basis of forum non conveniens. But this was because the special venue act under which those cases are brought was believed to require it." Citing Miles v. Illinois Central R . Co. (1942), 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed 1129; Baltimore & Ohio R . Co. v . Kepner (1941), 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed 28. Insofar as the federal courts were concerned, the "special venue act" lost its effect when 28 U.S.C. S1404(a) was enacted in 1948. That section provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. " The Supreme Court, in ex parte Collette (1949), 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed 1207, 10 ALR2d 921, held that "any civil action" included suits brought in a Federal District Court under the FELA. Notwithstanding the strong policy favoring plaintiffs' forum selection, such actions were transferable under 28 U.S.C. 51404(a). When faced with the issue of a state court's power to dismiss a FELA case on the ground of forum non conveniens, the court followed Collett. It said a state was not compelled to entertain FELA cases brought in its courts but could, "According to its own notions of procedural policy . . . reject as it may accept, the doctrine [of forum non conveniens] for all causes of action begun in its courts." Southern Ry. Co. v. Mayfield (1950), 340 U . S . 1, 3, 71 S.Ct. 1, 2, 95 L.Ed 3, 7 . But see, Pope v . Atlantic Coast R. Co. (1953), 345 U.S. 379, 73 S.Ct. 749, 97 L.Ed The policy of the State of Montana is clearly announced the State Constitution. "Courts of justice shall be open every person, and speedy remedy afforded for every injury of per- son, property, or character." 1972 Mont. Const., Art. 11, 516. This constitutional right is unrestricted by reference to resi- dence or citizenship. Indeed, such qualification could not pass muster under the Privileges and Immunities Clause of Art. IV, 52 of the United States Constitution. Hicklin v . Orbeck (1978), 437 U.S. 518, 523-524, 98 S.Ct. 2482, 2487, 57 L Ed 2d 397, 403. The Montana legislature has provided. "A citizen of the United States who is not a citi- zen of this State has the same rights and duties as a citizen of this state who is not an elector.'' Section 83-407, R.C.M. 1947, now section 49-1-204 MCA. We fully recognize that the state is not constrained by federal law to reject the doctrine of forum non conveniens in FELA actions. However, we find the policy favoring the in- jured railroad worker's choice of forum to be highly persuasive. This, in addition to the state's "open court policy" compels this Court to hold the doctrine of forum non conveniens inappli- cable to FELA suits filed in Montana District Courts. We repeat the warning set forth in State ex rel. Great Northern Ry., supra at 457. "If a substantial increase in this type of litigation is called to our attention in the future we will reexamine the situation in light of what we have herein stated." Our decision is a narrow one. We have not been confronted by the application of forum non conveniens in non-FELA cases and our holding today does not purport to deny or recognize the exis- tence of the doctrine in cases where there is no strong policy favoring plaintiff's forum selection. Reversed and remanded. Chief Justice We concur: Justices C 1 ' | June 5, 1979 |
280d28ff-1b1f-4545-9758-ab5a173e71a7 | WENZ v SCHWARTZE | N/A | 14228 | Montana | Montana Supreme Court | No. 14228 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 19 79 EMlL m Z , et al., Plaintiffs and Respondents, DIANE S C H W A K F Z E , et al. , Defendants and Appellants. Appeal f m : D i s t r i c t Court of the Ninth Judicia D i s t r i c t , Honorable Joel G. Fbth, Judge presiding. Counsel of Record: For Appellants: Smith, m n s , Baillie & Wash, Great Falls, Mntana Jams R. Walsh argued, Great Falls, Mntana For Wspondents: Marra, Wenz, I = and Johnson, Great Falls, mntana Joseph Marra argued and Warren Wenz arqued, Great Falls, Fbntana Carroll Blend argued, G r e a t Falls, mntana Suhitted: May 4, 1979 M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. The ~ i s t r i c t Court of Pondera County terminated the p a r e n t a l r i g h t s of a f a t h e r and mother, both r e s i d e n t s of C a l i f o r n i a , and granted custody of t h e i r daughter t o her a u n t and uncle, r e s i d e n t s of Montana. The f a t h e r appeals. The s u b j e c t of t h i s appeal i s a minor c h i l d who was born i n C a l i f o r n i a i n 1969. H e r p a r e n t s separated some eighteen months a f t e r her b i r t h and obtained a f i n a l d i s - s o l u t i o n of marriage on January 13, 1972. The Los Angeles County Superior Court, i n an uncontested proceeding, granted custody t o the mother and allowed reasonable v i s i t a t i o n t o t h e f a t h e r . I t a l s o ordered the f a t h e r t o pay weekly c h i l d support of $25 and t o maintain medical and l i f e insurance p o l i c i e s f o r h i s daughter's b e n e f i t . P r i o r t o t h e d i s s o l u t i o n , the mother had separated from t h e f a t h e r and had begun l i v i n g with another man, a l t e r n a - t i v e l y known a s Bridges, Martin, o r Leonard. While t h e p a r e n t s ' l i v i n g condition p r i o r t o t h e i r separation had n o t been i d e a l , the conditions under which t h e mother and c h i l d l i v e d grew s t e a d i l y worse i n the company of Bridges. The mother, c h i l d , and Bridges l i v e d i n a v a r i e t y of houses, and f i n a l l y i n a run-down apartment with l i t t l e f u r n i t u r e , l i t t l e food, and much questionable company. A s t i m e went on and conditions worsened f o r the mother and c h i l d , t h e c h i l d ' s p a t e r n a l grandmother, who l i v e d i n t h e a r e a , became concerned f o r the c h i l d ' s welfare. She made f r e q u e n t v i s i t s t o t h e mother's a p a r m e n t and of ten k e p t the c h i l d on weekends. I n l a t e 1973 a £ ter her mother and Bridges had moved i n t o an apartment building i n eni ice, c a l i f o r n i a , the c h i l d began r e l a t i n g information which caused her grandmother considerable concern. She described i n p a r t i c u l a r t h a t her mother and Bridges had received, on occasion, hypodermic i n j e c t i o n s from some unknown man, and t h a t she was unable to awaken her mother a f t e r she had received those i n j e c t i o n s . She a l s o t o l d how she had been repeatedly subjected t o sexual abuse by Bridges. The grand- mother t e s t i f i e d t h a t the c h i l d ' s complaints of abuse w e r e ongoing and confirmed t h a t the c h i l d had v i s i b l e physical i n d i c a t i o n s of abuse. The grandmother shared this information with the c h i l d ' s f a t h e r and h i s new wife. When questioned by t h e f a t h e r , the c h i l d f i r s t refused t o answer b u t later gave an a f f i r m a t i v e response. She a l s o responded p o s i t i v e l y t o the f a t h e r ' s new wife. The f a t h e r next questioned the c h i l d ' s mother, who denied any such a c t i v i t i e s . H i s testimony i n d i c a t e s that he cannot remember whether he ever confronted Bridges with this informa t i o n . I n November 1973 t h e f a t h e r spoke t o Jerome Kessler, an a t t o r n e y i n Los Angeles, about a change of custody. Accord- i n g t o Kessler, t h e f a t h e r s a i d t h a t h i s former wife "was a h i p p i e who wanted t o go on welfare" and the f a t h e r "expressed an i n t e r e s t a t some p o i n t obtaining custody of h i s daughter." Kessler t o l d the f a t h e r a t t h a t t i m e t h a t he doubted whether t h e f a t h e r had ample grounds t o o b t a i n a modification of the decree. The f a t h e r again consulted Kessler i n February 1974, and, according t o Kessler, t o l d him of a t l e a s t one of t h e a l l e g e d i n c i d e n t s of abuse. Kessler t e s t i f i e d t h a t he informed the f a t h e r t h a t some form of proof would be neces- s a r y , and that a l a w s u i t t o change custody would be d i f f i - c u l t t o maintain i n t h e absence of an eyewitness t o t h e mistreatment of the c h i l d . A deposition by Linn Davis, a paralegal i n Kessler's o f f i c e , i n d i c a t e s t h a t the f a t h e r spoke with her on numerous occasions regarding a change of custody. However, her testimony i n d i c a t e s t h a t the f a t h e r ' s reasons f o r d e s i r i n g custody remained general u n t i l the e a r l y p a r t of 1975. "At first it was j u s t an expression of d e s i r e f o r the child." I n January o r February, according t o Davis, the f a t h e r complained t h a t h i s former wife was a "hippie, an irrespon- s i b l e woman who d i d n o t seem t o c a r e about the s u i t a b i l i t y of the environment of the c h i l d . " I n February 1975 the f a t h e r c a l l e d t o ask "'Can I g e t custody i f [ t h e mother] is smoking marijuana?'" According t o Davis, it was March 1975 when the f a t h e r f i r s t r e l a t e d anything t o her about any alleged abuse of h i s daughter. During the summer of 1974, the mother permitted the p a t e r n a l grandmother t o take the c h i l d t o Oregon t o s t a y a t her ranch home there. I n e a r l y July, however, i n response t o a request from the c h i l d ' s maternal grandmother i n B i l l i n g s , Montana, the c h i l d was p u t on a plane t o B i l l i n g s s o she could spend p a r t of the summer with her mother's r e l a t i v e s i n Montana. When she a r r i v e d i n B i l l i n g s , the maternal grandmother noticed t h a t the c h i l d t s h a i r was matted with blood and pus around one e a r . She had heard e a r l i e r from the o t h e r grandmother t h a t the c h i l d had e a r problems, b u t t h a t the mother was unwilling t o have the condition t r e a t e d by a physician. The maternal grandmother obtained medical a s s i s t a n c e f o r the c h i l d and by the t i m e she returned t o Los Angeles i n August t h e condition, a bad i n f e c t i o n , had cleared up. The maternal grandmother accompanied the c h i l d on the r e t u r n t r i p t o Los Angeles and s p e n t about three days i n the mother's apartment. During t h a t v i s i t she observed the deprived conditions under which her daughter and grand- daughter l i v e d . She a l s o observed t h e f a t h e r i n the company of the mother and Bridges and noticed t h a t t h e f a t h e r ap- peared f r i e n d l y toward Bridges. The c h i l d remained i n t h e mother's custody f o r the next s e v e r a l months, b u t her p a t e r n a l grandmother continued to c a r e f o r her on weekends. The grandmother t e s t i f i e d t h a t t h e c h i l d again complained of abuse by Bridges and t h a t she k e p t the c h i l d a s much as p o s s i b l e t o keep her away from Bridges. I n May 1975 t h e p a t e r n a l grandmother, who had remar- r i e d , prepared t o move t o Oregon with her husband. O n May 1 2 , s h o r t l y a f t e r she had l e f t t h e c h i l d with her mother i n Venice, she received a call from t h e mother who t o l d her t o come back and g e t t h e c h i l d "before [Bridges] k i l l s her." When she a r r i v e d back a t the mother's apartment, the c h i l d ' s c l o t h i n g w a s a l l i n the hallway, and t h e mother t o l d the grandmother, " t a k e her, she c a n ' t l i v e with m e . She c a n ' t l i v e with [Bridges] and I any more." I t appeared to t h e grandmother t h a t Bridges had learned t h a t the c h i l d had t o l d about h i s abuse of her. She a l s o t e s t i f i e d t h a t t h e mother r e f e r r e d t o her c h i l d a s a l i a r . The grandmother and her husband kept the c h i l d f o r the next month as they prepared f o r an extended tour through the western s t a t e s and Canada. They a r r i v e d a t the residence of t h e c h i l d ' s a u n t and uncle i n Pondera County, Montana, on June 15, 1975, and t h e r e shared the f u l l s t o r y of the c h i l d ' s l i f e with her mother and Bridges. The c h i l d ' s a u n t testi- f i e d that when she and her husband heard t h e grandmother's s t o r y they were h o r r i f i e d and agreed with her t h a t t h e c h i l d should n o t go back t o her mother. The a u n t and uncle contacted t h e w i f e ' s cousin, an a t t o r n e y i n G r e a t F a l l s , Montana, who agreed t o come t o t h e i r ranch t o t a l k t h e s i t u a t i o n over. A t t h e a t t o r n e y ' s r e q u e s t , t h e grandmother prepared a letter d e t a i l i n g a l l she knew of t h e c h i l d ' s s i t u a t i o n , c l o s i n g w i t h a p l e a t h a t someone would h e l p h e r son, t h e f a t h e r , g a i n custody o f t h e c h i l d . The a t t o r n e y then telephoned t h e f a t h e r i n C a l i f o r n i a who t o l d him t h a t he was t o m e e t with Kessler i n Los Angeles t h e n e x t day. According t o an a f f i d a v i t prepared by t h e a t t o r n e y , he t o l d t h e f a t h e r t h a t t h e c h i l d ' s a u n t and uncle w e r e considering f i l i n g f o r custody. On t h e following day t h e grandmother and her husband l e f t f o r Canada, leaving t h e c h i l d ' s c l o t h i n g , medical records, and b i r t h c e r t i f i c a t e w i t h h e r a u n t and uncle. The grandmother t e s t i f i e d t h a t she understood t h e c h i l d would be r e t u r n e d t o her i n Oregon a f t e r she g o t home from Canada. That same day t h e Great F a l l s a t t o r n e y telephoned Kessler i n Los Angeles and discussed t h e a u n t and u n c l e ' s d e s i r e t o keep t h e c h i l d away from h e r mother, and t h e i r doubts con- cerning t h e f a t h e r ' s w i l l i n g n e s s o r a b i l i t y t o care f o r t h e c h i l d . H e learned from Kessler t h a t t h e f a t h e r had n o t y e t f i l e d f o r t h e c h i l d ' s custody and s t a t e d t h a t Kessler t o l d him t h a t t h e f a t h e r was n o t a b l e t o make up h i s mind about whether t o seek custody. The n e x t day, June 18, t h e Great F a l l s a t t o r n e y again c a l l e d K e s s l e r t o inform him t h a t t h e a u n t and uncle had decided t o seek permanent custody and t h a t a complaint would be f i l e d i n Pondera County on June 20, when t h e c h i l d ' s maternal grandparents could come from B i l l i n g s , Montana, t o s i g n it. H e f u r t h e r informed Kessler t h a t t h e a u n t and uncle would have a temporary custody and r e s t r a i n i n g o r d e r i s s u e d t o them a t t h a t same t i m e . The o r d e r g r a n t i n g t e m - porary custody t o t h e a u n t and u n c l e was signed on June 19, 1975. On June 19, 1975, t h e f a t h e r , having been informed t h a t a n a c t i o n was a b o u t t o be f i l e d i n Montana, f i l e d a s e p a r a t e a c t i o n i n Los Angeles County t o have custody changed t o himself, a l l e g i n g t h a t t h e mother was u n f i t because s h e had permitted t h e c h i l d t o be abused. H e subsequently obtained a s t i p u l a t i o n from t h e mother agreeing t o a change of cus- tody and on J u l y 7 t h e Los Angeles County Superior Court g r a n t e d custody t o t h e f a t h e r . On June 24, 1975, t h e grandmother, f a t h e r , and a f r i e n d of t h e f a t h e r ' s appeared a t t h e a u n t and u n c l e ' s ranch i n Pondera County and took t h e c h i l d away, i n t e n d i n g t o f l y her back t o C a l i f o r n i a . With t h e a s s i s t a n c e of t h e s h e r i f f , however, t h e a u n t and uncle recovered t h e c h i l d t h a t same evening. Two y e a r s later, i n August 1977, t h e Pondera County D i s t r i c t Court, s i t t i n g without a jury, i n G r e a t F a l l s , heard o r a l and d e p o s i t i o n testimony from t h e p a r t i e s named i n t h e a u n t and u n c l e ' s custody p e t i t i o n . Both t h e f a t h e r and p a t e r n a l grandmother appeared and t e s t i f i e d , b u t t h e c h i l d ' s mother d i d n o t appear. A t t h e recommendation of a G r e a t F a l l s c l i n i c a l psychologist, t h e D i s t r i c t Court d i d n o t a s k t h e c h i l d whether she wanted t o s t a y w i t h h e r a u n t and uncle o r r e t u r n t o h e r f a t h e r . H e r i n t e r e s t s i n t h e c a s e w e r e represented, however, by t h e Cascade County a t t o r n e y . Following t h e hearing t h e D i s t r i c t Court r u l e d t h a t t h e n a t u r a l p a r e n t s had abused and abandoned t h e i r c h i l d , ordered t h e termination of p a r e n t a l r i g h t s of both n a t u r a l p a r e n t s and awarded f u l l custody of t h e c h i l d t o h e r a u n t and uncle. I t a l s o appointed t h e a u n t and uncle g e n e r a l guardians f o r t h e c h i l d f o r t h e d u r a t i o n of h e r minority. The s p e c i f i c conclusions upon which t h e c o u r t r e l i e d i n e n t e r i n g i t s o r d e r s w e r e t h a t t h e conduct of t h e n a t u r a l p a r e n t s c o n s t i t u t e d abuse and abandonment of t h e i r minor c h i l d , and t h a t t h i s conduct rendered them " u n f i t t o have o r regain" t h e " c a r e , custody, and c o n t r o l " of her. F u r t h e r t h e c o u r t concluded 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 r e q u i r e d t h a t she be " f r e e from t h e dominion" of h e r p a r e n t s and placed i n t h e f u l l and complete c a r e of h e r a u n t and uncle. The D i s t r i c t Court made lengthy and d e t a i l e d f i n d i n g s concerning t h e circumstances under which t h e c h i l d had been r a i s e d during her f i r s t f i v e years. I n p a r t i c u l a r , t h e s e f i n d i n g s focus on t h e a c t i v i t i e s of t h e f a t h e r during t h e t i m e h i s daughter l i v e d i n Los Angeles County. These find- i n g s show t h a t t h e f a t h e r had n o t sought custody when h i s marriage was d i s s o l v e d d e s p i t e h i s knowledge of h i s w i f e ' s r e l a t i o n s h i p w i t h Bridges, of h i s w i f e ' s and Bridges' use of drugs, and of h i s w i f e ' s apparent mental i l l n e s s . They show t h a t t h e f a t h e r g r o s s l y misrepresented h i s a s s e t s a t t h e t i m e of t h e d i s s o l u t i o n by d e c l a r i n g t h a t property which he owned by i n h e r i t a n c e was worth $1000, when i n f a c t it had been appraised a t $54,400 t e n y e a r s e a r l i e r (and which he s o l d f o r $lO8,000 i n 1973); t h a t t h e C a l i f o r n i a Superior Court ordered t h e f a t h e r t o pay h i s w i f e $ 2 5 per week i n c h i l d support, b u t t h a t he i n f a c t paid only $30 f o r t h e support of h i s daughter from J u l y 1, 1971 t o January 1973, a t which t i m e he was ordered t o appear i n response t o a contempt c i t a t i o n i s s u e d by t h e Los Angeles County s u p e r i o r Court; t h a t t h e f a t h e r h i r e d counsel t o r e p r e s e n t him a t t h e contempt hearing and obtained a reduction of h i s support o b l i g a t i o n t o $66 per month, commencing December 1, 1973, while i n t h e meantime he had sold h i s i n h e r i t e d property, and a f t e r d i s t r i b u t i o n s t o o t h e r h e i r s received $99,400 i n cash on August 30, 1973; t h a t t h e f a t h e r continued t o ne- g l e c t h i s reduced support o b l i g a t i o n and was again c i t e d f o r contempt and ordered t o appear i n February 1975; t h a t t h e f a t h e r meanwhile purchased a home f o r $38,000 and remodeled it, and d i d " l i t t l e i n t h e way of s e r i o u s employment" de- s p i t e t h e f a c t t h a t he declared himself t o be a musician and photographer; t h a t h i s a c t u a l annual income, except f o r t h e year i n which he s o l d h i s i n h e r i t e d land, has never exceeded $4,000; t h a t t h e f a t h e r knew a s e a r l y a s February 1974 t h a t h i s daughter had reported t o her grandmother t h a t she had been sexually molested by Bridges, t h a t she had observed her mother and Bridges being i n j e c t e d with hypodermic needles, t h a t she w a s l i v i n g i n f i l t h y conditions, b u t t h a t d e s p i t e t h i s knowledge he f a i l e d t o e i t h e r pay h i s "minimal" support o b l i g a t i o n o r t o commence proceedings t o r e g a i n custody; t h a t it i s i n c r e d i b l e t h a t t h e f a t h e r would doubt h i s daugh- ter's t r u t h f u l n e s s when she "described i n d e t a i l " t h e un- n a t u r a l sexual a c t s which she had been compelled t o endure; t h a t t h e f a t h e r f a i l e d t o commence any proceedings on behalf of h i s daughter u n t i l she was o u t s i d e of C a l i f o r n i a , and then only a f t e r he had been informed t h a t t h e aunt and uncle intended t o commence such an a c t i o n ; t h a t t h e evidence showed t h a t the f a t h e r had talked t o two lawyers about t h e p o s s i b i l i t y of gaining custody of t h e c h i l d , b u t t h a t he had n o t made up h i s mind t o do s o u n t i l informed of t h e Montana a c t i o n ; and f i n a l l y , t h a t when he d i d a t l a s t commence an a c t i o n , he r e l i e d e n t i r e l y upon evidence of sexual molesta- t i o n of which he had known f o r a t least s i x t e e n months. On t h e o t h e r hand, t h e c o u r t r e l i e d upon t h e testimony of t h e psychologist and o t h e r s i n f i n d i n g t h a t during t h e two y e a r s p r i o r t o t r i a l , t h e c h i l d had l i v e d with h e r a u n t and uncle and had become w e l l a d j u s t e d t o h e r circumstances and t h a t her c o n d i t i o n had changed from a nervous, hyper- a c t i v e and anxious c h i l d t o a secure and comfortable c h i l d . I t found s p e c i f i c a l l y t h a t t h e a u n t and u n c l e are f i t and proper persons t o be awarded custody. F i n a l l y t h e c o u r t found t h a t t h e n a t u r a l f a t h e r had never had a " v i a b l e parent-child r e l a t i o n s h i p " w i t h h i s daughter. Three p r i n c i p l e m a t t e r s must be decided on t h i s appeal: 1. Did t h e Montana D i s t r i c t Court have j u r i s d i c t i o n t o modify an e x t a n t C a l i f o r n i a decree? 2. Did t h e evidence presented t o t h e D i s t r i c t Court s u p p o r t i t s determination t h a t t h e c h i l d w a s abused and abandoned by both p a r e n t s ? 3 . Did t h e District Court have j u r i s d i c t i o n t o name t h e c h i l d ' s a u n t and uncle g e n e r a l guardians of t h e c h i l d ? The f i r s t i s s u e is t e c h n i c a l l y complex. I t involves t h e e f f e c t of p l a i n t i f f s ' f a i l u r e t o o b t a i n p e r s o n a l s e r v i c e of process on t h e f a t h e r ; t h e e f f e c t of t h e f a t h e r ' s appear- ance i n t h e Montana proceeding; t h e e f f e c t of t h e - ex p a r t e proceeding by which t h e f a t h e r obtained a m o d i f i c a t i o n of custody i n t h e C a l i f o r n i a Superior Court; t h e e f f e c t of Montana's enactment of t h e Uniform Child Custody J u r i s d i c - t i o n A c t during t h e pendency of t h e s e proceedings; and f i n a l l y , t h e e f f e c t of t h e f u l l f a i t h and c r e d i t c l a u s e of t h e United S t a t e s C o n s t i t u t i o n . W e hold t h a t t h e ~ i s t r i c t Court had j u r i s d i c t i o n t o modify t h e ~ a l i f o r n i a decree. Personal J u r i s d i c t i o n Over t h e Father. -- The D i s t r i c t Court, on J u l y 1, 1975, obtained p e r s o n a l j u r i s d i c t i o n over t h e mother and Bridges by personal s e r v i c e of process i n C a l i f o r n i a . E f f o r t s by t h e Los Angeles County s h e r i f f ' s department t o s e r v e process on t h e f a t h e r w e r e unsuccessful. Thus, t h e f a t h e r contends t h a t he was n o t s u b j e c t t o t h e D i s t r i c t C o u r t ' s j u r i s d i c t i o n . H e contends f u r t h e r t h a t h i s appearance a t t h e hearing on p l a i n t i f f s ' p e t i t i o n d i d n o t s e r v e t o confer t h e c o u r t w i t h i n personam - j u r i s d i c t i o n over him. Montana's Rule 4B(2), M.R.Civ.P., which has no counter- p a r t i n t h e f e d e r a l r u l e s of c i v i l procedure provides t h a t a c o u r t o b t a i n s - i n personam j u r i s d i c t i o n over a person when t h a t person v o l u n t a r i l y appears: " J u r i s d i c t i o n may be acquired by o u r c o u r t s over any person through s e r v i c e of process a s h e r e i n provided; o r & t h e voluntary appearance -- i n a n a c t i o n any person e i t h e r p e r s o n a l l y , o r through an a t t o r n e y , o r through any o t h e r au- t h o r i z e d o f f i c e r , a g e n t o r employee." (Emphasis added. ) A d d i t i o n a l l y , c o u r t s and commentators are q u i t e w i l l i n g t o d i s t i n g u i s h c h i l d custody c a s e s i n which c o u r t s a c t a s a r b i t e r s between d i s p u t i n g p a r e n t s from dependent and n e g l e c t and abuse cases when t h e c o u r t s t a n d s as parens p a t r i a e seeking t o a s s i s t t h e w e l f a r e of t h e abused, abandoned, o r neglected c h i l d . H. Clark, -- Law of Domestic R e l a t i o n s , 818.2 a t 610-11 (1968); Hazard, May v. Anderson: Preamble t o Family Law Chaos, 45 Va.L.Rev. 379, 398, 404 (1959); C u r r i e , J u s t i c e Traynor and t h e C o n f l i c t of Laws, 1 3 Stan.L.Rev. 719, 768 (1961). A s d e c l a r e d by t h e Arizona Court of Appeals i n a r e c e n t termination of p a r e n t a l r i g h t s d e c i s i o n : ". . .when t h e i s s u e i s p r i m a r i l y between t h e s t a t e i n its p a r e n s p a t r i a e c a p a c i t y and an ab- s e n t non-consenting spouse, t h e state i s j u s t i - f i e d i n providing f o r e f f e c t i v e termination proceedings, even i n t h e absence of i n personam j u r i s d i c t i o n over a non-consenting gent." I n R e Appeal i n Maricopa County, J u v e n i l e Action No. JS-734 (1975), 25 Ariz. App. 333, 543 P.2d 454, 459. I n l i g h t of t h e weight of a u t h o r i t y , w e must a g r e e t h a t p e r s o n a l j u r i s d i c t i o n over a p a r e n t is n o t necessary t o t h e termination of h i s p a r e n t a l r i g h t s t o a minor c h i l d , s o long a s t h e p a r e n t has a c t u a l n o t i c e of t h e termination pro- ceedings o r t h e District Court, under Rule 4 D , M.R.Civ.P., makes a n e f f o r t reasonably c a l c u l a t e d t o provide n o t i c e t o t h e p a r e n t . See, Commissioners' Note, Uniform Child Custody J u r i s d i c t i o n A c t , S e c t i o n 13, 9 Uniform Laws Annot. 121 (1973) ("Personal j u r i s d i c t i o n over t h e f a t h e r i s n o t re- q u i r e d . . . The A c t emphasizes t h e need f o r t h e p e r s o n a l appearance of t h e c o n t e s t a n t s r a t h e r than any t e c h n i c a l requirement f o r personal j u r i s d i c t i o n . " ) ; Armstrong v . Manzo (1965), 380 U.S. 545, 549-50, 85 S.Ct. 1187, 1190-91, 1 4 L.Ed.2d 62, 65-66; Restatement (Second) of C o n f l i c t of Laws S69 (1971). I n t h e c a s e of o u t - o f - s t a t e p a r e n t s , see Sec- t i o n 5 of t h e Uniform Child Custody J u r i s d i c t i o n A c t , sec- t i o n 40-7-106 MCA. S u b j e c t Matter J u r i s d i c t i o n . The f a t h e r ' s second j u r i s d i c t i o n a l c o n t e n t i o n i s t h a t under t h e Uniform Child Custody J u r i s d i c t i o n Act (UCCJA), s e c t i o n s 61-401 t o -425, R.C.M. 1947, now s e c t i o n s 40-7-101 t o -125 MCA, t h e C a l i f o r n i a c o u r t , r a t h e r than t h e Montana c o u r t , had j u r i s d i c t i o n t o determine t h e custody of h i s c h i l d . To consider t h i s argument, it i s necessary t o ex- amine t h e e f f e c t of t h e enactment of t h e UCCJA following t h e commencement of t h e a u n t and u n c l e ' s a c t i o n under s e c t i o n 61-111, R.C.M. 1947, now s e c t i o n 40-6-233 MCA, t o terminate t h e p a r e n t a l r i g h t s of t h e n a t u r a l p a r e n t s . This a c t i o n was commenced on June 19, 1975, more than two y e a r s before t h e J u l y 1, 1977, e f f e c t i v e d a t e of t h e UCCJA. The f a t h e r contends t h a t t h e A c t must c o n t r o l t h e District Court' s j u r i s d i c t i o n d e s p i t e i t s l a t e r enactment, w h i l e t h e a u n t and u n c l e c i t i n g s e c t i o n 12-201, R.C.M. 1947, now s e c t i o n 1-2-109 MCA, argue t h a t t h e A c t cannot be r e t r o - a c t i v e l y a p p l i e d because it i s s u b s t a n t i v e and does n o t , by i t s express terms, apply t o a c t i o n s which had a l r e a d y been commenced. A n e a r l y i d e n t i c a l s i t u a t i o n was r e c e n t l y considered i n a New York UCCJA case, Pitrowski v. Pitrowski (1979), 412 N.Y.S.2d 316. The c o u r t described t h e changes set f o r t h i n i t s newly adopted UCCJA a s procedural and acknowledged t h e g e n e r a l r u l e t h a t such s t a t u t e s a r e t o r e c e i v e r e t r o a c t i v e a p p l i c a t i o n t o a c t i o n s commenced p r i o r t o t h e e f f e c t i v e d a t e of t h e s t a t u t e . I t reasoned, however, t h a t " d i f f e r e n t c o n s i d e r a t i o n s arise" i f t h e q u e s t i o n i s whether t h e pro- c e d u r a l changes embodied i n t h e s t a t u t e a r e t o be a p p l i e d t o a c t i o n s previously taken i n t h e pending proceeding. The c o u r t held t h a t i n t h e absence of a c l e a r l e g i s l a t i v e i n - t e n t , t h e pre-UCCJA j u r i s d i c t i o n a l s t a n d a r d s would apply t o t h e c o u r t ' s p r e e f f e c t i v e d a t e j u r i s d i c t i o n a l r u l i n g s : " ' I n o t h e r words, while procedural changes a r e , i n t h e absence of words of exclusion, deemed - - a p p l i c a b l e t o "subsequent proceedings i n pend- i n q a c t i o n s " [ c i t a t i o n o m i t t e d ] , it t a k e s a " c l e a r expression . . . of t h e l e g i s l a t i v e pur- pose t o j u s t i f y " a r e t r o s p e c t i v e a p p l i c a t i o n of even a procedural s t a t u t e s o as t o a f f e c t pro- ceedings previously taken i n such a c t i o n s . [ C i t a t i o n s omitted.] '" 412 N.Y.S. 2d a t 320, (quoting Simonson v . I n t e r n a t i o n a l Bank (1964) , 1 4 N.Y.2d 281, 289-90, 200 N.E.2d 427, 432, 241 N.Y.S.2d 433, 440.) (Emphasis i n o r i g i n a l . ) Applying t h i s p r i n c i p l e t o t h e p r e s e n t c a s e , t h e j u r i s - d i c t i o n a l r u l i n g s which t h e D i s t r i c t Court e n t e r e d p r i o r t o J u l y 1, 1977, a r e n o t s u b j e c t t o t h e UCCJA. The r e q u i r e - ments of t h e A c t , however, a r e a p p l i c a b l e t o subsequent j u r i s d i c t i o n a l determinations including t h e District C o u r t ' s u l t i m a t e determination t h a t it had j u r i s d i c t i o n t o modify t h e C a l i f o r n i a custody decree. While t h e D i s t r i c t Court was n o t , a s of t h e commence- ment of t h i s proceeding, bound by t h e j u r i s d i c t i o n a l r e q u i r e - ments of t h e UCCJA, it i s nonetheless prudent t o i n q u i r e whether t h e f a c t s which e x i s t e d on June 19, 1975, would have permitted t h e District Court t o t a k e j u r i s d i c t i o n of t h e c a s e had t h e Act been e f f e c t i v e on t h a t d a t e . I f t h e f a c t s as of t h a t d a t e would n o t have j u s t i f i e d t h e assumption o f j u r i s d i c t i o n , t h e c o u r t ' s u l t i m a t e custody o r d e r i s n o t e n t i t l e d t o r e c o g n i t i o n and enforcement by o t h e r UCCJA s t a t e s under S e c t i o n 1 3 of t h e A c t , s e c t i o n 40-7-114 MCA. I n t h e p r e s e n t c a s e , f a c t s meeting t h e j u r i s d i c t i o n a l s t a n - dards of t h e Act d i d e x i s t on t h e d a t e t h e a c t i o n was f i l e d . The UCCJA a t t e m p t s t o avoid p r o t r a c t e d i n t e r s t a t e c h i l d custody l i t i g a t i o n by reducing competition among c o u r t s which might otherwise i s s u e c o n f l i c t i n g custody o r d e r s : "The Act i s designed t o b r i n g some semblance of o r d e r i n t o t h e e x i s t i n g chaos. It l i m i t s custody j u r i s d i c t i o n t o t h e s t a t e where t h e c h i l d has h i s home o r where t h e r e are o t h e r s t r o n g c o n t a c t s w i t h t h e c h i l d and h i s family. See S e c t i o n 3. I t pro- v i d e s f o r t h e r e c o g n i t i o n and enforcement of out- o f - s t a t e custody d e c r e e s i n many i n s t a n c e s . See S e c t i o n s 13 and 15. J u r i s d i c t i o n t o modify de- crees of o t h e r s t a t e s i s l i m i t e d by g i v i n g a j u r i s d i c t i o n a l p r e f e r e n c e t o t h e p r i o r c o u r t under c e r t a i n conditions. See S e c t i o n 14. A c c e s s t o a c o u r t may b e denied t o p e t i t i o n e r s who have en- gaged i n c h i l d snatching o r s i m i l a r p r a c t i c e s . See S e c t i o n 8. Also, t h e A c t opens up d i r e c t l i n e s of communication between c o u r t s of d i f f e r e n t s t a t e s t o prevent j u r i s d i c t i o n a l c o n f l i c t and b r i n g about i n t e r s t a t e j u d i c i a l a s s i s t a n c e i n custody cases." Commissioners' P r e f a t o r y Note, Uniform Child Custody J u r i s d i c t i o n A c t , 9 U.L.A. 101 (1973). See a l s o , Bodenheimer, Progress Under t h e Unif o m Child Custody J u r i s d i c t i o n A c t and Remaining Problems: P u n i t i v e Decrees, J o i n t Custody, and Excessive Modifications, 65 Cal.L.Rev. 978, 982-83 (1977). The A c t e s t a b l i s h e s a two-tiered j u r i s d i c t i o n a l test which a c o u r t must f i n d s a t i s f i e d b e f o r e it makes even an i n i t i a l custody decree, and a f u r t h e r j u r i s d i c t i o n a l test which l i m i t s a c o u r t ' s power t o modify an out-of-state decree. I t is t h e two-tier test t h a t must f i r s t be examined. See, Note, 60 Minn.L.Rev. 820, 827-30 (1976). The g e n e r a l j u r i s d i c t i o n a l p r o v i s i o n s of t h e UCCJA a r e found i n s e c t i o n 40-7-104 MCA, i n c o r p o r a t i n g by r e f e r e n c e s e c t i o n 40-4-211 MCA. This s e c t i o n d e t a i l s f o u r s e p a r a t e bases of j u r i s d i c t i o n . The f i r s t i s i f t h i s s t a t e i s t h e c h i l d ' s home state o r has been t h e home state w i t h i n t h e s i x months p r i o r t o t h e commencement of t h e custody proceeding. S e c t i o n 40-4-211 (1) ( a ) MCA. "Home s t a t e " i s defined a s t h e state i n which t h e c h i l d has l i v e d with a p a r e n t o r p a r e n t s o r someone a c t i n g i n t h e c a p a c i t y of a p a r e n t f o r a t l e a s t s i x months. S e c t i o n 40-7-103(5) MCA. Second, a c o u r t may have j u r i s d i c t i o n i f it 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 o do s o because t h e c h i l d and one o r both of h i s p a r e n t s ( o r c o n t e s t a n t s ) has a s i g n i f i c a n t connection w i t h t h i s s t a t e and because s u b s t a n t i a l evidence concerning t h e c h i l d ' s c a r e , p r o t e c t i o n , t r a i n i n g , and personal r e l a t i o n - s h i p s i s a v a i l a b l e here. Section 40-4-211(1)(b) MCA. Third, i f t h e c h i l d i s p r e s e n t i n t h i s state and has been abandoned o r r e q u i r e s emergency p r o t e c t i o n because he has been threatened with mistreatment o r abuse o r i s neglected o r dependent, t h e c o u r t may t a k e j u r i s d i c t i o n under t h e o r d i n a r y parens p a t r i a e power. Section 40-4-211(1)(c) MCA. Fourth, a c o u r t is empowered t o t a k e j u r i s d i c t i o n i f no o t h e r state has j u r i s d i c t i o n under t h e f i r s t t h r e e grounds o r another state has refused j u r i s d i c t i o n and i f it i s 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 t h a t t h e c o u r t do so. Sec- t i o n 40-4-211(1) (d) MCA. The f a c t s of t h i s c a s e i n d i c a t e t h a t t h e c h i l d had been l e f t i n Montana because i n May and June of 1975 she w a s n o t wanted by e i t h e r of her parents. H e r mother had e x p l i c i t l y r e j e c t e d h e r and h e r f a t h e r , though p r o f e s s i n g a d e s i r e f o r h e r presence and company, had permitted h e r t o be l e f t with h i s former w i f e ' s r e l a t i v e s more than 1000 m i l e s away. H e had taken no a c t i o n t o g a i n h i s d a u g h t e r ' s custody even a f t e r h i s former w i f e had made it c l e a r t h a t t h e c h i l d could n o t l i v e with h e r and was i n physical danger from h e r boy- f r i e n d . S e c t i o n 40-4-211 (1) (c) MCA provides: "A c o u r t of t h i s state competent t o decide c h i l d custody m a t t e r s has j u r i s d i c t i o n t o make a c h i l d custody determination by i n i t i a l o r modification decree i f : " ( c ) t h e c h i l d i s p h y s i c a l l y p r e s e n t i n t h i s state and: " (i) has been abandoned; o r " (ii) it i s necessary i n an emergency t o pro- tect him because he has been subjected t o o r threatened with mistreatment o r abuse o r i s neglected o r dependent." The Commissioners' Note t o t h i s s e c t i o n d e s c r i b e s it a s a r e t e n t i o n and r e a f f i r m a t i o n of parens p a t r i a e j u r i s d i c t i o n b u t c a u t i o n s t h a t it i s t o be used only i n "extraordinary circumstances." 9 Uniform Laws Annotated 108 (1973). See a l s o , I r e n e R. v. Inez H. (1978), 410 N.Y.S.2d 53, 55; Bodenheimer, supra, 65 Cal.L.Rev. a t 992-951; F o s t e r and Freed, Child Snatching and Custodial F i g h t s : The Case f o r t h e uniform Child Custody J u r i s d i c t i o n A c t , 28 Hastings L.J. 1011, 1020-21 (1977). I n view of t h e circumstances a t t e n d - i n g t h e c h i l d ' s presence i n Montana i n June 1975, w e con- c l u d e t h a t t h e D i s t r i c t Court w a s j u s t i f i e d i n a c c e p t i n g j u r i s d i c t i o n . The f a c t s a t t h a t t i m e m e t t h e j u r i s d i c t i o n a l standards of s e c t i o n 40-4-211(1) (c) MCA, because t h e c h i l d w a s p r e s e n t i n Montana, had been abandoned by both o f h e r n a t u r a l p a r e n t s and had been subjected t o and threatened w i t h f u r t h e r mistreatment and abuse. The second tier of t h e i n i t i a l j u r i s d i c t i o n a l test i s found i n s e c t i o n 40-7-108 MCA, a complex s e c t i o n d e s c r i b i n g inconvenient forum c o n s i d e r a t i o n s . This s e c t i o n a u t h o r i z e s a D i s t r i c t Court t o " d e c l i n e t o e x e r c i s e i t s j u r i s d i c t i o n " any t i m e before e n t r y of a decree i f it f i n d s t h a t it i s a n "inconvenient forum" and t h a t a c o u r t of another s t a t e i s a "more a p p r o p r i a t e forum." The s e c t i o n d e s c r i b e s s e v e r a l c r i t e r i a by which a District Court may c o n s i d e r whether it i s a n inconvenient forum, b u t does n o t c r e a t e a mandatory duty on t h e c o u r t t o d i s m i s s t h e a c t i o n upon such grounds. The s e c t i o n i s e n t i r e l y d i s c r e t i o n a r y . Thus, while t h e f a t h e r contends t h a t t h e Montana c o u r t w a s a n inconvenient forum under t h e c r i t e r i a of S e c t i o n 7 ( c ) , s e c t i o n 40-7- 108(3) MCA, t h e a c t s p e c i f i c a l l y l e a v e s t h e inconvenient forum determination w i t h i n t h e f u l l d i s c r e t i o n of t h e t r i a l c o u r t . W e f i n d no abuse of t h e t r i a l c o u r t ' s d i s c r e t i o n . J u r i s d i c t i o n - t o Modify t h e C a l i f o r n i a Decree. A second l i m i t a t i o n on t h e D i s t r i c t C o u r t ' s j u r i s d i c - t i o n a r i s e s when a d e c r e e of another s t a t e i s a l r e a d y i n f o r c e . I n t h e p r e s e n t c a s e , t h e C a l i f o r n i a Superior Court had f i r s t granted custody t o t h e c h i l d ' s mother. Then, by a m o d i f i c a t i o n decree dated J u l y 7, 1975, g r a n t e d custody t o t h e f a t h e r . The f a t h e r argues t h a t t h e UCCJA and t h e f u l l f a i t h and c r e d i t c l a u s e p r o h i b i t a m o d i f i c a t i o n of t h e decree by t h e Montana c o u r t . The United S t a t e s Supreme Court has n o t r u l e d e x p l i - c i t l y whether t h e f u l l f a i t h and c r e d i t c l a u s e a p p l i e s t o custody decrees. P a s t d e c i s i o n s of t h i s Court, however, have t r e a t e d t h e c l a u s e as a l i m i t a t i o n on a Montana c o u r t ' s j u r i s d i c t i o n t o modify custody determinations made by o t h e r s t a t e s . C a r r o l l v. White (1968), 151 Mont. 332, 443 P.2d 13. While t h e United S t a t e s Supreme Court has n o t speci- f i c a l l y held whether t h e c l a u s e i s a p p l i e d i n - any custody c a s e s , it has r e f u s e d t o apply it t o p a r t i c u l a r c a s e s i n which t h e procedure i n a state c o u r t was n o t considered adequate. Of p a r t i c u l a r relevance i s Ford v. Ford (1962) , 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240. I n Ford a ~ i r - g i n i a c o u r t awarded custody of c h i l d r e n t o t h e i r mother. Some months l a t e r t h e f a t h e r p e t i t i o n e d t h e same c o u r t f o r a modification of t h e decree, b u t b e f o r e t h e c o u r t e n t e r e d judgment on h i s p e t i t i o n , t h e p a r t i e s agreed t o a modifica- t i o n and s o n o t i f i e d t h e c o u r t , which dismissed t h e p e t i - t i o n . Subsequently, t h e mother moved t o South ~ a r o l i n a and p e t i t i o n e d a c o u r t of t h a t s t a t e t o r e g a i n custody of t h e p a r t i e s ' c h i l d r e n . The f a t h e r defended h i s custody on t h e b a s i s of t h e agreement and t h e V i r g i n i a c o u r t ' s d i s m i s s a l i n response t o t h a t agreement. The United S t a t e s Supreme Court h e l d t h a t t h e South Carolina c o u r t s w e r e n o t bound by t h e dismissal of t h e V i r g i n i a p e t i t i o n f o r modification. I n s o r u l i n g , t h e Court c i t e d s e v e r a l c o n s i d e r a t i o n s which a r e r e l e v a n t here: "The Virginia c o u r t held no hearings a s t o the custody of t h e children. I n entering i t s order of dismissal, t h e c o u r t n e i t h e r examined the t e r m s of t h e parents' agreement nor exercised i t s own judgment of what was b e s t f o r t h e c h i l - dren. The c o u r t ' s order meant no more than t h a t t h e parents had made an agreement between themselves. . . ". . . w e do n o t believe t h a t , i n view of V i r - g i n i a ' s strong policy of safeguarding t h e w e l - f a r e of t h e c h i l d , a c o u r t of t h a t S t a t e would consider i t s e l f bound by a mere order of dis- missal where, as here, t h e t r i a l judge never even s a w , much less passed upon, t h e parents' p r i v a t e agreement f o r custody and heard no testimony whatever upon which t o base a judg- ment as t o what would be b e s t f o r t h e children." 371 U.S. a t 193-94, 9 L.Ed.2d a t 244-45, 8 3 S.Ct. a t 276-77. These same considerations a r e applicable here. While t h e Los Angeles County Superior Court a t l e a s t appears t o have viewed t h e substance of the s t i p u l a t i o n between t h e n a t u r a l parents, it i s a matter of record t h a t no hearing was held, the c o u r t heard no testimony regarding what would be b e s t f o r the c h i l d , and therefore could not have exer- c i s e d i t s own judgment of what was "best" f o r t h e c h i l d . Thus, because these w e r e precisely t h e i s s u e s which t h e Montana c o u r t heard and decided, it i s no more bound t o follow t h e C a l i f o r n i a c o u r t ' s decree than w a s t h e South Carolina c o u r t bound t o follow t h e Virginia order i n Ford. Similarly, w e conclude t h a t t h e Montana c o u r t was not prevented from modifying t h e California decree by t h e UCCJA. A c e n t r a l purpose of the Act i s t o reduce i n t e r s t a t e compe- t i t i o n for a c h i l d ' s custody by requiring recognition and enforcement of one state's decrees by t h e courts of other s t a t e s . However, before t h e recognition and enforcement provisions of the A c t 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 require- ments. S e c t i o n 13 of t h e UCCJA, s e c t i o n 40-7-114 MCA, provides f o r t h e r e c o g n i t i o n and enforcement of o u t - o f - s t a t e custody d e c r e e s : "The c o u r t s of t h i s s t a t e s h a l l recognize and en- f o r c e a n i n i t i a l o r modification d e c r e e of a c o u r t of another s t a t e which had assumed j u r i s - d i c t i o n under s t a t u t o r y p r o v i s i o n s s u b s t a n t i a l l y i n accordance w i t h t h i s c h a p t e r o r which was made under f a c t u a l circumstances meeting t h e j u r i s - d i c t i o n a l standards of t h e c h a p t e r , s o long as t h i s decree has n o t been modified i n accordance w i t h j u r i s d i c t i o n a l standards s u b s t a n t i a l l y s i m i - l a r t o t h o s e of t h i s c h a p t e r . " S e c t i o n 1 4 of t h e A c t , s e c t i o n 40-7-115 MCA, l i m i t s a D i s t r i c t C o u r t ' s j u r i s d i c t i o n t o modify t h e d e c r e e s of another state: "(1) I f a c o u r t of another s t a t e has made a custody decree, a c o u r t of t h i s state may n o t modify t h a t decree u n l e s s it appears t o t h e c o u r t of t h i s s t a t e t h a t t h e c o u r t which ren- dered t h e d e c r e e does n o t now 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 w i t h t h i s c h a p t e r o r has d e c l i n e d t o assume j u r i s d i c t i o n t o modify t h e d e c r e e and t h e c o u r t of t h i s s t a t e has j u r i s d i c t i o n . " (2) I f a c o u r t of t h i s s t a t e is a u t h o r i z e d under subsection (1) and 40-7-109 t o modify a custody decree of another s t a t e , it s h a l l g i v e due con- s i d e r a t i o n t o t h e t r a n s c r i p t of t h e r e c o r d and o t h e r documents of a l l previous proceedings sub- m i t t e d t o it i n accordance w i t h 40-7-123." The d i f f i c u l t y w i t h t h e a p p l i c a t i o n of t h e s e p r o v i s i o n s t o t h e p r e s e n t m a t t e r a r i s e s from t h e f a i l u r e of t h e Cali- f o r n i a Superior Court t o comply w i t h t h e n o t i c e p r o v i s i o n s of S e c t i o n s 4 and 5 of t h e A c t , s e c t i o n s 40-7-105 and -106 MCA. See Cal.Civ.Code s e c t i o n s 5153, 5154. S e c t i o n 40-7- 105 MCA provides f o r n o t i c e t o , among o t h e r s , "any person who has p h y s i c a l custody of t h e c h i l d " : "Before making a decree under t h i s c h a p t e r , rea- sonable n o t i c e and opportunity t o b e heard s h a l l b e given t o t h e c o n t e s t a n t s , any p a r e n t whose p a r e n t a l r i g h t s have n o t been previously t e r m i - nated, and any person who -- has p h y s i c a l custody of t h e c h i l d . I f any of t h e s e persons a r e out- -- s i d e t h i s s t a t e , n o t i c e and o p p o r t u n i t y t o be heard s h a l l be given pursuant t o 40-7-106." (Emphasis added. ) S e c t i o n 40-7-106 MCA c o n t a i n s n o t i c e requirements when a person t o whom n o t i c e and opportunity t o be heard must be given i s i n another s t a t e . I t r e q u i r e s such n o t i c e " a t l e a s t 10 days b e f o r e any hearing i n t h i s s t a t e . " " S t r i c t compliance" w i t h t h e s e p r o v i s i o n s i s e s s e n t i a l t o t h e v a l i d i t y of a decree: " S t r i c t compliance w i t h s e c t i o n s 4 and 5 i s e s s e n t i a l f o r t h e v a l i d t y of a custody d e c r e e w i t h i n t h e s t a t e and i t s r e c o g n i t i o n and en- forcement i n o t h e r s t a t e s under s e c t i o n s 1 2 , 1 3 and 15." Note, 9 Uniform Laws Annotated 110 (1973). Y e t i n t h e p r e s e n t c a s e , no n o t i c e o r o p p o r t u n i t y t o be heard w a s e v e r given t o t h e a u n t and uncle who had p h y s i c a l custody of t h e c h i l d on June 1 9 , 1975, when t h e f a t h e r ' s m o d i f i c a t i o n p e t i t i o n was f i l e d i n t h e Los Angeles County Superior Court. The f a t h e r a c t e d q u i c k l y t o o b t a i n a modi- f i e d order--only seventeen days a f t e r h i s p e t i t i o n was f i l e d . There was no compliance w i t h S e c t i o n s 4 and 5. Thus, t h e r e can b e no requirement of r e c o g n i t i o n and enforce- ment under S e c t i o n 13. A more d i f f i c u l t q u e s t i o n arises under S e c t i o n 1 4 , which r e q u i r e s deference t o t h e continuing j u r i s d i c t i o n of t h e c o u r t which f i r s t granted a custody decree. The c e n t r a l i d e a of t h a t s e c t i o n i s t h a t once a s t a t e c o u r t has made a custody decree, t h a t s t a t e r e t a i n s an almost e x c l u s i v e j u r i s d i c t i o n t o modify t h e decree u n l e s s it (1) 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 accord- ance" w i t h t h e A c t ; o r ( 2 ) has d e c l i n e d t o assume j u r i s d i c - t h e t i o n t o modify/decree; and ( 3 ) t h e c o u r t of t h i s s t a t e has j u r i s d i c t i o n . (See, Commissioners' Note t o S e c t i o n 14. ) I n t h i s c a s e t h e i n i t i a l custody d e c r e e granted t h e c h i l d t o her mother. A t t h a t p o i n t C a l i f o r n i a became t h e " p r i o r s t a t e " and p e t i t i o n s f o r modification w e r e t o be addressed t o its c o u r t s , a s w a s t h e f a t h e r ' s p e t i t i o n . The f a t h e r ' s p e t i t i o n , however, d i d n o t g i v e t h e C a l i f o r n i a c o u r t j u r i s d i c t i o n t o modify t h e c h i l d ' s custody because of t h e f a i l u r e t o n o t i f y t h e persons who had p h y s i c a l custody of her. The f a t h e r had a duty t o n o t i f y t h e C a l i f o r n i a c o u r t t h a t persons n o t p a r t y t o h i s a c t i o n f o r modification had p h y s i c a l custody of t h e c h i l d , Section 9 ( a ) (3) UCCJA, Cal .Civ.Code s e c t i o n 5158 (1) (c) , and t h a t c o u r t w a s r e q u i r e d t o o r d e r t h o s e persons t o be joined as p a r t i e s and t o n o t i f y them of t h e pending a c t i o n . Section 10 UCCJA, Cal.Civ.Code s e c t i o n 5159. The f a t h e r has maintained throughout t h i s a c t i o n t h a t t h e proper forum i n which t o hear t h e a u n t and u n c l e ' s p e t i t i o n i s t h e Los Angeles County Superior Court, y e t he neglected t h e mandatory procedures by which t h e a u n t and uncle would have been made p a r t i e s t o t h e C a l i f o r n i a a c t i o n which he commenced i n 1975. N o w he argues t h a t t h e matter must be heard once again i n C a l i f o r n i a . W e do n o t b e l i e v e t h a t t h e UCCJA r e q u i r e s such a r e s u l t . O r d i n a r i l y i f a s t a t e which has e n t e r e d a decree s t i l l has j u r i s d i c t i o n under S e c t i o n 3 of t h e A c t , s e c t i o n 40-4-211 MCA, i t s c o u r t s must be looked t o ahead of t h e c o u r t s of another s t a t e which subsequently g a i n s j u r i s d i c t i o n . Thus, w e must i n q u i r e whether C a l i f o r n i a s t i l l has j u r i s d i c t i o n under Section 3. P l a i n l y it does n o t have j u r i s d i c t i o n under Section 3 ( a ) ( 1 ) because C a l i f o r n i a i s no longer t h e c h i l d ' s home state. Nor does it have j u r i s d i c t i o n under Section 3 ( a ) ( 3 ) because t h e c h i l d i s n o t p r e s e n t i n C a l i f o r n i a , o r under Section 3 ( a ) ( 4 ) because t h e Montana c o u r t has assumed j u r i s d i c t i o n under f a c t s which meet S e c t i o n 3 ( a ) ( 3 ) . The only remaining s e c t i o n i s 3 ( a ) ( 2 ) , s e c t i o n 40-4-211 (1) (b) MCA: "A c o u r t of t h i s s t a t e competent t o decide c h i l d custody m a t t e r s has j u r i s d i c t i o n t o make a c h i l d custody determination by i n i t i a l o r modification decree i f : " (b) it i s 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 t h a t a c o u r t of t h i s s t a t e assume j u r i s d i c t i o n because: " ( i ) t h e c h i l d and h i s p a r e n t s o r t h e c h i l d and a t l e a s t one c o n t e s t a n t have a s i g n i f i c a n t con- nection with t h i s s t a t e ; and " ( i i ) t h e r e i s a v a i l a b l e i n t h i s state s u b s t a n t i a l evidence concerning t h e c h i l d ' s p r e s e n t o r f u t u r e c a r e , p r o t e c t i o n , t r a i n i n g , and personal r e l a t i o n - s h i p s . " The Oregon Supreme Court r e c e n t l y considered whether t h e c o u r t s of Indiana w e r e t h e more a p p r o p r i a t e forum f o r r e s o l u t i o n of a custody d i s p u t e under t h i s s e c t i o n i n a c a s e i n which Indiana had entered t h e f i r s t decree. The mother had secreted two c h i l d r e n ages 4 and 8 away from t h e i r f a t h e r who was s t i l l i n Indiana. Some months a f t e r they had l e f t Indiana, she p e t i t i o n e d an Oregon c o u r t f o r a modifi- c a t i o n of t h e Indiana decree. I t w a s n o t u n t i l t h e c h i l d r e n had been away from Indiana f o r eighteen months t h a t t h e Oregon c o u r t heard t h e case. The Supreme Court observed t h a t t h e passage of t i m e had eliminated any " s i g n i f i c a n t connection" with Indiana t h a t t h e c h i l d r e n had once had: ". . . a t t h e t i m e of t h e hearing by t h e t r i a l c o u r t t h e c h i l d r e n had no s i g n i f i c a n t connection with Indiana because of t h e length of t i m e they had been away. I n t h e l i v e s of c h i l d r e n 4 and 8 years of age, 18 months i s a long time." Mar- r i a g e of S e t t l e (1976), 276 O r . 759, 556 P.2d 962, 966. I n t h e p r e s e n t case t h e passage of time has c r e a t e d an i d e n t i c a l l o s s of " s i g n i f i c a n t connection" between t h e c h i l d and C a l i f o r n i a . She was f i v e years of age when she was l e f t with her Montana r e l a t i v e s . Two years had passed by t h e t i m e of t h e hearing, and nearly two more have s i n c e elapsed. A s t h e Oregon Supreme Court noted, j u r i s d i c t i o n under Sec- t i o n 3 ( a ) ( 2 ) e x i s t s only when it is 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 because t h e c h i l d and i t s p a r e n t s have a s i g n i - f i c a n t connection w i t h a s t a t e and t h e r e i s "optimum a c c e s s t o r e l e v a n t evidence." S e t t l e , 556 P.2d a t 966. See a l s o , Commissioners' Note, 9 Uniform Laws Annotated 107-08 (1973). I n t h i s case t h e r e i s n e i t h e r . C a l i f o r n i a does n o t now have j u r i s d i c t i o n under t h e A c t and d i d n o t have j u r i s d i c t i o n a t t h e t i m e of t h e hearing i n August 1977. Thus, t h e District Court w a s f r e e t o e n t e r a new custody o r d e r . The second p r i n c i p l e i s s u e r a i s e d by t h i s appeal i s whether t h e District Court abused i t s d i s c r e t i o n by termina- t i n g t h e p a r e n t a l r i g h t s of t h e f a t h e r and mother. There i s more than s u f f i c i e n t 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 f i n d i n g s and judgment of t h e D i s - trict Court i n r e l a t i o n t o t h e n a t u r a l p a r e n t s . The concern has been advanced t h a t t h e f a t h e r was n o t e q u a l l y c u l p a b l e . I t i s undisputed t h a t he had misrepresented h i s a s s e t s t o t h e Superior Court and thereby reduced h i s p o t e n t i a l s u p p o r t o b l i g a t i o n . It i s a m a t t e r of record t h a t t h e C a l i f o r n i a c o u r t was forced t o t h r e a t e n t h e f a t h e r w i t h a contempt c i t a t i o n t o induce him t o provide f o r h i s c h i l d . These matters i n themselves have n o t been thought t o j u s t i f y a termination of p a r e n t a l r i g h t s . See Matter of J.L.B. (1979), Mont . , 594 P.2d 1127, 1135, 36 St.Rep. 896, 906- - 07. Nor may t h e abuse o r n e g l e c t which t h e mother and h e r boyfriend may have shown be a t t r i b u t e d t o t h e f a t h e r . Matter of T.E.R. (19791, Mont. , 590 P.2d 1117, 1121, 36 St.Rep. 276, 281. W e f i n d , however, two circumstances t o be p a r t i c u l a r l y s u p p o r t i v e of t h e D i s t r i c t C o u r t ' s conclusion t h a t t h e f a t h e r had neglected h i s minor c h i l d . F i r s t , t h e f a t h e r f a i l e d t o n o t i f y t h e juvenile a u t h o r i t i e s concerning t h e p l i g h t of h i s daughter. According t o t h e f a t h e r ' s mother, t h e c h i l d repeatedly complained of abuse by her mother's boyfriend over a period of a t least one and one-half years. One of t h e a t t o r n e y s consulted by t h e f a t h e r , M r . Gewirtz, advised him t o n o t i f y t h e juvenile a u t h o r i t i e s , b u t t h e f a t h e r did not. Second, it is s i g n i f i c a n t t h a t i n May 1975, when t h e mother forced t h e c h i l d o u t of her apartment, t h e c h i l d ' s p a t e r n a l grandmother, n o t her f a t h e r , took c a r e of h e r . The evidence shows t h a t t h e c h i l d ' s grandmother took t h e g r e a t e s t i n t e r e s t i n her while she was l i v i n g with her mother. The grandmother, not t h e f a t h e r , kept her a t her home over many weekends. The D i s t r i c t Court found s p e c i f i c a l l y t h a t t h e grandmother was t h e p r i n c i p l e f o r c e behind t h e f a t h e r ' s "belated attempts" t o o b t a i n custody of h i s daughter. I t a l s o found t h a t no " v i a b l e parent-child r e l a t i o n s h i p " has ever e x i s t e d between t h e f a t h e r and c h i l d . W e must measure t h e s e f i n d i n g s a g a i n s t some o b j e c t i v e c r i t e r i a t o determine whether t h e f a t h e r ' s conduct amounted t o neglect and abuse of p a r e n t a l a u t h o r i t y . "The abuse of p a r e n t a l a u t h o r i t y i s t h e s u b j e c t of j u d i c i a l cognizance i n a c i v i l a c t i o n brought by t h e c h i l d o r by i t s r e l a t i v e w i t h i n t h e t h i r d degree o r by t h e county commissioners of t h e county where t h e c h i l d r e s i d e s . When t h e abuse i s estab- l i s h e d , t h e c h i l d may be f r e e d from t h e dominion of t h e p a r e n t and t h e duty of support and educa- t i o n enforced." Section 40-6-233 MCA. I n t h e absence of standards d e f i n i n g abuse i n t h i s s e c t i o n , we r e f e r t o t h e standards contained i n Chapter 3 of T i t l e 4 1 on c h i l d abuse, neglect, and dependency. Section 41-3-102 ( 2 ) MCA provides: "'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 p h y s i c a l o r emotional development of a youth. Any exces- s i v e 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 medi- c a l 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 m a t e r 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 act 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 , guard- i a n , 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 re- f u s e s o r , w i t h 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 responsibi- l i t i e s f o r proper and necessary s u b s i s t e n c e , educa- t i o n , 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 p h y s i c a l , moral, and emotional well-being." W e h e l d i n Matter of J . L . B . , 594 P.2d a t 1136, 36 St.Rep. a t 908, t h a t p a r e n t a l d e f i c i e n c i e s by themselves, a b s e n t some harm t o t h e c h i l d , a r e an i n s u f f i c i e n t b a s i s upon which t o terminate p a r e n t a l r i g h t s . I n t h e p r e s e n t c a s e t h e c h i l d was undoubtedly harmed, although n o t d i r e c t l y and s o l e l y by her f a t h e r . Y e t , he knew of h i s d a u g h t e r ' s circumstances and d i d nothing t o i n t e r v e n e on her b e h a l f . A c h i l d i n h e r p o s i t i o n has a r i g h t t o e x p e c t more. The f a t h e r ' s argument t h a t t h e c o u r t s of C a l i f o r n i a would n o t modify t h e o r i g i n a l custody without proof of t h e c h i l d ' s mistreatment wears t h i n i n l i g h t of t h e f a t h e r ' s f a i l u r e t o even n o t i f y t h e j u v e n i l e a u t h o r i t i e s t h a t something was wrong. The f a t h e r ' s a t t e m p t t o blame t h e C a l i f o r n i a c o u r t system f o r h i s own f a i l u r e t o seek a i d f o r h i s c h i l d f o r more than a year w i l l n o t s u f f i c e . The D i s t r i c t Court concluded t h a t t h e f a t h e r had abused h i s p a r e n t a l a u t h o r i t y by n e g l e c t i n g and abandoning h i s c h i l d under t h e s e circum- s t a n c e s . W e do n o t f i n d t h i s t o be an abuse of t h e D i s t r i c t C o u r t ' s d i s c r e t i o n t o weigh t h e evidence b e f o r e it and a r r i v e a t a " c l e a r and convincing" view of t h e f a c t s . See Matter of J.L.B., 594 P.2d a t 1136, 36 St.Rep. a t 908-09. The f i n a l i s s u e presented i s whether t h e D i s t r i c t Court had a u t h o r i t y t o name t h e c h i l d ' s a u n t and uncle a s her g e n e r a l guardians. The f a t h e r contends t h a t t h e a u n t and u n c l e ' s complaint d i d n o t s p e c i f i c a l l y r e q u e s t t h e c r e a t i o n of a guardianship and t h e r e f o r e t h e D i s t r i c t Court could n o t name them as guardians. W e do n o t agree. The complaint f i l e d i n t h i s a c t i o n sought: (1) To t e r m i n a t e t h e p a r e n t a l r i g h t s of t h e n a t u r a l p a r e n t s ; (2) t o award f u l l c a r e and custody of t h e c h i l d t o h e r a u n t and uncle; ( 3 ) t o o b t a i n a r e s t r a i n i n g o r d e r a g a i n s t t h e mother's boyfriend t o prevent him from molesting t h e c h i l d ; and, ( 4 ) f o r such o t h e r r e l i e f a s t h e D i s t r i c t Court deemed proper. The D i s t r i c t Court c l e a r l y had power t o a u t h o r i z e a guardianship, t h e e f f e c t of which g i v e s t h e c o u r t continuing supervisory a u t h o r i t y over t h e a u n t and u n c l e ' s c a r e and p r o v i s i o n f o r t h e c h i l d , under t h e f o u r t h paragraph of t h e p r a y e r f o r r e l i e f . Rule 5 4 ( c ) , M.R.Civ.P., provides i n p a r t : "Except a s t o a p a r t y a g a i n s t whom a judgment i s e n t e r e d by d e f a u l t , every f i n a l judgment s h a l l g r a n t t h e r e l i e f t o which t h e p a r t y i n whose f a v o r it i s rendered i s e n t i t l e d , even i f t h e p a r t y has n o t demanded such r e l i e f i n h i s plead- i n g s . " See, Smith v. Zepp (1977), - Mont. , 567 P.2d 923, 930, 34 St.Rep. 753, 762; 10 C. Wright & A. M i l l e r , Federal P r a c t i c e and Procedure, 92662 a t 96-97. The s t a t u t e under which p l a i n t i f f s proceeded, s e c t i o n 61-111, R.C.M. 1947, now s e c t i o n 40-6-233 MCA, c l e a r l y g i v e s t h e District Court j u r i s d i c t i o n t o t e r m i n a t e p a r e n t a l r i g h t s : ". . . and when t h e abuse i s e s t a b l i s h e d t h e c h i l d may b e f r e e d from t h e dominion of t h e p a r e n t . . ." Upon t h e proper termination of p a r e n t a l r i g h t s , a D i s t r i c t Court i s empowered t o name a s u i t a b l e guardian of a n unmarried minor. S e c t i o n 72-5-222 MCA. See Guardianship of Aschenbrenner (1979) , Mont. P I - P.2d I 36 St.Rep. (No. 14610, decided J u l y 16, 1979). The judgment of t h e D i s t r i c t Court i s affirmed. W e concur: Chief J u s t i c e C Q d W k 4 - , L d y , , J u s t i c e s | August 1, 1979 |
723201a1-58b3-42ae-ac11-bda1089ce111 | STATE v KEMP | N/A | 14551 | Montana | Montana Supreme Court | No. 14551 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, Plaintiff and Respondent, DAVE KEMP, Defendant and Appellant. Appeal from: District Court of the Sixth Judicial District, Hon. LeRoy L. McKinnon, Judge presiding. Counsel of Record: For Appellants: Berger, Anderson, Sinclair & Murphy, Billings, Montana Richard Anderson argued, Billings, Montana For Respondents: Mike Greely, Attorney General, Helena, Montana Mary B. Troland argued, Helena, Montana Bruce E. Becker, County Attorney, Livingston, Montana Filed: Submitted: April 30, 1979 Decided: JUL 3 1 9 ~ Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant appeals from a conviction for sale of dangerous drugs, methamphetamines, after jury trial in Park County District Court. Defendant was charged with selling methamphetamines to Katherine Schott on March 16, 1977 in Livingston, Montana. The State's principal witness at defendant's trial was Ms. Schott, an admitted accomplice, former drug addict and immunized witness. The following facts are reconstructed from her testimony. In March 1977, defendant agreed to sell her $12,000 worth of methamphetamines and she, being unable to finance the transaction, contacted various persons to participate in the deal, including a Bill Knutson from North Dakota. Knutson, according to Ms. Schott, was to wire $600 to defendant's Livingston bank account. On March 16, 1977, Ms. Schott flew by chartered plane from Helena (her home town) to Billings, picked up one of the participants, then on to Livingston where they checked into the Sandarosa Motel. She later contacted Robert Logan, her common law husband, and asked him to join her in Livingston. During the evening of March 16, defendant allegedly came to her room with a sample of the drugs to be sold. After testing for quality, Ms. Schott gave defendant the money and defendant left, returning a few hours later with a one pound sack of methamphetamines. The following day defendant allegedly returned to the motel room to purchase back an ounce of the drugs for himself. Ms. Schott left Livingston shortly thereafter, going with Robert Logan to Bozeman, where she entrusted her share of the drugs to Timothy VanLuchene for safekeeping. It was through the subsequent search of VanLuchene's home in Three Forks that Ms. Schott's involvement with drugs became known to the police. After her arrest, Ms. Schott made several statements, under oath, to the investigative authorities. She did not implicate the defendant in these early statements, but later in a deposition before the Park County Attorney she did. Defendant was arrested and charged with the March 16, 1977 methamphetamine sale. He pleaded not guilty. At trial, Ms. Schott testified that she had other drug dealings with defendant during the two months preceding the methamphetamine transaction. In January 1977, in Livingston, she allegedly sold a "rock" of cocaine to the defendant and was paid with the proceeds of a check from Portia Fonda to defendant. In February 1977, in Helena, Ms. Schott allegedly purchased a small quantity of amphetamines from the defendant. Ms. Schott's testimony as to both these events was received over objection. Only Robert Logan, Ms. Schott's common law husband and admitted accomplice to the charge, testified in corroboration of defendant's involvement in any of these events. VanLuchene testified that he took possession of a quantity of Ms. Schott's methamphetamines on March 17, 1977. Richard Daem, a Livingston banker, testified to the $600 money wire from Knutson of North Dakota to defendant on March 17, 1977. Other witnesses' testimony indicated that a deal involving Ms. Schott was made on the night of March 16, 1977, but defendant was not implicated. The only other evidence suggesting defendant's complicity in the March 16 drug deal was Ms. Schott's ledger book and her address book. Neither document was identified or authenticated by an independent witness. The ledger book contained a page which purportedly listed, by code names, the contributors and their respective shares in the drug purchase. Ms. Schott -3- testified that an entry "B. J. will wire $600 to First Security Bank direct to you" referred to Knutson's money wire to the defendant. The address book contained the names of both the defendant and Richard Daem. Daem's name was incorrectly spelled "Daiem". Daem later testified that the original transfer from Knutson to the defendant likewise mispelled his name. On June 29, 1978, the jury returned a verdict of guilty, and the defendant was subsequently sentenced to ten years in prison with five years suspended. Though defendant has raised other issues, we determine that as a matter of law the testimony of the accomplices was not adequately corroborated. It should be noted at the outset that, insofar as the record discloses, the State's case against the defendant was based on statements given by Ms. Schott who turned State's evidence in exchange for immunity from prosecution. Since her consent to cooperate stemmed from a desire to avoid prosecution, she cannot be said to be without motive to fabricate. This factor, coupled with her status as an admitted accomplice to the charge, renders the information she provided particularly suspect. Section 95-3012 (formerly section 94-7220), R.C.M. 1947, now 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 95-2-106, 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 corroborate 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 opportunity to commit, the crime charged. State v. Gangner (1957), 130 Mont. 533, 535, 305 P.2d 338, 339. 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. C0r- roborating 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 (19531, 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 (1922), 65 Mont. 74, 88, 212 P. 504, 509; 30 Am.Jur.2d Evidence S1156. Hence, the testimony of Robert Logan, Ms. Schott's common law husband and admitted accomplice to the charge, cannot be regarded as corroborative. -5- Apart from the testimony of Ms. Schott and Logan, the accomplices, the State's case consisted of: Sandarosa Motel records that place Ms. Schott in Livingston on March 16, 1977--the night the deal was allegedly made; VanLuchene's testimony that he received a quantity of methamphetamines from Ms. Schott in Bozeman on March 17; the testimony of Daem, the Livingston banker, that a $600 money wire was effected from Knutson of North Dakota to the defendant on March 17; Ms. Schott's ledger book which contained a reference to the $600 money wire; Ms. Schott's address book which allegedly contained defendant's code name and phone number and the banker's name (Daem); and the fact that Daem's name was mispelled "Daiem" both on the original $600 money wire and in Ms. Schott's address book. The motel records and VanLuchene's testimony amount to no more than evidence relating to the commission and circum- stances of a crime and do not implicate defendant in the least. Daem's testimony regarding the $600 money wire depended for its relevancy upon the testimony of Ms. Schott, an accomplice. She alone made the connection between the $600 money wire and the alleged drug deal of the day before. Similarly, the ledger and address book each depended for their relevancy, as well as their authenticity, upon the testimony of Ms. Schott. Documentary evidence which depends for its relevancy or authenticity upon the testimony of an accomplice will not suffice as corroboration. "To hold otherwise would be to say that the accomplice may corroborate himself." Annot., 96 A.L.R.2d 1185, 1188; People v. Cona (N.Y.App. 1978), 401 N.Y.S.2d 239, 243. The coincidental mispellings of Daem's name may suggest that Ms. Schott initiated the $600 money wire, yet no evidence, aside from her testimony, tends to connect this transaction with the crime. -6- Certainly, the contemporaneousness of the money wire and the alleged drug deal casts a cloud of suspicion over the defendant. Nonetheless, "where the claimed corroboration shows no more than an opportunity to commit a crime and simply proves a suspicion, it is not sufficient corroboration to justify a conviction upon the testimony of an accomplice." Standley, 586 P.2d at 1077. It was not the defendant's burden to prove he had no connection with the crime. The burden was on the prosecution to produce corroborating evidence which, of itself and without aid or direction from the accomplices' testimony, connected the defendant with the crime charged. People v . Robinson (Cal. 1964) , 38 Cal.Rptr. 890, 907, 392 P.2d 970, 987. Here, the prosecution did not meet this burden. Without sufficient corroboration, a conviction that rests on the testimony of an accomplice cannot stand. Defendant's conviction is reversed and the cause Ju We Concur: CBief Justice Justices | July 3, 1979 |
6dad436c-8ab8-48ff-a28a-916a59ab641c | MATTER OF ASCHENBRENNER | N/A | 14610 | Montana | Montana Supreme Court | N o . 14610 IN THE SUPFEDE C O W O F THE STATE O F RDJSEAM1 1979 I N THE MAllTER O F THE GUARDIANSHIP O F IXXAID ASCHENBIIENNER, TERRI L Y N N - , and JASON JACOB ASCHENBRE3N33, Minors. Appeal frm: D i s t r i c t Court of the Second Judicial D i s t r i c t , Honorable Arnold O l s e n , Judge presiding. Counsel of Record: For Appellants: L e w i s RDtering argued, Butte, mtana For Respondent: Leonard J. Haxby argued, Butte, kbntana Submitted: June 1 1 , 1979 Decided r J m i 7 ~isrs ~ U L a t3;S Filed: - M r . J u s t i c e John C. Sheehy delivered t h e Opinion of t h e Court. Mary Aschenbrenner, n a t u r a l mother of Ronald, T e r r i Lynn, and Jason Jacob Aschenbrenner, appeals from t h e find- i n g s , conclusions and order of t h e D i s t r i c t Court, S i l v e r Bow County, granting letters of guardianship and custody of t h e t h r e e minor c h i l d r e n t o A. B. (Bud) and L. V. ( L i l l i a n ) Aschenbrenner, t h e p a t e r n a l grandparents. The f a c t s leading t o t h i s appeal are: On December 27, 1976, Mary Aschenbrenner by t h e t e r m s of a divorce decree was awarded t h e c a r e , custody, and c o n t r o l of her t h r e e minor c h i l d r e n , a t t h a t t i m e aged e i g h t , f o u r , and one and a h a l f years o l d . Following t h e divorce, t h e mother l i v e d alone with t h e c h i l d r e n u n t i l t h e middle of May 1977, when she began l i v i n g with one Jay McClosky. H e r r e l a t i o n s h i p with McClosky w a s stormy and following one p a r t i c u l a r i n c i d e n t , t h e mother asked t h e grandparents t o c a r e f o r t h e c h i l d r e n while Mary found another p l a c e f o r h e r s e l f and t h e c h i l d r e n t o l i v e . The grandparents had custody of t h e c h i l d r e n from May 19 u n t i l June 9, 1977, when Mary resumed custody. P a r t of t h i s three-week period apparently coincided with her ex-husband's annual two-week summer v i s i t a t i o n period during which he sometimes l e f t t h e c h i l d r e n with h i s p a r e n t s while he was o u t working on t h e road. Following another i n c i d e n t with McClosky, Mary again requested t h e grandparents t o c a r e f o r t h e c h i l d r e n on June 30, 1977. The whole family, including Mary, her ex-husband, t h e c h i l d r e n , and t h e grandparents, vacationed together over t h e Fourth of J u l y weekend. When t h e mother attempted t o o b t a i n t h e r e t u r n of t h e c h i l d r e n t h e following week, how- ever, she was denied. When she t r i e d t o e n l i s t t h e assis- t a n c e of t h e county a t t o r n e y , she was served with a c i t a t i o n and o r d e r t o show cause on J u l y 2 1 , 1977. The o r d e r t o show cause, dated J u l y 21, 1977, and i s s u e d i n response t o a p e t i t i o n f o r appointment of guardian of minors f i l e d by t h e grandparents on June 15, contained a p r o v i s i o n awarding temporary custody of t h e c h i l d r e n t o t h e grandparents. Subsequent t o t h e issuance of t h i s o r d e r t o show cause, s e v e r a l hearings over s e v e r a l months w e r e held by t h e D i s - t r i c t Court. A t t h e s e l a t e r hearings, t h e D i s t r i c t Court heard testimony from t h e p a r t i e s and from Roger LaVoie, a county s o c i a l worker. The c o u r t k e p t i n e f f e c t i t s g r a n t of temporary custody, modifying it a t t i m e s t o allow t h e mother reasonable v i s i t a t i o n r i g h t s t o h e r c h i l d r e n on weekends. During t h e course of t h e proceedings, t h e r e l a t i o n s h i p between t h e mother and t h e grandparents, e s p e c i a l l y t h e grandfather, was s t r a i n e d . The grandfather seemed t o embark on a course of i n t e r f e r i n g with o r hindering Mary's a t t e m p t s t o t a l k t o t h e c h i l d r e n on t h e phone o r otherwise v i s i t w i t h them. A s t o t h e c h i l d r e n ' s well-being, t h e c o u r t questioned them i n chambers. They seemed t o express no s t r o n g p r e f e r - ence f o r l i v i n g w i t h e i t h e r t h e i r mother o r grandparents. According t o t h e s o c i a l worker's r e p o r t , however, t h e school work and a t t i t u d e of t h e e l d e s t c h i l d had markedly improved, t h e middle c h i l d had a p o s i t i v e a t t i t u d e toward school and a l l t h r e e c h i l d r e n seemed t o be b e t t e r cared f o r by t h e grandparents. Although during h i s testimony t h e s o c i a l worker declined t o l a b e l Mary an " u n f i t " p a r e n t , he d i d c l a s s i f y her a s " d e f i c i e n t " i n some r e s p e c t s i n h e r a b i l i t y a s a p a r e n t . This c l a s s i f i c a t i o n was based on h e r tendency t o " p a r t y " excessively, leaving t h e c h i l d r e n a l o n e , on her i n a b i l i t y t o make s u r e t h e c h i l d r e n a t t e n d e d school, and on h e r g e n e r a l l y u n s e t t l e d emotional s t a t u s and l i v i n g arrange- ments. I t was h i s recommendation t h a t t h e c h i l d r e n remain i n t h e custody of t h e grandparents. A f t e r maintaining t h e temporary custody s t a t u s f o r over a y e a r , t h e District Court, on August 1 4 , 1978, i s s u e d i t s f i n d i n g s and conclusions. S i g n i f i c a n t among i t s f i n d i n g s were t h a t t h e r e had been a m a t e r i a l change i n t h e circum- s t a n c e s of t h e mother s i n c e t h e e n t r y of t h e divorce decree; t h a t s h e had n o t had adequate, permanent housingaand had n o t > conducted h e r s e l f a s a f i t and proper mother by c o n t i n u a l l y going o u t and leaving t h e c h i l d r e n a l o n e and unattended. The District Court a l s o found t h a t while i n h i s mother's c a r e , t h e e l d e s t c h i l d ' s schoolwork s u f f e r e d m a t e r i a l l y b u t improved while i n t h e c a r e of h i s grandparents. The c o u r t found t h a t t h e mother was n o t a f i t and proper person t o have custody of t h e c h i l d r e n by v i r t u e of h e r i r r e s p o n s i b l e behavior and concluded t h a t t h e c h i l d r e n w e r e dependent and neglected. Based on t h e s e f i n d i n g s , t h e c o u r t ordered t h a t t h e grandparents be granted guardianship of t h e c h i l d r e n w i t h reasonable r i g h t s of v i s i t a t i o n i n t h e mother, i n c l u d i n g custody of t h e c h i l d r e n during June and J u l y . From t h i s o r d e r , t h e mother appeals. The i s s u e s presented f o r review on appeal are: 1. Whether t h e a p p e l l a n t was denied procedural due process by t h e D i s t r i c t C o u r t ' s award of a temporary custody o r d e r without p r i o r n o t i c e and opportunity f o r a hearing? 2. Whether a guardianship proceeding may be used t o terminate t h e c u s t o d i a l r i g h t s of a n a t u r a l parent? 3. Whether t h e District Court abused i t s d i s c r e t i o n i n awarding t h e guardianship and custody of t h e c h i l d r e n t o t h e respondents? The r i g h t of a p a r e n t t o custody of h i s c h i l d has been recognized by t h i s Court as being a fundamental c o n s t i t u - t i o n a l r i g h t . Matter of Guardianship of Doney (1977), Mont. 570 P.2d 575, 577, 34 St.Rep. 1107, 1110. I n view of t h i s , w e must, look c l o s e l y a t any a c t i o n by t h e S t a t e which i n t e r f e r e s w i t h t h i s r i g h t . Our examination of t h e procedure u t i l i z e d i n t h e District Court i n t h i s case l e a d s u s t o conclude t h a t t h e termination of t h e mother's custody and t h e award of guardianship t o t h e grandparents was improper and must be reversed. The grandparents i n s t i t u t e d t h i s a c t i o n by f i l i n g a p e t i t i o n f o r appointment of guardian of minors. W e t h u s begin o u r a n a l y s i s by examining t h e s t a t u t e s governing t h e appointment of such guardians. P a r t 2, Chapter 5, T i t l e 91A, 1947 Revised Codes of Montana, now P a r t 2, Chapter 5, T i t l e 72 Montana Code Annotated. I n i t i a l l y , w e n o t e t h a t under s e c t i o n 91A-5-204, R.C.M. 1947, now s e c t i o n 72-5-222(1) MCA, t h a t a " c o u r t may a p p o i n t a guardian f o r an unmarried minor i f - a l l p a r e n t a l r i g h t s of custody have been terminated - o r suspended - by circumstances o r p r i o r c o u r t o r d e r . " The District Court i s r e q u i r e d , however, t o following very s p e c i f i c procedures i n t h e ap- pointment of t h e guardian: " (1) Notice of t h e t i m e and p l a c e of hearing of a p e t i t i o n f o r t h e appointment of a guardian of a minor i s t o be given by t h e p e t i t i o n e r i n t h e man- ner p r e s c r i b e d by s e c t i o n 91A-1-401 t o : " ( a ) t h e minor, i f h e i s f o u r t e e n (14) o r more y e a r s of age; " ( b ) t h e person who has had t h e p r i n c i p a l c a r e and custody of t h e minor during t h e s i x t y (60) days preceding t h e d a t e of t h e p e t i t i o n ; and " ( c ) any l i v i n g parent of t h e minor. " ( 2 ) Upon hearing, i f the c o u r t f i n d s t h a t a qua- l i f i e d person seeks appointment, venue i s proper, t h e required notices have been given, t h e require- ments of s e c t i o n 91A-5-204 have been m e t , and t h e welfare and b e s t i n t e r e s t s of t h e minor w i l l be served by t h e requested appointment, it s h a l l make t h e appointment. I n other cases t h e c o u r t may d i s - m i s s t h e proceedings, o r make any o t h e r d i s p o s i t i o n of t h e matter t h a t w i l l b e s t serve t h e i n t e r e s t of t h e minor." Section 91A-5-207, R.C.M. 1947, now s e c t i o n 72-5-225 MCA. Under s e c t i o n 91A-5-207(3), R.C.M. 1947, now s e c t i o n 72-5-224 MCA, t h e c o u r t i s authorized " i f necessary, [ t o ] appoint a temporary guardian with t h e s t a t u s of an ordinary guardian of a minor, -- b u t t h e a u t h o r i t y of - - a temporary guardian s h a l l not l a s t longer than 6 months." -- - - With these p r i n c i p l e s i n mind, we examine t h e sequence of events i n t h e D i s t r i c t Court. A s noted above, before any guardian may be appointed f o r a minor, - a l l p a r e n t a l r i g h t s of custody must be terminated o r suspended by circumstances o r p r i o r court order. Both p a r t i e s concede t h a t t h e r e was no p r i o r c o u r t order terminating o r suspending t h e mother's p a r e n t a l r i g h t of custody. To t h e contrary, only s i x months p r i o r t o t h e i n s t i t u t i o n of t h i s a c t i o n , t h e mother was awarded custody of these children following her divorce. It thus becomes necessary t o determine whether t h e mother's p a r e n t a l r i g h t s of custody were "suspended - by circumstances" i n t h e language of s e c t i o n 75-5-222 (1) MCA. To so determine, we examine with p a r t i c u l a r i t y t h e following sequence of events: May 19, 1977 -- The mother, a f t e r a f i g h t with her paramour, leaves t h e children with t h e grandparents while she looks f o r another place t o l i v e . This period of time coincides with her ex-husband's annual two-week v i s i t a t i o n period during which he o f t e n l e f t t h e children with h i s parents, t h e p e t i t i o n e r s . June 9, 1977 -- The mother resumes custody of t h e children. June 15, 1977 -- The grandparents f i l e t h e i r p e t i - t i o n f o r appointment of guardian of minors. This p e t i t i o n s t a t e d , apparently inaccurately, t h a t t h e children were presently i n t h e c a r e and cus- tody of t h e i r paternal grandparents and had been i n t h e i r custody s i n c e about May 18. June 20, 1977 -- The D i s t r i c t Court, based exclu- s i v e l y on t h e grandparents' p e t i t i o n and affording n e i t h e r n o t i c e nor hearing t o t h e mother, awards temporary custody of t h e children t o t h e grand- parents and sets J u l y 30 a s t h e hearing d a t e on whether t h e grandparents should be awarded perma- nent custody. June 30, 1977 -- The mother again leaves t h e c h i l - dren with t h e grandparents. J u l y 2, 3, 4 , 1977 -- The e n t i r e family, including t h e mother, her ex-husband, t h e children, and t h e grandparents, vacation together a t Canyon Ferry Lake. Although by t h i s t i m e t h e grandparents had been awarded temporary custody of t h e children, they neither discussed nor even mentioned t h i s f a c t t o t h e mother during t h i s family vacation. J u l y 21, 1977 -- The mother seeks a s s i s t a n c e from t h e County Attorney i n attempting t o regain custody of t h e children, a f t e r t h e grandparents have refused t o r e t u r n them. A t t h i s time, t h e mother f i r s t re- ceives n o t i c e of t h e order granting temporary cus- tody of t h e children t o the grandparents. From t h i s sequence of events, it i s obvious t h a t t h e mother's p a r e n t a l r i g h t s of custody had not been terminated by circumstances. I n f a c t , contrary t o t h e a l l e g a t i o n s i n t h e p e t i t i o n f o r guardianship, t h e mother had a c t u a l physi- c a l custody of t h e children a t t h e t i m e t h e p e t i t i o n was f i l e d by t h e grandparents and t h e order w a s issued by t h e D i s t r i c t Court. Moreover, a t t h e t i m e t h e D i s t r i c t Court issued i t s order granting temporary custody of t h e children t o t h e grandparents, on June 17, a l l t h a t had happened t o i n d i c a t e t h a t t h e mother had somehow abandoned o r given up her p a r e n t a l r i g h t s of custody was t h a t she had l e f t t h e c h i l d r e n with t h e grandparents f o r a period of t h r e e weeks while she looked f o r another p l a c e t o l i v e . I n Matter of Guardianship of Doney (1977), Mont. , 570 P.2d 575, 34 St.Rep. 1107, t h e 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 l e f t them with h i s sister-in-law f o r a period of two months "while he composed himself and prepared t o t a k e t h e c h i l d r e n i n t o h i s home" and t h e r e a f t e r even signed guardianship papers, giving h i s consent t o give temporary custody of t h e c h i l d r e n t o h i s sister-in-law. I n r e j e c t i n g t h e argument t h a t t h i s showed a n abandonment of p a r e n t a l c u s t o d i a l r i g h t s , we s t a t e d : "Surrender of custody of a minor c h i l d by a p a r e n t i s pre- sumed t o be temporary unless t h e contrary i s made t o ap- pear." Doney, 570 P.2d a t 577. Q u i t e simply, a t t h e t i m e of i s s u i n g i t s order g r a n t i n g temporary custody t o t h e grandparents, t h e D i s t r i c t Court had no evidence t h a t t h e mother's p a r e n t a l r i g h t s of custody had been suspended o r terminated by e i t h e r p r i o r c o u r t order o r circumstance. The requirements of s e c t i o n 91A-5-204 have n o t been met and t h e r e f o r e any order purporting t o appoint a guardian i s i n v a l i d . Beyond t h e j u r i s d i c t i o n a l question of t h e termination of t h e mother's p a r e n t a l r i g h t s of custody, t h e r e are pro- cedural e r r o r s which likewise r e q u i r e r e v e r s a l . A s noted above, p r i o r t o appointing a guardian f o r a minor, t h e r e must be n o t i c e given t o , among o t h e r s , any l i v i n g p a r e n t of t h e c h i l d . Thereafter, t h e r e must be a hearing a t which t h e D i s t r i c t Court i s required t o determine, i n t e r a l i a , t h a t t h e required n o t i c e s were given and t h a t a l l p a r e n t a l r i g h t s of custody have been terminated. The D i s t r i c t C o u r t ' s o r d e r , though couched i n t e r m s of temporary custody, w a s issued i n response t o a p e t i t i o n f o r appointment of guardian of minors and was, i n e f f e c t , t h e appointment of a temporary guardian. Y e t , t h e r e was no n o t i c e t o t h e mother, hearing p r i o r t o t h e appointment of t h e temporary guardian, no determination t h a t t h e required n o t i c e s had been given, and no determination t h a t t h e mother's p a r e n t a l r i g h t s of custody had been terminated o r suspended. "The c o u r t ' s granting temporary custody t o t h e [grand- p a r e n t s ] without n o t i c e t o t h e mother w a s e r r o r . " Henderson v. Henderson (1977), - Mont . , 568 P.2d 177, 179, 34 St.Rep. 942, 944. Nor w a s t h i s e r r o r corrected by t h e f a c t t h a t t h e mother p a r t i c i p a t e d i n a hearing on t h e p e t i t i o n l a t e r . A s w e s t a t e d i n Henderson: ". . . Regardless of any deficiency i n obtaining temporary custody, t h e aunt argues t h e i s s u e i s moot s i n c e a f u l l hearing on t h e m e r i t s of t h e p e t i t i o n f o r permanent custody w a s held on J u l y 6, 1976. W e disagree. The t r a n s c r i p t on appeal i n d i c a t e s t h e d i s t r i c t judge conducting t h e hear- i n g on permanent custody mistakenly assumed t h a t another d i s t r i c t judge had conducted a hearing and found misconduct on t h e p a r t of t h e mother before he awarded temporary custody of t h e c h i l - dren t o t h e aunt. This temporary custody order i n e f f e c t c r e a t e d a presumption i n favor of t h e a u n t and s h i f t e d t h e burden of proof t o t h e mother, and w a s i n d i r e c t v i o l a t i o n of s e c t i o n 48-333(1), R.C.M. 1947." 568 P.2d a t 180. I n t h e i n s t a n t case, t h e D i s t r i c t Court w a s l e d t o b e l i e v e by t h e p e t i t i o n f i l e d by t h e grandparents t h a t t h e mother had abandoned t h e c h i l d r e n t o t h e grandparents on May 18, 1977, and had n o t returned f o r them by June 15 when t h e p e t i t i o n was f i l e d . This was i n c o r r e c t . A s t e s t i f i e d t o a t t h e hearing by t h e grandmother, t h e mother had returned f o r her c h i l d r e n on June 9, 1977, a f u l l week before t h e p e t i - t i o n was f i l e d . Indeed, it appears t h e mother had a c t u a l p h y s i c a l custody of t h e c h i l d r e n on t h e day t h e p e t i t i o n was f i l e d and on t h e day t h e o r d e r was i s s u e d . From t h e d a t e of t h e issuance of t h i s o r d e r , however, t h e mother labored under a n u n f a i r , i n a c c u r a t e p r e j u d i c i a l presumption t h a t s h e had abandoned h e r c h i l d r e n . This presumption n e c e s s a r i l y colored t h e subsequent proceedings t o t h e p o i n t t h a t any f i n a l o r d e r o r judgment based thereon must be reversed. F i n a l l y , any showing t h a t t h e grandparents may be a b l e t o prove a " b e t t e r " environment than can t h e mother i s i r r e l e v a n t t o t h i s i s s u e of custody as between t h e mother and t h e grandparents, e s p e c i a l l y i n view of t h e above- mentioned fundamental c o n s t i t u t i o n a l r i g h t of a p a r e n t t o custody of her c h i l d r e n . A s w e s t a t e d i n Doney: ". . . This ' b e s t i n t e r e s t s of t h e c h i l d ' test, however, i s used only a f t e r a showing of depen- dency o r abuse o r n e g l e c t by t h e n a t u r a l p a r e n t , a s defined i n s e c t i o n 10-1301, R.C.M. 1947, o r i n custody d i s p u t e s between two n a t u r a l p a r e n t s . . . . Without t h e r e q u i r e d s t a t u t o r y showing t h a t p e t i t i o n e r had abused o r neglected h i s c h i l d r e n , t h e d i s t r i c t c o u r t under t h e f a c t s of t h i s c a s e had no j u r i s d i c t i o n t o deprive t h e n a t u r a l f a t h e r of t h e i r custody. The s t a t e i s e n t i r e l y powerless t o deprive a n a t u r a l p a r e n t of t h e custody of h i s minor c h i l d r e n merely be- cause a d i s t r i c t judge o r a state agency might f e e l t h a t a nonparent has more f i n a n c i a l resources o r pursues a ' p r e f e r a b l e ' l i f e s t y l e . " 570 P.2d a t 578. ( C i t a t i o n s omitted. ) And i n Henderson: "The ' b e s t i n t e r e s t of t h e c h i l d ' test i s cor- r e c t l y used t o determine custody r i g h t s between n a t u r a l p a r e n t s i n d i v o r c e proceedings. I n t h i s s i t u a t i o n t h e 'equal r i g h t s ' t o custody which both t h e f a t h e r and mother possess under s e c t i o n 61-105, R.C.M. 1947, a r e weighed i n r e l a t i o n t o each p a r e n t ' s a b i l i t y t o provide b e s t f o r t h e c h i l d ' s p h y s i c a l , mental, and emotional needs uDon t h e breakdown of t h e m a r i t a l r e l a t i o n s h i p . - L -~ ' F i t n e s s ' of each p a r e n t i s determined only - - - - - - - -- r e l a t i o n -- t o t h e o t h e r a n d x o t to s o c i e t y ~ g whole. However, where t h i r d p a r t i e s -- seek cust it has long been t h e law i n Montana t h a t t h e -- - - - -- r i g h t -- of t h e n a t u r a l p a r e n t p r e v a i l s -- u n t i l a showing of - - a f o r f e i t u r e -- of t h i s r i g h t . Ex p a r Bourquin, 88 Mont. 118, 290 P. 250 (1930). Se a l s o Matter of F i s h e r , 169 Mont. 254, 545 P.2d 654, 33 St.Rep. 183 (1976). The Uniform Marriage and Divorce A c t does n o t change t h i s law. This f o r f e i t u r e can r e s u l t only where t h e p a r e n t ' s conduct does n o t m e e t t h e minimum standards of t h e c h i l d abuse, n e g l e c t and dependency s t a t u t e s . " 568 P.2d a t 181-82. (Emphasis added.) I n t h e i n s t a n t case, t h e District Court heard only one person t e s t i f y t h a t t h e mother w a s " u n f i t " t o c a r e f o r her children,the grandfather. The i n v e s t i g a t i n g s o c i a l worker s p e c i f i c a l l y declined t o call t h e mother " u n f i t . " When t h e grandmother was asked her opinion, of t h e mother's c a r e of t h e c h i l d r e n from t h e divorce u n t i l J u l y 4 , 1977, she re- p l i e d : "A. I d o n ' t know when I ' m n o t t h e r e , b u t I ' v e t o l d you when I ' v e had them. What she does when she has them, I d o n ' t know. I always thought she was a p r e t t y good mother when-she had t h e c h i l d r e n . - - ---- I don' t know. 'I The District Court a l s o conducted an - i n camera examina- t i o n of t h e t h r e e c h i l d r e n during which t h e following ex- change between t h e c o u r t and t h e e l d e s t c h i l d occurred: "THE COURT: You l i v e d with your mother i n June and July? "RONALD: (Witness nods a f f i r m a t i v e l y . ) "THE COURT: H o w d i d you g e t along? "RONALD: Not t o o good. A bunch of f i g h t i n g always. "THE COURT: What w e r e you f i g h t i n g about? "RONALD: I d o n ' t know. This one k i d , he caused a f i g h t down t h e r e . "THE COURT: Down on Park S t r e e t ? " RONALD : Yeah . "THE COURT: You - g o t along good with your mother, didn' t you? "RONALD: (Witness nods a f f i r m a t i v e l y . ) "THE COURT: You g e t along with your grandmother and grandfather? "RONALD: Yes." I n a d d i t i o n t o t h e above s p e c i f i c examples, t h e tran- s c r i p t i s r e p l e t e with demonstration by t h e mother of her continuing concern and c a r e f o r her c h i l d r e n . I n f a c t , a t one p o i n t , t h e grandfather threatened t o change h i s phone number because t h e mother was c a l l i n g t h e c h i l d r e n s o o f t e n . Throughout t h e proceedings, t h e mother has opposed t h e attempt by t h e grandparents t o o b t a i n permanent custody of t h e children. Clearly, from t h i s evidence, t h e D i s t r i c t Court w a s n o t warranted i n concluding t h a t t h e mother was n o t f i t t o c a r e f o r her children. Such evidence must be c l e a r and convincing t o j u s t i f y depriving a p a r e n t of custody of her children. Matter of J.L.B. (1979), Mont. I P. 2d I 36 St.Rep. 896, 909. The f a c t t h a t t h e grandparents may be a b l e t o provide a b e t t e r home i s e x a c t l y t h e kind of r a t i o n a l e condemned i n Doney. The D i s t r i c t Court concluded t h a t t h e c h i l d r e n w e r e "dependent and neglected under t h e laws of t h e S t a t e of Montana." Yet, t h i s was a guardianship proceeding i n s t i - t u t e d by t h e p a t e r n a l grandparents, n o t a proceeding i n s t i - t u t e d t o have t h e c h i l d r e n declared dependent and neglected, as it must be, by t h e county a t t o r n e y under T i t l e 10, Chap- t e r 13, 1947 Revised Codes of Montana, now T i t l e 4 1 , Chapter 3, Montana Code Annotated. The D i s t r i c t Court could n o t v a l i d l y conclude t h a t t h e c h i l d r e n were dependent and neglected. S i m i l a r l y , t h e D i s t r i c t Court found t h e mother t o be n o t a f i t and proper person t o have custody of her c h i l d r e n and terminated her custody r i g h t s . A s pointed o u t above, however, t h e termination of a l l p a r e n t a l r i g h t s must precede t h e appointment of a guardian f o r unmarried minors. Section 91A-5-204, and -207, R.C.M. 1947, now s e c t i o n s 72-5-222, and -225 MCA. Nowhere i n t h e record does anything appear concerning t h e termination of t h e p a r e n t a l r i g h t s of t h e f a t h e r of t h e s e c h i l d r e n . I n any event, a guardianship proceeding is 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 h e r c h i l d r e n . A s w e s t a t e d i n Doney: ". . . A j u d i c i a l hearing and f i n d i n g of depen- dency and n e g l e c t under T i t l e 10, Chapter 13, R.C.M. 1947, 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 sec- t i o n 61-205, R.C.M. 1347, are t h e e x c l u s i v e means by which a n a t u r a l p a r e n t may be involun- t a r i l y deprived of custody of h i s c h i l d r e n . 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 c h i l d r e n . Section 61-105, R.C.M. 1947." 570 P.2d a t 577. A s a l a s t example, t h e a p p l i c a t i o n of t h e s t a t u t o r y guardianship procedure was i n c o r r e c t . Under t h e s e proce- d u r e s , a District Court may, i f necessary, appoint a t e m - porary guardian of unmarried minors b u t t h e a u t h o r i t y of t h e temporary guardian cannot l a s t longer than s i x months. I n t h e i n s t a n t proceedings, however, t h e o r i g i n a l o r d e r g r a n t - i n g temporary custody of t h e c h i l d r e n t o t h e grandparents was e n t e r e d i n June 1977. This temporary custody s t a t u s was continued by t h e D i s t r i c t Court u n t i l August 1978, a t o t a l o f f o u r t e e n months before permanent letters of guardianship w e r e i s s u e d by t h e D i s t r i c t Court. The confusion i n t h e D i s t r i c t Court i s understandable. 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 d i s t i n c t s t a t u t o r y schemes governing t h e termination of p a r e n t a l r i g h t s o r t h e custody of c h i l d r e n o r both. T i t l e 1 0 , Chapter 13, R.C.M. 1947, now T i t l e 4 1 , Chapter 3 MCA (abused, neglected and dependent youth); T i t l e 48, Chapter 3, R.C.M. 1947, now T i t l e 40, Chapter 4 MCA (Uniform Marriage and Divorce A c t ) ; s e c t i o n s 61-111, -112, R.C.M. 1347, now s e c t i o n s 40-6-233, and -234 MCA (remedy f o r p a r e n t a l abuse); T i t l e 61, Chapter 2, R.C.M. 1947, now T i t l e 40, Chapter 8 MCA; T i t l e 91A, Chapter 5, P a r t 2 , R.C.M. 1947, now T i t l e 72, Chapter 5, P a r t 2 (Guardianship of Minors). Nevertheless, while t h e r e i s some overlap i n t h e s e various procedures as t o general s u b j e c t m a t t e r , each i s used f o r a d i s t i n c t purpose and s e t s f o r t h s p e c i f i c proce- dures which must be followed before a v a l i d judgment o r o r d e r may be issued. To i n s u r e t h a t t h e minors involved r e c e i v e t h e f u l l p r o t e c t i o n of t h e s e l a w s , t h e s e procedures should be "rigorously followed." I n re Guardianship of Evans (1978), Mont. , 587 P.2d 372, 376, 35 St-Rep. 1768, 1773. D i s t r i c t Courts must i d e n t i f y and adhere t o t h e proper procedure and standards t o be used i n t h e proceedings before them. Only then w i l l t h e fundamental r i g h t s and r e l a t i o n s h i p e x i s t i n g between parent and c h i l d be f u l l y r e a l i z e d o r , when necessary, properly severed. The order of t h e D i s t r i c t Court g r a n t i n g l e t t e r s of guardianship t o t h e grandparents i s reversed. W e concur: . A h i e f Just* i / J u s t i c e s | July 17, 1979 |
416282e1-4c1e-4375-bee9-ae071b87896e | BALDWIN v STUBER | N/A | 14505 | Montana | Montana Supreme Court | No. 14505 I N THE SUPREME C O W O F THE STATE O F M3NTANA 1979 TERRY BALDWIN, Plaintiff and Appellant, -vs- KJ-AN -1 Defendant and Respondent. Appeal froan: D i s t r i c t Court of the Eighth Judicial ~istrict, Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Cameron Ferguson, Great Falls, Mntana For Respondent: T l X S P M s Baiz, Great Falls, bbntana Submitted on briefs: February 9, 1979 Decided: j u a 2 9 1970 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. This is an appeal by p l a i n t i f f from a judgment of t h e D i s t r i c t Court of Cascade County, s i t t i n g without a jury, i n an a c t i o n f o r breach of c o n t r a c t . P l a i n t i f f was t h e operator of t h e "Natural Look Barber Salon" i n premises l e a s e d from t h e European Health Spa i n Great F a l l s , Montana. From Ifarch, 1974 t o March, 1976, p l a i n t i f f rented t h e premises on a month-to-month tenancy, and from March, 1976 t o February 28, 1977, held t h e premises under a one year l e a s e . Sometime i n 1975, p l a i n t i f f ' s business had reached t h e p o i n t where he could not handle it alone. He approached defen- dant about working with him and defendant t h e r e a f t e r began oper- a t i n g a booth i n t h e shop. Defendant was an independent contrac- t o r paying p l a i n t i f f a weekly r e n t a l . I n late 1976 o r e a r l y 1977, p l a i n t i f f w a s considering opening a second barber shop on t h e o t h e r s i d e of town. H i s o r i g i n a l i n t e n t i o n was t h a t he would own both shops, but l a t e r he conceived t h e idea of running only t h e second shop and s e l l - ing t h e shop i n t h e Spa t o defendant. The p a r t i e s discussed t h a t p o s s i b i l i t y and defendant a t l e a s t once contacted a l o c a l bank t o i n q u i r e about financing. When p l a i n t i f f ' s l e a s e expired on February 28, 1977, he d i d n o t renew it but r a t h e r returned t o paying r e n t by t h e month. P l a i n t i f f saw no need t o renew t h e lease i n view of h i s a n t i c i - pated sale of t h e business. O n March 8, 1977, as a r e s u l t of t h e discussion of t h e proposed s a l e between t h e p a r t i e s , a " S e l l i n g Agreement" prepared by p l a i n t i f f w a s executed by him and defendant. It provides, verbatim, as follows: "On t h i s d a t e 3-8-77, I , Terry L. Baldwin, here- to-fore known a s s e l l o r , and Alan D. Stuber, here-to-fore known as sellee, enter into a sell- ing agreement, which is here-to-fore known as The Natural Look Barber Salon, located in the European Health Spa at 2500 6th Ave. So., Great Falls, MT. "The sellor agrees to sell said shop for set amount agreed to by the sellor and sellee of $7,000.00. The sellee agrees to make payment in full at the time of signing of the lease and ac- quiring money from The Northwestern Bank of Great Falls, Montana to sellor, or sellors wife, Myra D. Baldwin, or Dee L. Bullard with the right of receivership. The sellee understands that a lease between European Health Spa and sellee would be null and void without payment to sellor of said $7,000.00. The sellor agrees to these selling conditions: "1. To leave all permanent fixtures and furniture, (Coke Machine and antiques are excluded.) "2. The Shop name of The Natural Look is to remain with sellor. ) "The sellee agrees to these selling conditions: "1. To operate under his own name whichever he sees fit other than The Natural Look. "2. Sellee agrees to pay full monthly payment on shops Yellow Page ad. (February 77 to February 78.) This is contingent on maintaining original phone number. (Sellor will apply for new number.) "3. Sellee agrees to gainfully employ sellor until such time as sellor can be gainfully employed in a new location." In late June, 1977, plaintiff notified his lessor that he intended to terminate his rental arrangement as of July 1, 1977, contingent upon receipt from defendant of the $7,000 payment for the sale of the business. The notice said that if the sale did not materialize, "this letter of termination of rental agreement is void." At the time of mailing the notice, plaintiff was no longer under a lease, but was merely a month-to-month tenant. On July 1, 1977, defendant, without plaintiff's knowledge or consent, entered into a five year lease of the Spa location with the lessor. On July 5, when plaintiff approached defendant about consummating the sale, defendant informed him that he had decided to remodel, did not want to purchase the furniture and improvements plaintiff had installed in the shop, and had secured a new lease from the lessor. Plaintiff then went directly to the shop, removed all of the furniture and fixtures belonging to him, and disconnected the phone. Plaintiff did his barbering in his home until September 1977 when he found another location. On October 11, 1977, plaintiff filed a complaint against defendant in Cascade County District Court alleging breach of the "Selling Agreement". The prayer for relief requested judgment in the sum of $7,000 or, alternatively rescission of the "Selling Agreement"; a court order requiring defendant to transfer to plain- tiff his interest under the new lease, and $2,000 in general dam- ages. Defendant's answer alleged that plaintiff had made false and fraudulent representations to induce him to enter into the "Selling Agreement" and that the agreement was therefore null and void. Trial was had without a jury on May 15, 1978. Plaintiff's theory at trial was that even though he had removed his furnish- ings and fixtures and taken his phone number, defendant still owed him compensation for goodwill and the value of the leasehold. Plain- tiff sought to testify that the parties understood that the sale contemplated those items, but since the "Selling Agreement" did not refer to them, defendant's objections under the parol evidence rule were sustained. Defendant, on the other hand, was asked what plaintiff told him he was selling to him. When plaintiff's counsel objected under the parol evidence rule, the court overruled the objection, stating "I would like to hear this testimony." Defendant testi- fied that plaintiff indicated he was selling all the equipment, permanent fixtures and everything that belonged in the shop, ex- cluding his antiques, but had not told him that approximately a third of the fixtures and equipment belonged to the Spa rather than to plaintiff. Defendant further testified that when he entered into the "Selling Agreement" on March 8, 1977, he thought plain- tiff still had a lease in effect. On cross-examination, defen- dant testified he did not recall any mention of goodwill as being part of the sale. The court asked defendant what he received under the "Selling Agreement." Defendant stated that he had received nothing. None of the things mentioned in the "Selling Agreement", except the items belonging to the Spa, are now or ever were in defendant's possession. Findings of fact and conclusions of law were entered by the District Court on June 19, 1978. The pertinent findings and conclusions for purposes of this appeal are, in summary: (a) That plaintiff never informed defendant prior to exe- cution of the "Selling Agreement" that some of the fixtures and equipment in the shop were not contemplated in the sale or that his lease had expired, so that there was no valid contract be- cause defendant had not been properly apprised of what he was re- ceiving and there was therefore no meeting of the minds. (b) That since there was no mention of goodwill in the "Selling Agreement," plaintiff was barred from any compensation for it because a contract extends only to those things concerning which it appears that the parties intended to contract; further, that in this case, even if goodwill had been mentioned in the contract, plaintiff was not entitled to recover anything for it because he had retained the name and phone number of the shop and had begun operating a competing business in the same city, so that no goodwill had passed to defendant. (c) That defendant had received nothing which belonged to plaintiff or which plaintiff had agreed to sell in the "Selling Agreement," and that plaintiff should recover nothing. On appeal, plaintiff contends that the District Court erred in finding that defendant received no goodwill. He argues that a primary element of goodwill is the location of the business, which defendant received without paying compensation to plain- tiff. Further, plaintiff contends, goodwill can pass by impli- cation whether specifically mentioned in a contract or not, so that it was error to conclude there was no sale of goodwill here merely because goodwill was not itemized in the "Selling Agreement." While plaintiff raises several other matters in his brief, it is clear from his prayer for relief on appeal that noncompensation for goodwill is the central issue before us. Plaintiff requests that we "reverse the trial court and direct entry of judgment in favor of seller for $4,000" (the figure plaintiff submits as a reasonable allocation to goodwill out of the $7,000 contract price for the transfer of the business), or, alternatively, that we "reverse the trial court and remand for establishment of values for the property that passed to Buyer for which seller is due." Plaintiff's contention that location is a primary element of goodwill is correct. "All definitions of goodwill incorporate as one of the chief elements thereof the advantage accruing to a vendee from the old business stand, and it is particularly important in the case of a trade or business of a commercial character." 38 Am Jur 2d Good Will 8 5 . Defendant argues that a barber business is not of a commercial character, but is rather a professional or quasi-professional enterprise depending on public confidence in a particular person and that no element of goodwill inheres in such a business. While defendant's position is not without support, " . . . this view seems traceable to the early, narrow definition of good will. There is authority that good will may also exist in a professional practice or in a business founded on personal skill or reputation." 38 Am Jur 2d Good Will § 8 . Plaintiff's contention that goodwill can pass by impli- cation on the transfer of a business, even though not mentioned in a written contract of sale, is also correct. While there are some decisions that refuse to find an implied sale of goodwill, the majority rule is that if goodwill is not expressly reserved or excepted, it passes automatically to the purchaser of a business, regardless of whether the seller has or has not entered into an express covenant not to compete. 38 Am Jur 2d Good Will 810; Annot. 65 ALR2d 502. At trial, defendant testified that thirty to forty per- cent of his present customers are the same people who used to frequent the shop when plaintiff operated it. The District Court's findings, which are otherwise thorough and complete, do not mention this fact. In our view, this testimony is significant because it gives rise to the implication that it was the location of the shop rather than any personal qualities of either plaintiff or defen- dant that attracted these customers. It appears, therefore, that plaintiff has in fact lost a valuable asset without being compensated. We hold that the District Court erred in its ruling that no goodwill passed to defendant. Having so determined, we now turn to the problem of plaintiff's remedy. Plaintiff's complaint was pleaded strictly on the basis of breach of an express contract. However, plaintiff argued at trial and on his motion to amend the findings and conclusions an estoppel-based unjust enrichment, viz. that because defendant had reaped a benefit from the transaction, he could not deny the valid- ity or binding effect on him of the "Selling Agreement." As a general rule, recovery cannot be had in quantum meruit under a complaint alleging an express contract. "When an express contract is alleged it must be proved. Failure to do so is not merely a variance but it is rather a failure of proof, and recovery cannot be had on proof of an implied contract." Puetz v . Carlson (1961), 139 Mont. 373, 382, 364 P.2d 742, 747. How- ever, "[Tlhe fact that an express or special contract was pleaded does not prevent a recovery on an implied contract or on quantum meruit where such express or special contract is void, or where a contract never came into existence." 17A C.J.S. Contracts S569. Recovery in quasi contract has been granted where the evidence showed that there was no contract because of misunder- standing. See 1 Palmer, Law of Restitution 84.1 368 (1978). Further, the rule barring recovery on proof of an implied con- tract or quantum meruit in an action brought on an express or special contract is inapplicable where " . . . the record shows an unusual and equitable reason for such recovery and the par- ticular situation seems to justify it." 17A C.J.S. Contracts S569. Among the conclusions of law entered by the ~istrict Court was that a meeting of the minds is required in order to make a valid contract and that there was no meeting of the minds in this case " . . . because defendant had not been properly apprised of what he was receiving from the plaintiff, and defendant was not aware that plaintiff's lease had expired." The same C.J.S. Contracts section twice referred to above also provides that the setting aside of a contract for fraud in its procurement " . . . does not remove the case from the application of the rule deny- ing recovery on implied contract or quantum meruit where an ex- press contract is pleaded." The District Court made no finding of fraud, so defendant cannot complain that this rule is violated by granting plaintiff relief. The District Court's conclusion was merely that the contract was not valid. Therefore, this case comes within the rule cited above allowing recovery on an implied contract where the express contract pleaded never came into exis- tence. In addition, it is clear that defendant's surreptitious procuring of a new lease and his subsequent repudiation of the obligations he had freely assumed in the "Selling Agreement" worked a substantial injustice on plaintiff. Therefore, we find this to be a proper case to invoke the second exception noted above to the no-recovery rule. The record here shows an unusual and equitable reason for such recovery and the particular situation seems to justify it. Several peripheral matters are also raised in plaintiff's brief. None of these matters has any significant effect on the merits of the appeal. We discuss them only in the interest of completeness and to demonstrate that none of plaintiff's conten- tions has been overlooked. Plaintiff contends that the District Court erred by in- voking the parol evidence rule to prevent him from testifying that goodwill was contemplated in the "Selling Agreement" yet still allowing plaintiff to testify on that issue. The record shows that defendant testified only as to what his understanding was of items - not included in the agreement, and did not seek to establish that the agreement contemplated more or different items than appeared on its face. There was, therefore, no conflict with the parol evidence rule. Plaintiff further contends that his offered testimony that goodwill was included in the sale should have been admitted as an exception to the par01 evidence rule under section 87A-2-202 R.C.M. 1947, now section 30-2-202 MCA. This section is a provi- sion of the Uniform Commercial Code which is applicable only to sales of "goods" and affords plaintiff no relief upon the sale of a business. Plaintiff also contends that he was entitled to compen- sation for the value of his leasehold interest. Unlike goodwill, no authority has been cited or found that such an interest can pass by implication although not mentioned in the "Selling Agree- ment." Further, at the time defendant entered the new lease, plaintiff's lease had expired and he held the premises only under an informal month-to-month tenancy; he had no transferable interest in any lease. ina ally, since the new lease negotiated by defendant required him to pay $55 per month more rent than plaintiff was paying, it cannot be argued that defendant succeeded to any benefits or advantages of plaintiff's leasehold. The judgment of the District Court that plaintiff recover nothing on his complaint is vacated and the cause is remanded for a determination of the reasonable value of the goodwill associated with the shop location. Chief Justice ' Justices Y' | June 29, 1979 |
06d8acc5-a61c-4574-8384-d696f3ea9c32 | SCHANZ v CITY OF BILLINGS | N/A | 14458 | Montana | Montana Supreme Court | N o . 14458 IN THE SUP- COUHT OF THE STATE OF MXfTANA 1979 Plaintiffs and Appellants, CITY OF BILLINGS, et a l . , Defendants and Respondents. Appeal £ram: District Court of the Thirteenth Jdicial District, H o n . Charles Luedke, Judge presiding. Counsel of Record: F o r Appellants: Fillner and Pitet, Billings, Mntana Russell K . Fillner argued, Billings, Mntana For Respondents: Peterson and Hunt, Billings, Mntana K . D . Peterson argued, Billings, bntana Submitted: March 16, 1979 Decided: J U N 2 ; 1 9 7 9 Filed: J U N 2 . 19@ Mr. Justice John C. Sheehy delivered the Opinion of the Court. Plaintiffs Arthur and Rachel Schanz appeal from the judgment of the District Court, Yellowstone County, which dismissed their claim that annexation by the defendants City of Billings, et al., of certain property known as the Hayes Subdivision was ineffective, dismissed their claim that the Hayes Subdivision should not have been zoned R-7200 when it was annexed, and ordered that plaintiffs' application for a zone change be heard and reconsidered in accordance with criteria set forth in this Court's decision in Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551. Arthur Schanz has been in the construction business since 1953. In December 1971, Schanz purchased real property known as the Hayes Subdivision, comprised of twenty lots situated outside of, but contiguous to, the city limits of Billings, Montana. During construction of a four-plex apartment on the land, which began in June 1972, Schanz discovered that the City's water and sewer services would not be extended to the subdivision unless the property was annexed. Schanz took no action on the matter for approximately one year, but in the meantime enlisted the services of a registered engineer, made arrangements with a contractor to install water and sewer lines, and continued with his con- struction work in the subdivision. On July 5, 1973, the registered engineer, acting in Schanz's behalf, applied to the City for permission to extend water and sewer lines to the Hayes Subdivision. The Public Utilities Board approved the application, and on July 16, the City Council approved the requested extensions "subject to annexation". A request to extend city boundaries to include the Hayes Subdivision appeared on the City Council agenda on August 6, 1973, and the resolution of intent to extend the boundaries of the City of Billings was adopted the same day. Notice of the resolution was published and the matter came before the City Council for final action on September 10, 1973, resulting in an expansion of the City's boundaries to include the Hayes Subdivision. The City Zoning Commission sent its recommended zoning classification to the City Council on September 10, the same day the resolution was passed to extend the City's boundaries. A notice of public hearing fixing October 1, 1973, as the date of hearing before the City Council was posted September 13, 1973, by the City clerk. No one appeared to speak in favor of or against the Commission's recommendation and the City Council adopted the recommendation by passage of Ordinance No. 3744 on October 1 . The land on which the four-plex had been built was classified R-6000 (multi-family dwellings) and the remainder was given a R-7200 classification (single family dwellings and duplexes only). Schanz did not attend any of the proceedings affecting the property. However, he did continue his construction activities, and by October 1973, Schanz had built or had under construction two four-plexes and three single family dwellings. When Schanz applied to the City for more building permits and was refused because of the R-7200 zoning classifi- cation, he began what was to be a continuous series of efforts to be exempted from zoning regulations. On or before February 11, 1974, Schanz applied for a zone change to allow for construction of more four-plexes. -3- Persons living adjacent to the subdivision filed a protest (the subdivision is surrounded by a R-9600 classification- single family dwellings only). After failing to secure a zone change, Schanz applied for a variance. The variance was denied, and on March 3, 1975, Schanz again petitioned for a zone change. The City Council denied the zone change on April 28, 1975, reconsidered the application and denied it again on May 19, 1975. The procedure was repeated with the same result in June 1976. This action was filed in District Court, Yellowstone County, on September 3, 1976, to have the annexation resolution declared null and void, to have the zoning classification removed, or alternatively, to secure a zone change. On July 24, 1978, the Honorable Charles Luedke entered judgment dismissing the first and second claims and ordering that the application for a zone change be reconsidered in accordance with the criteria set forth in Lowe. On appeal, plaintiffs present three issues: 1. Can an initial zone classification be made when the notice and hearing on the matter by the City Zoning Commission and City Council came before the affected area was annexed by the City? 2 . Can an initial zone classification be made when the City Zoning Commission and City Council failed to comply with the twelve-point test set forth in section 11-2703, R.C.M. 1947, now section 76-2-304 MCA, and this Court's decision in Lowe? 3. Are plaintiffs estopped from asserting that the procedure for annexing the land was fatally defective, rendering the annexation void? The Zoning Commission for the City of Billings held a hearing on September 10, 1973, to consider the zoning -4- recommendation to be sent to the Billings City council for the Hayes Subdivision. Notice of the hearing had been published August 16, 1973. Following the hearing, the Commission decided on a recommendation and sent it to the City Council. The recommendation reached the City Council approximately five (5) hours before the resolution annexing the Hayes Subdivision was passed. Plaintiffs contend this procedure violated section 7.03 of the Billings Zoning Ordinance, and Article 11, Section 8 of the 1972 Montana Constitution. Section 7.03 of the zoning ordinance provides: "When a parcel of land lying outside the corporate limits of the City of Billings and within the Yellowstone County Zoning jurisdiction is annexed to the City of Billings, the property shall retain the classification it has in the County but will be reviewed by the City Zoning Com- mission and a recommendation sent to the City Council either reaffirming the County classification or change the zoning class- ification, within (90) ninety -- days of passage of the final resolution of annex- -- - ation." (Em~hasis added.) Practically the same rules of construction apply to an ordinance as apply to a statute. State ex rel. Bennett v. Stow (1965), 144 Mont. 599, 399 P.2d 221. If the language of an ordinance is plain and unambiguous, it is not subject to interpretation or open to construction but must be accepted and enforced as written. Sheridan County Electric Co-op, Inc. v. Montana-Dakota Utilities Co. (1954), 128 Mont. 84, Section 7.03 does not prohibit the Zoning Commission from sending a recommendation before the final resolution of annexation is passed. It merely requires that the recommendation be sent no later than ninety days after the annexation resolution is passed. There is no problem here with property being zoned prior to annexation. The annexation resolution, passed on September 10, 1973, went into effect on October 10, 1973, pursuant to section 11-1106, R.C.M. 1947, now section 7-5- 4203(1) MCA. The actual zoning ordinance was not passed until October 1, 1973, and similarly did not take effect until thirty days later, on October 30, 1973. Consequently, the Hayes Subdivision was given a zoning classification some twenty days after the property was annexed by the City of Billings. The problem here is that the City Zoning Commission transmitted its recommendation to the City Council approximately five hours before the Council acted on the annexation resolution. Section 7.03 of the zoning ordinance does not require that the recommendation be sent after the annexation resolution passes and this Court will not impose such a requirement. Plaintiffs fail to explain how their rights under Article 11, Section 8 of the 1972 Montana Constitution have been violated. Article 11, Section 8 provides: "Riaht of to afford Participation. The public has to expect governmental agencies such reasonable opportunity for citizen participation in the operation of the agencies prior to the final decision as may be provided by law." The City Zoning Commission published a notice of public hearing on August 16, 1973. The hearing was held on September 10, 1973. Then the City clerk of Billings published a notice of public hearing by the City Council on the subject of the Zoning Commission's recommended classification. The hearing was held on October 1, 1973 and no - person attended. Plaintiffs were given a reasonable opportunity to participate and failed to do so. On July 22, 1974, this Court decided the case of Lowe, which involved an appeal from a judgment of the District Court -6- upholding an ordinance passed by the Missoula City Council rezoning certain residential property. The plaintiffs challenged the adoption of the ordinance on the grounds that the ordinance had not been adopted in accordance with the provisions of section 11-2703, R.C.M. 1947. Section 11-2703, R.C.M. 1947, now section 76-2-304 MCA sets forth guidelines a City Council must follow in its regulation of land: "11-2703. Purposes of -- act. Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sew- erage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality." In Lowe, this Court concluded that the record made by the City Council and relied on by the District Court was so lacking in fact information that it could not be said that the requirements of section 11-2703 had been followed. Precisely, the Court held that the District Court had abused its discretion in upholding the zoning ordinance in disregard of the contention that statutory law had not been followed in the enactment of the ordinance. A contention similar to that in Lowe was presented to the District Court in this case. The District Court failed to find merit in the contention however, and did not examine the City Council's record because passage of the zoning ordinance on October 1, 1973, predated the decision in Lowe. Plaintiffs seek to have the District Court's conclusion overturned for the reason that the statute providing the steps a City Council must follow in its regulation of land was in existence long before the Lowe decision was handed down. We agree with the plaintiffs on this point. It was not the Lowe decision that created a twelve-point test for adopting zoning ordinances. Rather, section 11-2703, originally enacted in 1929, mandated the consideration of twelve independent factors prior to the passage of any zoning ordinance. Defendants do not dispute plaintiffs' allegation concerning the inadequacy of the record, but instead contend that, due to language in Lowe, an initial zoning classification may not be disturbed by the courts. In Lowe, we said: "The city argues that under Montana's section 11-2703, R.C.M. 1947, it cannot be charged with an abuse of discretion if the record indicates the City Council and the district court had before them reasonable evidence or testimony upon which they could find that one or more of the purposes of the enabling statute had been accomplished. Further, that the matter was largely within the council's legislative authority and there is a presumption that it had investigated and found the conditions to be such that the legislation which it enacted was appropriate and that the courts must hold that the action of the legislative body (the City Council) is valid. "While neither the trial court nor this Court can substitute its discretion for that of the City Council, the judiciary does have the power to find whether or not there has been an abuse of dis- cretion. Freeman v. Board of Adjustment, 97 Mont. 342, 34 P.2d 534. There is under Montana statutes and case law a sound distinction between "zoning" and the act of "rezoning" or granting or refusing a variance. The former constitutes a legislative act while the latter is more of an administrative or quasi-judicial act in applying provisions of existing ordinance or law. In such application the exercise of sound discretion is limited by the provisions of the statute, including such standards as are set forth therein. Low v . Town of Madison, 135 Conn. 1, 60 A.2d 774." 165 Mont. at 43. A review of authorities reveals no elemental distinction between the act of "zoning" and the act of "rezoning". A rezoning ordinance, like a zoning ordinance, is a legislative enactment, and is entitled to the presumptions of validity and reasonableness. Sundance Hills Homeowners Association v. Board of County Commissioners for Arapahoe County (1975), 188 Colo. 321, 534 P. 2d 1212, Smith v. Washington County (1965), 241 Or. 380, 406 P.2d 545; Bishop v. Town of Houghton (1966), 69 Wash.2d 786, 420 P.2d 368. See also: 82 Arn.Jur.2d Zoning - and Planning S18, p. 414, and 1 Anderson American Law of Zoning S4.28. -- Although we depart here from the distinction expressed in Lowe between the acts of zoning and rezoning, we none- theless continue to hold that where the information upon which a City Council and District Court act is so lacking in fact and foundation, it is clearly unreasonable and con- stitutes an abuse of discretion. An ordinance, whether it be enacted for the purpose of zoning or rezoning areas within City boundaries, is invalid unless made in accordance with the provisions of section 11-2703, now section 76-2- 304 MCA. Therefore, this case must be remanded to the District Court in order that the City Council's record of considerations may be examined and reviewed in light of the twelve statutory requirements of section 11-2703. Finally, the District Court found that the City Council's resolution of intention to annex did not describe plaintiffs' property with sufficient particularity, but held that plaintiffs were estopped from challenging the annexation for lack of notice because (1) the annexation process was initiated by the plaintiffs, (2) because the annexation was for the plaintiffs' benefit, and (3) because the plaintiffs enjoyed the benefit of water and sewer services for three years before challenging the legality of the annexation ordinance. "The general rule that property owners are estopped by reason of a long-continued acquiescence to question directly the validity of the extension of the boundaries of a municipality seems to be well-settled". 56 Arn.Jur.2d Municipal Corporations 880, p . 134; see also, 101 A.L.R. 581. An explanation of the rule appears in Finucane v . Village of Hayden (Idaho 1963), 384 P.2d 236: "The general rule which respondents seek to invoke is stated in McQuillin Municipal Corporations, 3rd Ed., Vol. 2, 57.09, in the following language, "If the elements of estoppel are present, the owners of land over which the municipal corporation has exercised the powers and functions of govern- ment for a long period of time will be estopped from questioning the location of the municipal boundaries.' Such rule has application even though the proceeding by which the municipal boundaries were extended are void, when by reason of lapse of time the municipal authority has been exercised and there has resulted changed conditions involving extensive public and private interests. State ex rel. West v . City of Des Moines, 96 Iowa 521, 65 N.W. 818, 31 L.R.A. 186. "Such holdings are based upon public policy. Where a municipal corporation and the parties affected acquiesce in such action by the officials of the corporation, and transact business upon the theory that the land is located within the boundaries of the municipality it is in the interest of the general public that such a rule be applied." Plaintiffs contend the City's requirement that property be annexed prior to extension of water and sewer services is tantamount to coercion and thereby renders principles of estoppel inapplicable to this case. However, plaintiffs have not considered section 11-1001(4), R.C.M. 1947, now section 7-13-4314 MCA which states: "(4) Any person, firm or corporation receiving water or sewer service outside of incorporated city limits may be required by the city or town as a condition to initiate such service to consent to annexation of the tract of property served by the city or town. The consent to annexation is limited to that tract or parcel or portion of tract or parcel that is clearly and immediately and not potentially being serviced by the said water or sewer service." Under the facts presented in this case, the District Court properly concluded that plaintiffs were estopped from challenging the legality of the annexation ordinance. Remanded with directions. We Concur: - Chief Justice Ju ces | June 27, 1979 |
30a83598-5eae-476a-885f-34d5bdbfcca1 | KELLER SELSTAD v DEPT OF REVENU | N/A | 14539 | Montana | Montana Supreme Court | No. 14539 I N THE S U P R E M J 3 COUHT O F THE STATE O F ICNTANA 1979 M. F. KELT;ER, T O M SEXSTAD, J I M WODAHL, AKI' WENZEK, GEORGE BUZZAS et a1 . , Petitionersand Appellants, IlEPARRBW O F F ! E W t W E O F THE STATE O F M X T A N A , an official agency of the State of Wntana; CASCADE COUNTY, M X T A N A , a political subdivision of t h e State of Wntana; and THE CITY O F GREAT FALLS, PINTANA, a municipal corporation of the State of Wntana, Respondents and Respondents. @pal from: 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 Appellants: Graybill, Ostrem, Warner & Crotty, G r e a t Falls, Wntana Donald O s t r e m argued, Great Falls, Wntana For Respondents: R. Bruce MSinnis argued, Dept. of Revenue, Helena, mntana J. Fred Bou~deau, County Attorney, Great Falls, Wntana David V. G l i k o , City Attorney, G r e a t Falls, Wntana Suhitted: June 12, 1979 m i d & : J U L 1 1 1373 3 . - r ; , s t Filed: 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. This appeal i s brought by taxpayers i n t h e C i t y of Great F a l l s from an order of t h e D i s t r i c t Court, Cascade County, dismissing t h e i r a c t i o n f o r d e c l a r a t o r y judgment. P l a i n t i f f s - a p p e l l a n t s sought a d e c l a r a t i o n t h a t t h e defen- d a n t S t a t e Department of Revenue had i l l e g a l l y denied them t h e t a x a t i o n a p p r a i s a l and assessment b e n e f i t s of t h e Mon- tana Economic and Land Development Act (MELDA), which became e f f e c t i v e on January 1, 1976. Chapter 549, Laws of Montana 1975. The D i s t r i c t Court r u l e d t h a t p l a i n t i f f s had n o t exhausted t h e i r a d m i n i s t r a t i v e remedies and w e r e t h e r e f o r e n o t e n t i t l e d t o j u d i c i a l review. A b r i e f review of M E L D A assists an understanding of t h e p a r t i e s ' contentions. A s o r i g i n a l l y enacted, M E L D A provided f o r c l a s s i f i c a t i o n of various types of land according t o t h e l a n d ' s d e s i r a b l e use and c r e a t e d a system of t a x a t i o n de- signed t o encourage such d e s i r a b l e use. Chapter 549, Sec- t i o n s 7 through 20, Laws of Montana 1975, c o d i f i e d as sec- t i o n s 84-7507 through-7520, R.C.M. 1947, repealed Chapter 582, Section 20, Laws of Montana 1977. One element of t h e Act w a s a provision f o r review and approval of a l o c a l governing body's own plan f o r c l a s s i f i c a t i o n of land within i t s j u r i s d i c t i o n . Section 84-7505, R.C.M. 1947, repealed Chapter 582, Section 20, Laws of Montana 1977. Section 84- 7505(5) f u r t h e r provided t h a t i f a c i t y o r county governing body had f a i l e d t o submit a s u i t a b l e land use c l a s s i f i c a t i o n p l a n by January 2 , 1978, t h e S t a t e Department of Community A f f a i r s would prepare t h e plan. The C i t y of Great F a l l s adopted a plan f o r land u s e c l a s s i f i c a t i o n under M E L D A on A p r i l 26, 1977, by C i t y Com- mission Resolution No. 6941. O n August 17, 1977, t h e S t a t e Department of Revenue n o t i f i e d t h e C i t y t h a t t h e p l a n d i d n o t conform t o MELDA's p r o v i s i o n s , and t h u s persons a c t i n g i n r e l i a n c e upon t h e C i t y ' s land u s e p l a n would n o t r e c e i v e M E L D A t a x treatment. P l a i n t i f f s a r e c i t i z e n s of Great F a l l s who expended money f o r c o n s t r u c t i o n and improvement i n r e l i a n c e upon t h e C i t y ' s M E L D A plan. A f t e r l e a r n i n g of t h e Department of Revenue's determination t h a t t h e plan d i d n o t conform, they sought d i r e c t r e l i e f from t h e Department by r e q u e s t i n g M E L D A treatment of t h e i r investments. The Department r e f u s e d t o implement M E L D A treatment, and p l a i n t i f f s f i l e d t h e i r a c t i o n b e f o r e t h e D i s t r i c t Court. The p e t i t i o n b e f o r e t h e D i s t r i c t Court requested a d e c l a r a t i o n t h a t t h e Department of Revenue had a c t e d i l l e g a l l y i n r e f u s i n g t o implement t h e C i t y ' s M E L D A p l a n , and f u r t h e r t h a t p l a i n t i f f s were e n t i t l e d t o M E L D A t a x treatment d e s p i t e t h e r e p e a l of t h e Act by t h e 1977 L e g i s l a t u r e . Paragraphs X I , X I I I , and X I V of p l a i n - t i f f s ' complaint. A s noted above, t h e D i s t r i c t Court dismissed t h e com- p l a i n t , r u l i n g t h a t p l a i n t i f f s w e r e f i r s t r e q u i r e d t o seek a d m i n i s t r a t i v e review of t h e Department of Revenue's d e t e r - mination b e f o r e t h e S t a t e Tax Appeal Board: "The p r o v i s i o n s of t h e s a i d s t a t u t e a r e anything b u t simple and r e q u i r e s a g r e a t d e a l of knowledge and experience i n land u s e and development, l a n d c l a s s i f i c a t i o n , zoning, a p p r a i s a l s , assessments and t a x a t i o n , i n o r d e r f o r t h e reader t o f u l l y understand and comprehend t h e l e g i s l a t i v e i n t e n t . . . I t i s t o be noted i n t h i s connection t h a t t h e S t a t e Tax Appeal Board has j u r i s d i c t i o n t o review d e c i s i o n s of t h e Department of Revenue i n regard t o p r o p e r t y assessments, t a x e s and penal- ties. S e c t i o n 84-708(3), R.C.M. 1947, as amended. "Because of t h e complexity of t h e s t a t u t e and t h e n e c e s s i t y of bringing s t a t e agency a d m i n i s t r a t i v e e x p e r t i s e and knowledge t o bear on t h e implement- i n g of such a comprehensive land development and t a x i n c e n t i v e program, t h i s case i s an example of t h e reason f o r t h e r u l e r e q u i r i n g exhaustion of administrative remedies before c o u r t s w i l l i n t e r f e r e with a d m i n i s t r a t i v e proceedings." P l a i n t i f f s bring two i s s u e s on appeal: 1. Whether taxpayers have an a d m i n i s t r a t i v e remedy before t h e S t a t e Tax Appeal Board concerning a d e c i s i o n by t h e S t a t e Department of Revenue which declared a c i t y land use plan n o t t o be i n compliance with M E L D A . 2. Whether, i f such a remedy e x i s t s , t h e taxpayers were required t o pursue t h a t remedy before bringing an a c t i o n i n D i s t r i c t Court t o o b t a i n a d e c l a r a t i o n of t h e meaning of l e g i s l a t i o n . Under t h e f i r s t i s s u e p l a i n t i f f s argue t h a t t h e Depart- ment of Revenue d i d not i s s u e any order from which they could appeal. They contend t h a t t h e C i t y of Great F a l l s was t h e only e n t i t y capable of pursuing an appeal on t h e Depart- ment's r e f u s a l t o implement t h e Great F a l l s M E L D A plan. P l a i n t i f f s w e r e n o t p a r t i e s t o any proceedings before t h e Department of Revenue, and d i d not submit any plan t o it. Therefore, they argue, they have no standing t o appeal t o t h e S t a t e Tax Appeal Board. The Department of Revenue responds t h a t it had issued two r u l i n g s , both of which p l a i n t i f f s could have appealed t o t h e Tax Appeal Board. The f i r s t i s a letter of August 17, 1977, by which t h e Department informed t h e C i t y t h a t i t s land use plan d i d n o t comply with MELDA. The second i s a letter dated December 19, 1977, which w a s a d i r e c t response t o t h e p l a i n t i f f s 1 a t t o r n e y . The Department contends t h a t t h e s e c o n s t i t u t e d f i n a l decisions which a f f e c t e d t h e tax- payers, and t h e taxpayers could have appealed t o t h e Tax Appeal Board under s e c t i o n 84-708(3), R.C.M. 1947. The scope of d e c i s i o n s by t h e Department of Revenue which a r e appealable t o t h e S t a t e Tax Appeal Board i s set f o r t h i n s e c t i o n 84-708(3), R.C.M. 1947: "To hear a p p e a l s from d e c i s i o n s of t h e Department i n regard t o business l i c e n s e s , p r o p e r t y a s s e s s - ments, t a x e s and p e n a l t i e s . " Thus, when p r o p e r t y assessment d e c i s i o n s a r e rendered by t h e Department of Revenue, t h e p r o p e r t y owner a f f e c t e d must o r d i n a r i l y f i r s t seek review b e f o r e t h e Tax Appeal Board. Two exceptions t o t h i s r u l e , however, have been recognized by t h i s Court i n previous d e c i s i o n s , t h e f i r s t of which i s r e l e v a n t t o t h i s i s s u e , t h e second t o p l a i n t i f f s ' second i s s u e . I n S l e t t e n Construction Company v. C i t y of Great F a l l s (1973), 163 Mont. 307, 516 P.2d 1149, a Montana c o n s t r u c t i o n c o r p o r a t i o n , S l e t t e n , brought a mandamus a c t i o n b e f o r e t h i s Court i n a n o r i g i n a l proceeding. S l e t t e n sought t o have set a s i d e a c e r t i f i c a t e of residency which t h e Department of Revenue had i s s u e d t o an o u t - o f - s t a t e c o r p o r a t i o n , Acton, and t o o b t a i n a w r i t of mandamus d i r e c t i n g t h e c i t y t o a c c e p t i t s b i d f o r a p u b l i c works p r o j e c t r a t h e r than Acton's. The Supreme Court g r a n t e d t h e requested r e l i e f d e s p i t e t h e Department's o b j e c t i o n t h a t S l e t t e n had f a i l e d t o exhaust i t s a d m i n i s t r a t i v e remedy before t h e Tax Appeal Board. S l e t t e n , it h e l d , was n o t bound by t h e r u l e because it had n o t p a r t i c i p a t e d i n t h e proceedings by which t h e Department had determined t h a t Acton q u a l i f i e d f o r a c e r t i f i c a t e of residency: "We recognize t h a t g e n e r a l p r i n c i p l e t h a t o r d i - n a r i l y a d m i n i s t r a t i v e remedies must be exhausted b e f o r e applying f o r j u d i c i a l review. However, t h i s p r i n c i p l e has no a p p l i c a t i o n t o t h e i n s t a n t case. S l e t t e n was n o t a p a r t y t o t h e administra- t i v e proceedings awarding t h e c e r t i f i c a t e of residency t o Acton, had no n o t i c e t h e r e o f , and could hardly be s a i d t o have a n a d m i n i s t r a t i v e remedy under such circumstances." 163 Mont. a t 311, 516 P.2d a t 1151. The Department seeks t o d i s t i n g u i s h S l e t t e n by arguing t h a t while t h e p l a i n t i f f i n t h a t c a s e d i d n o t p a r t i c i p a t e i n t h e proceedings by which Acton was granted a c e r t i f i c a t e of residency, p l a i n t i f f s i n t h e p r e s e n t case w e r e very much involved i n t h e determination of whether t h e Department of Revenue would implement t h e C i t y ' s M E L D A plan. The Depart- ment r e l i e s on two f a c t s t o support t h i s argument. F i r s t , it states t h a t various i n d i v i d u a l s who a r e among t h e p l a i n - t i f f s appeared before t h e Department i n an a d m i n i s t r a t i v e hearing on June 9, 1977, before t h e Department's d e t e r - mination of whether t o implement t h e plan w a s made. Second, t h e Department s t a t e s t h a t p l a i n t i f f s brought themselves within t h e a d m i n i s t r a t i v e process by requesting a recon- s i d e r a t i o n of t h e r u l i n g of December 6, 1977. Without f u r t h e r a n a l y s i s , t h e Department concludes t h a t t h e s e f a c t s bring p l a i n t i f f s squarely within t h e provisions of Matter of DeWar (1976), 169 Mont. 437, 548 P.2d 149. DeWar is a c a s e involving t h e j u r i s d i c t i o n of t h e c i t y p o l i c e commission of Great F a l l s and makes mention n e i t h e r of t h e Tax Appeal Board's j u r i s d i c t i o n nor of t h e S l e t t e n decision. I t does r u l e , however, t h a t a d e c l a r a t o r y judgment a c t i o n is n o t t h e proper v e h i c l e f o r obtaining r e l i e f from an a d m i n i s t r a t i v e r u l i n g "within t h e j u r i s d i c t i o n of a d m i n i s t r a t i v e bodies o r commissions i n t h e process of exercising t h e i r quasi-judi- c i a 1 functions and/or power." 169 Mont. a t 445, 548 P.2d a t I t is not c l e a r why t h e Department r e l i e s on D e W a r , o t h e r than f o r i t s general statement t h a t a p a r t y aggrieved by administrative a c t i o n must f i r s t exhaust i t s administra- t i v e remedies. The case does not discuss t h e s i t u a t i o n of a nonparty. Nothing within M E L D A appears t o confer p a r t y s t a t u s t o a taxpayer who l i v e s within t h e j u r i s d i c t i o n of a governing body which seeks t o have i t s M E L D A plan imple- mented by t h e Department of Revenue. There i s no b a s i s suggested i n t h e Department's brief f o r conferring t h a t s t a t u s on a l l persons who e i t h e r appear a t a public hearing on t h e proposed plan o r who request a reconsideration of t h e Department's decision a f t e r it has already been made. There appears no reason then, t o take t h e present case o u t of t h e S l e t t e n r u l e by declaring t h a t p l a i n t i f f s had sua sponte made themselves p a r t i e s t o t h e C i t y ' s application. P l a i n t i f f s ' second i s s u e i s d i r e c t e d t o t h e exhaustion of administrative remedies. Having found they a r e n o t proper p a r t i e s f o r purposes of appeal t o t h e Tax Appeal Board, t h e City being t h a t party, w e w i l l examine t h e i s s u e as t o t h e a c t i o n taken by t h e Department of Revenue a s being one done under t h e "fundamentally wrong p r i n c i p l e s of appraisal." P l a i n t i f f s argue t h a t t h e determination made by t h e Department of Revenue was not an assessment decision such a s contemplated by s e c t i o n 84-708(3) t o be within t h e Appeal Board's j u r i s d i c t i o n , b u t r a t h e r an i n t e r p r e t a t i o n of law which must be determined by t h e judiciary. A s discussed above, t h e r e a r e two exceptions which t h i s Court has previously announced t o t h e r u l e of exhaustion of t a x appeal board remedies. The second a p p l i e s t o t h i s i s s u e . I n Larson v . S t a t e (1975), 166 Mont. 449, 534 P.2d 854, t h e Court held t h a t a p l a i n t i f f need n o t exhaust administra- t i v e remedies b e f o r e t h e Tax Appeal Board i f t h e q u e s t i o n t o be determined involved a n a l l e g a t i o n t h a t t h e Department of Revenue had used a "fundamentally wrong p r i n c i p l e " of ap- p r a i s a l : "'The s t a t u t e s having made ample p r o v i s i o n whereby a taxpayer may have any a l l e g e d e x c e s s i v e o r er- - - roneous assessment o r v a l u a t i o n of h i s p r o p e r t y reviewed by t h e county and s t a t e boards of equa- l i z a t i o n , t h i s remedy- i s e x c l u s i v e e x c e p t i n c a s e s where f r a u d -- o r tg adoption of - - a funda- mentally wrong p r i n c i p l e of assessment i s shown.' (Emphasis s u p p l i e d . ) " 1 6 6 ~ o n t . a t 456,534 P.2d a t 858, quoting Belknap Realty Co. v. Simineo (1923), 67 Mont. 359, 365, 215 P. 659, 661. I n Larson t h e p l a i n t i f f s challenged a l o c a l a p p r a i s a l system which had been u t i l i z e d p r i o r t o t h e s t a t e w i d e ap- p r a i s a l r e q u i r e d under t h e 1972 Montana C o n s t i t u t i o n . The Court h e l d t h a t t h i s came w i t h i n t h e Belknap Realty r u l e because such a l o c a l a p p r a i s a l w a s a l l e g e d t o be a "funda- mentally wrong p r i n c i p l e " of assessment, thereby r e q u i r i n g a l e g a l , n o t a n a d m i n i s t r a t i v e determination: "The S t a t e ' s u s e of an u n c o n s t i t u t i o n a l and il- l e g a l a p p r a i s a l h e r e i s t h e type of 'fundamentally wrong p r i n c i p l e ' of a p p r a i s a l f o r which s p e c i f i c exception was made i n Belknap. Were it otherwise, w e would have t h e anomalous s i t u a t i o n of an ad- m i n i s t r a t i v e , q u a s i - j u d i c i a l board passing on con- s t i t u t i o n a l and s t a t u t o r y q u e s t i o n s presented by t h i s appeal." 166 Mont. a t 456-57, 534 P.2d a t 858. I n t h e p r e s e n t case, t h e same "anomaly" would a r i s e i f t h e Tax Appeal Board w e r e f i r s t r e q u i r e d t o hear and d e t e r - mine p l a i n t i f f s ' complaint. P l a i n t i f f s do n o t challenge any p a r t i c u l a r a p p r a i s a l o r assessment b u t do challenge t h e Department's d e c i s i o n n o t t o u t i l i z e MELDA. A d d i t i o n a l l y , they seek a determination of t h e e f f e c t of MELDA's r e p e a l , c l e a r l y n o t a n a d m i n i s t r a t i v e question. These i s s u e s a r e of equal l e g a l s i g n i f i c a n c e t o those r a i s e d i n Larson because they involve t h e "fundamental p r i n c i p l e s " t o be u t i l i z e d i n a n a p p r a i s a l of and assessment on p l a i n t i f f s ' property. P l a i n t i f f s should n o t be r e q u i r e d t o p r e s e n t t h e i r c a s e t o t h e Tax Appeals Board. The judgment of t h e D i s t r i c t Court is reversed with d i r e c t i o n s t o hear and determine p l a i n t i f f s ' a c t i o n f o r d e c l a r a t o r y judgment. W e concur: 4 ' A - U . % A A ) e , Chief J u s t i c e | July 11, 1979 |
89e0935d-3823-4eb6-bd60-da053e762421 | STENSVAD v MINERS MERCHANTS BANK | N/A | 14387 | Montana | Montana Supreme Court | N o . 14387 I N T H E S U P R E M E C O U R T O F T H E STATE O F MONTANA 1979 OTTO STENSVAD, P l a i n t i f f and Respondent, MINERS & M E R C H A N T S BANK O F R O U N D U P , M O N T A N A , Defendant and Appellant. Appeal from: D i s t r i c t Court of t h e Fourteenth J u d i c i a l D i s t r i c t , Honorable Robert D. McPhillips, Judge presiding. Counsel of Record: For Appellant: Towe, B a l l , Enright & Mackey, B i l l i n g s , Montana Gerald Neely argued, B i l l i n g s , Montana For Respondent: Moses, T o l l i v e r and Wright, B i l l i n g s , Montana Kenneth T o l l i v e r argued, B i l l i n g s , Montana Submitted: June 13, 1979 ~ e c i d e d & U & 1 1 9 3 Mr. Justice John C : Sheehy delivered the Opinion of the Court. Appeal is by the Miners & Merchants Bank of Roundup, Montana (Bank) from an order of the District Court, 14th Judicial District, Musselshell County, dated May 11, 1978, dissolving a writ of attachment levied against property of Otto Stensvad. The order is appealable under Rule l(b), The matter comes to us on an agreed record on appeal. It appears therefrom that on two occasions Otto Stensvad executed two instruments denominated "guaranty". One instru- ment was dated January 2, 1970 and related to borrowings made from the Bank by Agri-Services, Inc. The second instrument dated September 16, 1971 related to borrowings made by M-V Enterprises, Inc., M & S Cattle Feeders, L. D. Stensvad Cattle Company, and L. D. Stensvad as an individual. Each instrument contains the following pertinent language: It GUARANTY "The undersigned hereby requests the Miners & Merchants Bank, Roundup, Montana (herein called the "Bank") to give and continue to give (herein called the Borrower) credit, as the Borrower may desire and the Bank may grant, from time to time, . . . and in consideration of any credit given, the undersigned [Otto Stensvad] hereby absolutely and unconditionally guaranties prompt payment when due and at all times thereafter of any and all existing and future indebtedness. . . from the Borrower to the Bank. . . The undersigned [Otto Stensvad] hereby waives presentment, protest, notice, demand or action on delinquency in respect of any such indebtedness or liability, including any right to require the Bank to sue or otherwise enforce payment thereof. ". . . It is agreed that the undersigned's liability hereunder is several and is inde2endent of any other guarantees at any time in effect with respect to all or any part of the Borrower's indebtedness to the Bank, and thatthe undersigned's liability hereunder may be enforced regardless of the existence of any such other guaranties." Each guaranty is limited to $200,000 although the aggregate amount of guaranty is disputed by Stensvad. Stensvad commenced the action in the District Court on November 16, 1971, by his complaint seeking exoneration from the said written guaranties. By answer and amended counterclaim, the Bank seeks judgment against Stensvad in the total sum of $400,000 plus attorney fees on the ground that the nbtes and loans of the Bank to the borrowers have all become due and delinquent or have become accelerated, due, and delinquent. On January 31, 1972, a writ of attach- ment was issued by the District Court in the action and levied upon sroperties of Otto Stensvad. On March 3, 1978, Otto Stensvad moved to vacate the writ of attachment on the ground, among others,that the attachment was not based upon a contract for the direct payment of a sum certain of money. On May 11, 1978, the District Court issued its order dissolving,- releasing and discharging the attachment as to all properties upon which the levy had been made. Appeal was taken by the Bank and the matter comes to us in the usual course. We ordered the appeal to be submitted to us on briefs without oral argument, and the cause is now ready for decision. We affirm the order of the District Court dissolving the writ of attachment. The sole issue presented to us is whether the guaranties involved here are contracts for the direct payment of money so as to entitle the Bank to a writ of attachment under the Montana statutes. A guaranty, under Montana law, is clearly not a contract for the direct payment of money. Section 27-18-101 MCA, says that: " (1) Property may be attached in: (a) an action upon a contract, express or implied, for the direct payment of money. . ." Section 28-11-101 MCA, defines a guaranty: "A guaranty is a promise to answer for the debt, default, or miscarriage of another person. " It is firmly established in Montana law that an instrument of guaranty will not support the issuance of a writ of attachment. In General Finance Co. v. Powell (1941), 112 Mont. 535, 540, 118 P.2d 751, 753-754, this Court said: "The attachment law is purely of statutory origin and while, like other statutes, it must be liberally construed to effect its objects (sec. 4, Rev. Codes), the courts have not the right under the guise of liberal construction to read into the statute any meaning which its words, construed according to the statutory rules, do not convey. To construe a statute is to ascertain the intent of the legislature (sec. 10520, Rev. Codes), and not to substitute the court's discretion for that of the legislature (sec. 10519, Rev. Codes). Consequently our duty is to decide the meaning of the legislature's words, construed ordinarily according to the context and the approved usage of the language (sec. 15, Rev. Codes). The question is sirn~ly this: Is a guaranty of 'the full payment of said contract and prompt payment of all sums due there- under' a contract for the direct payment of money? "As pointed out by this Court in Ancient Order of Hibernians v. Sparrow, 29 Mont. 132, 74 P. 197, 64 L.R.A. 128, 101 Am.St.Rep. 563, 1 Ann.Cas. 144, the word 'direct' first appeared in our attach- ment statute in 1866 and again as the statute was re-enacted in 1867 after the congressional invalidation of the 1866 legislation (14 Stat. 427) was omitted in 1869, and reinserted in 1895. Therefore there can be no doubt that the legislature attached some substantial meaning to the word. 'Direct' is defined by Webster's New International Dictionary (Webster-Merriam 2d Ed.) as denoting 'the absence of any intervening medium or influence'; as meaning 'marked by the absence of an intervening agency or influence.' Obviously defendant's guaranty of the purchaser's performance of the conditional sales contract is not a contract for the direct payment of money, since defendant's liability is conditioned entirely upon an intervening medium, agency or influence--namely, upon the purchaser's default, which as to eventuality, time and amount was entirely problematical. If it is to be construed as a contract for the direct payment of money, it is hard to imagine any contract for the payment of money which is not for its direct payment. "This court has long held that the term meant an unconditional and absolute obligation to pay money (Ancient Order of Hibernians v. Sparrow, supra; Heffron v. Thomas, supra; Wall v . Brookman, 72 Mont. 228, 232 P. 774), and not a collateral agreement dependent or contingent upon some other agreement. Square Butte State Bank v. Ballard, 64 Mont. 554, 210 P. 889; Gilna v. Barker, 78 Mont. 343, 254 P. 169. In the Square Butte Bank Case [64 Mont. 554, 210 P. 8901 suit was brought upon defendant's contract of guaranty that 'for value received, I hereby guarantee the collection and payment of the within note,' and it was held that the guaranty, being dependent upon the contingency of the debtor's breach of another contract, was not a contract for the direct payment of money. In Wall v . Brookman, supra, this court went so far as to suggest that the elimination of the word 'direct' from the statute would be beneficial, but as the legislature has not seen fit to eliminate it, the CDU~-tsmay not overrule the legislature in order to do so. " See also Wall v. Brookman (1925), 72 Mont. 228, 232 P. 774; Square Butte State Bank v. Ballard (1922)) 64 Mont. 555, 210 P. 889; Butte Machinery Co. v. Carbonate Hill Mining Co. (1926), 75 F l o n t . 167, 242 P. 956; Muri v. Young (1926), 75 Mont. 213, 245 P. 956. The Bank however contends that the instruments involved here are not instruments of guaranty, but rather of surety, and as such Otto Stensvad is bound with the principals as an original promissor on the borrowings. We cannot interpret the instruments before us as contracts of surety. Each is denominated by the Bank as a "guaranty"; each is a promise by Otto Stensvad to answer for the debt, default, or miscarriage of another person or entity. As such, each in- strument is a guaranty instrument, and not a surety instrument, even though each provides that Stensvad's liability is "several" and that Stensvad waived all right to require enforcement of payment from the borrower. The Bank cannot escape the effect of the instrument with respect to Stensvad, that his liability is conditioned entirely upon an intervening event, that is the borrower's default. General Finance Co. v. Powell, supra. As early as 1900, in Cole Mfg. Co. v. Morton (1900), 24 Mont. 58, 60 P. 587, this Court distinguished between a surety and a guaranty, pointing out that a surety is bound as an original obligor, while a guarantor is bound on a collateral promise. A surety makes himself responsible for the perfor- mance of his principal, a guarantor only agrees to answer for the debt, default or miscarriaqe of another. These distinctions are preserved in our statutes. Compare section 28-11-401 MCA defining surety, with section 28-11-101 MCA defining guarantor. When all the smoke clears in this appeal, a single fact stands out: Otto Stensvad is not liable under the instruments he executed for the Bank unless the borrowers defaulted to the Bank. Therefore the District Court was correct in ordering the writ of attachment dissolved. Af firmed. Justice We concur: ......................... /hie£ Justi e r - | August 1, 1979 |
475fc006-a420-45e0-866a-4476dbcbf726 | TOMSON v ONSTAD | N/A | 14565 | Montana | Montana Supreme Court | No. 14565 I N THE SUPREME COUHT OF THE S T A T E O F MX3TANA 1979 Petitioner, L. JOHN O N S T A D , Sheriff of Gallatin County, mntana; and RXER CRIST, Warden, I%x-~tana State Prison, Respondent. ORIGINAL PmaEDING: Counsel of Record: For Petitioner: James H. Goetz argued, B o z m , Bbntana F o r Respondent: Hon. I a e Greely, Attomey General, H e l e n a , Mntana Allen B. Chronister argued, Assistant Attomey General, Bruce E. Becker, County Attorney, Livingston, mntana Filed : Sukmitted: March 20, 1979 Decided: 1979 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, This i s an o r i g i n a l proceeding i n which p e t i t i o n e r , Douglas C. Thomson, seeks a w r i t of habeas corpus. P e t i - t i o n e r was convicted under s e c t i o n s 54-133 and 54-134, R.C.M. 1947, now s e c t i o n s 45-9-102 and 45-9-104 l4CA, f o r possession and s a l e of amphetamines, and sentenced t o f i v e y e a r s i n t h e s t a t e p r i s o n by t h e D i s t r i c t Court of Park County. This Court affirmed p e t i t i o n e r ' s c o n v i c t i o n , hold- i n g t h a t t h e s e a r c h of h i s home was conducted pursuant t o a v a l i d warrant. S t a t e v. Thomson (1976), 169 Mont. 158, 161- 62, 545 P.2d 1070, 1071-72. P e t i t i o n e r then sought a w r i t of habeas corpus i n t h e Federal D i s t r i c t Court f o r Montana. That Court concluded t h a t t h e warrant a u t h o r i z i n g t h e s e a r c h of Thomson's home was i n v a l i d , granted t h e w r i t of habeas corpus, and ordered a new s t a t e t r i a l . The S t a t e p e t i t i o n e d f o r a r e h e a r i n g , which t h e F e d e r a l Court granted. Within days a f t e r t h e c o u r t i s s u e d i t s habeas corpus o r d e r , t h e United S t a t e s Supreme Court r u l e d t h a t " a s t a t e p r i s o n e r may n o t be g r a n t e d f e d e r a l habeas corpus r e l i e f on t h e ground t h a t evidence obtained i n an u n c o n s t i t u t i o n a l s e a r c h and s e i z u r e was introduced a t h i s t r i a l " i f t h e state c o u r t s had pro- vided an o p p o r t u n i t y f o r " f u l l and f a i r l i t i g a t i o n " of t h e p r i s o n e r ' s Fourth Amendment claim. Stone v. Powell (1976), 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067, 1088. On t h e b a s i s of t h i s d e c i s i o n , t h e Federal D i s t r i c t Court ordered t h e w r i t withdrawn. P e t i t i o n e r appealed t o t h e Ninth C i r c u i t Court of Appeals, which affirmed t h e Federal ~ i s t r i c t c o u r t ' s judg- ment, 573 F.2d 1316, and then sought c e r t i o r a r i review b e f o r e t h e United S t a t e s Supreme Court. The Supreme c o u r t denied t h e c e r t i o r a r i a p p l i c a t i o n on t h e a u t h o r i t y of Stone v. Powell. U.S. , 99 S.Ct. 117, 58 L.Ed.2d 130. See, 47 U.S.L.W. 3203 (U.S. O c t . 2, 1978) (No. 77-1804). P e t i t i o n e r now seeks habeas corpus r e l i e f i n t h i s Court, contending t h a t t h e search of h i s home v i o l a t e d 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 e t i t i o n e r b r i n g s o u r a t t e n t i o n t o t h e Yontana c o n s t i - t u t i o n a l requirement t h a t t h e information r e l i e d upon t o es- t a b l i s h probable cause must be i n w r i t i n g . Because t h i s i s a m a t t e r of major c o n s t i t u t i o n a l s i g n i f i c a n c e and because w e d i d n o t consider t h i s contention during t h e previous appeal, w e agreed t o consider t h e p e t i t i o n . Upon review w e conclude t h a t t h e search warrant was improperly i s s u e d , and t h a t a w r i t of habeas corpus i s an a p p r o p r i a t e remedy. The f a c t s l e a d i n g t o t h e s e a r c h of p e t i t i o n e r ' s home a r e t h a t one Paul H a l l e t t , while under a r r e s t on f r a u d u l e n t check charges, t o l d t h e Livingston, Montana, p o l i c e t h a t he had information about drug s a l e s by p e t i t i o n e r . The p o l i c e summoned t h e county a t t o r n e y , who l i s t e n e d t o H a l l e t t ' s s t o r y , promised him f u l l immunity from prosecution on any drug-related charges, and prepared an a f f i d a v i t i n support of a s e a r c h warrant a p p l i c a t i o n , using H a l l e t t ' s informa- t i o n . A c i t y p o l i c e o f f i c e r signed t h e a f f i d a v i t . The a f f i d a v i t s t a t e d t h a t H a l l e t t had e n t e r e d p e t i t i o n e r ' s home one week e a r l i e r and obtained a q u a n t i t y of amphetamines from p e t i t i o n e r . I t a l s o s t a t e d t h a t H a l l e t t had been informed w i t h i n t h e previous 12 hours t h a t t h e r e w e r e s t i l l amphetamines and o t h e r dangerous drugs i n p e t i t i o n e r ' s home. The county a t t o r n e y took H a l l e t t and two p o l i c e o f - f i c e r s b e f o r e t h e d i s t r i c t judge a t t h e judge's home d u r i n g t h e e a r l y morning hours. The judge placed H a l l e t t and one of t h e o f f i c e r s under o a t h and questioned them concerning t h e i r knowledge of t h e p e t i t i o n e r ' s drug-related a c t i v i t i e s . Following t h i s interview, t h e judge signed t h e search war- r a n t . The o f f i c e r s searched p e t i t i o n e r ' s home, where they found approximately 70 p i l l s . A t a p r e t r i a l hearing on p e t i t i o n e r ' s motion t o sup- p r e s s t h e s e i z e d p i l l s , t h e District Court permitted t h e judge who had i s s u e d t h e warrant t o t e s t i f y concerning t h e statements made t o him by H a l l e t t and t h e p o l i c e o f f i c e r s . H e a l s o t e s t i f i e d t h a t he had known from h i s own experience t h a t p e t i t i o n e r had been involved i n t h e "drug scene." I n t h e previous Thomson opinion, t h i s Court held t h a t t h e a f f i d a v i t i n support of t h e s e a r c h warrant a p p l i c a t i o n was based upon hearsay information. 169 Mont. a t 162, 545 P.2d a t 1072. While hearsay evidence may be s u f f i c i e n t t o e s t a b l i s h probable cause t o support a s e a r c h warrant, t h e person making t h e a p p l i c a t i o n must provide t h e i s s u i n g m a g i s t r a t e w i t h a d d i t i o n a l f a c t s which w i l l permit t h e m a g i s t r a t e t o determine whether probable cause e x i s t s . F i r s t , " t h e m a g i s t r a t e must be informed of some of t h e underlying circumstances from which t h e informant concluded t h a t t h e n a r c o t i c s w e r e where he claimed they were." Second, t h e m a g i s t r a t e must be informed of "some of t h e underlying circumstances from which t h e [ a p p l i c a n t ] con- cluded t h a t t h e informant . . . was ' c r e d i b l e ' o r h i s i n f o r - mation ' r e l i a b l e . ' " Aguilar v. Texas (1964), 378 U.S. 108, 1 1 4 , 84 S.Ct. 1509, 1514, 1 2 L.Ed.2d 723, 729; S p i n e l l i v. United S t a t e s (1969) , 393 U.S. 410, 412-13, 89 S.Ct. 584, 587, 21 L.Ed.2d 637, 641-42; S t a t e v. Robey (1978), Mont . , 577 P.2d 1226, 1228, 35 St.Rep. 541, 544-45; S t a t e v. Thorsness (1974), 165 Mont. 321, 324, 528 P.2d 692, The a f f i d a v i t presented t o t h e m a g i s t r a t e was c l e a r l y i n s u f f i c i e n t because it f a i l e d t o set f o r t h any circum- s t a n c e s showing t h a t H a l l e t t was a c r e d i b l e informant o r t h a t h i s information was r e l i a b l e . Indeed, i f t h e circum- s t a n c e s underlying H a l l e t t ' s information showed anything, they showed t h a t he could n o t be trusted--he was a r e c e n t a r r i v a l i n Livingston, was under a r r e s t f o r f r a u d u l e n t check charges, and was wanted on s i m i l a r charges i n another s t a t e . H i s information was n o t reliable--he s t a t e d t h a t t h e l a s t t i m e he had been i n p e t i t i o n e r ' s home was a f u l l week e a r l i e r . Thus, it i s d o u b t f u l t h a t H a l l e t t ' s information could have been s u f f i c i e n t t o e s t a b l i s h probable cause f o r a s e a r c h of p e t i t i o n e r ' s home. However, r e g a r d l e s s of whatever a d d i t i o n a l information H a l l e t t provided t o t h e judge who i s s u e d t h e warrant, t h e f a i l u r e t o p u t t h a t information i n w r i t i n g precludes o u r c o n s i d e r a t i o n of whether it might have cured t h e i n s u f f i - c i e n t a f f i d a v i t . This Court has previously construed A r t i c l e 11, S e c t i o n 1 1 of t h e 1972 Montana C o n s t i t u t i o n t o r e q u i r e t h a t a l l t h e f a c t s r e l i e d upon by t h e i s s u i n g m a g i s t r a t e be included i n w r i t i n g i n t h e sworn a f f i d a v i t . S t a t e ex rel. Townsend v. D i s t r i c t Court (1975), 168 Mont. 357, 362-63, 543 P.2d 193, 196. See a l s o , United S t a t e s v. Anderson ( 9 t h C i r . 1971), 453 F.2d 174, 177 & n. 3; P e t i t i o n of Gray (1970), 155 Mont. 510, 520, 473 P.2d 532, 537. Cf. Stone v. Powell 428 U.S. a t 473, n. 3, 96 S.Ct. a t 3042, n. 3 , 49 L.Ed.2d a t 1075, n. 3 . The f a i l u r e t o i n c l u d e any a d d i t i o n a l f a c t s i n t h e a f f i d a v i t l e a v e s t h e s e a r c h warrant i n s u f f i c i e n t under t h e Aguilar and Thorsness s t a n d a r d s , and t h e evidence obtained under t h a t warrant inadmissible i n a prosecution a g a i n s t p e t i t i o n e r . Mapp v. O h i o (19611, 367 U.S. 6 4 3 , 655, 8 1 S . C t . 1 6 8 4 , 1 6 9 1 , 6 L.Ed.2d 1 0 8 1 , 1 0 9 0 . P e t i t i o n e r ' s a p p l i c a t i o n f o r a w r i t of h a b e a s c o r p u s i s g r a n t e d . W e c o n c u r : 9 ; l ~ d p+LL4P@ C h i e f J u s t i c e | May 16, 1979 |
5e447e2c-d8e7-4a85-8ff6-9f2fc60ffb16 | RUMPH v DALE EDWARDS INC | N/A | 14607 | Montana | Montana Supreme Court | No. 14607 INTHESwREBEmUfiTOFTHEsrmOFMX;1TANA 19 7 9 HUBEEiT C . RUMPH and MARGEW RUMPH, Plaintiffs and Respondents, -vs- DALF: INC. , a Pbntana Corporation, Defendants and Appellants. Appeal f m : District Court of the Sixteenth Judicial ~istrict, Homrable Alfred B . Coate, Judge presiding. Counsel of Record: For Appellants: Sandall & Cavan, Billings, Mntana John R . Carr, Miles City, Mntana For Respondents: Lucas and hbnaghan, Miles City, mntana Submitted o n briefs: April 25, 1979 Filed: JUN 6 1 9 7 9 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. The c o n t r o l l i n g i s s u e i n t h i s appeal i s t h e p r o p r i e t y of 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 g r a n t summary judgment i n favor of respondents. A s evidenced by t h e D i s t r i c t Court f i l e and t h e p a r t i e s ' b r i e f s herein, w e f i n d t h a t a b s o l u t e l y no genuine i s s u e s of m a t e r i a l f a c t a r e p r e s e n t i n t h i s l a w s u i t and t h a t respondents a r e e n t i t l e d t o judgment a s a matter of law. The purpose of t h i s appeal i s t o determine t h e r i g h t f u l owner of a small ranch located a d j a c e n t t o t h e Powder River near Broadus, Montana. For many years p r i o r t o September 22, 1965, t h i s ranch, which c o n s i s t s of approximately 523 acres of land and a residence, w a s owned by R. C. Hubbard of Broadus, Montana. Hubbard, who i s now deceased, was n o t l i v i n g on h i s ranch i n t h e spring of 1965. H e allowed Hubert Rumph, one of t h e respondents herein, t o move onto t h e ranch t h a t spring. A formal l e a s e agreement, dated September 22, 1965, was l a t e r executed by Hubbard and Rumph. This lease agreement provided f o r a t e r m of f i v e y e a r s from and a f t e r A p r i l 1, 1965. The annual consideration f o r t h e l e a s e of t h e property w a s $523 o r $1.00 per acre. The l e a s e agreement contained t h e following provision granting Rumph t h e exclusive option t o purchase t h e property: "That t h e Lessor does hereby g i v e and g r a n t t o t h e Lessee, h i s h e i r s , executors, a d m i n i s t r a t o r s and assigns, t h e exclusive r i g h t , p r i v i l e g e and option of purchasing t h e hereinabove described real property f o r t h e sum of Twenty Seven Thous- sand Five Hundred Dollars ($27,500.00). That t h i s option may be exercised by t h e Lessee a t any t i m e a f t e r A p r i l 1, 1968 and n o t later than A p r i l 1, 1970, by giving w r i t t e n n o t i c e t o t h e Lessor within t h e t i m e s e t f o r t h h e r e i n f o r t h e e x e r c i s e of t h i s option. That s a i d n o t i c e s h a l l be s e n t by r e g i s t e r e d m a i l t o t h e Lessor a t Broadus, Montana." I n February 1969, Rumph decided t o e x e r c i s e h i s option t o purchase t h e property. This d e c i s i o n was duly communi- cated t o Hubbard who acquiesced t o t h e planned s a l e . Hubbard and Rumph concluded t h a t t h e sale could n o t be completed i n February 1969. Both Hubbard and Rumph became concerned with t h e p o s s i b i l i t y t h a t t h e s a l e could n o t be completed p r i o r t o A p r i l 1, 1970, t h e e x p i r a t i o n d a t e of t h e option t o purchase found i n t h e l e a s e agreement. Therefore, on February 13, 1969, Hubbard and Rumph m e t a t t h e Hubbard home t o r e s o l v e t h i s problem. I t was mutually agreed t h a t t h e b e s t way t o s o l v e t h e problem w a s t o extend t h e l e a s e and option t o purchase f o r an a d d i t i o n a l t e n years. During t h i s conversation, Rumph made notes of t h e p a r t i e s ' under- standings. Later t h a t evening, h i s wife Margery prepared a document e n t i t l e d " l e a s e r i d e r " according t o t h e mutually agreed upon terms. The following day t h e Rumphs returned t o t h e Hubbard home t o execute t h e l e a s e r i d e r . Bonnie Rumph, a Notary Public, accompanied them t o n o t a r i z e t h e s i g n a t u r e s . Hubbard and Rumph then examined t h e l e a s e r i d e r t o confirm t h a t it properly r e f l e c t e d t h e agreement reached t h e previous day. One s i g n i f i c a n t change contemplated by t h e p a r t i e s w a s an i n c r e a s e i n t h e annual l e a s e payment from $523 t o $623. The l e a s e r i d e r provides i n p e r t i n e n t p a r t t h a t : ". . . t h i s lease s h a l l run f o r t e n ( 1 0 ) more y e a r s , expiring on A p r i l 1, 1980, i n s t e a d of A p r i l 1, 1970." The Rumphs' option t o purchase t h e property was extended u n t i l A p r i l 1, 1980, by t h e following language of t h e Lease r i d e r : "That t h e l e s s e e , Hubert C. Rumph and/or Margery Rumph, has t h e option t o renew t h i s lease a s w e l l a s t h e option t o buy." ¾ he sum of $523 was p a i d t o Hubbard f o r t h e y e a r s 1965 through 1969. Pursuant t o t h e t e r m s of t h e l e a s e r i d e r , t h e c o n s i d e r a t i o n p a i d i n 1970 and a l l subsequent y e a r s w a s i n c r e a s e d t o $623. R. C. Hubbard d i e d on January 7, 1971. A t t h e t i m e of h i s d e a t h , t h e p r o p e r t y i n q u e s t i o n had n o t y e t been con- veyed t o t h e Rumphs. For economic reasons, t h e d e c i s i o n w a s made by t h e a t t o r n e y and t h e a d m i n i s t r a t o r of Hubbard's e s t a t e t o sell t h e p r o p e r t y a t a p u b l i c s a l e . The administra- t o r ' s s a l e was duly and properly c a r r i e d o u t . The n o t i c e of s a l e of r e a l p r o p e r t y was duly published. That n o t i c e s t a t e d i n p e r t i n e n t p a r t t h a t : "Ranch s u b j e c t t o s u r f a c e l e a s e t o H. C. Rumph." While no r e f e r e n c e was made i n t h e n o t i c e t o respondents' i n t e r e s t , t h e purchaser w a s aware of h i s i n t e r e s t . The a d m i n i s t r a t o r ' s s a l e was conducted i n t h e courtroom o f t h e Powder River County courthouse on October 27, 1972. P r i o r t o t h a t d a t e , Rumph spoke w i t h t h e a t t o r n e y f o r t h e e s t a t e , Robert J. Brooks, and was assured by Brooks t h a t t h e purchaser a t t h e a d m i n i s t r a t o r ' s sale would t a k e t h e land s u b j e c t t o Rumphs' l e a s e and o p t i o n t o purchase. The record a l s o r e f l e c t s t h a t Dale Edwards, t h e p r e s i d e n t of t h e a p p e l l a n t c o r p o r a t i o n , D a l e Edwards, I n c . , a l s o spoke w i t h Brooks p r i o r t o t h e sale. I n a d d i t i o n , Edwards was provided w i t h a copy of both t h e l e a s e agreement and l e a s e r i d e r p r i o r t o t h e d a t e of t h e s a l e . P r i o r t o t h e sale, o r a l announcements w e r e made by t h e a t t o r n e y f o r t h e estate t o t h e e f f e c t t h a t t h e s a l e was s u b j e c t t o t h e Rumphs' l e a s e and o p t i o n t o purchase. Copies of t h e lease agreement and l e a s e r i d e r w e r e c i r c u l a t e d among p r o s p e c t i v e purchasers a t t h e sale. Q u e s t i o n s w e r e asked regarding t h e v a l i d i t y of t h e lease and o p t i o n t o purchase and Brooks d e f e r r e d h i s answers t o o t h e r a t t o r n e y s who w e r e p r e s e n t and r e p r e s e n t i n g prospective bidders. These f a c t s i n d i c a t e it was unnecessary t o i n c l u d e it i n t h e n o t i c e f o r sale. Purchaser had ample n o t i c e . The property was purchased by Dale Edwards, on behalf o f Dale Edwards, Inc. The purchase p r i c e was $21,173.40, which was 90 p e r c e n t of t h e appraised v a l u e of t h e property. Subsequent t o t h e s a l e , b u t p r i o r t o t h e a c t u a l c l o s i n g , Edwards' a t t o r n e y , M r . C a r r , reviewed an a b s t r a c t of t i t l e t o t h e property. C e r t a i n t i t l e work had t o b e done includ- i n g t h e a c q u i s i t i o n of a q u i t claim deed from a M r . Dahl, who h e l d a l i e n on t h e property. Considerable d i f f i c u l t y w a s encountered by Brooks and Carr i n o b t a i n i n g t h i s deed from Dahl. I n f a c t , a t one p o i n t , cash c o n s i d e r a t i o n was o f f e r e d t o Dahl f o r t h e deed. A t no t i m e was any q u e s t i o n r a i s e d a s t o t h e v a l i d i t y of t h e Rumphs' l e a s e and o p t i o n t o purchase. The Rumphs have been i n continuous possession of t h e p r o p e r t y s i n c e A p r i l 1965. They have performed a l l of t h e i r o b l i g a t i o n s under both t h e l e a s e agreement and t h e lease r i d e r . N o n o t i c e of d e f a u l t has ever been served upon t h e Rumphs by Dale Edwards, I n c . , a s r e q u i r e d f o r any breach of t h e l e a s e agreement. A l l annual lease payments have been made by t h e Rumphs t o Dale Edwards, I n c . , by c a s h i e r ' s checks. On March 15, 1977, pursuant t o t h e t e r m s of t h e l e a s e agreement and l e a s e r i d e r , t h e Rumphs e x e r c i s e d t h e i r o p t i o n t o purchase t h e property f o r t h e sum of $27,500. Dale Edwards, Inc., refused t o perform under t h e l e a s e agreement and l e a s e r i d e r and w i l l n o t convey t h e property t o t h e Rumphs. The amount of $27,500, representing f u l l payment f o r t h e property, has been tendered t o t h e Clerk of t h e Powder River County D i s t r i c t Court by means of an irrevok- a b l e l e t t e r of c r e d i t . This s u i t f o r s p e c i f i c performance followed Edwards' r e f u s a l t o convey t h e property t o t h e Rumphs. Summary judgment i n favor of t h e Rumphs was entered by t h e D i s t r i c t Court from which D a l e Edwards, I n c . , appeals t o t h i s Court. Before considering t h e i n d i v i d u a l i s s u e s , w e w i l l d i s c u s s t h e v a l i d i t y of t h e D i s t r i c t Court e n t e r t a i n i n g summary judgment motions i n t h i s matter. Rule 5 6 ( c ) , M.R.Civ.P., provides t h a t summary judgment i s proper i f : ". . . t h e pleadings, depositions, 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 , 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 t h e moving p a r t y i s e n t i t l e d t o a judgment as a matter of law." Thus, summary judgment i s appropriate when t h e moving p a r t y shows a complete absence of any genuine i s s u e a s t o a l l f a c t s which a r e 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. Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613. This Court has c o n s i s t e n t l y held t h a t , under Rule 56, t h e p a r t y moving f o r summary judgment has t h e i n i t i a l burden o f e s t a b l i s h i n g t h e complete absence of any genuine i s s u e of material f a c t . Mustang Beverage Co., Inc. v. Jos. S c h l i t z Brewing Co. (1973), 162 Mont. 243, 511 P.2d 1. To s a t i s f y i t s burden t h e moving p a r t y must make a showing t h a t i s q u i t e c l e a r of what t h e t r u t h is, and exclude any r e a l doubt a s t o 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 . Kober v. Stewart (1966), 148 Mont. 117, 417 P.2d 476. The primary policy and general purpose underlying Rule 56 i s t o encourage j u d i c i a l 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 . Silloway v. Jorgenson (1965), 146 Mont. 307, 406 While t h e i n i t i a l burden of proof must a t t a c h t o t h e moving p a r t y , 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 circum- stances, 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 . Rickard v. Paradis (1975), 167 Mont. 450, 539 P.2d 718; Roope v. Ana- conda Company (1972), 159 Mont. 28, 494 P.2d 922; Flansberg v. Montana Power Company (1969), 154 Mont. 53, 460 P.2d 263. Once t h e burden has s h i f t e d , t h e p a r t y opposing t h e motion i s held t o a standard of proof which i s as s u b s t a n t i a l a s t h a t i n i t i a l l y imposed upon t h e moving p a r t y . Harland v. Anderson, supra. This standard of proof w a s c l e a r l y defined i n Silloway v. Jorgenson, 146 Mont. a t 310, 406 P.2d a t 169, where t h i s Court s t a t e d : p r e s e n t l a w w i l l t h e p a r t y opposing [ t h e ] motion must f a c t s i n proper form--conclusions of 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, not f a n c i f u l , f r i v o l o u s , gauzy, nor merely suspicions.'" W e f i n d t h a t a l l f a c t s m a t e r i a l t o t h e l e g a l i s s u e s involved i n t h i s appeal have been presented. There a r e no genuine i s s u e s of f a c t . The p a r t i e s concede t h a t no i s s u e s of f a c t e x i s t i n t h i s case. The i n d i v i d u a l i s s u e s presented t o t h i s Court a r e : 1. Did t h e D i s t r i c t Court properly construe and i n t e r - p r e t t h e t e r m s of t h e l e a s e agreement and l e a s e r i d e r ? 2. Did t h e D i s t r i c t Court err i n i t s adoption of cer- t a i n o r a l testimony concerning t h e circumstances of t h e execution of t h e l e a s e r i d e r ? 3. Did t h e D i s t r i c t Court err i n holding t h a t respon- d e n t s ' option t o purchase w a s n o t extinguished by t h e t e r m s of s e c t i o n 67-408, R.C.M. 1947, now s e c t i o n 70-26-207 M C A ? 4. Did a p p e l l a n t waive its r i g h t t o c o n t e s t t h e v a l i d i t y o r existence of t h e option t o purchase? The f i r s t i s s u e concerns t h e construction and i n t e r - p r e t a t i o n of t h e l e a s e agreement and lease r i d e r . Both p a r t i e s i n d i c a t e t h a t a primary question t o be answered here i s "what do t h e terms of t h e c o n t r a c t provide?" W e agree. The i n t e n t of t h e p a r t i e s t o t h e c o n t r a c t s is d e t e r - mined by reading t h e l e a s e agreement and l e a s e r i d e r i n f u l l . Appellant chooses t o d i s s e c t t h e c o n t r a c t s , takes c e r t a i n i s o l a t e d words and phrases from them, and argues t h a t t h e s e minute p i e c e s express t h e t r u e i n t e n t of t h e p a r t i e s r a t h e r than an a n a l y s i s of t h e c o n t r a c t s i n f u l l . W e f i n d t h a t t h e i n t e n t of t h e c o n t r a c t s is c l e a r . The Rumphs were granted t h e option t o purchase t h e property i n question which w i l l , by i t s t e r m s , e x p i r e on A p r i l 1, 1980. I n i t i a l l y , it i s important t o note t h a t t h e l e a s e r i d e r i s merely an extension of t h e l e a s e agreement with c e r t a i n enumerated changes. I n view of t h e c l o s e r e l a t i o n s h i p between t h e s e documents, they must be construed together t o determine t h e t r u e i n t e n t of Hubbard and Rumph regarding t h e o p t i o n t o purchase. Section 13-708, R.C.M. 1947, now sec- t i o n 28-3-203 MCA, provides: "Several c o n t r a c t s r e l a t i n g t o t h e s a m e m a t t e r s , between t h e s a m e p a r t i e s , and made a s p a r t s of s u b s t a n t i a l l y one t r a n s a c t i o n , are t o be taken together." Therefore, i n discussing t h e r u l e s of i n t e r p r e t a t i o n , t h e two c o n t r a c t s herein w i l l be r e f e r r e d t o a s one. The following r u l e s of construction a r e c o n t r o l l i n g upon t h i s Court i n i t s determination of t h e i n t e n t of t h e c o n t r a c t . A c o n t r a c t must be construed according 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 c o n t r a c t a t t h e time of contracting. Section 13-702, R.C.M. 1947, now s e c t i o n 28-3- 301 MCA; Brown v. G r i f f i n (1968), 150 Mont. 498, 436 P.2d 695. The language of a w r i t t e n c o n t r a c t governs i t s i n t e r - p r e t a t i o n i f t h e language i s c l e a r and e x p l i c i t and does n o t involve an ambiguity. Section 13-704, R.C.M. 1947, now s e c t i o n 28-3-401 MCA. I n t h e event of an ambiguity, sec- t i o n s 13-702 and 13-713, R.C.M. 1947, now s e c t i o n s 28-3-301 and 28-3-402 MCA, e x p l i c i t l y allow t h e i n t r o d u c t i o n of e x t r i n s i c evidence t o explain t h e t r u e i n t e n t i o n of t h e p a r t i e s . McNussen v. Graybeal (1965), 146 Mont. 173, 405 P.2d 447. A n ambiguity e x i s t s when, taken a s a whole, t h e con- t r a c t ' s wording o r phraseology i s reasonably s u b j e c t t o two d i f f e r e n t i n t e r p r e t a t i o n s . S - W Company v. Schwenk (1977), Mont. , 568 P.2d 145, 34 St.Rep. 865; W i l l i a m s v. Insurance Company of North America (1967), 150 Mont. 292, 434 P.2d 395. Where t h e t e r m s of an agreement a r e uncertain and ambiguous, par01 evidence i s admissible t o prove t h e i n t e r p r e t a t i o n meant by t h e p a r t i e s . Sutton v. Masterson (1930), 86 Mont. 530, 284 P. 264. I n a d d i t i o n , where t h e language of t h e c o n t r a c t i s doubtful and ambiguous, t h e conduct of t h e p a r t i e s under t h e c o n t r a c t i s one of t h e b e s t i n d i c a t i o n s of t h e i r t r u e i n t e n t . Brown v. riff in, supra; Musselshell Valley Farming & Livestock Co. v. Cooley (1929), 86 Mont. 276, 283 P. 213. This Court s t a t e d i n Kintner v. Harr (1965), 146 Mont. 461, 472, 408 P.2d 487, 494, t h a t : ". . . It i s a fundamental r u l e t h a t i n t h e con- s t r u c t i o n of c o n t r a c t s t h e c o u r t s may look n o t only t o t h e language employed, b u t t o t h e sub- ject-matter and t h e surrounding circumstances, and may a v a i l themselves of t h e same l i g h t which t h e p a r t i e s possessed when t h e c o n t r a c t was made. See Merriam v. United S t a t e s , 107 U.S. 437, 4 4 1 , S.Ct. 536, 540, 27 L.Ed. 531, 533. To a s c e r t a i n t h e i n t e n t i o n , regard must be had t o t h e n a t u r e of t h e instrument i t s e l f , t h e condition of t h e p a r t i e s executing it, and t h e o b j e c t s which they had i n view. The words employed, i f capable of more than one meaning, a r e t o be given t h a t meaning which it i s ap- p a r e n t t h e p a r t i e s intended them t o have. 1 Beach on Modern Law of Contracts, 702. See Smith v. School D i s t r i c t No. 18, 115 Mont. 102, 139 P.2d 518; 12 Am J u r , S S 236, 249." I t i s a well-established p r i n c i p l e of c o n t r a c t u a l construction t h a t i n i n t e r p r e t i n g a w r i t t e n instrument, t h e c o u r t w i l l not i s o l a t e c e r t a i n phrases of t h e instrument 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 i n s t r u - ment by i t s four corners and i n t h e 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 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 allowed 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. Ward v. Mattuschek (1958), 134 Mont. 307, 330 P.2d 971; Steen v. Rustad (1957), 132 Mont. 96, 313 P.2d 1014. The words of t h e c o n t r a c t a r e t o be understood i n t h e i r ordinary and proper sense. Section 13-710, R.C.M. 1947, now s e c t i o n 28-3-501 MCA. P a r t i c u l a r c l a u s e s of t h e agreement a r e subordinate t o t h e general i n t e n t of t h e c o n t r a c t . Section 13-716, R.C.M. 1947, now s e c t i o n 28-3-307 MCA. Any repugnancies i n t h e c o n t r a c t must be reconciled, i f p o s s i b l e , by an i n t e r p r e t a t i o n which w i l l give some e f f e c t t o t h e repugnant clauses, subordinate t o t h e general i n t e n t and purpose of t h e c o n t r a c t . Section 13-718, R.C.M. 1947, now s e c t i o n 28-3-204 MCA. Furthermore, words i n a c o n t r a c t which a r e i n c o n s i s t e n t with t h e general n a t u r e of t h e c o n t r a c t o r t h e main i n t e n t i o n of t h e p a r t i e s a r e t o be r e j e c t e d . Section 13-719, R.C.M. 1947, now s e c t i o n 28-3-503 MCA . One f i n a l r u l e of c o n t r a c t u a l construction i s involved herein. I n case of an ambiguity, t h e language of t h e con- t r a c t i s t o be i n t e r p r e t e d most s t r o n g l y a g a i n s t t h e p a r t y causing t h e uncertainty t o e x i s t . Section 13-720, R.C.M. 1947, now s e c t i o n 28-3-206 MCA. Appellant i n d i c a t e s t h a t s i n c e Rumph a s s i s t e d i n t h e composition of t h e l e a s e r i d e r and h i s wife typed t h e agreement, t h e agreement should be construed most strongly a g a i n s t t h e Rumphs. However, t h i s r u l e of construction has l i t t l e , i f any, a p p l i c a b i l i t y i n t h e i n s t a n t case. The testimony i s undisputed t h a t Rumph and Hubbard j o i n t l y drew up t h e t e r m s of t h e l e a s e r i d e r . Thereafter, Margery Rumph transcribed t h e agreement reached i n t o i t s p r e s e n t form. After t h i s t r a n s c r i p t i o n , both Rumph and Hubbard reviewed t h e document t o confirm t h a t it cor- responded t o t h e i r agreement. I t appears t h a t any ambiguity c r e a t e d was j o i n t l y c r e a t e d and t h a t Rumph should n o t a t t h i s p o i n t be s o l e l y chargeable with t h e ambiguity. I t should a l s o be noted t h a t t h e o r i g i n a l l e a s e agreement was d r a f t e d by an unknown a t t o r n e y a t t h e r e q u e s t of Hubbard. It i s i n t e r e s t i n g t o note t h a t a p p e l l a n t devotes ap- proximately e i g h t pages of i t s b r i e f t o a discussion of t h e d i f f e r e n c e s between a " l e a s e " and "option t o purchase." By means of an extremely t e c h n i c a l and somewhat imaginative argument, a p p e l l a n t concludes t h a t t h e use and placement of t h e words, "lease" and "option t o purchase", i n d i c a t e s t h a t t h e option t o purchase ended with t h e t e r m of t h e o r i g i n a l l e a s e agreement and was not extended t o April 1, 1980 by t h e l e a s e r i d e r . Appellant i s picking i s o l a t e d words and phrases from the two c o n t r a c t s and attempting t o r e b u t t h e i r c l e a r and convincing general i n t e n t . I t c e r t a i n l y i s t r u e t h a t t h e t e r m s "lease" and "option t o purchase" have d i f f e r e n t meanings. However, a l l p a r t i e s i n t e r e s t e d i n t h i s transaction with t h e exception of Dale Edwards, Inc., considered t h e option t o purchase t o be a portion of the lease. The l e a s e agreement is t i t l e d j u s t t h a t : Lease Agreement, n o t Lease Agreement and Option t o Purchase. There c e r t a i n l y i s no contention, even by Dale Edwards, Inc., t h a t t h e option t o purchase i s not a p a r t of t h a t lease. I n addition, t h e n o t i c e of s a l e indicated t h a t t h e s a l e was subject t o t h e surface l e a s e t o Rumph. Therefore, w e f i n d t h a t t h e t e r m "lease" a s found i n t h e l e a s e r i d e r should be i n t e r p r e t e d t o mean l e a s e and option t o purchase. I f it i s necessary t o d i s s e c t t h e agreements i n question t o determine t h e i r t r u e i n t e n t , w e f i n d t h a t t h i s d i s s e c t i o n i s more accurate than t h e one suggested by appellant. Appellant comments a t length on t h e Rumphs' f i n a n c i a l condition. Appellant i n d i c a t e s t h a t they w e r e unable t o arrange financing f o r t h e purchase of t h e land u n t i l as- s i s t e d by t h e i r attorney. There i s absolutely no evidence i n t h e record t o support t h i s a s s e r t i o n . I n f a c t , t h e r e i s absolutely no conclusive evidence concerning t h e Rumphs' f i n a n c i a l condition. I n any event, t h i s e n t i r e discussion i s moot i n t h a t t h e money was a v a i l a b l e when t h e Rumphs ultimately decided t o exercise t h e i r option t o purchase. I n conclusion, when t h i s Court reads t h e l e a s e agree- and ment and lease r i d e r i n t o t a l / i n t e r p r e t s them by grasping them by t h e i r f o u r corners t o determine t h e i r o v e r a l l in- t e n t , t h e conclusion i s inescapable t h a t t h e Rumphs' option t o purchase survives u n t i l April 1, 1980. I s s u e No. 2 involves t h e p r o p r i e t y of c e r t a i n o r a l testimony. Appellant complains t h a t t h e D i s t r i c t Court e r r e d by incorporating c e r t a i n evidence i n t o its f i n d i n g s of f a c t . S p e c i f i c a l l y , a p p e l l a n t f i n d s f a u l t with Findings O f Fact Nos. 3 through 6. Appellant's a t t a c k i s two pronged, claiming t h a t t h e evidence i s inadmissible f i r s t under t h e p a r o l evidence r u l e and second under t h e r u l e s of evidence, s p e c i f i c a l l y t h e dead man's s t a t u t e . W e f i n d t h a t t h e evidence which i s t h e b a s i s of Find- i n g s of F a c t Nos. 3 through 5 i s inadmissible under t h e p a r o l evidence r u l e . Montana c o u r t s , when c a l l e d upon t o i n t e r p r e t t h e t e r m s of c o n t r a c t s , have long held t h a t where t h e t e r m s of t h e c o n t r a c t are c l e a r and unambiguous t h e c o u r t w i l l n o t allow p a r o l evidence. Safeco Insurance Company v. Munroe (1974), 165 Mont. 185, 527 P.2d 64; Merritt v. Merritt (1974), 165 Mont. 172, 526 P.2d 1375; and Kielmann v. Mogan (1970), 156 Mont. 230, 478 P.2d 275. W e have held under I s s u e No. 1, however, t h a t t h e l e a s e agreement and l e a s e r i d e r are c l e a r and unambiguous, giving respondents a l e a s e and option t o purchase u n t i l ~ p r i l 1, 1980. The i n t e n t of t h e p a r t i e s i s c l e a r , and t h e ~ i s t r i c t Court could s o f i n d i n i t s Finding of Fact No. 6 without t h e use of p a r o l evidence. Appellant f u r t h e r contends t h a t t h e evidence underlying Findings of Fact Nos. 3 through 5 i s a l s o inadmissible under t h e dead man's s t a t u t e . Because of our r u l i n g t h a t t h i s evidence is inadmissible under t h e p a r o l evidence r u l e , w e need n o t make a f i n d i n g on t h i s p o i n t . I t should be pointed o u t , however, t h a t t h e dead man's s t a t u t e , which was for- merly c o d i f i e d a t s e c t i o n 93-701-3(3), R.C.M. 1947, has been abolished by Rule 601, Mont.R.Evid. I s s u e No. 3 concerns p o s s i b l e v i o l a t i o n of s e c t i o n 67- 408, R.C.M. 1947, now s e c t i o n 70-26-207 MCA. Appellant a l l e g e s t h a t t h e l e a s e r i d e r i s i n v a l i d and void a s being i n v i o l a t i o n of s e c t i o n 67-408, which l i m i t s t h e d u r a t i o n of l e a s e s of a g r i c u l t u r a l lands t o t e n years. There i s cer- t a i n l y no doubt t h a t t h e lands i n question are a g r i c u l t u r a l lands and t h a t t h e r e n t a l arrangement d i d e x i s t . However, w e f i n d t h a t by i t s t e r m s t h e lease r i d e r extended t h e o r i g i n a l l e a s e f o r a term of t e n y e a r s and t e n years only. I t i s uncontested t h a t t h e l e a s e r i d e r was executed on February 1 4 , 1969. Appellant makes an i s s u e of t h e f a c t t h a t approximately one year and s i x weeks w e r e remaining on t h e t e r m of t h e l e a s e agreement on t h e d a t e of execution of t h e l e a s e r i d e r . This, it argues, supports i t s contention t h a t t h e l e a s e r i d e r was t h e document i n e f f e c t f o r t h e period February 15, 1969 through A p r i l 1, 1970. O n t h i s b a s i s , a p p e l l a n t a l l e g e s t h a t t h e l e a s e r i d e r i s a l e a s e of a g r i c u l t u r a l lands f o r more than t e n years. It i s i n t e r - e s t i n g t o note, however, t h a t t h e l e a s e r i d e r , while an extension of t h e o r i g i n a l lease agreement, contains t e r m s and p a r t i e s s i g n i f i c a n t l y d i f f e r e n t from t h e o r i g i n a l l e a s e agreement. A s indicated previously, t h e consideration f o r t h e l e a s e w a s increased by t h e l e a s e r i d e r . This increased consideration took e f f e c t on A p r i l 1, 1970, t h e d a t e t h e l e a s e r i d e r became e f f e c t i v e . I n a d d i t i o n , t h e l e a s e r i d e r c o n t a i n s a provision granting Hubbard t h e p r i v i l e g e of placing a t r a i l e r house on t h e premises. This provision was n o t contained i n t h e o r i g i n a l l e a s e agreement. Furthermore, Margery Rumph i s a p a r t y t o t h e l e a s e r i d e r while only Hubbard and Hubert Rumph w e r e p a r t i e s t o t h e o r i g i n a l l e a s e agreement. By i t s t e r m s , t h e language of t h e l e a s e r i d e r i n d i c a t e s change from t h e o r i g i n a l l e a s e agreement. The i n i t i a l and c l o s i n g paragraphs of t h e document speak t o "changes" i n t h e o r i g i n a l l e a s e . The l e a s e r i d e r was c l e a r l y an e x t e n s i o n of t h e o r i g i n a l l e a s e , b u t upon s i g n i f i c a n t l y changed t e r m s . The c a s e involves a five-year lease w i t h a ten-year renewal upon s u b s t a n t i a l l y changed c o n d i t i o n s . There is no v i o l a - t i o n of s e c t i o n 67-408. The f i n a l i s s u e , No. 4 , involves p o s s i b l e waiver of c e r t a i n r i g h t s by a p p e l l a n t . I n i t s f i n d i n g s of f a c t t h e c o u r t determined t h a t a p p e l l a n t , i n allowing t h e Rumphs t o p l a c e s u b s t a n t i a l improvements upon i t s p r o p e r t y a f t e r a p p e l l a n t purchased t h e same, waived i t s r i g h t t o c o n t e s t t h e v a l i d i t y o r e x i s t e n c e of t h e o p t i o n . The l e a d i n g c a s e on abandonment i n Montana i s Conway v. Fabian (1939), 108 Mont. 287, 89 P.2d 1022. "~bandonment" was t h e r e defined a s : ". . . t h e relinguishment of a r i g h t ; t h e g i v i n g up of something t o which one i s e n t i t l e d . I n determining whether one has abandoned h i s p r o p e r t y o r r i g h t s t h e i n t e n t i o n i s t h e f i r s t and paramount o b j e c t i n q u i r y . This i n t e n t i o n i s a s c e r t a i n e d n o t only from t h e statements which may have been made by t h e owner of t h e property, b u t a l s o from t h e a c t s of t h e owner . . ." 108 Mont. a t 306, 89 P.2d a t 1029. T h i s d e f i n i t i o n was r e c e n t l y affirmed i n McEwen v. Big Sky of Montana, Inc. (1976), 169 Mont. 1 4 1 , 545 P.2d 665. The t e r m "abandonment" i s f u r t h e r explained i n 1 Am J u r 2d Abandoned Property 81: "The term 'abandonment' a s applied t o property and property r i g h t s has acquired a well-defined and t e c h n i c a l meaning which i s n o t t o be confused with t h e d o c t r i n e of laches o r estoppel. I n i t s general sense, abandonment means t h e a c t of in- t e n t i o n a l l y r e l i n q u i s h i n g a known r i g h t a b s o l u t e l y and without reference t o any p a r t i c u l a r person o r f o r any p a r t i c u l a r purpose. Abandoned property i s t h a t t o which t h e owner has v o l u n t a r i l y re- linquished a l l r i g h t , t i t l e , claim, and possession, with t h e i n t e n t i o n of terminating h i s ownership, b u t without v e s t i n g it i n any o t h e r person and with t h e i n t e n t i o n of n o t reclaiming f u t u r e pos- s e s s i o n o r resuming i t s ownership, possession o r enjoyment. . ." To e s t a b l i s h an abandonment of property, a c t u a l a c t s of relinquishment accompanied by t h e i n t e n t i o n t o abandon must be shown. The primary elements are t h e i n t e n t i o n t o abandon and t h e e x t e r n a l a c t by which t h a t i n t e n t i o n i s c a r r i e d i n t o e f f e c t . 1 Am J u r 2d Abandoned Property S15. There i s no proof t h a t Dale Edwards, Inc., ever intended t o abandon i t s r i g h t s i n t h e leased property. To t h e con- t r a r y , it never recognized t h e v a l i d i t y of t h e o p t i o n , and, indeed, i n 1973 following her husband's death, Mrs. Dale Edwards t o l d Margery Rumph t h a t "under no circumstances" would she ever want t o sell. From t h e t i m e M r s . Edwards t o l d t h e Rumphs she d i d n o t recognize t h e i r r i g h t t o e x e r c i s e t h e option, t h e question was n o t r a i s e d again u n t i l March 1977. A t t h a t t i m e , t h e Rumphs sought t o e x e r c i s e t h e i r option and a p p e l l a n t i m - mediately refused t o do so. This a c t i o n ensued. The Rumphs' improvements consisted of c e r t a i n r e p a i r s upon t h e leased premises. They w e r e e n t i t l e d t o do s o under t h e i r tenancy. The r e p a i r s and improvements which t h e Rumphs made upon t h e property were n o t i n c o n s i s t e n t with t h e i r tenancy and i n no way gave them any g r e a t e r r i g h t s i n t h e land. Under t h e s e circumstances we f i n d t h a t a p p e l l a n t d i d n o t waive i t s r i g h t t o c o n t e s t t h e v a l i d i t y o r e x i s t e n c e of t h e option t o purchase. B e t h a t a s it may, t h i s i s only harmless e r r o r and cannot be a b a s i s f o r reversing t h e D i s t r i c t Court. Halko v. Anderson (1939), 108 Mont. 588, 93 P.2d 956; H i l l v. Chappel Bros. (1934), 97 Mont. 305, 33 P.2d 819. Therefore, t h e summary judgment granted respondents by t h e D i s t r i c t Court i s affirmed. W e concur: w - Chief J u s t i c e - --. ' % &a,- ,/'/ J u s t i c e s C/ | June 6, 1979 |
31658121-b460-4da6-ae7f-a7d5b97f5738 | STOUT v REITER | N/A | 14540 | Montana | Montana Supreme Court | No. 14540 I N THE SUPREME C O W O F THE STATE O F IJDJWANA 1979 EmmFa G. m u r and B O N I T A L. mur, Plaintiffs and Respondents, HEXMAN R E m and DOREESJ 0. R E m , Defendants and Appellants. Appeal £ran: D i s t r i c t Court of the Thirteenth Judicial District, Honorable Iiobert Wilson, Judge presiding. Counsel of Record: For Appellants: muat and Martinson, Billings, Wntana William G. Wt argued, Billings, bbntana For Respondents: Moulton, Bellingham, mngo and Mather, Billings, IWntana R. H. Bellingham argued, Billings, IWntana Wrruw, Sedivy and Olsen, Bozeman, mntana Jams H. IWrrm argued, Bozeman, bbntana Submitted: March 20, 1979 Decided: MAY 3 0 1979 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 s , t h e S t o u t s , brought t h i s a c t i o n i n t h e D i s t r i c t 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 , Yellow- s t o n e County, t o e n j o i n defendants, t h e R e i t e r s , from using c e r t a i n i r r i g a t i o n d i t c h e s and from e n t e r i n g upon p l a i n - t i f f s ' property f o r t h e purpose of using t h e d i t c h e s . Defendants counterclaimed seeking t o e n j o i n p l a i n t i f f s from i n t e r f e r i n g w i t h defendants' r i g h t t o u s e t h e d i t c h e s . The case, which was t r i e d b e f o r e t h e Honorable Robert H. Wilson s i t t i n g without a jury, r e s u l t e d i n a n o r d e r p e r p e t u a l l y e n j o i n i n g defendants from using t h e d i s p u t e d i r r i g a t i o n d i t c h e s . Defendants appeal from t h e D i s t r i c t C o u r t ' s o r d e r . The c a s e a r o s e because of a disagreement over t h e meaning of t h e language used i n a warranty deed t o r e s e r v e a n easement f o r defendants when they s o l d a p a r c e l of land t o p l a i n t i f f s ' predecessors. The d i s p u t e d language r e a d s : ". . . r e s e r v i n g an easement 8 f e e t i n width f o r t h e i r r i g a t i o n d i t c h , a s now l o c a t e d , running from t h e Yellowstone River on t h e W e s t t o t h e E a s t l i n e of s a i d t r a c t f o r t h e purpose of i r r i g a t i n g p r o p e r t y owned by t h e p a r t i e s of t h e f i r s t p a r t l y i n g t o t h e North and E a s t of s a i d t r a c t . . ." I n 1965 t h e land p r e s e n t l y owned by p l a i n t i f f s and defendants was e n t i r e l y owned by Leland McMorris. A t t h a t t i m e , William Neibauer, a r e a l t o r , e f f e c t e d an agreement whereby defendants purchased t h e e n t i r e t r a c t from McMorris and simultaneously s o l d a f i f t e e n a c r e p a r c e l , s u b j e c t t o t h e r e s e r v a t i o n of c e r t a i n easements, t o Donald and Grace Underwood by a c o n t r a c t f o r deed. The f i f t e e n a c r e p a r c e l , now d e s c r i b e d a s T r a c t 1, C e r t i f i c a t e of Survey #991, i s l o c a t e d along t h e Yellowstone River and c o n t a i n s a number of i r r i g a t i o n d i t c h e s which have been used s i n c e 1965 t o ir- r i g a t e defendants' a d j o i n i n g property. The pump shown i n t h i s diagram of t h e f i f t e e n a c r e p a r c e l i s located i n a channel of t h e r i v e r and pumps water i n t o t h e e n t i r e d i t c h system. A t t h e t i m e defendants sold t h e f i f t e e n a c r e t r a c t t o t h e Underwoods, t h e r e was a d i t c h running d i r e c t l y from t h e pump t o t h e e a s t e r n boundary of t h e t r a c t . Shortly a f t e r t h e Underwoods and defendants completed t h e i r t r a n s a c t i o n , t h i s d i t c h was plowed under and a new d i t c h w a s dug t o t h e south. I t now forms t h e southern p o r t i o n of Ditch No. 6. I n essence, defendants p r e s e n t two i s s u e s f o r review: 1. Whether t h e r e is s u b s t a n t i a l evidence t o support t h e D i s t r i c t C o u r t ' s order enjoining defendants from using a c e r t a i n i r r i g a t i o n d i t c h with connecting l a t e r a l s , ease- ments f o r which a r e claimed by defendants t o have been r e - served i n them i n a c o n t r a c t f o r deed and warranty deed. 2. Whether t h e D i s t r i c t Court had a u t h o r i t y t o g r a n t an i n j u n c t i o n i n a case of disputed t i t l e o r r i g h t before determination of t h e t i t l e o r r i g h t i n an a c t i o n a t law. Counsel f o r t h e Yellowstone County Farm Bureau and t h e Montana Farm Bureau Federation appeared on appeal a s amicus c u r i a e arguing t h a t t h e primary i s s u e on appeal should be whether defendants own t h e d i t c h r i g h t s a s they e x i s t e d a t t h e t i m e of t h e i r f i f t e e n a c r e t r a n s a c t i o n with p l a i n t i f f s ' predecessor. Addressing t h i s l a t t e r argument f i r s t , w e note t h a t t h e argument assumes t h a t p r i o r t o 1965 t h e d i t c h system c o n s t i - t u t e d a s e r v i t u d e upon t h e f i f t e e n a c r e p a r c e l and an appur- tenance t o t h e land now owned by defendants. Along t h e s e l i n e s , s e c t i o n 67-601, R.C.M. 1947, now s e c t i o n 70-17-101 MCA, provides i n p e r t i n e n t p a r t : "The following land burdens, o r s e r v i t u d e s upon land, may be attached t o o t h e r land a s i n c i d e n t s o r appurtenances, and a r e then c a l l e d easements: " (11) The r i g h t of having water flow with- o u t diminution o r disturbance of any kind." However, s e c t i o n 67-611, R.C.M. 1947, now s e c t i o n 70-17-111 MCA, provides i n p e r t i n e n t p a r t t h a t : "A s e r v i t u d e is extinguished: "1. By t h e v e s t i n g of t h e r i g h t t o t h e s e r v i - tude and t h e r i g h t t o t h e s e r v i e n t tenement i n t h e same person;" It i s apparent, then, t h a t t h e d i t c h system could n o t have been an appurtenance t o defendants' land p r i o r t o 1965 be- cause t h e dominant and s e r v i e n t tenements w e r e p a r t of t h e same p a r c e l . The easement i n t h i s c a s e was c r e a t e d a t t h e t i m e t h e p a r c e l s w e r e separated, and w e must look t o t h e language of t h e instrument which c r e a t e d t h e easement t o determine what it includes. The complete r e s e r v a t i o n found i n t h e warranty deed reads a s follows: ". . . reserving, however, t o t h e p a r t i e s of t h e f i r s t p a r t , t h e i r h e i r s and a s s i g n s , an easement 30 feet i n width f o r a roadway, a s t h e same now e x i s t s , running North and South approximately through t h e middle of t h e s a i d t r a c t f o r t h e purpose of access t o property owned by t h e p a r t i e s of t h e f i r s t p a r t l y i n g t o t h e North of s a i d t r a c t ; and reserving an easement - - - 8 f e e t i n width -- f o r t h e i r r i g a t i o n d i t c h , -- as now located, running --- from t h e Y e l - lowstone River on t h e West t o t h e E a s t l i n e - - - - - - - of -- s a i d t r a c t -- f o r t h e purpose of i r r i g a t i n g property owned a t h e p a r t i e s of the f i r s t -- p a r t l y i n g -- t o t h e North and E a s t of s a i d ---- t r a c t ; and a l s o reserving an easement f o r t h e l o c a t i o n of t h e pump which pumps t h e water from t h e Yellowstone River i n t o s a i d d i t c h and f o r i n g r e s s and egress t h e r e t o as necessary and f o r s e r v i c i n g and r e p a i r s , a l s o known a s T r a c t No. 1 of C e r t i f i c a t e of Survey No. 991." (Emphasis added.) Defendants argue t h a t t h e d i t c h r e f e r r e d t o i n t h e war- r a n t y deed and t h e c o n t r a c t f o r deed i s t h e d i t c h running north and south. They argue t h a t t h i s i s a main d i t c h o r "dike" d i t c h and t h a t t h e t e r m " d i t c h " a s used i n t h e deed includes t h e e n t i r e d i t c h system, including t h e l a t e r a l d i t c h e s . I n proposing t h i s i n t e r p r e t a t i o n , they seek t o p l a c e g r e a t s i g n i f i c a n c e on t h e phrase " f o r t h e purpose of i r r i g a t i n g p r o p e r t y owned by t h e p a r t i e s of t h e f i r s t p a r t l y i n g t o t h e North and E a s t of s a i d t r a c t . " They contend t h a t t h e one d i t c h , now plowed under, would n o t be s u f f i - c i e n t t o i r r i g a t e a l l of defendants' land. Testimony adduced a t t r i a l s u g g e s t s , and t h e t r i a l c o u r t found, t h a t defendants s o l d t h e land w i t h t h e apparent i n t e n t i o n of b u i l d i n g a new north/south d i t c h on t h e i r p r o p e r t y which would have been f e d by t h e d i t c h they ex- p r e s s l y reserved. They postponed b u i l d i n g a new d i t c h because they r e c e i v e d permission t o u s e t h e e n t i r e d i t c h system from t h e Underwoods i n r e t u r n f o r i r r i g a t i n g t h e Underwoods' property. "This Court w i l l n o t r e v e r s e t h e f i n d i n g s of t h e t r i a l c o u r t u n l e s s t h e r e i s a c l e a r pre- ponderance of t h e evidence a g a i n s t such f i n d i n g s . " Schulz v. Peake (1978), Mont. , 583 P.2d 425, 430, 35 St.Rep. 1295, 1302. Here t h e t r i a l c o u r t ' s f i n d i n g s a r e adequately supported by t h e evidence. S i n c e t h e i s s u e concerning t h e a p p r o p r i a t e n e s s of t h e remedy o r t h e theory on which t h e c a s e was t r i e d was n o t r a i s e d i n t h e lower c o u r t , it should n o t be considered on appeal. Kearns v. McIntyre Const. Co. (1977), Mont . , 567 P.2d 433, 440, 34 St.3ep. 703, 712. Defendants - acquiesced t o t h e i n j u n c t i o n theory by counterclaiming f o r a n i n j u n c t i o n and reformation of t h e c o n t r a c t . The ~ i s t r i c t Court decided t h e i s s u e s on t h e theory adopted by both p a r t i e s . " . . . [Wlhen a p a r t y has adopted one theory upon t h e t r i a l of h i s c a s e , h e may n o t change t h e theory on appeal. ( C i t a t i o n o m i t t e d . ) " O'Hanlon v. Ruby Gulch Min. Co. (1922), 6 4 Mont. 318, 326, 209 P. 1062, 1064. The judgment of t h e D i s t r i c t Court i s affirmed. W e concur: Judge, s i t t i n g i n p l a c e df M r . Chief J u s t i c e Haswell. % \ \ | May 30, 1979 |
fa4bea07-c631-4785-9b83-681902008127 | STATE v GRIMSTAD | N/A | 14601 | Montana | Montana Supreme Court | No. 14601 I N THE SUPREME COURT OF T H E S T A T E O F lQXCNW 1979 S T A T E O F rnrnANA, Plaintiff and Appllant, -VS- M Y N E LEE GRIMESTAD, Defendant and kspondent . Appeal f m : D i s t r i c t Court of the Eleventh Judicial D i s t r i c t , Honorable James M. Salansky, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, M t a n a Ted 0. Lympus argued, County Attorney, Kalispell , Mntana For Respondent: Christian, P.13cCurdyf Ingraham & Wid, Wnan, Montana Fkank L. Ingraham argued, Wnan, Mntana Submitted: April 27, 1979 Decided: N L 9 1979 Filed: JUL ; . jyi? Mr. Chief Justice Frank I. Haswell delivered the opinion of the Court. The State of Montana appeals from an order of the h is- trict Court, Flathead County, granting defendant's motion to . suppress evidence on the grounds that certain incrimination statements and admissions made by defendant were not voluntary. On October 3, 1977, around 7:00 in the evening, officers of the Flathead County sheriff's department were summoned to the scene of a shooting near the Isaac Walton Inn outside of Essex, Montana, on Highway 2 East. Upon arrival, they encountered def- endant Wayne Lee Grimestad waiting with a highway patrolman near defendant's pickup truck. In the cab of the pickup, curled on the floor face down and lying on the passenger's side with head pointing toward the driver's side, was the body of Gary Jewett, dead of a single bullet wound through the head. A .357 Magnum pistol belonging to the deceased was on the floor of the pickup under his body. One spent shell was found in the seat on the driver's side. According to an investigative report filed by the officer in charge, defendant related the following circumstances when interviewed at the scene: Defendant and Jewett had left Kalispell at noon that day on a fishing trip. They had stopped at several taverns during the course of the day and had also tarried once along the way to shoot Jewett's new pistol. They stopped at the Isaac Walton Inn, intending to have a drink, but found the bar closed. As they were returning to the pickup after finding they could not get into the bar, Jewett stopped in the lobby to talk to a young woman. Defendant waited in his pickup for three or four minutes and then returned to get Jewett to leave. Jewett continued his conversation. Defendant went back outside, sat waiting in the pickup another three or four minutes, and then fired the pistol out the driver's side window into the tree tops, hoping to attract Jewett's attention. When Jewett still did not come, defendant returned once more to the lobby and demanded "Come on, let's go." This time Jewett accompanied defendant back to the pickup. They had driven down the road and were approaching a stop sign at the highway when defendant heard a shot go off. Defendant turned to Jewett to admonish him about firing from a moving vehicle and saw him slumped over in his seat. Defen- dant stopped the pickup, flagged down a passing vehicle, and told the driver his partner had just shot himself. (Again, this scenario is as reported by the investigating officer from state- ments taken from defendant on the evening of the incident. The report is dated October 11, 1977, which means it was filed sub- sequent to an interview and a later polygraph exam administered to defendant which are the central events in this appeal.) On October 4, 1977, the day following the shooting, de- fendant was at his parents' house where he was called on the tele- phone by the Flathead County sheriff's office. Defendant's mother answered the phone and relayed to him the message that the sheriff's office would like him to come down for more question- ing. She contends that the caller assured her that the author- ities were convinced the shooting incident was an accident and only wanted to clear up a few details. In fact, however, because of certain physical evidence (body position, gun position, and trajectory of the bullet), the sheriff's office felt that Jewett could not have been holding the pistol himself when the fatal shot was fired. Defendant voluntarily went to the sheriff's office that afternoon and submitted to an interview. He was not accompanied by counsel. He was shown, read, and signed a Miranda rights form and waiver, which procedure was prefaced by one of the officers saying: " . . . I don't want to freak you out with the thing, but just by our procedures and the way the courts go and every- thing, before we talk to anybody about virtually anything we have to advise them of their rights, and I don't want you to get all excited thinking we're accusing you of anything or we suspect you of anything or anything else, but that's part of the procedure." The transcript of the interview on October 4 is of the same tenor as the statements from the investigative report con- cerning the evening of the incident. Defendant said the gun was sitting on the seat between him and the decedent when they left the Isaac Walton Inn. Both men had reached a point of intoxi- cation where they were "pretty well along the road," but neither was incapacitated to any extreme. Defendant's truck had rounded a curve, was slowing for a stop sign, and the shot went off. De- fendant said he did not see what happened. The officers repeatedly suggested that the physical evi- dence indicated that the decedent could not have been holding the gun when it went off. They emphasized again and again that they were convinced that the shooting was no more than an unfor- tunate accident. They theorized that what occurred was that Jewett, who had a reputation as a hothead when drinking, was "messing with" the gun and defendant grabbed for it, causing it to fire. Defendant repeatedly stated that he did not recall any such occurrence. The officers insisted that the physical evidence did not match defendant's story. Defendant steadfastly maintained he was telling all he knew, that he was not really sure what hap- pened, and that he had come to the interview hoping the sheriff's office could clarify it for him. The officers suggested a poly- graph at a later date and defendant closed the interview by say- ing: "Well, if you need any help, like you said, take the test or whatever, I mean, I've got to find out for myself what happened." Several days after this first interview, a sheriff's deputy again telephoned defendant at his parents' home. His mother again took the call. He was requested to come back to the sheriff's office for a polygraph examination. His mother said she asked the caller "Well, then maybe we should get a lawyer for Wayne," to which she stated the caller responded "What do you want a lawyer for unless you need one." On October 8, 1977, pursuant to arrangements made by phone calls, defendant again voluntarily presented himself, again unrepresented by counsel, at the Flathead County sheriff's office. He was accompanied by his parents, who waited for him while he was privately subjected to a polygraph test by two officers. Apparently no tape or transcript was made of this sec- ond stationhouse interrogation; none appears in the record. The officers who administered the test maintained that the polygraph registered a negative response when defendant replied to the question "Did you deliberately shoot Gary Jewett?" They also main- tained that during the course of the conversations on that day, defendant repudiated his earlier statements and recalled specific incriminating details of the shooting incident. At the conclusion of the polygraph interview, the officers asked defendant to make a written statement embodying the sub- stance of what he had told them. The original of that statement is not part of the record, and the copy is difficult to decipher. It appears to read as follows: "We stopped at the Isaac Walton to have a beer. the Bar was closed I was going to leave and Gary was talking to a girl. I said lets go. I went out in the pickup and waited. Look at his gun check to see if it was loaded it had only 1 shell in it I looked around (undecipherable) shot it into a tree a woman was looking out a window then I went in to get gary. I went out to the pickup then gary came out he was saying something about Jim & Gordie then he said I'll show them I grab for the gun and it went off. Then I really don't remember much. After firing at the tree I reloaded the gun W.L.G." Several matters by way of explanation and background of this written statement require comment. The reference to " ~ i m and Gordie" is to the deceased's two children. The last sentence appended to the end of the statement was added at the specific request of one of the interrogating officers. It is also note- worthy that defendant's parents maintained that after the poly- graph interview, but while defendant was still isolated and apparently before he executed the written statement, one of the interrogating officers came out and told them: "I believe Wayne did it, but without a doubt it was an accident." On November 21, 1977, a complaint was filed in Flathead County justice court charging defendant with deliberate homicide in the shooting death of Gary Jewett. A preliminary hearing was held before the Justice of the Peace. At the preliminary hearing, one of the officers who was present at the polygraph interview testified that defendant had stated during that conversation that, contrary to his previous statements, in actuality "the shoot- ing had occurred directly in front of the Isaac Walton Hotel, that (defendant) remembered having the gun in his possession when it went off and he then backed away from the building, drove on down the road. " In all, five officers testified at the preliminary hear- ing, relating various facts set forth above and explaining from the results of their investigations why they concluded the dead man could not have been holding the gun himself when the fatal shot was fired. Based on that testimony, the justice of the peace concluded there was probable cause to bind the case over to Dis- trict Court. Thereafter, defendant was formally charged by In- formation with deliberate homicide. The motion to suppress evidence which has resulted in this appeal was filed on August 17, 1978. ~t requests suppression of all admissions or statements made by defendant on October 8, 1977, the day of the polygraph examination and alleged repudiation of defendant's original version of the incident, on the grounds that those statements and admissions were not voluntary. An a£- fidavit of defendant accompanying the motion states that he was informed by the Flathead County sheriff's department on that day that he did not need counsel; that the officers told him if he could not remember the circumstances of the shooting "he would have to be institutionalized because the State cannot have people running around loose who could not remember things"; that the officers suggested to defendant that certain events had prob- ably transpired at the time of Jewett's death; and that the state- ments and admissions defendant made to the officers were the pro- duct of coercion and intimidation in that he was in fear of incar- ceration in a mental institution. A hearing on defendant's motion to suppress was held in Flathead County District Court, commencing on September 15, 1978. Defendant testified, in summary, that he did not remember what had happened during the shooting incident and that any oral ad- missions he had made on the day of the polygraph examination were in the context of statements to the effect that "If you say it happened this way, you must be right because I really don't re- member." As to the written statement executed subsequent to the polygraph interview, defendant testified that the officers had requested him to write down what they had gone over, to "make a written statement and it will help you to remember." He also testified that at the time he made the written statement, he was in fear he would be institutionalized because the polygraph oper- ator had allegedly told him "we can't have you walking around society being able to do something like this and not remember." The testimony of the officers who had participated in the polygraph exam and surrounding conversations indicated that defendant had indeed qualified many of his statements with the explanation that "if you say it had to happen that way, that is probably the way it happened." The officers also recalled that a remark had been made to defendant about possibly send- ing him to Warm Springs for an evaluation. They maintained, however, that defendant was never told he would be institution- alized if he did not cooperate. Their testimony was unclear as to whether the remark was made to defendant before or after he executed the written statement. Concerning the contents of the written statement, the polygraph examiner testified at one point that he was satisfied it contained the same statements defendant had made orally in the conversations surrounding and involved in the polygraph inter- view. He later contradicted that testimony, saying that the written statement contained only some, but not all, of the oral admissions. On the issue of whether the officers suggested to defen- dant how the events must have transpired, the testimony indicates that some such suggestion occurred. It was also admitted that the final sentence in defendant's written statement was added at the specific request of one of the officers. The officer who made the request testified that he did so because "it had been one of the statements" defendant made during the conversation and "I just wanted him to put it on the statement." On October 11, 1978, the District Court entered findings of fact and conclusions of law and an order granting defendant's motion to suppress on the grounds that the State, under the total- ity of the circumstances present here, had failed to prove that defendant's statements were voluntary. The State moved for re- consideration or rehearing. The State's motion was denied and this appeal followed. The only issue we are asked to resolve is whether the Dis- trict Court abused its discretion in granting the motion to suppress; that is, whether there was insufficient evidence to support the findings and conclusions that defendant's admissions (if, indeed, the statements he made can even be characterized as such) were not voluntary. There are two recent Montana cases containing extended discussion of the principles that control here: State v. Smith (1974), 164 Mont. 334, 523 P.2d 1395, and State v. Lenon (1977), Mont . I "When a motion to suppress [statements and ad- missions] is presented to a trial court, its analysis of the evidence presented at the pre- trial hearing must focus on whether impermissible procedures were followed by law enforcement authorities. The burden of proof of voluntari- ness is upon the State, and it is required to prove voluntariness by a preponderance of the evidence but not beyond a reasonable doubt. [Citations omitted.]" Smith, 164 Mont. at 338, 523 P.2d at 1397. " . . . The issue of voluntariness of a confession is largely a factual determination, addressed to the discretion of the trial court . . . The trial court's judgment as to voluntariness of a con- fession will not be reversed on appeal unless it is clearly against the weight of the evidence. [Citations omitted.]" Lenon, 570 P.2d at 906, 34 St.Rep. at 1157-1158. " . . . The question of voluntariness largely depends upon the facts of each case, no single fact being dispositive . . . The determination of voluntari- ness, rather, depends upon the 'totality of the cir- cumstances.' [Citations omitted.]" Lenon, 570 P.2d at 906, 34 St-Rep. at 1157. If there is substantial credible evidence to support a District Court's findings and conclusions that a confession or admission was involuntary, an order suppressing the evidence must be affirmed. Smith, supra. There are numerous other Montana decisions cited in the parties' briefs which address either specifically or peripherally the issues involved here. See State v. Chappel (1967), 149 Mont. 114, 423 P.2d 47; State v. White (1965), 146 Mont. 226, 405 P.2d 761; State v . Zachrneier (1968), 151 Mont. 256, 441 P.2d 737. These cases, however, are incorporated either implicitly or by specific citation in Smith, supra, or Lenon, supra, so any extended discussion of them would add nothing to the controlling principles set forth above. Smith and Lenon make it clear that the standard to be applied by the trial judge on a suppression question is "preponderance of the evidence," but when the same question comes to us on appeal the credibility of the witnesses and the weight to be given their testimony is for the trial court's determination and our review is limited to determining whether there is substantial credible evidence supporting the District Court's findings. The focus of the findings and conclusions entered in support of the suppression order here was on the downplaying of defendant's Miranda rights and the continued assurances by the investigating officers that he was not a suspect of a crime. Those were the primary elements supporting the District Court's con- clusion that the State had not sustained its burden of proving that defendant had waived his constitutional right to counsel, his right against self-incrimination, and that his statements were voluntary. We agree with the District Court that mere lip service was given to the Miranda requirements here, rather than a meaningful warning. The inadequate Miranda warning, however, was not the only incident of improper procedure by the law enforcement author- ities recognized by the District Court. In addition, numerous other questionable tactics are implicitly criticized in the findings and conclusions. The repeated suggestions by the offi- cers that the shooting had to have happened in a particular way; the addition of a sentence to defendant's written statement at the specific request of one of the officers; the variation be- tween defendant's alleged oral admissions and the written state- ment supposedly embodying the oral discussion, and the threat of incarceration in a mental institution (regardless of whether actually implied by the officer or only inferred by defendant from the officer's remark) all were part of the totality of the circumstances weighed by the District Court. When taken to- gether they provide substantial credible evidence supporting the findings and conclusions of the District Court. A£ f irmed. - ............................... Chief Justice We concur: r | July 9, 1979 |
1a8ef6c7-a8f7-4e8c-a706-27942ffd972e | STATE v HUTTINGER | N/A | 14546 | Montana | Montana Supreme Court | No. 14546 I N THE SUPREME C W O F THE S T A T E OF M3JXWW 1979 THE s m I E O F I'xmlmm, Plaintiff and Respondent, -vs- BRAD m I A M m-, Defendant and Appellant. - 1 frcm: D i s t r i c t C o u r t of the Eighth Judicial D i s t r i c t , Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Ralph T. Randono argued, Great Falls, bbntana For Respondent: Hon. Mike Greely, Attorney General, H e l e n a , Montana Chris Tweeten argued, Assistant Attorney General, Helena, mntana J. Fred Bourdeau, County Attorney, Great Falls, Montana S-tted: M a y 3, 1979 Decided: M D ; ~ 2 2 \:73 .- Filed : I I - ' 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; Defendant Brad Huttinger appeals from t h e o r d e r of t h e D i s t r i c t Court of Cascade County, t h e Honorable H. William Coder, denying h i s motion t o withdraw a p l e a of g u i l t y t o t h e charge of d e l i b e r a t e homicide. The D i s t r i c t Court postponed sentencing pending t h e f i n a l d i s p o s i t i o n of t h i s appeal. H u t t i n g e r remains a t Warn Springs S t a t e H o s p i t a l where h e was s e n t pending sentencing. On J u l y 9 , 1976, Huttinger was charged w i t h t h e crimes of d e l i b e r a t e homicide and aggravated kidnapping i n t h e stabbing d e a t h of an e l d e r l y Great F a l l s woman. The D i s - t r i c t Court ordered a p s y c h i a t r i c e v a l u a t i o n of Huttinger which was conducted on August 4 , 1976. The r e p o r t i n g psy- c h i a t r i s t , D r . Ronald Hughes, concluded t h a t on t h e d a t e of t h e crimes charged t h a t Huttinger, although under t h e i n f l u - ence of a v a r i e t y of psychoactive drugs, "knew t h e d i f f e r e n c e between r i g h t and wrong i n s o f a r a s it i s r e l a t e d t o t h e charges a g a i n s t him" and d i d n o t " l a c k t h e a b i l i t y t o adhere t o t h e r i g h t . " (Ultimately, however, D r . Hughes recommended t h a t Huttinger be h o s p i t a l i z e d i n t h e maximum s e c u r i t y ward a t Warm Springs S t a t e H o s p i t a l . ) On December 3 , 1976, Huttinger e n t e r e d a p l e a of n o t g u i l t y t o t h e o f f e n s e charged. On February 1 4 , 1977, Hut- t i n g e r a l l e g e d l y changed h i s p l e a t o g u i l t y on t h e charge of d e l i b e r a t e homicide i n exchange f o r a d i s m i s s a l of t h e charge of aggravated kidnapping. Immediately a f t e r t h e February 1 4 proceedings, Huttinger w a s s e n t t o Warm Springs S t a t e H o s p i t a l f o r a complete p s y c h i a t r i c e v a l u a t i o n . The examining p s y c h i a t r i s t , D r . W i l l i a m Alexander, concluded: "Summary: There i s no evidence of o r g a n i c involve- ment. P a t i e n t i s f e l t t o be psychotic because of h i s f l a t a f f e c t , h i s i n t e l l e c t u a l d e t e r i o r a t i o n , and h i s i n a b i l i t y t o handle a b s t r a c t concepts. H i s a c t u a l i l l n e s s i s q u i t e w e l l encapsulated. H e seems t o be a compulsive type who has a g r e a t d e a l of i n t e r n a l h o s t i l i t y which i s b a r e l y con- t r o l l e d most of t h e t i m e . H e has a g r e a t d i f f i - c u l t y i n t r y i n g t o s o r t o u t h i s f e e l i n g s about h i s normal p a s s i v i t y i n r e l a t i o n s h i p t o t h e occa- s i o n a l o u t b u r s t s of aggression. There i s a g r e a t d e a l of a n x i e t y which i s r e l a t e d t o h i s f e a r s of l o s i n g c o n t r o l over himself. " P a t i e n t i s aware of t h e n a t u r e of t h e charges a g a i n s t him and has t h e a b i l i t y t o a s s i s t h i s lawyer i n h i s own defense. H e i s a l s o aware of t h e c r i m i n a l i t y of h i s a c t i o n s . Because of h i s s e v e r e emotional problems he has been unable t o conduct himself according t o t h e requirements of t h e law. H e i s a b l e t o have a p a r t i c u l a r s t a t e of mind which i s an element of t h e o f f e n s e charged. "Diagnosis: Schizophrenia, paranoid type." I n a c l a r i f y i n g letter received on J u l y 25, 1977, D r . Alexander wrote t o t h e D i s t r i c t Court: " I n m y opinion, a t t h e t i m e of t h e i n c i d e n t , t h i s p a t i e n t w a s unable t o conduct himself according t o t h e requirements of t h e law because of h i s s e v e r e , chronic, emotional i l l n e s s which probably s t a r t e d i n very e a r l y childhood b u t was c e r t a i n l y p r e s e n t e i g h t y e a r s ago, and f o r which he has, t o m y knowledge, never received treatment." On September 1, 1977, t h e D i s t r i c t Court sentenced Huttinger t o 100 y e a r s i n p r i s o n without p a r o l e . Huttinger appealed t h e sentence and on A p r i l 10, 1978, t h i s Court, i n a n unreported p e r curiam o r d e r , vacated t h e sentence pur- s u a n t t o a s t i p u l a t i o n of counsel and remanded t h e c a s e f o r resentencing. Huttinger t h e r e a f t e r f i l e d a Motion f o r Leave of Court f o r Motion t o Withdraw P l e a of G u i l t y on May 2 6 , 1978. A t a hearing on t h i s motion, Huttinger a s s e r t e d t h a t , p r i o r t o o r i g i n a l l y e n t e r i n g h i s p l e a of g u i l t y t o t h e charge of d e l i b e r a t e homicide, he had n o t been informed of t h e a v a i l - a b i l i t y of t h e p o s s i b l e defense of i n s a n i t y o r t h a t o t h e r f a c t o r s p r e s e n t a t t h e t i m e of t h e crime charged might s e r v e t o m i t i g a t e h i s sentence. The S t a t e presented testimony of ~ u t t i n g e r ' s a t t o r n e y s a t t h e t i m e of e n t r y of h i s p l e a of g u i l t y t o t h e e f f e c t t h a t they had discussed t h e i n s a n i t y defense with Huttinger and he had r e j e c t e d it. On August 1 0 , 1978, t h e D i s t r i c t Court e n t e r e d f i n d - i n g s , conclusions, and an o r d e r denying H u t t i n g e r ' s motion. H u t t i n g e r appeals. The i s s u e presented f o r t h i s C o u r t ' s review i s : Did t h e District Court abuse i t s d i s c r e t i o n i n denying H u t t i n g e r ' s motion t o withdraw h i s p l e a of g u i l t y ? This appeal r e q u i r e s a balancing of t h r e e c o n f l i c t i n g f a c t o r s o r a s p e c t s involved i n a c r i m i n a l d e f e n d a n t ' s a t - tempt t o withdraw a previously e n t e r e d p l e a of g u i l t y . The t h r e e f a c t o r s of which w e speak are (1) t h e adequacy of t h e i n t e r r o g a t i o n by t h e D i s t r i c t Court of t h e defendant a t t h e e n t r y of t h e g u i l t y p l e a a s t o t h e d e f e n d a n t ' s understanding of t h e consequences of h i s p l e a , ( 2 ) t h e promptness w i t h which t h e defendant a t t e m p t s t o withdraw t h e p r i o r p l e a , and ( 3 ) t h e f a c t t h a t t h e d e f e n d a n t ' s p l e a was apparently t h e r e s u l t of a p l e a bargain i n which t h e g u i l t y p l e a was given i n exchange f o r d i s m i s s a l of another charge, i n t h i s case, aggravated kidnapping, a felony. A l l t h r e e f a c t o r s , among o t h e r s , have been discussed i n previous cases a s considera- t i o n s i n t h e determination of whether a District Court should allow t h e withdrawal o f a g u i l t y p l e a . Before d i s c u s s i n g t h e s e p a r t i c u l a r f a c t o r s , w e f i r s t s t a t e some g e n e r a l 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 . The r i g h t of a c r i m i n a l defendant t o a t r i a l by j u r y i s safeguarded by A r t . 1 1 S e c t i o n s 2 4 and 26 of t h e 1972 Montana C o n s t i t u t i o n . S e c t i o n 95-1606 (e) , R.C.M. 1947, now s e c t i o n 46-12-204 MCA, s t a t e s i n p a r t : "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. If t h e defendant r e f u s e s t o plead t o t h e indictment, information o r complaint a p l e a of n o t g u i l t y must be e n t e r e d . "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 a c c e p t 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 i s v o l u n t a r y w i t h an understanding of t h e charge." More s p e c i f i c a l l y , s e c t i o n 95-1902, R.C.M. 1947, now s e c t i o n 46-16-105(2) MCA, s t a t e s i n p a r t : "At any t i m e b e f o r e o r a f t e r judgment t h e c o u r t may f o r good cause shown permit t h e p l e a of g u i l t y t o be withdrawn and a p l e a of n o t g u i l t y s u b s t i t u t e d . " "There i s no set r u l e o r standard which can be r e l i e d on i n any given c a s e where a motion i s made t o withdraw a g u i l t y p l e a . " S t a t e v. L e w i s (1978), Mon t . , 582 P.2d 346, 352, 35 St-Rep. 1089, 1096. "Each c a s e must be examined on i t s own record . . ." S t a t e v . G r i f f i n (1975), 167 Mont. 11, 21, 535 P.2d 498, 503. "The g r a n t i n g o r r e f u s a l of permission t o with- draw a p l e a of g u i l t y and s u b s t i t u t e a p l e a of n o t g u i l t y rests i n 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 and i s s u b j e c t t o review only upon a show- i n g of an abuse of d i s c r e t i o n . S t a t e v . Nance, (1947), 120 Mont. 152, 184 P.2d 554. "A p l e a of g u i l t y w i l l be deemed i n v o l u n t a r y where it appears t h a t t h e defendant was l a b o r i n g under such a s t r o n g inducement, fundamental m i s - t a k e , o r s e r i o u s mental c o n d i t i o n t h a t t h e pos- s i b i l i t y e x i s t s he may have plead g u i l t y t o a c r i m e of which he i s innocent." S t a t e ex rel. Gladue v. Eiqhth J u d i c i a l District (1978), - Mont . , 575 P.2d 65, 6 6 , 35 St.Rep. 220, 221-22. I f , however, t h e r e i s any doubt t h a t a p l e a i s n o t v o l u n t a r y , t h e doubt should be resolved i n t h e d e f e n d a n t ' s f a v o r . On a p p l i c a t i o n t o change a p l e a , a l l doubts should be resolved i n f a v o r of a t r i a l on t h e m e r i t s . S t a t e v. Doty (1977) Mont. , 566 P.2d 1388, 1391, 34 S t . Rep. 731, 734. With t h e s e g e n e r a l p r i n c i p l e s i n mind, w e proceed t o an examination of t h e t h r e e f a c t o r s d e s c r i b e d above. Adequacy - of D i s t r i c t C o u r t ' s I n t e r r o g a t i o n . For e a s e of a n a l y s i s , w e f i n d it h e l p f u l t o set f o r t h t h e complete t r a n s c r i p t of t h e hearing a t which Huttinger a l l e g e d l y made h i s g u i l t y plea: "THE COURT: Ladies and Gentlemen, t h i s Court w i l l now be i n s e s s i o n . This i s t h e S t a t e of Montana a g a i n s t Brad W i l l i a m H u t t i n g e r , Cause No. 6857 A. M r . Barron, you a r e r e p r e s e n t i n g t h e defendant, M r . H u t t i n g e r , i n t h i s matter? "MR. BARRON: I do. "THE COURT: And it i s of course understood a t t h i s p o i n t i n t i m e you wish t o e n t e r a change of p l e a i n t h i s case; it t h a t c o r r e c t ? "MR. BARRON: Y e s , your Honor. M r . Huttinger would ask l e a v e t o withdraw h i s p l e a of Not G u i l t y t o D e l i b e r a t e Homicide. "THE COURT: You understand what a p l e a of g u i l t y e n t a i l s i n t h i s m a t t e r , do you n o t , M r . Huttinger? "MR. HUTTINGER: Y e s ; I do. "THE COURT: You understand t h a t change of p l e a , you waive your r i g h t t o remain s i l e n t ? You under- s t a n d t h a t ? "MR. HUTTINGER: Y e s . "THE COURT: You understand t h a t you waive your r i g h t t o counsel t o r e p r e s e n t you i n t h i s m a t t e r ? You understand t h a t ? "MR. HUTTINGER: Y e s . "THE COURT: You waive your r i g h t t o a jury t r i a l , you understand t h a t ? "MR. HUTTINGER: Y e s . "THE COURT: You a l s o understand t h a t you waive your r i g h t t o compel attendance of witnesses t o appear and t e s t i f y on your b e h a l f ; you understand t h a t ? "MR. HUTTINGER: Y e s . "THE COURT: You understand t h e p e n a l t y f o r D e - l i b e r a t e Homicide i n t h e S t a t e of Montana i s imprisonment i n t h e Montana S t a t e P r i s o n , Deer Lodge, f o r a t e r m n o t t o exceed one hundred y e a r s ; you understand t h a t ? "MR. HUTTINGER: Y e s . "THE COURT: I t i s a l s o t h e c o u r t ' s understanding, M r . Barron, t h a t t h e r e have been some negotia- t i o n s w i t h regard t o d i s m i s s a l of t h e o t h e r count of Aggravated Kidnapping; i s t h a t c o r r e c t ? "MR. BARRON: That i s c o r r e c t , your H o n o r . W e are informed by M r . Bourdeau he w i l l d i s m i s s t h e Aggravated Kidnapping charge. "THE COURT: M r . Bourdeau? "MR. BOURDEAU: Y e s , your Honor. A t t h i s t i m e t h e prosecution w i l l o r a l l y move t h e Court f o r permission t o d i s m i s s t h e charge of Aggravated Kidnapping h e r e t o f o r e f i l e d i n t h i s a c t i o n . "THE COURT: Okay. A t t h i s p o i n t i n t i m e , M r . Huttinger, it i s incumbent upon t h e Court t o a s c e r t a i n and make a f a c t u a l b a s i s f o r t h e p l e a of g u i l t y . You understand what t h e Court i s i n d i c a t i n g now? "MR. HUTTINGER: Y e s . "MR. BUTTINGER: Y e s . "THE COURT: A l l r i g h t , M r . - Huttinger. - The Court w i l l a c c e p t --- your p l e a of G u i l t y t o D e l i b e r a t e Homicide, and t h e Court w i l l a l s o a c c e p t t h e County A t t o r n e y ' s motion t o d i s m i s s t h e Aggravated Kidnapping i n t h i s m a t t e r . By v i r t u e of t h e na- t u r e of t h i s c a s e , M r . Huttinger, t h e Court w i l l o r d e r a pre-sentence i n v e s t i g a t i o n , and it i s t h e C o u r t ' s understanding a t t h i s p o i n t i n time from your counsel, M r . Barron, t h a t h e would l i k e t o have, a s a p a r t of t h e pre-sentence i n v e s t i g a t i o n , a n examination by D r . Alexander a t t h e Warm Springs S t a t e Hospital; i s t h a t c o r r e c t ? "MR. BARRON: T h a t ' s r i g h t , your Honor. "THE COURT: The Court w i l l a c c e p t a p l e a of G u i l t y i n t h i s m a t t e r , $Ir. Huttinger. I w i l l set t h e hearing on t h e sentencing March 1 4 , 1977, a t 2 P.M. and t h e Court w i l l o r d e r you t r a n s f e r r e d t o Warm Springs f o r an examination p r i o r t o t h e sentencing. "MR. BARRON: Your Honor, t h e r e have been two r e p o r t s received by t h e Court, one psychological e v a l u a t i o n , one p s y c h i a t r i c e v a l u a t i o n from our Mental Health C l i n i c here. I would l i k e permis- s i o n from t h e Court t o have t h e Clerk copy t h o s e and f u r n i s h m e w i t h c o p i e s , and a s a p a r t of t h e pre-sentence r e p o r t , w e would a l s o l i k e t o have M r . H u t t i n g e r ' s r e p o r t s from M i l e s C i t y and Twin Bridges i n o r d e r t o make it a complete r e p o r t t o t h e Court. "THE COURT: A l l r i g h t . For purposes of sentencing have t h e Court f i l e made a v a i l a b l e t o you. "MR. BARRON: Thank you. "COURT ADJOURNED." ( k p h a s i s added.) Review of t h i s t r a n s c r i p t r e v e a l s s e v e r a l s e r i o u s inadequacies. A t t h e most b a s i c , it appears t h a t Huttinger never r e a l l y d i d admit, i n s o many words, t h a t he committed any d e l i b e r a t e homicide, only t h a t such a homicide was committed. Neither d i d he a c t u a l l y plead g u i l t y t o any o f f e n s e a t a l l ; he only asked " l e a v e t o withdraw h i s p l e a of Not Gui 1 t y . " Beyond t h e s e perhaps t e c h n i c a l o r semantic d i s c r e - pancies, however, t h e r e a r e more s e r i o u s flaws. Never was t h e name of t h e v i c t i m s t a t e d o r t h e d a t e o r p l a c e of t h e a l l e g e d o f f e n s e s p e c i f i e d ; nothing t o i d e n t i f y t h e p a r t i c u - l a r crime t o which Huttinger a l l e g e d l y was pleading speci- f i c a l l y appears i n t h e t r a n s c r i p t . The underlying f a c t s of t h e o f f e n s e w e r e n o t s t a t e d o r admitted. I n s h o r t , Hut- t i n g e r d i d n o t plead anything t o any o f f e n s e s p e c i f i e d i n any manner. F u r t h e r , t h e D i s t r i c t Court d i d n o t a s c e r t a i n p a r t i c u - l a r l y t h a t defendant was s a t i s f i e d w i t h h i s appointed counsel o r t h a t he thought h i s counsel was competent. F i n a l l y , t h e v o l u n t a r i n e s s of t h e g u i l t y p l e a i s c a l l e d f u r t h e r i n t o q u e s t i o n by t h e f a c t t h a t immediately a f t e r e n t r y of t h e p l e a , Huttinger was s e n t t o Warm Springs S t a t e H o s p i t a l f o r p s y c h i a t r i c examination and treatment. H e remained a t Warm Springs f o r over s i x months before being sentenced and i s c u r r e n t l y being h e l d a t Warm Springs pend- i n g t h i s appeal. The q u e s t i o n n a t u r a l l y a r i s e s , was Hut- t i n g e r competent t o e n t e r any p l e a ? I n S t a t e v. L e w i s , 582 P.2d a t 352, 35 St-Rep. a t 1097, w e held: ". . . when i n t h e sentencing procedure, t h e D i s - t r i c t Court c a r e f u l l y , as h e r e , examines t h e defendant, f i n d s him t o be competent, and d e t e r - mines from him t h a t h i s p l e a of g u i l t y i s volun- t a r y , he understands t h e charge and h i s p o s s i b l e punishment, he i s n o t a c t i n g under t h e i n f l u e n c e of drugs o r a l c o h o l , he admits h i s counsel i s competent and he has been w e l l advised, and he d e c l a r e s i n open c o u r t t h e f a c t s upon which h i s g u i l t i s based, then a p l e a of g u i l t y accepted by t h e D i s t r i c t Court on t h e b a s i s of t h a t exami- n a t i o n w i l l be upheld . . ." When compared t o t h e s e standards, t h e i n t e r r o g a t i o n of Huttinger by t h e D i s t r i c t Court i n t h e i n s t a n t c a s e f a l l s s h o r t on a l l counts. There i s one o t h e r r e s p e c t i n which t h e D i s t r i c t Court i n t e r r o g a t i o n i s inadequate. I n S t a t e v . Azure (1977), - Mont. , 573 P.2d 179, 34 St.Rep. 1569, t h i s Court va- c a t e d t h e judgment and sentence and i n s t r u c t e d t h e District Court t o allow t h e withdrawal of t h e g u i l t y p l e a . W e s t a t e d as o u r r a t i o n a l e : "The D i s t r i c t Court made no i n q u i r y a s t o whether defendant understood t h a t by purposely o r know- i n g l y causing t h e d e a t h of Randy L e w i s he may have committed e i t h e r d e l i b e r a t e homicide o r m i t i - gated d e l i b e r a t e homicide. Nor was defendant informed t h a t i f he went t o t r i a l on t h e charge of d e l i b e r a t e homicide, he would have t h e r i g h t t o p r e s e n t evidence of m i t i g a t i o n , and i f t h e jury accepted h i s v e r s i o n of t h e o f f e n s e and convicted him of m i t i g a t e d d e l i b e r a t e homicide, t h e maximum sentence he could r e c e i v e would be a 40 year p r i s o n t e r m . "When an accused p l e a d s g u i l t y t o t h e crime of d e l i b e r a t e homicide charged under Montana's s t a t u t o r y scheme which sets o u t d i s t i n c t kinds of c r i m i n a l homicide, it is of v i t a l importance t h a t t h e record d i s c l o s e s t h e defendant had a f u l l understanding of t h e p r e c i s e kind of homi- c i d e t o which h e plead. Absent such a showing, t h i s Court w i l l n o t assume t h e p l e a w a s made ' w i t h an understanding of t h e charge.' "Because t h e D i s t r i c t Court d i d n o t determine whether defendant understood t h e d i f f e r i n g ele- ments and e f f e c t s of d e l i b e r a t e homicide and m i t i g a t e d d e l i b e r a t e homicide, w e hold t h a t ac- ceptance of h i s p l e a of g u i l t y w a s improper. The District Court should have g r a n t e d defen- d a n t ' s motion f o r l e a v e t o withdraw t h e g u i l t y p l e a . " 573 P.2d a t 183, 34 St.Rep. a t 1574, 1575. W e conclude t h a t t h e i n s t a n t appeal i s governed by Azure, a t l e a s t s o f a r a s c o n s i d e r a t i o n of t h e adequacy of t h e D i s t r i c t C o u r t ' s i n t e r r o g a t i o n . I n n e i t h e r c a s e was t h e defendant informed of t h e d i f f e r i n g elements of homicide, although i n both cases t h e D i s t r i c t Court knew, o r should have known, of p o s s i b l e evidence of m i t i g a t i n g circumstances-- i n both cases t h e defendant w a s under t h e i n f l u e n c e of drugs and a l c o h o l and p o s s i b l y s u f f e r i n g from mental d i s t r e s s o r i n s t a b i l i t y . I n both c a s e s , t h e defendant appeared i n c o u r t w i t h appointed counsel and e n t e r e d a p l e a of g u i l t y t o t h e charge of d e l i b e r a t e homicide. When compared t o t h e D i s - t r i c t Court i n t e r r o g a t i o n found inadequate i n Azure, t h e i n t e r r o g a t i o n of t h e defendant h e r e i s even less s u f f i c i e n t . The S t a t e ' s argument t h a t w e should n o t r e t r o a c t i v e l y apply Azure ( o r presumably L e w i s ) i s n o t persuasive. While it i s t r u e t h a t Azure w a s decided a f t e r t h e o r i g i n a l e n t r y of t h e g u i l t y p l e a , it was decided b e f o r e H u t t i n g e r ' s motion t o withdraw h i s p l e a and before h e had been sentenced. Even more important, however, i s t h a t t h e e q u i t i e s of t h e s i t u a t i o n and t h e ends of j u s t i c e f a v o r a p p l i c a t i o n of t h e s e l a t e r c a s e s t o t h e i n s t a n t appeal. By applying them, w e a r e n o t r e l e a s i n g Huttinger from h i s p o s s i b l e criminal l i a b i l i t y . Rather, t h e c a s e would merely go t o t r i a l . A s w e s t a t e d i n Doty, 566 P.2d a t 1391, 34 St.Rep. a t 734-35: "Here, any i r r e g u l a r i t y and doubt should have been resolved by t h e t r i a l c o u r t i n favor of defendant, i n h i s motion f o r a change of p l e a ; then t h a t doubt could properly be resolved by a jury. Only through t r i a l on t h e m e r i t s f o l - lowing a change of p l e a would t h e ends of jus- tice b e s t be served i n t h i s case." I n any event, t h e r u l e s s t a t e d i n Azure and L e w i s a r e n o t new. The law i n both c a s e s can b e t r a c e d back through many d e c i s i o n s over many years. See, e . g . , S t a t e v. Casaras (1937), 104 Mont. 404, 66 P.2d 774; S t a t e v. Nance (1947), 120 Mont. 152, 184 P.2d 554; S t a t e v. 5lcBane (1954), 128 Mont. 369, 275 P. 2d 218. Having concluded t h a t t h e i n t e r r o g a t i o n of Huttinger by t h e D i s t r i c t Court was inadequate f o r determining whether h i s g u i l t y p l e a was v o l u n t a r i l y given, w e proceed t o con- s i d e r a t i o n of t h e e f f e c t of t h e two a d d i t i o n a l f a c t o r s s p e c i f i e d e a r l i e r . Timeliness of -- t h e Motion - t o Withdraw. I n S t a t e v. L e w i s , 582 P.2d a t 352, 35 St.Rep. a t 1096, and S t a t e v. S a t t l e r (1976), 170 Mont. 35, 549 P.2d 1080, 1081, t h i s Court h e l d t h a t a claim of laches may l i e a g a i n s t a motion t o withdraw a g u i l t y p l e a i n c a s e s where t h e records upon which t h e p l e a of g u i l t y was entered a r e missing, t h e w i t - nesses a r e unavailable, o r evidence has been disposed o f . The S t a t e a s s e r t s t h a t laches should s i m i l a r l y bar Hut- t i n g e r ' s motion here. Huttinger f i r s t e n t e r e d h i s g u i l t y p l e a on February 1 4 , 1977. H e t h e r e a f t e r w a s sentenced t o 100 y e a r s i n p r i s o n without p a r o l e on September 1, 1977. This sentence w a s vacated by t h i s Court on appeal by s t i p u l a t i o n of counsel, and t h e cause remanded f o r resentencing on A p r i l 10, 1978. S i x weeks l a t e r , on May 26, and before h e had been resen- tenced, Huttinger f i l e d h i s motion f o r withdrawal of p l e a . This sequence i n d i c a t e s d e f e n d a n t ' s p o s i t i o n h e r e i s s t r o n g e r than t h a t found t o j u s t i f y a claim of l a c h e s i n L e w i s . Cf. S t a t e v. Nance (1947), 120 Mont. 152, 184 P.2d 554 (one month between e n t r y of g u i l t y p l e a and motion t o withdraw h e l d n o t reasonably t i m e l y ) . I n L e w i s over one y e a r elapsed between t h e d a t e of sentencing and t h e d a t e of t h e motion t o withdraw p l e a , with no r e c o r d of an i n t e r - vening appeal t o t h e Supreme Court. I n t h e i n s t a n t c a s e , while e i g h t and one-half months elapsed between t h e d a t e of sentencing and t h e motion t o withdraw, t h e r e a l s o was t h e i n t e r v e n i n g appeal and r e v e r s a l of t h e sentence. ~ u t t i n g e r promptly proceeded t o make h i s motion t o withdraw a f t e r t h e f i r s t sentence was vacated and b e f o r e t h e new sentence was pronounced. Neither has t h e S t a t e presented any evidence t h a t r e c o r d s a r e l o s t , evidence missing, o r w i t n e s s e s unavail- a b l e a s was done i n S a t t l e r . I n f a c t , p a r t of t h e r e c o r d on appeal a r e t h e p o l i c e r e p o r t s made during t h e i n v e s t i g a t i o n of t h e homicide. "The g e n e r a l l y accepted r u l e i s t h a t i n o r d e r t o re- c e i v e f a v o r a b l e c o n s i d e r a t i o n an a p p l i c a t i o n t o withdraw a p l e a of g u i l t y should be made w i t h i n a reasonable time." S t a t e v. Nance, 120 Nont. a t 165, 184 P.2d a t 561. S e c t i o n 95-1902, R.C.M. 1947, now s e c t i o n 46-16-105(2) MCA, provides t h a t withdrawal may be made " [ a l t any t i m e before o r a f t e r judgment." I n S t a t e v. McBane, 128 Mont. a t 377, 275 P.2d a t 222, J u s t i c e Freebourn s p e c i a l l y concurred s t a t i n g : "Being guaranteed t h e r i g h t t o a t r i a l by jury, t h e r e is no sound reason, s i n c e t h e s t a t e g i v e s up nothing, why a defendant charged w i t h a f e l o n y should b e denied t h e ' s a c r e d 1 r i g h t t o a t r i a l by jury, where a f t e r p l e a of g u i l t y b u t be- f o r e t h e commencement of h i s sentence he demands such r i g h t . " H u t t i n g e r ' s motion, made before f i n a l sentencing and b e f o r e h e a c t u a l l y s t a r t e d s e r v i n g h i s sentence, was timely. P l e a Bargaining. I n exchange f o r H u t t i n g e r ' s p l e a of g u i l t y t o t h e charge of d e l i b e r a t e homicide, t h e Cascade County Attorney agreed t o a d i s m i s s a l of a charge of aggra- v a t e d kidnapping although no w r i t t e n record of t h i s p l e a bargain was made. This Court has s t a t e d many t i m e s t h a t ". . . i t w i l l n o t l e n d i t s a s s i s t a n c e t o an accused c r i m i - n a l i n escaping t h e o b l i g a t i o n s of h i s agreement a f t e r a c c e p t i n g t h e b e n e f i t s t h e r e o f . " S t a t e v. S a t t l e r (1976) , 170 Mont. 35, 37, 549 P.2d 1080, 1081. Accord, S t a t e v. Nance (1947), 120 Mont. a t 166, 184 P.2d a t 561. This i s undoubtedly t h e most t r o u b l i n g a s p e c t of t h i s appeal and i s t h e f a c t o r weighing most s t r o n g l y a g a i n s t allowing Huttinger t o withdraw h i s g u i l t y p l e a . W e con- c l u d e , however, t h a t it does n o t outweigh t h e o t h e r f a c t o r s which f a v o r allowing withdrawal. This conclusion i s based on s e v e r a l grounds. F i r s t , a s noted e a r l i e r , immediately a f t e r e n t r y of h i s g u i l t y p l e a , Huttinger was s e n t t o Warm Springs S t a t e H o s p i t a l f o r psy- c h i a t r i c e v a l u a t i o n and treatment. H e remained a t Warm Springs f o r over s i x months before being f i r s t sentenced. A f t e r sentencing, Huttinger was t r a n s f e r r e d t o Warm Springs f o r f u r t h e r treatment. H e i s now i n Warm Springs pending t h i s appeal. I n a l l , s i n c e J u l y 1976 when h e was f i r s t charged, Huttinger has s p e n t nine months i n t h e S t a t e Hos- p i t a l and only s i x months i n t h e S t a t e P r i s o n . Therefore, t h e r e i s now, and t h e r e w a s a t t h e t i m e of h i s g u i l t y p l e a , a s e r i o u s q u e s t i o n a s t o H u t t i n g e r ' s competency t o e n t e r i n t o any p l e a bargain. Second, a t t h e hearing on t h e motion t o withdraw h i s g u i l t y p l e a , Huttinger and h i s (adoptive) p a r e n t s both t e s t i f i e d t h a t t h e p o s s i b i l i t y of a defense based on mental d i s e a s e o r d e f e c t was n o t presented o r discussed by e i t h e r of h i s appointed counsel. While t h i s testimony was contra- d i c t e d by testimony from t h e a t t o r n e y s involved, it does r a i s e a q u e s t i o n a s t o whether Huttinger was s a t i s f i e d w i t h t h e competency of h i s a t t o r n e y . This goes t o t h e i s s u e of whether Huttinger w a s aware of a l l h i s o p t i o n s before e n t e r i n g i n t o t h e p l e a bargain. A s noted e a r l i e r , whether t h e defendant was s a t i s f i e d with h i s a t t o r n e y ' s competency i s one of t h e a r e a s t h a t should be i n v e s t i g a t e d by t h e D i s t r i c t Court a t t h e t i m e it a c c e p t s a g u i l t y p l e a . S t a t e v. L e w i s , 582 P.2d a t 352, 35 St.Rep. a t 1097. This inves- t i g a t i o n was n o t undertaken by t h e District Court i n t h i s c a s e . S i m i l a r l y , nowhere does it appear t h a t Huttinger was advised of t h e f a c t t h a t he could i n t r o d u c e evidence i n m i t i g a t i o n of t h e d e l i b e r a t e homicide charge. H e was n o t informed, i n a sense, of a l l t h e elements of t h e p l e a bar- g a i n i n g arrangement. I t i s conceivable t h a t had he known t h a t t h e d e l i b e r a t e homicide charge, c a r r y i n g a maximum t e r m of 100 y e a r s o r perhaps death, could have p o s s i b l y been reduced by t h e i n t r o d u c t i o n of m i t i g a t i n g circumstances t o m i t i g a t e d d e l i b e r a t e homicide c a r r y i n g a maximum sentence of 4 0 y e a r s , Huttinger might have decided n o t t o e n t e r i n t o t h e p l e a bargain. See, S t a t e v. Azure, supra. W e emphasize a g a i n t h a t doubts i n c a s e s involving motions t o withdraw a g u i l t y p l e a should be resolved i n f a v o r of allowing withdrawal and a t r i a l on t h e merits. Taking a l l t h e f a c t o r s involved i n t h i s c a s e and r e s o l v i n g doubts i n f a v o r of t h e defendant, w e conclude 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 r e f u s i n g t o allow Huttinger t o withdraw h i s g u i l t y p l e a . The judgment of t h e District Court i s reversed and t h e c a s e .is remanded f o r f u r t h e r proceedings c o n s i s t e n t w i t h t h i s opinion. / J u s t i c e W e concur: &44&&&w4 Chief ~ u g t i c e M r . J u s t i c e John Conway Harrison 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 . A s I view it, w e have a fac- t u a l s i t u a t i o n t h a t t a k e s p l a c e over a two-year p e r i o d , involving t h r e e defense a t t o r n e y s and a t r i a l judge making every e f f o r t t o e x p l a i n t o t h e defendant h i s r i g h t s . Perhaps t h e golden words "Are you g u i l t y of t h e murder of M r s . I 1 w e r e n o t s p e c i f i c a l l y used, b u t t h e t r i a l judge asked i n t h e colloquy between t h e c o u r t , t h e defendant, and h i s a t t o r n e y : "THE COURT: And it i s of course understood a t t h i s p o i n t i n t i m e you wish t o e n t e r a change of p l e a i n t h i s case; is t h a t c o r r e c t ? "MR. BARRON: Y e s , your Honor. M r . Huttinger would a s k l e a v e t o withdraw h i s p l e a of Not G u i l t y t o D e l i b e r a t e Homicide. "THE COURT: You understand what a p l e a of g u i l t y e n t a i l s i n t h i s m a t t e r , do you n o t , Fir. Huttinger? "MR. HUTTINGER: Y e s ; I do. "THE COURT: You understand t h a t change of p l e a , you waive your r i g h t t o remain s i l e n t ? You under- s t a n d t h a t ? "MR. HUTTINGER: Y e s . "THE COURT: You understand t h a t you waive your r i g h t t o counsel t o r e p r e s e n t you i n t h i s matter? You understand t h a t ? "MR. HUTTINGER: Y e s . "THE COURT: You waive your r i g h t t o a jury t r i a l , you understand t h a t ? "MR. HUTTINGER: Y e s . "THE COURT: You a l s o understand t h a t you waive your r i g h t t o compel attendance of w i t n e s s e s t o appear and t e s t i f y on your b e h a l f ; you understand t h a t ? "MR. HUTTINGER: Y e s . "THE COURT: You understand t h e p e n a l t y f o r De- l i b e r a t e Homicide i n t h e S t a t e of Yontana i s imprisonment i n t h e Montana S t a t e P r i s o n , Deer Lodge, f o r a term n o t t o exceed one hundred y e a r s ; you understand t h a t ? "MR. HUTTINGER: Yes." I n withdrawing h i s p l e a of n o t g u i l t y , I b e l i e v e t h e only p l e a t h a t can be considered under t h e s e circumstances i s t h a t he i s e n t e r i n g a p l e a of g u i l t y . H e s t a t e d he understood waiving h i s r i g h t s and t h e sentence t o be imposed and s o t h e record i n d i c a t e s he understood t h e p l e a bargain- i n g i n dropping t h e aggravated kidnapping charge, which could have r e s u l t e d i n a death p e n a l t y i f defendant had been convicted of both charges. Under t h e s e p a r t i c u l a r circumstances, I would a f f i r m t h e judgment and sentence. | May 22, 1979 |
911aad58-19f4-44f1-9bf5-d8b5378a6db4 | STATE v JOHNSON | N/A | 14472 | Montana | Montana Supreme Court | No. 14472 IN THE SUPREME C O W O F THE STATE O F J!42WANA 1979 STATE O F MXJTANA, Plaintiff and Appellant, J A M E S RICHAIiD JOHNSON, Defendant and Respondent. Appeal from: D i s t r i c t Court of the Fourth Judicial D i s t r i c t , Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Mntana Robert L. Deschamps 111, County Attorney, Missoula, Plbntana For Respondent: E & m r d C h g s , Missoula, Plbntana de, . ' Filed: i$!g Sukdtted on briefs: January 15, 1979 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Plaintiff, the State of Montana, appeals from an order of the Missoula County District Court granting defendant's motion to dismiss proceedings for an evidentiary hearing on suspension of defendant's driver's license and ordering that his driving privileges be restored to him. The motion was granted without notice or opportunity to be heard and was further based on a misreading of section 32-2142.2(a), R.C.M. 1947, now section 61-8-403 MCA. We reverse and remand the case for a hearing on the merits. Defendant was arrested for driving while intoxicated and, according to the arresting officer, refused to submit to a breath test as required by Montana's implied consent law, section 32-2142.1, R.C.M. 1947, now section 61-8-402 MCA. Pursuant to this statute the Montana highway patrol board later requested surrender of defendant's driver's license for a period of sixty days beginning May 17, 1978. On May 31, defendant petitioned the District Court for a hearing pursuant to section 32-2142.2(a), and on June 1, obtained an order staying suspension of his license. On July 20, the District Court scheduled the hearing for August 3. Cn August 1, defendant filed in the District Court and served on the county attorney a single page document entitled "motion to dismiss". The motion sought dismissal of the August 3 hearing for the court's failure to set a hearing within thirty days of written notice to the county attorney of defendant's petition for a hearing. At the bottom of this document, language stating that the motion was granted and that defendant's driving privileges be reinstated was typed in for the court's signature. The next day, August 2, combination the court granted defendant's motion by signing the/motion and order. The State appeals. The determinative issues on appeal are whether the District Court erred: (1) by denying the State an opport- unity to be heard in resisting the motion and relief sought, and (2) by granting the motion on the basis of a misinter- pretation of section 32-2142.2(a), R.C.M. 1947, now section 61-8-403 MCA. The court granted defendant's motion only one day after he filed it in the District Court and served a copy on the State. In effect, the court granted an - ex parte motion to dismiss, and the adverse party was not given notice or opportunity to be heard. Rule No. II(1) of the Uniform Rules for District Courts of Montana states: ''MOT IONS : "1. Upon serving and filing a motion under Rule 12, M. R . Civ. P., or within five days thereafter, the moving party shall serve and file a brief. The adverse party shall have ten days thereafter within which to serve and file an answer brief. A reply brief may be served and filed within ten days thereafter. Upon the filing of briefs, the motion shall be deemed made and submitted and taken under advisement by the Court, unless the Court orders oral argument of said motion . . . "Failure to file briefs within the prescribed time shall subject such motion to summary ruling, and the failure to file a brief by the moving party shall be deemed an admission that, in the opinion of counsel, the motion is without merit, and such failure to file a brief by the adverse party shall be deemed an admission that in the opinion of counsel, the motion is well taken . . ." Although this rule specifically governs procedure for motions in civil actions, we believe the substance of its provision for notice and opportunity to be heard by the adverse party should be observed in criminal proceedings to ensure fundamental fairness and a fully informed court. Since the State was given no such notice or opportunity to be heard in this case, the court erred in granting defendant's motion. This error is compounded by the fact that the order of dismissal was based on an obvious misconstruction of section 32-2142.2(a), R.C.M. 1947, now section 61-8-403 which provides : ". . . RIGHT TO APPEAL TO COURT. (a) Any person whose license or privilege to drive has been suspended, as hereinbefore authorized, the board shall immediately notify such person in writing and such person shall have the right to file a petition within thirty (30) days thereafter for a hearing in the matter in the district court in the county wherein such person shall reside and such court is hereby vested with jurisdiction and it shall be its duty to -- -- set the matter for hearing upon thirty (30)- -- days' written notice to the county attorney of -- the county wherein the appeal is filed . . ." (Emphasis added.) The State contends the phrase "it shall be [the ~istrict Court's] duty to set the matter for hearing upon thirty days written notice to the county attorney" requires thirty days written notice to the county attorney before the hearing is held, rather than requiring a hearing be set within thirty days of the filing of a petition. We agree. The statute clearly requires that the county attorney be given at least thirty days written notice before the matter can be heard. Dismissal was therefore doubly in error. In conclusion, we must add one word of caution. In light of the fact that the court order was so manifestly in error, procedurely and substantively, the State should more properly have moved for reconsideration by the District Court, rather than taking an appeal to this Court. By seeking all possible resolution of such matters in the District Court, economy and efficiency of the judicial process is better achieved. The cause is reversed and remanded to the District Court for a hearing on the merits- We Concur: Chief Justice /7 Justices | April 30, 1979 |
0cf2548c-8757-4dc6-819b-123f1250fbbf | SWECKER v DORN | N/A | 14375 | Montana | Montana Supreme Court | No. 14375 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 CHRISTINE SWECKER, Plaintiff and Appellant, -vs- DONALD DORN, Defendant and Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellant: Richard Ganulin, Billings, Montana For Respondent: Jerry W. Schuster, Billings, Montana Submitted on Briefs: December 14, 1978 Decided: APR 2 5 1979 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Plaintiff, who claimed title to land by adverse possession, appeals from an order of the Yellowstone County District Court granting defendant's motion for summary judgment in a quiet title action. The dispute is over the ownership of the south half of Lot 46, Block 8, State Realty Addition in Billings, Montana, originally owned by plaintiff's brother, George Martell. Plaintiff claimed ownership of the parcel by virtue of an oral gift from her brother which she alleges eventually ripened into title by adverse possession. Defendant Dorn claimed title to the parcel by virtue of a deed purchased from the personal representative of Martell's estate. The District Court gave no reasons for its grant of summary judgment, but it appears the court ruled that one who initially claimed possession of land under an oral grant, cannot thereafter establish title by adverse possession. We reverse. George Martell originally purchased the parcel involved in 1949. He purchased Lots 44, 45 and 46 of Block 8, State Realty Addition. Later, in 1954, Swecker purchased the adjacent Lots 47 and 48. In 1967 Martell sold Lots 44 and 45 and the north half of Lot 46 to defendant Dorn. According to plaintiff Swecker, at approximately the same time these lots were sold to defendant Dorn, Martell made an oral gift of the south half of Lot 46 to her. Martell did not, however, give her a deed. George Martell died in 1975 and two years later the personal representative of his estate conveyed the south half of Lot 46 to defendant Dorn. Plaintiff Swecker, after learning of the deed, filed suit to quiet title in the land, claiming title by adverse possession. In affidavits filed with the District Court, both plaintiff and her son declared that her brother had given her the property in 1967 and that from 1967 until 1977; she had undisputed possession of the parcel; she had paid the property taxes on the land; and, she had stored goods in a shed on the property. The affidavits also stated from 1969 through 1977 she had enclosed the parcel with a fence,and that she had planted flowers and trees on the parcel. Defendant Dorn did not dispute these allegations by filing .counteraffidavits, but rested his claim, as far as we can determine, on the contention that plaintiff's original possession cannot ripen into adverse possession. Both parties moved for summary judgment and the District Court granted summary judgment to defendant Dorn. Plaintiff Swecker contends she is entitled to judgment as a matter of law because defendant failed in his initial burden to show that plaintiff's possession was permissive. On the other hand, defendant Dorn claims he is entitled to judgment as a matter of law because an oral grant of property cannot ripen into title by adverse possession. We determine that plaintiff is entitled to judgment as a matter of law and therefore reverse the judgment of the District Court. We discuss first the defendant's contention that since plaintiff came into possession of the parcel under a par01 grant, she enjoyed only permissive possession of the property which cannot ripen into adverse possession. Defendant relies on the statute of frauds, sections 93-1401-5 and 93-1401-7, R.C.M. 1947, now sections 70-20-101 and 28-2-903(1) (d) MCA. We see no reason why an oral conveyance of land cannot serve as the initial foundation for a claim of title by adverse possession. In the analogous context of prescriptive easements, we stated in McDonnell v . Huffine (1912), 44 Mont. 411, 421, 120 P. 792, 794, that "although the verbal grant was ineffectual to pass title to the easements because of the statute of frauds, it did furnish a sufficient foundation upon which to lay a claim of adverse user." See also, Ferguson v. Standley (1931), 89 Mont. 489, 501, 300 P. 245, 250 (overruled on other grounds), In Re Dolezilek's Sr. Estate v. Dolezilek (1970), 156 Mont. 224, 228, 478 P.2d 278, 280. Most states apply this rule to a claim of adverse possession. Annot. 43 A.L.R.2d 10-11; 3 Am.Jur.2d Adverse Possession, 5165. A gift, after all, is a manifestation of the donor's intent to relinquish title, and a majority of jurisdictions accordingly reason that any other view would be inconsistent with the concept of a gift. The cases that hold an oral gift of real property cannot provide a foundation for adverse possession generally turn on the wording of the particular statute involved. Thus, where the applicable statute required written evidence of the property transfer to establish "color of title", par01 gifts of realty cannot ripen into title by adverse possession. See b W e g Higgerson v. Higgerson (Mo. 1973), 494 S.W.2d 374; In Re SSvnkd * & E s t a t e (1948), 31 Wash.2d 565, 198 P.2d 184. But in this State, adverse possession may be acquired either under color of title or under claim of title. Section 93-2509, R.C.M. 1947, now section 70-19-408 MCA, deals with adverse possession acquired under "a written instrument, judgment or decree" (color of title), and section 93-2511, R.C.M. 1947, now section 70-19-410 MCA, applies to adverse possession "not founded upon a written instrument, judgment or decree" (claim of title). As this Court stated in Morrison v . Linn (1915), 50 Mont. 396, 402-403, 147 P. 166, 168: "While it is indispensible to defeat the holder of the legal title that the disseisor [adverse claimant] shall maintain his adverse possession throughout the entire statutory period, under either color of title or claim of title, it - is not necessary that his initial entry into possession -- -- should be made under any pretense of right or title." (Emphasis -- - - added.) We conclude that a par01 grant of real property can serve as a foundation for a claim of title by adverse possession, notwithstanding the statute of frauds. The District Court's summary judgment in favor of defendant Dorn was therefore improper. We next discuss plaintiff's contention that she is entitled to summary judgment as a matter of law. Plaintiff and her son submitted affidavits in support of her motion for summary judgment to the effect that she was given the property in 1967 and maintained undisputed possession of it until 1977. The affidavits also asserted that she had paid taxes on the land since 1967; that the land had been fenced since 1969; and that she "has planted flowers and trees" on the parcel. Defendant Dorn filed no affidavits disputing these averments. Rule 56(e), M0nt.R.Civ.P. provides in pertinent part: ". . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of 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." (Emphasis added. ) - Since defendant Dorn did not contravert the plaintiff's assertions, they are taken as true. 73 Am.Jur.2d Summary Judgment, SS24, 30. Having determined that plaintiff's possession during the statutory period was adverse or hostile to the title of the record owner (her brother), we find that the uncontested averments of her affidavits satisfy all the requirements for title by adverse possession not founded upon a writing. Her assertion of undisputed possession from 1967-77 sufficiently establishes her continuous and exclusive dominion over the property. Her uncontroverted payment of property taxes on the parcel during the same period satisfies the requirements of section 93-2513, R.C.M. 1947, now section 70-19-411 MCA. Section 93-2511, R.C.M. 1947, now section 70-19-410 MCA provides : ". . . Claim of title not founded on instrument -- or judgment--what considered occupation. For - the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only: "(1) where it has been protected by a substantial enclosure; "(2) where it has been usually cultivated or improved." This statute was patterned after California's Code of Civil Procedure, section 325. In construing their provision, the California courts hold that the substantial enclosure and the usual cultivation or improvement requirements are in the alternative, so that adverse claimant need only prove his possession has been evidenced by a substantial enclosure and need not prove any further occupation, cultivation or use. 2 Cal.Jur.3d Adverse Possession 844 n. 61; Safwenberg v. Marquez (1975), 50 C.A. 3d 301, , 123 Cal.Rptr. 405, 411. We believe this is a reasonable construction of section 93- 2511, supra,and therefore adopt it. Any contrary implication made in Johnson v. Silver Bow County (1968), 151 Mont. 283, 286, 443 P.2d 6, 8 is hereby disapproved. Accordingly, plaintiff's undisputed statement in her affidavit that she enclosed the parcel with a fence from 1969-77 complies with the requirements of section 93-2511, supra. The District Court order granting summary judgment to defendant Dorn is reversed, and the court is directed to enter sum~ary judgment in favor of plaintiff Swecker. We Concur: A chief Justice | April 24, 1979 |
e66dc50b-9c91-42fd-9d4a-6b26488bbd08 | BUTCHER v PETRANEK | N/A | 14450 | Montana | Montana Supreme Court | No. 14450 I N THE S U P R E M E CWKF O F THE STATE: O F M3NTANA 1979 Plaintiff and Respondent, CISIFUS PEzwNEK and (3M3AGE A. P E ; T R A N E K , Defendants and Appellants. Appeal f m : D i s t r i c t Court of the Tenth Judicial District, Honorable B. W. ThoaMs, Judge presiding. Counsel of Record: For Appellants: Bradley B. Parrish, mistawn, Montana For Respondent: Morrow, S e d i v y and Olson, Bozeman, Ibntana SutrPTlitted on briefs: February 23, 1979 Decided: APR 2 4 1979 Filed: H P R 2 4 1979 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. Defendants Charles and George Petranek appeal from an o r d e r of t h e District Court, Fergus County, denying t h e i r motion f o r a new t r i a l . This case involves a d i s p u t e over a f o u r t e e n m i l e roadway a c r o s s p l a i n t i f f Edward Butcher's land which Petraneks, owners of a neighboring t r a c t , had used f o r some y e a r s with Butcher's permission. This same roadway was t h e s u b j e c t of a q u i e t t i t l e a c t i o n previously b e f o r e t h i s Court. Taylor v. Petranek (1977), Mont. , 568 P. 2d 120, 34 St.Rep. 905. I n t h a t case, t h i s Court h e l d t h a t Petraneks d i d n o t have an easement i n t h e road. A t t h e t i m e t h e q u i e t t i t l e a c t i o n w a s pending i n t h e District Court, Butcher had planted t h e road over with wheat. Although Petraneks w e r e f u l l y aware t h a t t h e m a t t e r was i n l i t i g a t i o n , on May 24, 1976, they t r e s p a s s e d on B u t c h e r ' s land w i t h a road grader and plowed a swath through t h e wheat f i e l d , approximately where t h e road had once been, b e f o r e they w e r e run o f f by Butcher. The swath plowed by Petraneks w a s about one-half m i l e long, twelve f e e t wide, and some f o u r t o s i x inches deep, t h u s s t r i p p i n g t h e t o p s o i l On May 28, 1976, Butcher f i l e d a complaint i n t h e D i s t r i c t Court praying f o r $1000 i n a c t u a l damages t o t h e land, $50,000 i n p u n i t i v e damages f o r i n j u r y t o t h e land, $150 i n a c t u a l damages f o r l o s s of t h e wheat crop damaged by t h e g r a d e r , and $50,000 i n p u n i t i v e damages f o r malicious d e s t r u c t i o n of t h e crops. Butcher a l s o sought i n j u n c t i v e r e l i e f , which was granted and i s n o t an i s s u e on appeal. Evidence adduced a t t r i a l i n d i c a t e d t h a t when Butcher e v i c t e d Petraneks from h i s land, a somewhat v i o l e n t alter- c a t i o n took place. Butcher claimed t h a t George Petranek, who w a s d r i v i n g a pickup behind t h e road grader driven by Charles Petranek, rammed t h e horse Butcher w a s r i d i n g with t h e pickup. Butcher a l s o t e s t i f i e d t h a t both Petraneks and t h e i r h i r e d hand, who was r i d i n g i n t h e pickup, advanced t h r e a t e n i n g l y toward him, with Charles Petranek grabbing f o r Butcher's l e g s as he sat on h i s horse. Butcher t e s t i f i e d he had t o t h r e a t e n Petraneks with a . 2 2 c a l i b e r p i s t o l before they would leave. Other evidence e s t a b l i s h e d t h a t Petraneks had s e v e r a l times i n t h e p a s t c u t Butcher's fences and trespassed across h i s land. I t w a s a l s o shown t h a t Petraneks a r e q u i t e wealthy, having holdings ( c o n s i s t i n g c h i e f l y of ranch and farmlands and r e n t a l p r o p e r t i e s i n Lewistown) t o t a l i n g more than $1,500,000. O n May 5 , 1978, a f t e r a jury t r i a l with t h e Honorable Bernard W. Thomas presiding, a v e r d i c t was returned i n favor of Butcher. The jury awarded $825 a c t u a l damages with $10,000 p u n i t i v e damages f o r damage t o t h e land, and $100 a c t u a l damages with $10,000 p u n i t i v e damages f o r d e s t r u c t i o n of t h e crops. Petraneks subsequently moved f o r a new t r i a l on t h e ground t h a t t h e award of p u n i t i v e damages w a s exces- s i v e and given under t h e influence of passion and prejudice. The District Court denied t h e motion, and Petraneks appeal. The i s s u e on appeal i s simply: Were t h e p u n i t i v e damages awarded t o Butcher by t h e jury excessive? Petraneks argue they w e r e and t h e r e f o r e t h i s Court must e i t h e r reduce them o r order a new t r i a l . I n approaching t h i s i s s u e , w e note t h a t Petraneks are n o t challenging t h e award o r amount of a c t u a l damages, t o t a l i n g $925. Neither a r e they challenging t h e award of punitive damages i t s e l f ; they apparently concede t h a t some award of punitive o r exemplary damages i s proper. What Petraneks a r e challenging i s t h e amount of t h e punitive damages awarded. Their argument e s s e n t i a l l y i s t h a t t h e amount of punitive damages awarded here ($20,000) i s " p a t e n t l y excessive" t o t h e p o i n t t h a t " t h e r e can be no o t h e r conclusion than t h a t t h e jury was influenced by pas- sion, prejudice, o r from improper motive." The law governing punitive o r exemplary damages i s w e l l developed i n Montana and has been followed w i t h unerring consistency by t h i s Court. Since f i r s t enacted i n 1895, s e c t i o n 17-208, R.C.M. 1947, now s e c t i o n 27-1-221 MCA, has read: " I n any a c t i o n f o r a breach of an o b l i g a t i o n not a r i s i n g from c o n t r a c t , where t h e defendant has been g u i l t y of oppression, fraud, o r malice, ac- t u a l o r presumed, t h e jury, i n a d d i t i o n t o t h e a c t u a l damages, may give damages f o r t h e sake of example, and by way of punishing t h e defendant." From t h e numerous cases construing t h i s section, general p r i n c i p l e s f o r its application may be derived. An e a r l y , y e t r e l a t i v e l y complete, statement of t h e s e b a s i c p r i n c i p l e s i s found i n De C e l l e s v. Casey (1914), 48 Mont. 568, 576, "The amount t o be awarded i n t h i s c l a s s of cases i s lodged i n t h e d i s c r e t i o n of t h e jury; b u t t h i s d i s c r e t i o n i s n o t unlimited o r t o be exercised a r b i t r a r i l y . I t w i l l not do t o say t h a t t h e jury a r e f r e e t o make t h e measure of punishment what- ever they choose, without any j u s t o r reasonable r e l a t i o n t o t h e wrong done. N o d e f i n i t e r u l e can be declared a s t o when t h e c o u r t should i n t e r f e r e and when it should not; y e t s i n c e a new t r i a l may be ordered when it appears t h a t t h e jury have acted under t h e influence of passion and preju- d i c e (Rev. Codes, sec. 6794), it follows t h a t when t h e award i s s o l a r g e t h a t it cannot be ac- counted for on any o t h e r theory and i s wholly o u t of proportion t o t h e wrong done and t h e cause of it, t h e conclusion i s i r r e s i s t i b l e t h a t it was measured by t h e passion and prejudice of t h e jury, r a t h e r than by an estimate made i n t h e e x e r c i s e of t h e i r d i s c r e t i o n , and it becomes t h e duty of t h e c o u r t t o set it aside." Accord, Cornner v. Hamilton (1922), 62 Mont. 239, 245, 204 I n describing t h e necessary elements t o j u s t i f y such an award, t h i s Court a few years later s t a t e d : "A g u i l t y i n t e n t on t h e p a r t of t h e defendants i s a n e s s e n t i a l t o charge them with exemplary damages . . . 'While every l e g a l wrong e n t i t l e s t h e p a r t y i n j u r e d t o recover damages s u f f i c i e n t t o compensate f o r t h e i n j u r y i n f l i c t e d , n o t every l e g a l wrong e n t i t l e s t h e i n j u r e d p a r t y t o recover exemplary damages. To warrant t h e re- covery of such damages t h e a c t complained of must n o t only be unlawful, b u t must a l s o partake somewhat of a criminal o r wanton nature. And s o it i s an almost u n i v e r s a l l y recognized r u l e t h a t such damages may be recovered i n cases, and only i n such cases, where t h e wrongful act complained of i s c h a r a c t e r i z e d by some such circumstances of aggravation a s w i l l f u l n e s s , wantonness, malice, oppression, b r u t a l i t y , i n s u l t , recklessness, g r o s s negligence, o r g r o s s fraud on t h e p a r t of t h e de- fendant.' (8 R.C.L. 585, 586.)" Luther v. Lee (1922), 62 Mont. 174, 179, 204 P. 365, 367. The jury may a l s o t a k e i n t o account whether t h e a c t s complained of a r e "of such a c h a r a c t e r as t o i n d i c a t e a r e c k l e s s d i s r e g a r d of t h e r i g h t s of t h e p l a i n t i f f " i n award- i n g a "reasonable amount" of p u n i t i v e damages. Mosback v . Smith Brothers Sheep Co. (1922), 65 Mont. 4 2 , 46-47, 210 P. Elaborating f u r t h e r on t h e concept of malice, w e s t a t e d i n 1927 t h a t : "'Malice, a s a b a s i s f o r exemplary damages, may be proved d i r e c t l y o r i n d i r e c t l y ; t h a t i s t o say, by d i r e c t evidence of t h e e v i l motive and i n t e n t o r by l e g i t i m a t e inferences t o be drawn from o t h e r f a c t s and circumstances i n evidence.' (Klind v . Valley County Bank, 69 Mont. 386, 222 Pac. 439.) 'The t e r m "malice," as applied t o t o r t s , does n o t n e c e s s a r i l y mean that which must proceed from a s p i t e f u l , malignant o r revengeful d i s p o s i t i o n b u t a conduct i n j u r i o u s t o another, though proceeding from an i l l - r e g u l a t e d mind, n o t s u f f i c i e n t l y cautious before it occasions an i n j u r y t o another. I f t h e conduct of t h e defendant was u n j u s t i f i a b l e and a c t u a l l y caused t h e i n j u r y complained of by p l a i n t i f f , which was a question f o r t h e jury, malice i n l a w would be implied from such conduct . . . 1 11 Ramsbacher v. Hohman (1927), 80 Mont. 480, 487-88, 261 P. 273, 276. "Implied malice may be shown by proof t h a t defendant engaged i n a course of conduct knowing it t o be harmful and unlaw- f u l . " Ferguson v. Town Pump, Inc. (1978), - Mont. I I n Ramsbacher, w e went on t o d i s c u s s t h e f a c t o r s prop- e r l y considered by a jury i n s e t t i n g t h e amount of damages and our function i n reviewing t h e award: "Having concluded t h e jury was w i t h i n i t s r i g h t s i n allowing exemplary damages, a r i s e s t h e ques- t i o n , i s t h e amount allowed on e i t h e r cause of a c t i o n excessive? The amount w a s l a r g e l y i n t h e d i s c r e t i o n of t h e jury. 'The general r u l e i s t h a t an award of exemplary damages by a jury w i l l n o t b e d i s t u r b e d as excessive, unless its amount, considered i n connection with t h e f a c t s , i s i n d i c a t i v e of passion, p r e j u d i c e o r corrup- t i o n on t h e p a r t of t h e jury. * * * The jury should t a k e i n t o consideration - t h e a t t e n d a n t c. slirh a s t h e ma1 ice or wantonness - . circumstanceYr ----I ---- ---- - of t h e a c t , t h e i n j u r y intended, --- t h e a c t , t h e manner i n which it -- - and t h e d e t e r r e n t e f f e c t u p o n o t -- -- cording -- t o t h e general r u l e , it t h e 3ury - t o consider d e f e n d a n F s pecuniary a b i l i t y i n f i x i n g t h e a a e s . ' (17 C . J . 994, 995.) - - - - - - - - --- t h e moti -- was comrni :hers. * * i s proper - , wealth a 'amount o? - ve f o r -- t t e d * Ac- - f o r n d - dam- -- There i s evidence A on a l l those p o i n t s and it i s presumed t h e jury considered it. 'The p u b l i c go* i n t h e r e s t r a of o t h e r -- ment of -- es t i m a t i *s from wrongd -- t h e offender. - - - - exemplary i s t o be --- damages. ' con . - (Wa i n t - a s t h e punish- . - - .sidered i n r d v. ward, 4 1 Iowa. 6 8 6 . 1 B a s e d on those determinative f a c t o r s - .. -- . - and general p r i n c i p l e s , i n t h i s s t a t e t h e r u l e i s t h a t t h e amount of exemplary damages must be reasonable. 'Where t h e a c t s complained of a r e shown t o be wanton, malicious o r oppressive and of such a c h a r a c t e r a s t o i n d i c a t e a r e c k l e s s d i s r e g a r d f o r t h e r i g h t s of t h e p l a i n t i f f , t h e jury, i n t h e i r d i s c r e t i o n , may award a reasonable amount as t h e p u n i t i v e damages, i n a d d i t i o n t o compensatory damages.' (Mosback v. Smith Brothers Sheep Co., 65 Mont. 42, 210 Pac. 910.) What was reasonable w a s f o r t h e jury t o say, s u b j e c t t o t h e judgment of t h e t r i a l c o u r t , upon motion f o r new t r i a l , and t h e judgment of t h i s c o u r t , upon appeal. Being a matter f o r t h e d i s c r e t i o n of t h e jury, w e do n o t see t h a t t h e d i s c r e t i o n w a s abused. W e --- w i l l n o t say t h e award is excessive nor t h a t it i s i n d i c a t i v e of passion or p r e j u d i c e ---- nor t h a t , under a l l t h e circumstances and i n view -- --- of - p l a i n t i f f ' s version _ _ _ - of t h e c a s e (accepted & t h e j u r y ) , it i s even unreasonable." 80 Mont. - --- a t 489-90, 261 P. a t 277. (Emphasis added.) Petraneks argue t h a t t h e amount of p u n i t i v e damages awarded h e r e is p e r se excessive because they a r e approxi- -- mately twenty-two t i m e s t h e amount of t h e a c t u a l damages awarded. W e r e j e c t e d any such "mathematical r a t i o " approach t o c a l c u l a t i n g p u n i t i v e damages i n Johnson v. Horn (1929), 86 Mont. 314, 318-19, 283 P. 427, 429: ". . . The c o u r t s have n o t e s t a b l i s h e d a d e f i n i t e formula t o be followed i n a s c e r t a i n i n g whether a n award f o r exemplary damages i s excessive. A s a consequence many c o u r t s hold t h a t because an award of p u n i t i v e damages i s t e n t i m e s t h e amount of a c t u a l damages awarded, a s here, does n o t of i t s e l f demonstrate t h a t t h e award i s excessive. "An award of $1,000 exemplary damages might be excessive under c e r t a i n f a c t s and as a g a i n s t one of impoverished circumstances, and y e t reason- a b l e under d i f f e r e n t circumstances and a s a g a i n s t one of more favorable f i n a n c i a l condition." Further,punitive damages may be awarded i n cases where only nominal a c t u a l damages a r e awarded o r even where no monetary value i s placed on t h e a c t u a l damages s u f f e r e d . M i l l e r v. Fox (1977), Mont. , 571 P.2d 804, 808, 34 St.Rep. 1367, 1371. I t i s t h e r e f o r e i n c o n s i s t e n t t o e s t a b l i s h some mathematical formula o r r a t i o f o r determining t h e amount of such p u n i t i v e damages. W e have quoted extensively from t h e s e o l d e r d e c i s i o n s (and t h e r e a r e many o t h e r s equally a p p l i c a b l e ) t o i l l u s t r a t e t h a t t h e p r i n c i p l e s governing t h i s appeal are very w e l l e s t a b l i s h e d and have been c o n s i s t e n t l y applied. Applying t h e s e time-honored p r i n c i p l e s t o t h e f a c t s a t hand, w e conclude t h a t t h e award of $20,000 i n p u n i t i v e damages a g a i n s t Petraneks i s reasonable and supported by t h e evidence. Undisputedly, Petraneks, with f u l l knowledge of r e l e v - a n t pending l i t i g a t i o n and g r o s s d i s r e g a r d f o r t h e r i g h t s and property of Butcher, drove a road grader onto t h e l a t t e r ' s p r o p e r t y and d e l i b e r a t e l y plowed a half-mile long, twelve- f o o t wide swath through h i s growing wheat crop. The j u r y a l s o heard Butcher t e s t i f y t h a t , when he rode up t o confront t h e Petraneks, George Petranek rammed h i s pickup t r u c k i n t o B u t c h e r ' s horse and Charles Petranek grabbed a t Butcher's l e g s a s i f t o p u l l him o f f h i s horse. From t h i s set of f a c t s , t h e jury w a s f u l l y e n t i t l e d t o conclude t h a t t h e Petraneks a c t e d extremely maliciously. Entering i n t o t h e c a l c u l a t i o n of damages a t t h i s p o i n t i s t h e wealth of t h e Petraneks. The jury w a s informed as t o t h e l a r g e holdings of t h e defendants t o t a l i n g more than $1.5 m i l l i o n . I n determining what would b e a s u i t a b l e punishment ( a l e g i t i m a t e s t a t u t o r y purpose) f o r t h e a c t s of t h e Petraneks, t h e jury could reasonably c a l c u l a t e t h a t any smaller award would n o t be s u f f i c i e n t . Such a conclusion was f o r t h e jury t o make, a f t e r l i s t e n i n g t o t h e testimony and weighing t h e evidence. On appeal, w e w i l l n o t d i s t u r b t h a t conclusion. F i n a l l y , Petraneks' a s s e r t i o n t h a t t h e award of puni- t i v e damages w a s t h e r e s u l t of passion o r p r e j u d i c e on t h e p a r t of t h e jury i s unsupported by any r e f e r e n c e t o t h e r e c o r d , t o improvident remarks by counsel o r w i t n e s s e s f o r Butcher, t o i n c o r r e c t o r o b j e c t i o n a b l e jury i n s t r u c t i o n s , o r t o any o t h e r source. Petraneks a c c e p t t h a t t h e jury a c t e d reasonably i n a s s e s s i n g t h e t o t a l a c t u a l damages s u f f e r e d by Butcher a t $925 o u t of a prayer f o r $1150. I n t h e absence o f any showing of t h e p o s s i b l e sources of passion o r preju- d i c e , it i s i n c o n s i s t e n t t o assume t h a t a jury, a c t i n g reasonably i n a s s e s s i n g a c t u a l damages s o p r e c i s e l y , sud- denly was overcome by passion and p r e j u d i c e i n a s s e s s i n g p u n i t i v e damages. W e concur: % d 4 Chief J u s t i c e % u @ M r . J u s t i c e Daniel J. Shea, deeming himself d i s q u a l i f i e d , d i d n o t p a r t i c i p a t e i n t h i s decision. | April 23, 1979 |
b836e223-153b-4c89-b858-e0a2126bc119 | YOTHER v STATE | N/A | 14412 | Montana | Montana Supreme Court | 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 1978 LESLIE L E R O Y YOTHER, P e t i t i o n e r and Appellant, -vs - STATE OF M O N T A N A , Respondent and Respondent. Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t , Honorable J a m e s D. Freebourn, Judge p r e s i d i n g . Counsel o f Record: For Appellant: James W. Zion argued, Helena, Montana For Respondent : Mike Greely , Attorney General, Helena, Montana Michael McGrath, A s s i s t a n t Attorney = n e r a l , argued Helena, Montana P a t r i c k Flaherty , Boulder, Montana Mark Murphy, S p e c i a l Deputy County Attorney, argued Boulder, Montana Submitted: March 15, 1979 Decided JUL 3 1979 F i l e d : Mr. Justice John C. Sheehy delivered the Opinion of the Court. Petitioner Yother appeals from the order of the District Court, Fifth Judicial District, Jefferson County, dated March 27, 1978, denying a petition for post-conviction relief. This petition is based upon proceedings in justice court, a hearing in District Court on an application for writ of habeas corpus, and upon the arraignment and sentencing of petitioner in District Court for first degree assault. In the early morning of March 9, 1973, petitioner, who was on parole or probation at the time, appeared at the Clancy Bar, Clancy, Montana, and allegedly assaulted patrons of that tavern. Petitioner was arrested by a deputy sheriff responding to a call about the disturbance at the Clancy Bar. Later in the day petitioner was charged by complaint of the arresting officer in the justice court for Boulder Township, Jefferson County, Montana, with disturbing the peace on March 9, 1973, at Clancy, Montana, "by tumultuous and offensive conduct; and . . . by loud, unusual noise, cursing or swearing, fighting and threatening to fight." The petitioner allegedly pled guilty to the charge of disturbing the peace, and was allegedly sentenced to 100 days in jail or a fine of $1,000 by Justice of the Peace Edwin E. Kirtley. These allegations are based upon the notation in Justice of the Peace Kirtley's handwriting on the complaint that petitioner "pled guilty--bail set $1,000 or 100 days in jail case sent to district court--case bound over to district court April 12, 1973." Unfortunately no docket entry was made regarding the disposition of this action. Petitioner began serving the jail sentence. Petitioner was thereafter charged by information on March 16, 1973 with assault in the first and second degrees and with resisting officers. (The -2- action in this cause was commenced prior to the effective date of the 1973 Criminal Code.) The first degree assault charges were based upon complaints filed by persons involved in the altercation at the Clancy Bar. A psychiatric examination was ordered for petitioner on March 22, 1973. Petitioner filed a handwritten letter on March 22, 1973, which the District Court treated as an application for a writ of habeas corpus. The writ was issued and a hearing on the writ was continued until after the examination was completed. On April 12, 1973, the hearing on the writ was held before the court. Justice of the Peace Kirtley testified petitioner did not plead guilty and no sentence was imposed, rather petitioner was merely held pursuant to a warrant issued by a parole probation officer. Deputy sheriff W. J. Gwaltney (the arresting officer) testified that petitioner was brought before the Justice of the Peace on the complaint of disturbing the peace and not because of any request by the parole/probation officer. Deputy Gwaltney further testified petitioner was arraigned on the charge, pled guilty and was sentenced to 100 days in jail. The deputy also testified petitioner expressed astonishment at the length of the sentence. The parole/ probation officer testified no warrant was issued for petitioner for any possible parole/probation violation. Upon conclusion of the hearing, the District Court quashed the application for a writ of habeas corpus and denied relief. The court also determined the proceedings in justice court had "apparently never been disposed of" and indicated petitioner could be arraigned on the charges contained in the information. Petitioner was arraigned at 2:00 p.m. on April 12, 1973 and at that time acknowledged receipt of the information filed against him and that he read it. The court then advised -3- petitioner of the maximum penalties for the charges made against him, of petitioner's right to remain silent, and of his right to counsel. Petitioner pled not guilty to the charges. Later that afternoon, after bargaining by the county attorney in which he indicated he would seek sentencing for petitioner under the recidivist statute, the petitioner through his attorney changed his plea to guilty as to first degree assault. The court accepted the plea and dismissed the remaining charges. Petitioner was then sentenced to ten years in the Montana State Prison. The record does not indicate whether the court at the arraignment or sentencing ascertained the petitioner's true name, advised him of his right to bail (though bond was filed) or whether the court inquired as to the voluntariness of the guilty plea and the understanding the petitioner had of the charges as required by statute. Section 46-12-201, -202 MCA (formerly section 95-1606, R . C.M. 1947) . The petition for post-conviction relief was filed in District Court on August 19, 1977, and a hearing was conducted on February 1, 1978. The petitioner offered two grounds for granting the relief he requested--first, that he had been placed twice in jeopardy by his prosecution on the assault charges and second, that his guilty plea had not been completely voluntary and the District Court failed to ascertain the circumstances surrounding the plea as it was required to do. In the hearing, the court granted a motion requesting it to take judicial notice of the records in the prior proceedings. The court had before it as evidence the original complaint filed in the justice court as well as a copy of the Board of Pardons violation report indicating petitioner had pled guilty and been sentenced for disturbing the peace. Petitioner testified at this hearing that he felt he had pled guilty in justice court and had been sentenced. As -4- to the entry of the guilty plea in District Court, petitioner testified he had been unhappy with his representation by counsel and had tried to complain but to no avail. Petitioner further testified he felt his attorney was not representing him and he did not want to be sentenced as a recidivist as the county attorney indicated he would ask the court to do. The District Court denied the relief requested in the petition specifically finding the petitioner's guilty plea was knowingly and voluntarily given and that no undue influence was exerted or threats made with respect to the guilty plea. The court, however, made no explicit determination with respect to petitioner's double jeopardy claim. Three issues confront this Court in this matter. First, does the record of proceedings in the District Court indicate the petitioner had pleaded guilty to an offense in justice court and was sentenced for that offense? Second, if the petitioner did plead guilty to a charge in justice court, did the charge - arise out of the same transaction as the District Court charges in such a way as to bar the District Court proceedings as being violative of the constitutional protection against double jeopardy? Finally, did the District Court considering the petition for post-conviction relief correctly conclude petitioner had been properly informed of his constitutional rights and the voluntariness of his plea firmly established in light of the record before his guilty plea was accepted? The scope of our review of a denial of post-conviction relief is whether substantial evidence supports the findings and conclusions of the District Court. In the Matter of Jones (19781, Mont . , 578 P.2d 1150, 1152, 35 St.Rep. 469. The burden the petitioner has when requesting such relief is to show by a preponderance of evidence that the facts -5- justify the relief. 578 P.2d at 1152; see, Young v. Cupp (1971), 8 Or-App. 41, 491 P.2d 1201. In the present case, the District Court hearing the petition concluded petitioner had failed to meet this burden and therefore denied the post-conviction relief requested. We disagree and conclude the petitioner had established by a preponderance of the evidence his claim of double jeopardy and his claim that the District Court did not affirmatively ascertain the voluntariness of his guilty plea. Our review of the record in this matter reveals the only evidence indicating the petitioner had not pled guilty to, and thus been convicted of, disturbing the peace is the testimony of Justice of the Peace Kirtley. Arrayed against this testimony is the testimony of Deputy Gwaltney who unequivocally stated petitioner, "plead guilty and Judge Kirtley sentenced him to a hundred days;" the testimony of the parole/probation officer that no warrant for petitioner had been issued by his office contrary to the claim of the justice of the peace; and the documents admitted in evidence by the District Court, including a handwritten notation by Judge Kirtley, indicating petitioner had been convicted of and received a sentence for disturbing the peace. We therefore find the petitioner - did present a preponderance of evidence showing he had been convicted of and sentenced for disturbing the peace, and the evidence was not so substantial as to warrant a determination otherwise by the District Court. Turning to the second issue in this cause we now must decide if such conviction would prevent for double jeopardy reasons a subsequent prosecution for first degree assault. We note initially petitioner's plea of guilty to the assault charge is not a bar to the claim of double jeopardy. Menna v . New York (1975), 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195. -6- The United States Supreme Court has decided that a sub- sequent prosecution is barred by a prior conviction if the subsequent prosecution is based upon the same acts as was the prior conviction, if the subsequent prosecution is for an offense of which the offense in the prior conviction is a lesser included offense, and if the subsequent prosecution is in a court which is part of the same sovereign as the court involved in the prior conviction. Waller v . Florida (1970), 397 U.S. 387, 390, 394-395, 90 S.Ct. 1184, 25 L.Ed.2d 435; see also United States v. Mechanic (8th Cir. 1971), 454 F.2d 849, 855; Turley v. Wyrick (E.D.Mo. 1976), 415 F.Supp. 87, 88; State v . Rook (1973), 14 0r.App. 211, 511 P.2d 1245, 1246. Here the disturbing the peace charge and the first degree assault charge each were based upon the acts of petitioner while in the Clancy Bar, Clancy, Montana. We have already concluded petitioner was convicted of the charge of disturbing the peace based upon those acts. According to the statutes under which the prosecutions occurred, to establish the offense of disturbing the peace it was necessary to prove petitioner (1) willfully and maliciously (2) disturbed the peace of a neighborhood or person (3) by tumultuous or offensive conduct or (4) by threatening to fight or fighting. Section 94-3560, R.C.M. 1947. To establish first degree assault, section 94-601, R.C.M. 1947, the prosecution had to prove petitioner (1) with the intent to commit a felony upon the person or property of the one assaulted (2) assaults another (3) with a deadly weapon. Because the offense of disturbing the peace essentially required no proof beyond that required for conviction of the first degree assault charge it was a lesser included offense of the greater offense of assault. Brown v. Ohio (1977), 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d -7- 187; State v. Lagerquist (1968), 152 Mont. 51, 445 P.2d 910, 916. Article VIII, Section 1 of 1889 Plontana Constitution states: "the judicial power of the state shall be vested in . . . a supreme court, district courts, justices of the peace, and such other inferior courts as the legislative assembly may establish in any incorporated city or town." This provision demonstrates the judicial power to try petitioner on the charge in justice court springs from the same organic law that created the District Court in which petitioner was convicted of a felony. The two courts involved in this matter are therefore arms of the same sovereign. Waller v . Florida, 397 U.S. at 393-394. We conclude this cause falls within the ambit of the Waller decision and the petitioner here was placed twice in jeopardy by the subsequent prosecution for first degree assault. Moreover, the Supreme Court in Brown has held that a prior conviction for an offense requiring no proof beyond that necessary for conviction of a greater offense bars the prosecution for that greater offense. 432 U.S. at 168-169. Although our determination of the first two issues presented in this appeal is dispositive, we feel obliged to comment on the remaining issue, that of the voluntariness of the guilty plea. Following its quashing petitioner's writ of habeas corpus, the District Court arraigned petitioner on the information filed against him. The court ascertained petitioner had read the information and then informed the petitioner of the charges filed against him and the potential penalties involved. The court further informed the petitioner of his right to counsel and his right to remain silent. The petitioner indicated he would like to plead and then entered a not guilty plea. During the next few hours petitioner spoke with his attorney and with the county attorney, the latter apparently informing petitioner that if the case went to trial, increased penalty under the recidivist statute would be sought. After this petitioner returned to court and through his counsel withdrew his earlier plea, personally indicated he was ready to enter a plea of guilty to first degree assault, and then through counsel entered the guilty plea to first degree assault. The remaining charges in the information were dismissed and the court passed sentence. The court made no inquiry as to the circumstances surrounding the change of plea, nor did it inform petitioner of his right to trial by jury and his right to confront witnesses. Petitioner argues the record before the District Court mandated a thorough inquiry as to voluntariness and understanding and failure to do so should result in the granting of the relief he seeks. The standard by which the validity of a guilty plea is judged is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant as affirmatively disclosed by the record. North Carolina v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162; Brady v . United States (1970), 397 U.S. 742, 747, 90 S.Ct. 1463, 25 L.Ed.2d 747; Boykin v. Alabama (1969), 395 U.S. 238, 243-244, 89 S.Ct. 1709, 23 L.Ed.2d 274; Wilkins v. Erickson (9th Cir. 1974), 505 F.2d 761, 763. While it is clear that courts are not required to articulate specific rights when accepting a guilty plea, Wilkins, supra; State v. Griffin (1975), 167 Mont. 11, 535 P.2d 4 9 8 , 503, an "in depth examination by the court is desirable and mandatory in cases where the record requires it." Griffin, 535 P.2d at 503. The record in this cause discloses the District Court which accepted petitioner's guilty plea made no - inquiries other than if petitioner was ready to enter a plea. The record also - 9- indicates "bargaining" had taken place between petitioner, his counsel and the county attorney. We would conclude upon this record that an in depth examination of the petitioner by the court accepting the plea was desirable and mandatory. For the future assistance of District Courts considering a guilty plea, we recommend reference to State v. Lewis (1978), Mont. , 582 P.2d 346, 35 St.Rep. 1089 and the scope of inquiry there employed by the District Court. See also, State v. Huttinger (1979), Mont . I - P.2d , 36 St.Rep. 945, 951-953. Having concluded the petitioner demonstrated by a prepon- derance of the evidence in his petition for post-conviction relief that he had been convicted of disturbing the peace and thus was placed twice in jeopardy by the subsequent prosecution for assault, we reverse the denial of the petition. The matter is remanded to the District Court with instructions to allow petitioner to withdraw his guilty plea to the first degree assault charges and thereafter to dismiss that charge. The District Court is further instructed to dismiss petitioner from any custody by the State, or supervision by the Bureau of Probation and Parole, that is directly attributable to the conviction for first degree assault. Judgment reversed and remanded with instructions. Justice Mr. Chief Justice Frank I. Haswell dissenting. I would grant the petition to the extent of vacating petitioner's guilty plea as involuntary and remand the case to the District Court for further proceedings. I would not dismiss the charge on double jeopardy grounds. In my view, the record before us does not support the conclusion that petitioner's conviction of disturbing the peace was based on the same occurrence or incident involved in the assault charge. The two charges could well have been based on separate and independent incidents in which case the bar of double jeopardy would not apply. I would leave this factual determination to the District Court on remand. ----,--------\- Justice | July 3, 1979 |
8b770b11-ccee-40cc-ac87-7b5b49c0e416 | CALLANT JOSEPHSON KALBERG v FE | N/A | 14377 | Montana | Montana Supreme Court | No. 14377 I N THE S U P - C O W O F THE STATE O F I'XNI'ANA 1979 OSCAR-, Rm-lmDw. J O S E P H S C l J AND - I Plaintiffs and Respondents, THE FEDERAL LAND BANK O F SPOKANE, (xmmcl3 F. BIEHL, BExTY A. BIEHL, JEBwExw E. m s rn J A N E T L. L E W I S , Defendants and Appellants. Appeal f m : District Court of the Fourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellants: Ask and Pratt, Roundup, Mntana Thomas M. Ask argued, Roundup, Montana For Respondents: Conrad B. Fredricks argued, Big Timber, Mntana Fredricks and Josephson, Big Timber, bbntana s-tted: March 21, 1979 Decided: - &'R 2 4 1979 Filed: W R 2 4 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. In an action to condemn a private road, defendants appeal from an order of the District Court of Golden Valley County, granting plaintiffs' motion to tax costs and striking an expert appraiser's fee and attorney fees from defendants' memorandum of costs. Plaintiffs brought an action to condemn a private road connecting their land to a county road, pursuant to section 93- 9923, R.C.M. 1947, now section 70-30-107 MCA. At the time of this action, the statute appeared in the chapter of the 1947 Montana Code entitled "Eminent Domain". It provides as follows: "Private roads may be opened in the manner pre- scribed by this chapter, but in every case the necessity of the road, and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury, and such amount, together with the expenses of the pro- ceeding, shall be paid by the person to be benefited. " (Emphasis added. ) A jury trial was held on May 8, 1978. The jury found that the private road was necessary and awarded damages to de- fendants totaling $9,226. Defendants thereafter filed a memo- randum of costs and disbursements which included a $775 expert appraiser fee and $2,550 in attorney fees. Plaintiffs filed a motion to tax costs contending that appraiser's fees and attorney fees are not part of "the expenses of the proceeding" within the meaning of the statute. The District Court granted plaintiffs' motion and ordered that the expert witness fees and the attorney fees be stricken from the memorandum of costs. Defendants appeal. The only issue in this appeal is whether expert appraiser fees and attorney fees are "expenses of the proceeding" to be paid by the condemnor in an action brought under section 93-9923, R.C.M. 1947, now section 70-30-107 MCA. Plaintiffs argue that this appeal is controlled by our decision in Tomten v . Thomas (1951), 125 Mont. 159, 232 P.2d 723, 26 ALR2d 1285. Tomten held that the word "expenses" in the phrase "expenses of the proceeding" in section 93-9923 was synonymous with the word "costs". Citing numerous author- ities that in the absence of statute or agreement the word "costs" does not include attorney fees, Tomten concluded that neither did the synonym "expenses" include attorney fees. An order of the District Court striking that item from the condemnee's bill of costs was affirmed. Two justices dissented, conceding that attorney fees are not part of the taxable costs in the absence of statute or agreement authorizing them, but disputing the majority's conclusion that "expenses of the proceeding" meant the same as "costs". Defendants argue that Tomten is no longer controlling because the 1972 Montana Constitution and two recently enacted statutes provide for an award of attorney fees and expert witness fees in condemnation proceedings. The 1972 Montana Constitution, Art. 11, 529 provides: "Eminent domain. Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just com- pensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails." (Emphasis added. Section 93-9921.1, R.C.M. 1947, now section 70-30-305 MCA, provides : "The condemnor, shall within 30 days after an appeal is perfected from the commissioner's award or report, submit to condemnee a written final offer of judgment for the property to be condemned, together with neces- sary expenses of condemnee then accrued. If at any time prior to 10 days before trial the condemnee serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance, together with proof of service thereof and thereupon judgment shall be entered. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible at the trial except in a proceeding to deter- mine costs. The fact that an offer is made but not accepted does not preclude a subsequent offer. "In the event of litigation, and when the private property owner prevails, by receiving an award in excess of the final offer of the condemnor, the court shall award necessary expenses of litigation to the condemnee . " Section 93-9921.2, R.C.M. 1947, now section 70-30-306 MCA, provides in pertinent part: "(1) Necessary expenses of litigation as authorized by 70-30-305 mean reasonable and necessary attorney fees, expert witness fees, exhibit costs, and court costs. ' I Defendants contend that since the code chapter on eminent domain now includes a definition of "necessary expenses of liti- gation" which includes attorney fees and expert witness fees, there- f o ~ "expenses of the proceedings" under the statute here involved, which is a part of the same chapter in the code, also includes those items. Plaintiffs urge that these statutes have no application to this case. They argue that the reference in the statutes to a commissioner's award or report and a r'inal written offer limits the applicability of the statutes to actions brought under the general procedures for eminent domain, t~hich are different from the procedures followed in actions to open private roads under section 93-9923. Flaintiffs also maintain that the above cited constitutional provision is not self-executing. In ordinary eminent domain proceedings under our statu- tory scheme, a panel of commissioners is appointed to recommend the amount of compensation condernnees should receive. Sections 93-9901 et seq., R . C . M . 1947, now sections 70-30-101 et seq. MCA. If the condemnee is dissatisfied with the recommended amount he may appeal to the District Court. It is then that section 93- 9921.1, R.C.M. 1947, now section 70-30-305 MCA,comes into play and the condemnor makes a final written offer. If the final offer is rejected, the matter goes to trial and only if the condemnee is awarded a sum in excess of the final offer of the condemnor is the condemnee entitled to recover the riecessary expenses of litigation. The foregoing statutory scheme does not apply to actions brought under section 93-9923 for the opening of private roads. In such cases litigation occurs in every instance because the statute directs that the necessity of the road and the amount of compensation are to be determined by a jury. Plaintiffs argue that the new statutes awarding attorney fees and expert witness fees in the event of litigation are limited to ordinary eminent domain actions and have no application to section 93-9923 cases. Therefore, plaintiffs conclude, Tomten still controls and the court's order striking the appraiser fees and attorney fees from defendants' memorandum of costs must be affirmed. From the plain import of sections 93-9921.1 and 93-9921.2 it does not appear that actions brought under section 93-9923 fall within their purview. Thus, if we accept the reasoning in Tomten, a decision in favor of plaintiff is compelled. In our opinion, however, the holding in Tomten was error. We specifically over- rule that holding. The essence of the holding in Tomten was that the term "expenses of the proceeding" is synonymous with "costs". This conclusion was based primarily on two Washington cases: Fiorito v . Goerig (1947), 27 Wash.2d 615, 179 P.2d 316; and Chapin v . Collard (1948), 29 Wash.2d 788, 189 P.2d 642. Fiorito held that attorney fees and accountant fees are not part of the costs of an action for an accounting of funds of a joint venture or partnership so as to permit recovery of those items by the plaintiff against the partnership or joint venture. Chapin held that accountant fees and attorney fees were not "costs" within the meaning of the Declaratory Judgments Act. These cases simply hold attorney fees are not taxable as "costs" of the proceeding under general costs statutes or under specific statutes relating to the particular areas of law which the cases concern. They do not support the proposi- tion for which they were cited in Tomten; viz., that "expenses of the proceeding" in section 93-9923 condemnation actions are synonymous with and limited to "costs" as the latter term is ordinarily used. In our view the reasoning of the dissent in Tomten states the better rule. Justice Angstman reasoned "it was clear from the Constitution and statutes that a person who had his property taken from him against his will should be indemni- fied for expenses incurred in resisting the condemnation proceed- ings or in the proceedings for ascertaining the compensation to be paid, and that actually attorneys' fees are an expense in such proceedings and quite often, if not always, the principle item of expenses; also, that the framers of the constitution clearly contemplated that the expenses of a condemnation suit included the principal item of expense, namely attorneys' fees." 26 ALR2d 1295, 1298. We recognize that in overruling Tomten we are reversing one of the seminal decisions on the exclusion of attorney fees and expert witness fees as expenses in condemnation proceedings and departing from a long line of cases that relied on its con- clusion. 26 ALR2d 1295. Nonetheless, our re-examination of Tomten convinces us that it is fundamentally unsound. This is particularly so in light of the new statutory provision provid- ing for an award to the condemnee of attorney fees and expert witness fees as "necessary expenses of litigation" in every other type of condemnation proceeding. It has been held in some jurisdictions that even though attorney fees are provided for by statute in all other condemnation proceedings, they are justifiably disallowed in a proceed- ing between private parties to establish a way of necessity because such private actions do not implicate the sovereign power of eminent domain in the same way as the taking of land by the state, e . g . Estate of Hampton v . Fairchild-Fla. Const. Co. (Fla. 1977), 341 So.2d 759. The rationale of such hold- ings is that in the case of the state taking private property there is an imbalance between the resources available to the parties which should be redressed by requiring the state to bear full financial burden of the individual whose property is being condemned, whereas in the case of a private road opening where two private parties are involved the imbalance is not present. Excerpts from the transcript of the Montana Constitutional Con- vention Vol. VII, pages 5631-5633, indicate that this imbalance underlay the adoption of Article 11, 829, 1972 Montana Constitu- tion. Be that as it may we conclude that there was no intent on the part of the framers of the Constitution or the legislature to deny condemnees under section 93-9923 recovery of attorney fees and expert witness fees as "expenses of the proceedings" while all other condemnees are allowed those items as "necessary expenses of litigation". Denial of attorney fees and expert witness fees in section 93-9923 actions is most unjust in our view and not intended by either the Constitutional Convention or the Legislature. Tomten resulted in an award of $250 in damages to defendants but denied them the $750 in attorney fees they incurred through the statutorily mandated procedure, leav- ing them with the loss of their land, compounded by an additional monetary loss. We hold, therefore, that the term "expenses of the proceeding" in section 93-9923 includes expert witness fees and attorney fees. We note that we recently cited Tomten for the proposition that "costs do not include attorney fees." Higgins v . Montana Hotel Corporation (1979) , Mont . - 1 - P.2d , 36 St. Rep. 531, 535. This holding remains undisturbed. Here we do not hold that "costs" include attorney fees but merely that "expenses of the proceeding" include attorney fees and witness fees under the statutes here involved. The order of the District Court striking the appraiser fees, and the attorney fees from defendants' memorandum of costs is reversed. The cause is remanded to the District Court for a hearing to determine the reasonableness of the amounts requested. Each party shall bear his own costs and attorney fees in this appeal. Chief Justice | April 23, 1979 |
eba86cef-b18f-4fef-a90b-5bb588381daa | STATE v HILTON | N/A | 14608 | Montana | Montana Supreme Court | No. 14608 I N THE S U P R E M E C O W OF THE S T = O F PONTANA 1979 STATE O F ICWTANA, Plaintiff and Respondent, THOMAS C R A I G HILrn, Defendant and Appellant. Appeal fm: D i s t r i c t Court of the Third Judicial D i s t r i c t , Hon. Robert J. Boyd, Judge presiding. Counsel of Record: For Appellant: Byron Boggs argued, Anaconda, Mntana For Respondent: Hon. Mike Greely, Attomey General, Helena, bbntana Chris Theeten argued, Assistant Attorney General, Helena, Mntana John Radonich, County Attorney, Anaconda, Mntana Kevin Campana argued, Deputy County Attomey, Anaconda, Mntana submitted: June 4, 1979 Decided: - m k 2 3 1979 JIJi 3 j c j m Filed: Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This appeal is from an order of the District Court for Deer Lodge County denying defendant's motion to withdraw a plea of guilty to the charge of first degree murder. Defendant confessed that on October 12, 1973, he forced Elwood Maney, a resident of Anaconda, into the trunk of a car, drove him into the surrounding countryside and shot him. After his arrest, he entered a plea of not guilty and gave notice of his intention to rely on the defense of mental disease or defect. He was then committed to Warm Springs State Hospital for examination and testing. While at the hospital, he was examined by Dr. M. F. Gracia, a psychiatrist, who found him competent to stand trial, able to appreciate the criminality of his conduct and capable of conforming his conduct to the requirements of law. Due to behavioral problems at the hospital he was transferred to the State Prison at Deer Lodge where he was examined by Dr. Dean Beismeyer, a clinical psychologist. Dr. Beismeyer agreed with Dr. Gracia's findings regarding defendant's competency to stand trial but testified that in 1973, he felt there was "a very good question about his ability to be [criminally] responsible." Dr. Beismeyer's report did not influence Dr. Gracia to alter his opinion. In addition, defendant was examined by Dr. Vern Cressey, a psychiatrist who had previously treated him. Dr. Cressey's report concurred with Dr. Gracia's. After the psychiatric reports were filed, defendant withdrew his plea of not guilty and pleaded guilty to first degree murder on March 27, 1974. Although no transcript of these District Court proceedings is available, the minute entry is as follows: "State is ready to proceed, nefendant is ready to proceed with hearing. This being the time set for hearing change of plea. Mr. Scanlon one of counsel for Defendant moved the Court that Defendant be allowed to change plea of Not Guilty of First Degree Murder to plea of Guilty. Mr. Hilton is present at this time with his counsel. State has no objec- tion Mr. Hilton was questioned by the Court. Defen- dant was advised of his right to trial by Jury, witnesses State offered dismissal of Count #I1 Defense counsel had opportunity to seek all evidence. Mr. Yelsa counsel for State of Montana gave summary of incident which took place, the time of the murder. Defendant was asked if he wished to enter a plea at this time to which he answered, yes. Let the records show that the Court makes the following findings : "(1) That the Defendant is competent to enter a plea. "(2) That this is knowingly made with the understand- ing of the nature of the charge and of the direct consequences. " (3) That it is voluntary and made without any im- proper inducements or conditions and free from coersion [sic] with the understanding of the nature of the charge and indirect consequences. "That the plea was made after consultation with competent counsel. "That there is factual bases for the plea and at this time the Court will accept a motion from the County Attorney for dismissal of Count #II. Court accepts the plea of guilty. Defendant waived 2 days to enter plea. Upon conclusions of all testimony, the Defendant was sentenced to commitment to Montana State Penitentiary for the rest of His Natural Life. Defendant was then delivered to the custody of the Sheriff of Deer Lodge County for delivery to Montana State Prison commitment to State Peniten- tiary signed and filed. " In September 1978, defendant filed pro se motions for additional psychiatric examination, appointment of counsel and for vacation of his guilty plea and sentence. From the motion it is clear that defendant desires to stand trial and rely on the defense of mental disease or defect. Counsel was appointed and advised defendant that his guilty plea would have to be withdrawn before trial could take place. A hearing on the matter was held in November 1975, before the Honorable Robert Boyd in the District Court for Deer Lodge County. Dr. Beismeyer testified that he now felt there was a "very high probability" that defendant suffered from a mental disease "at the instance of the crime" and that when the crime was allegedly committed, he did not appreciate the criminality of his conduct and was not able to make his conduct conform to the requirements of law. Defendant testified that he pleaded guilty for three reasons: (1) He was afraid to return to Anaconda for trial because of fear of personal injury to himself. (2) He had formed an intimate relationship with another inmate at the prison and his main concern at the time was to continue the relationship. (3) At the time he was unable to effectively communicate with the appointed psychiatrists and psychologists but is now able to accept his possible insanity. Judge Boyd found, concluded and ruled as follows: "I am sure that after five years in the prison there are relatively few prisoners who would not be willing to explore any avenue possible to them to relieve themselves of that imprisonment. I find it extremely difficult to buy Mr. Hilton's humani- tarian reasons for wanting to be in the prison when I consider the related circumstances of the offense, including lying in wait, stuffing Mr. Maney in the trunk of his car and then putting a shotgun to his head, all of which took a substantial period of time. "I do not believe that if the testimony of Dr. Beismeyer had been presented to me at the same time as the reports of the psychiatrists who have testi- fied that I would come to any other or different conclusion and would still find that and do still find that Mr. Hilton was competent to enter a plea at the time that he entered the plea, that he did it freely and voluntarily, that he had consultation of competent counsel, that by so doing he waived any technical defenses that he might have. "The motion for additional psychiatric evaluations is denied. "The motion to withdraw the plea of guilty and enter a plea of not guilty by reason of mental disease or defect is likewise denied." The sole issue faced by this Court is whether the District Court erred in denying defendant's motion to withdraw his guilty plea. We hold it did not. Section 46-16-105 (2) P I C A 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 substi- tuted. " Such requests are addressed to the sound discretion of the trial court and are subject to review only where an abuse of discretion is shown. State v. pepperling (1978), Mont . Various circumstances surrounding the entry of a plea, mandate withdrawal of a guilty plea. A plea may be withdrawn if defendant is persuaded or coerced into pleading guilty by his attorney, State v. Nicholas (1912), 46 Mont. 470, 472-473, 128 P. 543, 544, or if the plea is entered involuntarily or by one not competent to know the con- sequences of his action or by one who is induced to plead guilty by "fear, persuasion, promise or ignorance." State ex rel. Foot 81 Mont. v. District Court et al. (1928),/495, 504, 263 P. 979, 982. Likewise, if the plea is entered because of mistake or apprehension, it may be withdrawn. State v. McAllister (1934), 96 Mont. 348, 353, 30 P.2d 821, 823. The thread which runs throughout the cases is that the plea must be entered voluntarily and with an understanding of the nature of the action. State v. Mack (1958), 134 Mont. 301, 330 P.2d 968; State v. McBane (19541, 128 Mont. 369, 275 P.2d 218; State v. Casaras (1937), 104 Mont. 404, 66 P.2d 774. It is to these questions that the District Court's discretion is addressed. State v. Pepperling, supra. "The fundamental purpose of allowing the withdrawal of a plea of guilty is to prevent the possibility of convicting an innocent man. Therefore, a plea of guilty need be deemed involuntary only where it appears that the defendant was laboring under such a strong inducement, fundamental mistakes, or serious mental condition that the possibility exists he may have pleaded guilty to a crime of which he is innocent. (Citing cases.)" State v. Pelke (1964), 143 Mont. 262, 271, 389 P.2d 164, 169. The most recent case on point is State v. Huttinger (19791, Mon t . , 595 P.2d 363, 36 St.Rep. 945. In that case, we found an abuse of discretion in the trial court's refusal to allow a withdrawal of the plea. Our decision was based primarily on the fact that the interrogation by the judge was inadequate to determine if Huttinger's plea was truly voluntarily and freely entered. In the instant case, there is no contention that the guilty plea was involuntary or unintelligently entered. The thrust of defendant's argument is that new evidence showing him to be mentally incompetent at the time of the alleged crime mandates the vacation of his plea. From our examination of the record we are unable to agree that any new evidence exists. Dr. Beismeyer testified that in 1973 he believdthere was a "good question" as to whether defendant was criminally responsible. By 1978 the "good question" had evolved into a "high probability". Once a defendant properly pleads guilty he waives all factual defenses as well as constitutional violations which occur prior to the plea. State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788. Thereafter, "[hle may only attack the voluntary and intelligent character of his plea . . ." Tollett v. Henderson (1973), 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, 243; Pepperling, 582 P.2d at 346, 35 St.Rep. at 1079; Turcotte, 164 Mont. at 428, 524 P.2d at 789. In Falu v. United States (S.D. N.Y. 1969), 308 F.Supp. 1051, aff'd 421 F.2d 687, the court held: "[The] contention [that he was not criminally responsible for the crime because of insanity] was waived when petitioner, in full possession of his faculties and represented by able counsel, freely, voluntarily and intelligently pleaded guilty to the crime charged. " In State v. Barber (1972), 262 La. 443, 263 So.2d 719, the facts were nearly identical to those here. Defendant pleaded not guilty and not guilty by reason of insanity and was found, by a sanity commission, to be mentally competent. He withdrew his plea and entered a guilty plea. Upon request to withdraw the plea, the Court said: "A plea of guilty waives all defects prior to the plea except those jurisdictional defects which appear on the face of the proceedings." Barber, 263 So.2d at 719. At the time defendant entered the guilty plea, the District Court found he did so freely and voluntarily. The finding was repeated upon defendant's motion to withdraw and was not an abuse of discretion by the trial court. Thus, it is not subject to attack. State v. Nance (1947), 120 Mont. 152, 184 P.2d 554. Judge Boyd, as the trier of the facts, determined the credibility of the witnesses and the weight to be given their testimony. He was well within his powers when he discounted defendant's asserted "humanitarian reasons" for pleading guilty and dismissed them as a cause of involuntariness. Likewise he was correct in viewing Beismeyer's testimony as pertinent only to defendant's mental state when he entered the plea. As the trier of fact, Judge Boyd was able to believe some witnesses and disbelieve others. He recited that Beismeyer's testimony did not influence him to change his mind about the voluntary nature of defendant's plea; nor would it have influenced him if available at the time of entry of the plea. Alternatively, defendant argues that certain anonymous threats caused him to plead guilty. If this had in fact been a cause of the plea, withdrawal would be proper. Apparently the trial court discounted defendant's credibility and considered these as an afterthought. It was within its discretion to do so. We note that when threats are received such as would deprive a defendant of a fair trial, a motion for a change of venue is proper. The order of the District Court is affirmed. Chief Zustice We Concur: Justices | July 23, 1979 |
6d7afe62-79c9-40ca-880b-9ae992d14dda | HOLMSTROM LAND CO v HUNTER | N/A | 14549 | Montana | Montana Supreme Court | N o . 14549 IN THE SUPRE2-B COURT O F THE STA!I'E O F IvDNI'ANA 1979 Plaintiff and Appllant , Defendant a n d Respondent. Appeal from: District Court of the Fourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: Leaphart Law Firm, Helena, Mxtana For Respondent: -re, Rice, O'Connell & Refling, Bozeman, mntana Su3snitted on briefs: March 29, 1979 Decided: 5 1979 Filed: 'MFS" - g , . ) ? . j 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. P l a i n t i f f Holmstrom Land Company (Holmstrom) appeals from a judgment o f t h e D i s t r i c t Court, Fourteenth J u d i c i a l D i s t r i c t , Meagher County, dated May 16 and J u l y 19, 1978, i n f a v o r of William R. Hunter. This appeal involves a d i s p u t e over charges made by t h e water commissioner f o r dispensing waters i n t h e Newlan Creek Water District. On October 18, 1976, t h e D i s t r i c t Court, Fourteenth J u d i c i a l District, i n a proceeding concerning d i s t r i b u t i o n of t h e waters of Newlan Creek, i s s u e d a n o r d e r g i v i n g i n s t r u c t i o n s t o t h e water commissioners who had been appointed t o administer t h e waters of Newlan Creek. The hearing r e s u l t i n g i n t h e o r d e r was h e l d on complaint of Robert J. Weitz, p r e s i d e n t of Holmstrom. Holmstrom has decreed water r i g h t s i n both Sheep Creek and Newlan Creek l o c a t e d i n Meagher County. I t u s e s Newlan Creek as a con- d u i t f o r t h e t r a n s f e r of approximately 1000 inches of Sheep Creek water t o i t s headgates and d i t c h e s . The c o u r t o r d e r of October 18, 1976, c o n t a i n s t h e following d i r e c t i o n s t o t h e commissioner: "Water Commissioner F u l l e r was t o l d by t h e Court t o keep t r a c k of w a t e r from Sheep Creek coming i n t o Newlan Creek, and a s s e s s Holmstrom Land Company f o r Sheep Creek Water d i s t r i b u t e d through Newlan Creek, i f he u s e s any of h i s t i m e i n dispensing it. Holmstrom Land Company t o g e t t h e amount of water from Sheep Creek they p u t i n t o Newlan Creek, less about 10 per- c e n t f o r seepage, e t c . " Defendant Hunter was appointed water commissioner on June 7, 1977, t o c a r r y o u t t h e October o r d e r . I n 1977 Holmstrom was b i l l e d by defendant on t h e b a s i s of both Newlan Creek and Sheep Creek waters. Holmstrom r e f u s e d t o pay, and defendant padlocked Holmstrom's headgate i n a n a t t e m p t t o c o l l e c t . Holmstrom then brought t h i s a c t i o n . Hunter defended on t h e grounds he was only f o l - lowing t h e c o u r t ' s o r d e r ; t h a t Holmstrom was n o t pursuing t h e proper procedural remedy; and t h a t Holmstrom was t r y i n g t o c o l l a t e r a l l y a t t a c k t h e October 18, 1976, o r d e r even though it had n o t appealed t h a t o r d e r . The D i s t r i c t Court found t h a t Hunter was a c t i n g pur- s u a n t t o i t s o r d e r , t h a t t h e charges were reasonable, and t h a t it was necessary f o r Hunter t o r e t a i n counsel. The c o u r t then concluded t h a t s e c t i o n s 89-1012 and 89-1013, R.C.M. 1947, now s e c t i o n s 85-5-204 and 85-5-205 MCA, con- s t i t u t e d t h e s o l e remedy f o r one who o b j e c t s t o t h e charges of a water commissioner appointed by c o u r t o r d e r . The c o u r t f u r t h e r concluded t h i s s u i t c o n s t i t u t e d a c o l l a t e r a l a t t a c k upon its o r d e r of October 18, 1976. The c o u r t then ordered judgment f o r Hunter and ordered Holmstrom t o pay t h e whole sum owing t o Hunter. A f t e r a n e v i d e n t i a r y hearing t h e c o u r t a l s o ordered, on J u l y 19, 1978, t h a t Holmstrom pay Hunter $750 i n a t t o r n e y f e e s . Although Holmstrom l i s t s e i g h t i s s u e s on appeal, w e determine t h a t t h e r e s o l u t i o n of t h e two following i s s u e s w i l l d i s p o s e of t h i s appeal: 1. Whether t h e attempt t o s e c u r e t h e r e l i e f set f o r t h i n t h e complaint of Holmstrom c o n s t i t u t e d a c o l l a t e r a l a t t a c k upon t h e c o u r t o r d e r dated October 18, 1976? 2 . Whether t h e District Court was c o r r e c t i n o r d e r i n g Holmstrom t o pay a t t o r n e y f e e s t o Hunter? The prayer t o Holmstrom's complaint r e q u e s t s i n major p a r t t h a t " t h e accounting of t h e Commissioner be recalcu- l a t e d i n accordance w i t h t h e u s e s of t h e w a t e r s of ~ e w l a n Creek, e x c l u s i v e of - any _ _ _ - and a l l u s e s of w a t e r s - of Sheep Creek . . ." (Emphasis added.) That t h i s requested r e l i e f i s an a t t e m p t t o negate t h e District C o u r t ' s o r d e r of October 18, 1976, s p e c i f i c a l l y d i r e c t i n g t h e water commissioner t o keep t r a c k of water coming i n t o Newlan Creek from Sheep Creek and t o a s s e s s Holmstrom f o r any t i m e used i n d i s p e n s i n g Sheep Creek water, i s obvious. Such a n a t t e m p t c l e a r l y c o n s t i t u t e s a c o l l a t e r a l a t t a c k on t h e e a r l i e r o r d e r . The g e n e r a l r u l e i n c i v i l l i t i g a t i o n i s w e l l expressed i n t h e following language: "'By " c o l l a t e r a l a t t a c k " is meant "every pro- ceeding i n which t h e i n t e g r i t y of a judgment i s challenged, except t h o s e made i n t h e a c t i o n wherein t h e judgment i s rendered o r by appeal, and except s u i t s brought t o o b t a i n d e c r e e s de- c l a r i n g judgments t o be void - a b i n i t i o . " . . .' [ C i t a t i o n s omitted. 1 " I t has been w e l l - s e t t l e d i n t h i s s t a t e t h a t a c o u r t w i l l o v e r t u r n a judgment on c o l l a t e r a l a t - t a c k only i f t h e judgment i s void on i t s f a c e , and it appears a f f i r m a t i v e l y from t h e judgment r o l l t h a t t h e c o u r t d i d n o t have j u r i s d i c t i o n o r committed an act i n excess of i t s j u r i s d i c t i o n . " E s t a t e of Hofmann (1957), 132 Mont. 387, 395, 318 P.2d 230, 236. It t h u s becomes t h e d u t y of t h i s Court t o determine whether t h e i n i t i a l o r d e r i s void on i t s f a c e o r beyond t h e powers of t h e District Court. W e conclude it i s n o t . S e c t i o n 89-891.1, R.C.M. 1947, now s e c t i o n 85-2-411 MCA, provides : "Water a p p r o p r i a t e d under an e x i s t i n g r i g h t o r pursuant t o t h i s act may be turned i n t o t h e n a t u r a l channel of another stream, o r from a r e s e r v o i r i n t o t h e n a t u r a l channel, and with- drawn o r d i v e r t e d a t a p o i n t downstream f o r b e n e f i c i a l use, b u t t h e waters of t h a t stream may n o t thereby be diminished i n q u a n t i t y o r d e t e r i o r a t e d i n q u a l i t y t o t h e d e t r i m e n t of a p r i o r appropriator." Thus, it i s incumbent upon t h e D i s t r i c t Court, a s t h e e n t i t y r e s p o n s i b l e f o r s u p e r v i s i n g t h e d i s t r i b u t i o n of water among a l l a p p r o p r i a t o r s and f o r supervising a l l water commis- s i o n e r s , s e c t i o n 89-896, R.C.M. 1947, now s e c t i o n 85-2-406 MCA, t o i n s u r e t h a t appropriators of Newlan Creek water w e r e n o t adversely a f f e c t e d by Holmstrom's use of Newlan Creek a s a conduit f o r its Sheep Creek waters. A l e g i t i m a t e and l o g i c a l way t o do t h i s i s t o r e q u i r e t h e water commissioners t o measure t h e flow of Sheep Creek water i n t o Newlan Creek i n dispensing t h e waters according t o t h e decreed r i g h t s of t h e p a r t i e s . Water commissioner Hunter, although appointed a f t e r t h e October 1976 o r d e r , is nevertheless bound by it. Luppold v. L e w i s (1977), - Mont . , 563 P.2d 538, 542, 34 St.Rep. 227, 231. Holmstrom, a s t h e holder of t h e de- creed r i g h t s , must pay f o r t h e proportionate c o s t s of t h e commissioner's f e e s and compensation. Section 89-1001(5), R.C.M. 1947, now s e c t i o n 85-5-101(4) MCA. I f Holmstrom wanted t o challenge t h e D i s t r i c t Court order of October 18, 1976, as it r e l a t e d t o assessments of h i s Sheep Creek water, t h e proper l e g a l procedure would have been an appeal w i t h i n t h e proper time. Rules l ( a ) and 5, M.R.App.Civ.P. Holmstrom d i d not appeal. The c u r r e n t c o l l a t e r a l a t t a c k i s n o t a permissible means by which t o make t h i s challenge. Nor does it appear, i n f a c t , t h a t t h e o r d e r i s challengeable. Conversely, i f Holmstrom wanted t o challenge t h e appor- tionment of f e e s and expenses by t h e water commissioner, it should have followed t h e procedure set f o r t h i n s e c t i o n s 89- 1012 and 89-1013, R.C.M. 1947, now s e c t i o n s 85-5-204 and 85- 5-205 MCA. This it a l s o f a i l e d t o do. Therefore, t h e D i s t r i c t Court order of October 18, 1976, and t h e w a t e r commissioner's assessment f i l e d i n J u l y 1977 a r e f i n a l and binding. O n t h i s f i r s t i s s u e , t h e judgment of t h e ~ i s t r i c t Court i s affirmed. A s t o t h e award of a t t o r n e y f e e s t o Hunter, t h e D i s - t r i c t Court a f t e r r e c e i v i n g evidence i n support of an award f o r $959, awarded f e e s i n t h e amount of $750. Although t h e r e i s no s t a t u t o r y b a s i s f o r t h e s e f e e s , t h e D i s t r i c t Court found it was necessary f o r Hunter t o r e t a i n counsel i n t h i s m a t t e r and concluded t h a t it had t h e power, as a c o u r t of e q u i t y , t o o r d e r Holmstrom t o pay Hunter's reasonable a t t o r n e y f e e s . W e agree. This s u i t was brought a g a i n s t Hunter p e r s o n a l l y f o r a c t s undertaken i n h i s c a p a c i t y a s a duly appointed water commissioner a c t i n g pursuant t o a lawful c o u r t o r d e r . Were water commissioners r e q u i r e d t o defend o u t of t h e i r p e r s o n a l funds a g a i n s t s u i t s brought a g a i n s t them f o r t h e i r o f f i c i a l a c t s , no one would be w i l l i n g t o s e r v e a s water commissioner. Where t h e s u i t i s without m e r i t , a s i n t h i s c a s e , it i s only proper t h a t t h e c o s t s should be borne by t h e water u s e r i n s t i t u t i n g t h e a c t i o n . Courts of e q u i t y have t h e i n h e r e n t power t o g r a n t t h e r e l i e f t h a t j u s t i c e r e q u i r e s . Tiffany v. Uhde (1950), 123 Mont. 507, 512-13, 216 P.2d 375, 378. I n a r e c e n t c a s e , t h i s Court s t a t e d : "The c o u r t a l s o r e s e r v e s t h e power t o g r a n t com- p l e t e r e l i e f under i t s e q u i t y power. This i s meant t o e s t a b l i s h no s r e c e d e n t , b u t must be determined on a c a s e by c a s e b a s i s . " I f e q u i t y i s t o be done i n a s i t u a t i o n such a s t h i s , t h e a t t o r n e y f e e must be s u s t a i n e d . Plain- t i f f Anderson sought t o b r i n g defendant Eggan i n t o t h e l a w s u i t when she had a s s e r t e d no claim a g a i n s t him and had no i n t e n t i o n of doing so. For t h i s reason she submitted a motion t o dismiss which was g r a n t e d by t h e t r i a l c o u r t . P l a i n t i f f Anderson forced her t o secure t h e s e r v i c e s of an a t t o r n e y t o examine t h e c a s e and submit a motion t o dismiss and through no f a u l t on h e r p a r t t o i n c u r a t t o r n e y f e e s and c o s t s . I f defendant Eggan i s dismissed from t h e c a s e and n o t awarded a t t o r n e y f e e s , she w i l l n o t b e made whole o r re- turned t o t h e same p o s i t i o n as b e f o r e p l a i n t i f f Anderson attempted t o b r i n g h e r i n t o t h e lawsuit." Foy v . Anderson (1978), Mont. , 580 P. 2d 114, 116-17, 35 St.Rep. 811, 814. The s i t u a t i o n i n t h e i n s t a n t c a s e i s analogous. Holm- strom sued Hunter, b u t i t s r e a l q u a r r e l was w i t h t h e o r d e r of t h e D i s t r i c t Court. A t no t i m e has Holmstrom a s s e r t e d t h a t Hunter s e r i o u s l y d e v i a t e d from t h e o r d e r s of t h e c o u r t . J u s t a s Anderson had no reason o r j u s t i f i c a t i o n f o r dragging Eggan i n t o t h e l a w s u i t i n t h e above c i t e d c a s e , Holmstrom had no reason t o sue Hunter. J u s t i c e , e q u i t y and good conscience d i c t a t e t h a t Holmstrom should b e a r t h e c o s t s of t h e defense of t h e a c t i o n . The award and amount of a t t o r n e y f e e s i s affirmed. N o proper 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 being f i l e d on a p p e a l , they a r e hereby denied. The judgment of t h e District Court i s affirmed. W e concur: M r . Chief J u s t i c e Haswell concurring i n p a r t and d i s s e n t i n g i n p a r t : I concur i n a f f i r m i n g t h e judgment of t h e District Court on t h e f i r s t i s s u e . I d i s s e n t from t h e award of a t t o r n e y f e e s f o r t h e reasons s t a t e d i n m y d i s s e n t i n Foy v. Anderson (1978), Mont. , 580 P.2d 1 1 4 , 117, 35 St.Rep. 811, 815. An award o f a t t o r n e y f e e s under t h e g u i s e of making t h e p r e v a i l i n g p a r t y whole i s a p p l i c a b l e t o any c a s e ; permits such an award i n t h e absence of s t a t u t e o r c o n t r a c t ; and c o n s t i t u t e s a c l e a r example of j u d i c i a l l e g i s l a t i o n . Where n e i t h e r t h e l e g i s l a t u r e nor t h e p a r t i e s have provided f o r such a n award, I would a b s t a i n from g r a n t i n g it. 4;&~k- Chief ~ u s t y c e | May 16, 1979 |
171e50e9-1bb4-40b5-9af7-367cea93c11e | STATE v BRETZ | N/A | 13826 | Montana | Montana Supreme Court | No. 13826 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 THE STATE OF MONTANA, Plaintiff and Respondent, -vs- L. R. BRETZ, Defendant and Appellant. Appeal from: District Court of the EighlhJudicial District, Honorable A. B. Martin, Judge presiding. Counsel of Record: For Appellant: George W. Huss argued, Miles City, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Robert S. Keller argued, Assistant Attorney General, Kalispell, Montana Thomas Budewitz argued, Townsend, Montana Submitted: December 11, 1978 Clerk M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. On December 1, 1976, a f t e r a t r i a l by jury i n t h e D i s t r i c t Court of t h e Eighth J u d i c i a l District, t h e Honorable A. B. arti in presiding, defendant w a s convicted of fourteen counts of grand larceny, two counts of obtaining money and property by f a l s e pretenses, and two counts of preparing f a l s e evidence. H e was sentenced t o fourteen-year prison terms on each count with t h e exception of two counts of preparing f a l s e evidence which offenses w e r e found t o be i n c i d e n t t o o t h e r offenses f o r which defendant w a s sen- tenced. The sentences were grouped so t h a t defendant was ultimately sentenced t o 56 years i n prison, t h e l a s t 30 years t o be suspended on t h e condition t h a t defendant reim- burse t h e victims of t h e offenses within one year from t h e t i m e of sentencing. Defendant w a s unable t o make r e s t i t u - t i o n within the prescribed t i m e and brings t h i s appeal. I n view of t h e number and complexity of t h e i s s u e s presented f o r review, f a c t u a l summaries, i n s o f a r as they a r e p e r t i n e n t , w i l l accompany our discussion of individual i s s u e s . Defendant presents twenty-one i s s u e s f o r review by t h i s Court: 1. Whether defendant was denied h i s r i g h t t o a speedy t r i a l under t h e S i x t h and Fourteenth Amendments t o t h e United S t a t e s Constitution and A r t i c l e 11, Section 24 of t h e 1972 Montana Constitution. 2. Whether defendant was denied h i s r i g h t t o t h e e f f e c t i v e a s s i s t a n c e of counsel under t h e S i x t h and Four- teenth Amendments t o t h e United S t a t e s Constitution and A r t i c l e 11, Sections 4 and 24 of t h e 1972 Montana Consti- t u tion. 3 . Whether defendant was denied h i s r i g h t t o t r i a l by a f a i r and i m p a r t i a l jury under t h e F i f t h and Fourteenth Amendments 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, Sections 4 and 24 of t h e 1972 Montana C o n s t i t u t i o n by v i r t u e of extensive p r e t r i a l and t r i a l p u b l i c i t y . 4 . Whether t h e D i s t r i c t Court e r r e d i n denying defen- d a n t ' s motion t o quash t h e information due t o t h e lack of showing of probable cause f o r i t s f i l i n g . 5. Whether prosecution of t h i s case w a s barred by t h e double jeopardy c l a u s e of t h e F i f t h 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 t h e accompanying d o c t r i n e of col- l a t e r a l estoppel and by t h e provisions of s e c t i o n 95-1711, R.C.M. 1947, now s e c t i o n s 46-11-501 through -505 MCA. 6. Whether t h e District Court e r r e d i n refusing t o g r a n t a new t r i a l on t h e b a s i s of a j u r o r ' s independent knowledge of t h e f a c t s of t h e case. 7. Whether defendant's sentence c o n s t i t u t e d c r u e l and unusual punishment under t h e Eighth and Fourteenth Amend- ments t o t h e United S t a t e s Constitution and A r t i c l e 11, Sections 22 and 28 of t h e Montana C o n s t i t u t i o n of 1972. 8. Whether conditioning suspension of t h e last 30 y e a r s of defendant's 56 year sentence on defendant's payment of r e s t i t u t i o n by December 13, 1977, was improper and c o n s t i - t u t e d c r u e l and unusual punishment. 9. Whether defendant's sentencing hearing was properly conducted. 1 0 . Whether t h e D i s t r i c t Court e r r e d i n admitting c e r t a i n evidence. 11. Whether t h e S t a t e proved t h e e s s e n t i a l elements of t h e o f f e n s e of preparing f a l s e evidence. 12. Whether t h e S t a t e proved t h e e s s e n t i a l elements of larceny by bailee. 13. Whether defendant was denied h i s r i g h t t o a funda- mentally f a i r t r i a l under t h e Sixth and Fourteenth Amend- ments t o t h e United S t a t e s Constitution and A r t i c l e 11, Section 24 of t h e 1972 Montana Constitution because of alleged over-zealous a c t s on t h e p a r t of t h e prosecution. 1 4 . Whether defendant was denied t h e opportunity t o present h i s defense. 15. Whether t h e D i s t r i c t Court e r r e d i n allowing c e r t a i n testimony with r e s p e c t t o reasonable a t t o r n e y ' s f e e s . 16. Whether t h e D i s t r i c t Court e r r e d i n excluding o t h e r testimony with r e s p e c t t o reasonable a t t o r n e y ' s f e e s . 17. Whether t h e D i s t r i c t Court erred i n allowing testimony concerning o t h e r crimes of t h e accused. 18. Whether t h e D i s t r i c t Court erred i n allowing t h e S t a t e t o impeach i t s own witness i n t h e absence of a showing of s u r p r i s e by t h e S t a t e . 19. Whether t h e D i s t r i c t Court erred i n allowing t h e testimony of Larry Sanford. 20. Whether t h e D i s t r i c t Court e r r e d with r e s p e c t t o i t s jury i n s t r u c t i o n s r e l a t i n g t o t h e offenses of obtaining money and property by f a l s e pretenses and preparing f a l s e evidence. 21. Whether t h e D i s t r i c t Court erred i n refusing c e r t a i n of defendant's jury i n s t r u c t i o n s and i n giving c e r t a i n of t h e S t a t e ' s i n s t r u c t i o n s . W e w i l l address these i s s u e s i n t h e order of t h e i r presentation. SPEEDY TRIAL The following i s a t a b l e of d a t e s and e v e n t s r e l e v a n t t o o u r c o n s i d e r a t i o n o f whether defendant w a s denied h i s r i g h t t o a speedy t r i a l : D A T E 7/30/74 8/5/74 9/16/74 9/26/74 10/15/74 10/16/74 4/16/75 5/8/75 5/20/75 7/29/75 8/27/75 ACTION Information f i l e d D A Y S ELAPSED 0 Arraignment 6 New Information f i l e d 48 Motion f o r Change o f Venue f i l e d 58 Change o f Venue g r a n t e d 77 S t a t e a p p e a l s o r d e r 78 Supreme Court r e v e r s e s o r d e r 260 R e m i t t i t u r f i l e d 282 Amended Information f i l e d 294 Defense procedural motions f i l e d 364 S t a t e ' s response to motions f i l e d 393 Hearing of motions and a r r a i g n - ment of defendant 414 S t a t e moves t o c o n t i n u e pre- t r i a l conference 478 P r e t r i a l conference--speedy t r i a l motions 517 The r i g h t t o a speedy t r i a l i s guaranteed by b o t h 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 . U.S. Const., Amend. V I ; 1972 Mont.Const., A r t . 11, 524. The f e d e r a l s t a n d a r d , a s a minimum, i s imposed upon t h e s t a t e s by t h e due p r o c e s s c l a u s e of t h e Fourteenth Amendment. See Dickey V. F l o r i d a (1970), 398 U.S. 30, 90 S.Ct. 1564, 26 L Ed 2d 26; Smith v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L Ed 2d 101, 116-17, i s t h e touchstone i n a n a n a l y s i s of speedy t r i a l i s s u e s . See S t a t e v. Tiedemann (1978) I Mont. , 584 P.2d 1284, 1287, 35 St.Rep. 1705, 1707; S t a t e v. C o l l i n s (1978), Mont. , 582 P.2d 1179, 1186, 35 St.Rep. 993, 1002; S t a t e v. Cassidy (1978) Mont. , 578 P.2d 735, 737, 35 St.Rep. 612, 614; S t a t e ex rel. Briceno v. District Court (1977), Mont. , 568 P.2d 162, 164, 34 St.Rep. 927, 930; S t a t e v. Keller (1976), 170 Mont. 372, 377, 553 P.2d 1013, 1016; S t a t e ex rel. Sanford v. ~ i s t r i c t Court (1976), 170 Mont. 196, 199, 551 P.2d 1005, 1007; S t a t e v. Steward (1975), 168 Mont. 385, 389, 543 P.2d 178, 181; F i t z p a t r i c k v. C r i s t (1974), 165 Mont. 382, 388, 528 P.2d 1322, 1325; S t a t e v. Sanders (1973), 163 Mont. 209, 213, 516 P.2d 372, 375. I n Barker, t h e p e t i t i o n e r was not t r i e d u n t i l more than f i v e years had passed from t h e time he w a s a r r e s t e d . The delay i n t h a t case l a r g e l y r e s u l t e d from t h e f a c t t h a t Barker's accomplice w a s t r i e d s i x t i m e s a l t o g e t h e r before f i n a l l y being convicted. I n Barker , 407 U.S. a t 521, 92 S.Ct. a t 2187, 33 L.Ed.2d a t 111, t h e Supreme Court noted: "A . . . d i f f e r e n c e between t h e r i g h t t o speedy t r i a l and t h e accused's other c o n s t i t u t i o n a l r i g h t s i s t h a t deprivation of t h e r i g h t may work t o t h e accused's advantage. Delay i s not an uncommon defense tactic. A s t h e t i m e between t h e commission of t h e c r i m e and t r i a l lengthens, witnesses may become unavailable o r t h e i r memories may fade. I f t h e witnesses support t h e prosecu- t i o n , i t s case w i l l be weakened, sometimes seri- ously so. And it i s t h e prosecution which c a r r i e s t h e burden of proof. Thus, unlike t h e r i g h t t o counsel o r t h e r i g h t t o be f r e e from compelled self-incrimination, deprivation -- of t h e r i g h t t o speedy ----- t r i a l does n o t per se prejudice t h e accused's a b i l i t y - t o defend himself." (Emphasis added.) The Court went on t o r e j e c t two approaches which could have eliminated a g r e a t d e a l of uncertainty i n prokecting t h e r i g h t . The suggestions w e r e t h a t t h e Court (1) hold t h a t t h e Constitution r e q u i r e s a criminal defendant t o be offered a t r i a l within a s p e c i f i e d t i m e period, o r (2) adopt some form of t h e demand-waiver doctrine. "The demand-waiver d o c t r i n e provides t h a t a defendant waives any consideration of h i s r i g h t t o speedy t r i a l f o r any period p r i o r t o which he has not demanded a t r i a l . " Barker, 407 U . S . a t 525, 9 2 S.Ct. a t 2189, 33 L Ed 2d a t 1 1 4 . The Court found each of t h e s e approaches too inflexible--"the fixed-time period because it goes f u r t h e r than t h e Constitution requires; t h e demand-waiver r u l e because it i s i n s e n s i t i v e t o a r i g h t which w e have deemed fundamentalv--and adopted i n s t e a d "a balancing test, i n which t h e conduct of both t h e prosecution and t h e defendant a r e weighed." Barker, 407 U.S. a t 529-30, 92 S.Ct. a t 2191-2192, 33 L Ed 2d a t 116. Noting t h a t c o u r t s must approach speedy t r i a l cases on an ad hoc b a s i s , t h e Court i d e n t i f i e d four f a c t o r s t o be considered a s p a r t of t h e balancing test: "Length of delay, t h e reason f o r t h e delay, t h e defendant's a s s e r t i o n of h i s r i g h t , and prejudice t o t h e defendant." Barker, 407 U.S. a t 530, 92 S.Ct. a t 2192, 33 L Ed 2d 117. W e w i l l discuss each of these f a c t o r s i n t u r n a s we examine defendant's claim i n t h e i n s t a n t case. S t a t e v. Sanders (1973), 163 Mont. 209, Length - of delay. The Supreme Court addressed t h e delay f a c t o r as follows: "The length of t h e delay i s t o some e x t e n t a t r i g - gering mechanism. Until t h e r e i s some delay which i s presumptively p r e j u d i c i a l , t h e r e is no necessity f o r inquiry i n t o t h e other f a c t o r s t h a t go i n t o t h e balance. Nevertheless, because of t h e imprecision of t h e r i g h t t o speedy. t r i a l , - t h e length of delay t h a t w i l l provoke such an inquiry i s n e c e s s a r i l -- -- dependent upon t h e p e c u l i a r c i r c u m ~ a n c e s -- of t h z case. To take b u t one example, t h e delay t h a t can ---- -- be t o l e r a t e d f o r an ordinary street crime i s con- - -- -- siderably --- less than f o r a s e r i o u s , complex conspir- acy charge." Barker, 407 U.S. a t 530-31, 92 S.Ct. a t 2192, 33 L Ed 2d a t 117. ( ~ m p h a s i s supplied.) There i s no question t h a t t h i s case i s a complex one. Defendant noted i n h i s b r i e f t h a t t h e "case c o n s i s t s of a t r a n s c r i p t of 4,316 pages . . . and f i v e f u l l volumes of c o u r t f i l e s . There w e r e hundreds of e x h i b i t s offered and admitted a t t r i a l . " I n addition t o t h a t , w e note t h a t t h e b r i e f s submitted t o t h i s Court on appeal addressing twenty- one i s s u e s presented f o r review a r e over 300 pages i n length. Thus, t h e delay here t h a t can be t o l e r a t e d i s considerably more than f o r an ordinary street crime. Even so, t h e delay i n t h i s case i s extremely long. W e note, i n p a r t i c u l a r , t h a t t h e 205 days exhausted by t h e S t a t e ' s appeal of t h e change of venue order must be charged a g a i n s t t h e S t a t e . Section 95-2407, R.C.M. 1947, now sec- t i o n 46-20-205 MCA. Therefore, w e f i n d t h a t t h e 517 days between t h e i n i t i a l f i l i n g of an Information i n t h i s case and defendant's motion t o dismiss f o r lack of speedy t r i a l i s of s u f f i c i e n t length under t h e circumstances of t h i s case t o t r i g g e r t h e inquiry i n t o t h e o t h e r f a c t o r s enumerated i n Barker and a s adopted previously by t h i s Court. Reason -- f o r t h e delay. Addressing t h i s f a c t o r , t h e Supreme Court s t a t e d : "Here, too, d i f f e r e n t weights should be assigned t o d i f f e r e n t reasons. A d e l i b e r a t e attempt t o delay t h e t r i a l i n order t o hamper t h e defense should be weighed heavily a g a i n s t t h e government. A more n e u t r a l reason such a s negligence o r over- crowded c o u r t s should be weighed less heavily b u t nevertheless should be considered s i n c e t h e u l t i - mate r e s p o n s i b i l i t y f o r such circumstances must rest with t h e government r a t h e r than with t h e de- fendant. F i n a l l y , a v a l i d reason, such a s a m i s s - i n g witness, should serve t o j u s t i f y appropriate delay." Barker, 407 U.S. a t 531, 92 S.Ct. a t 2192, 33 L Ed 2d a t 117. The S t a t e , i n t h e i n s t a n t case, argues t h a t i n l i g h t of t h e complexity of t h e case, matters proceeded i n an o r d e r l y fashion. I t demonstrates one delay of 54 days when defen- d a n t ' s defense motions were overdue. Viewing t h e record a s a whole, t h e m o s t s e r i o u s delay on t h e p a r t of t h e prose- c u t i o n appears t o be t h e 205 days taken up by t h e S t a t e ' s appeal of t h e October 15, 1974, change of venue order. There i s no showing o r any attempt t o show i n t h e record t h a t t h i s delay was i n any way a " d e l i b e r a t e attempt t o delay t h e t r i a l i n order t o hamper t h e defense." I t appears thatrthis.delay may have been the result of some negligence on the part of the State, but crowded calendars and courts were also involved and accordingly, the time should "be weighed less heavily but nevertheless considered." Defendant relies heavily on a Federal ~istrict Court decision in a related case, In the Matter of Carden (1978), CY-77-61-H, decided May 12, 1978. Defendant asserts that the most significant element of that Court's decision to dismiss for lack of speedy trial was the reason for the delay, specifically the length of the Carden Information. The State addresses the length of the charging document and any delay occasioned by it in the following terms: "The dismissal of the first information and the filing of the second information constituted no delay; three individuals were dropped, which did not prejudice the defendant, and six individuals were added, but the basic motions of the defen- dant against either information remained the same. The six new individuals had to be added, or the defendant would be prejudiced with another suit. The counts were doubled, but that was be- cause of the confusion under the old larceny statutes, and it was a matter of pleading the same counts in the alternative, with the same individuals involved." Another factor considered negligent in Carden which is not present in the instant case was delay attributable to the State by its untimely disqualification of Judge Allen and the subsequent appeal. The Federal Court held that "the decision to disqualify Judge Allen was reached in order to gain a tactical advantage over the defendants." See also Fitzpatrick v. Crist (1974), 165 Mont. 382, 528 P.2d 1322, involving a four-month delay in appointment of counsel. The wisdom of the Supreme Court's instruction that each case be considered on an "ad hoc" basis becomes apparent at this point. The Court was undoubtedly strongly influenced by the disqualification of Judge Allen after seven months and held it was d e l i b e r a t e t o gain advantage. W e have no such a l l e g a t i o n here, not even w i l l f u l negligence, and a c l e a r l y distinguishable f a c t u a l s i t u a t i o n . Assertion of t h e r i g h t . I n discussing t h e t h i r d f a c t o r -- i n t h e Barker balancing test, t h e Supreme Court s t a t e d : "Whether and how a defendant a s s e r t s h i s r i g h t i s closely r e l a t e d t o t h e o t h e r f a c t o r s we have mentioned. The s t r e n g t h of h i s e f f o r t s w i l l be a f f e c t e d by t h e length of t h e delay, t o some e x t e n t by t h e reason f o r t h e delay, and most p a r t i c u l a r l y by t h e personal prejudice, which i s n o t always r e a d i l y i d e n t i f i a b l e , t h a t he experiences. The more serious t h e deprivation, t h e more l i k e l y a defendant i s t o complain. The defendant's a s s e r t i o n of h i s speedy t r i a l r i g h t , then, i s e n t i t l e d t o strong evidentiary weight i n determining whether t h e defendant is being deprived of t h e r i g h t . W e emphasize t h a t f a i l u r e t o a s s e r t t h e r i g h t w i l l make it d i f f i c u l t f o r a defendant t o prove t h a t he w a s denied a speedy t r i a l . " Barker, 407 U.S. a t 531-32, 92 S.Ct. a t 2192-2193, 33 L Ed 2d a t 117-18. I n t h e i n s t a n t case, defendant moved f o r dismissal f o r lack of speedy t r i a l p r i o r t o t h e t r i a l ' s commencement. W e cannot ignore t h e f a c t , however, t h a t a t t h e t i m e defendant submitted h i s motion he had already indicated t o Judge Bradford t h a t he intended t o c a l l more than 120 witnesses and t h a t he f e l t t h e t r i a l would l a s t two months. A t v a r i - ous times over t h e next s e v e r a l months defendant a s s e r t e d time and again t h a t because of t h e complexity of t h e case, he could not possibly be prepared t o defend himself. This f a c t o r weighs heavily a g a i n s t any prejudice i n t h e time l a p s e between f i l i n g and t r i a l and gives substance t o t h e Barker comment t h a t speedy t r i a l d e n i a l i s n o t per -- se preju- d i c i a l t o defendant's a b i l i t y t o defend himself. Prejudice. The prejudice f a c t o r i s analyzed as f o l - lows: "Prejudice, of course, should be assessed i n t h e l i g h t of t h e i n t e r e s t s of defendants which t h e speedy t r i a l r i g h t w a s designed t o p r o t e c t . This Court has i d e n t i f i e d t h r e e such i n t e r e s t s : (i) t o prevent oppressive p r e t r i a l incarceration; (ii) t o minimize anxiety and concern of t h e accused; and (iii) t o l i m i t t h e p o s s i b i l i t y t h a t t h e de- fense w i l l be impaired. O f these, t h e most seri- ous i s t h e last, because t h e i n a b i l i t y of a de- fendant adequately t o prepare h i s case skews t h e f a i r n e s s of t h e e n t i r e system. If witnesses d i e o r disappear during a delay, t h e prejudice i s obvious. There i s a l s o prejudice i f defense w i t - nesses a r e unable t o r e c a l l accurately events of t h e d i s t a n t past. Loss of memory, however, i s not always r e f l e c t e d i n t h e record because what has been forgotten can r a r e l y be shown." Barker, 407 U.S. a t 532, 92 S.Ct. a t 2193, 33 L Ed 2d a t 118. Defendant lists f i v e ways i n which he f e l t he was prejudiced by t h e delay: " ( 1 ) economic hardship; ( 2 ) death of witnesses; (3) p r e - t r i a l p u b l i c i t y of a long duration; ( 4 ) d i f f i c u l t y of now finding and interviewing t h e S t a t e ' s witnesses; and (5) emotional stress and s t r a i n . " The i n s t a n t c a s e w a s n o t t h e only case defendant w a s defending a t t h i s t i m e . Aside from disbarment proceedings before t h e Commission on P r a c t i c e and t h i s Court, defendant was involved i n t h r e e other criminal cases and one c i v i l case. The emotional stress and s t r a i n and t h e economic hardship and consumption of t i m e w a s t o a l a r g e e x t e n t commingled with t h e s e o t h e r proceedings and it i s d i f f i c u l t t o a s s e s s f a u l t by any p r e c i s e means. Defendant contends t h a t f i v e defense witnesses had died, b u t t h e r e was no c r e d i b l e evidence given a s t o when they died, what t h e i r testimony would have been, o r whether it went t o one o r more counts. A mere self-serving statement does not m e e t t h e test required by Barker which demands a showing of preju- d i c e , not merely a self-serving a s s e r t i o n t h a t t h e r e may have been some prejudice. Application. Continuing from Barker: " W e regard none of t h e four f a c t o r s i d e n t i f i e d above as e i t h e r a necessary o r s u f f i c i e n t condi- t i o n t o t h e finding of a deprivation of t h e r i g h t of speedy t r i a l . Rather, they a r e r e l a t e d fac- t o r s and must be considered together with such o t h e r circumstances a s may be r e l e v a n t . I n sum, t h e s e f a c t o r s have no talismanic q u a l i t i e s ; c o u r t s must still 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." Barker, 407 U.S. a t 533, 92 S.Ct. a t 2193, 33 L Ed 2d a t 118. The Court, i n applying t h e test t o t h e five-year delay i n Barker found c e r t a i n d e f i c i e n c i e s p r e s e n t b u t went on t o say: "Two counterbalancing f a c t o r s , however, outweigh t h e s e d e f i c i e n c i e s . The f i r s t i s t h a t prejudice w a s minimal. "More important than t h e absence of s e r i o u s p r e j - udice, i s t h e f a c t t h a t Barker d i d n o t want a speedy t r i a l . " Barker, 407 U.S. a t 534, 9 2 S.Ct. a t 2194, 33 L Ed 2d a t 119. ". . . b a r r i n g extraordinary circumstances, w e would b e r e l u c t a n t indeed t o r u l e t h a t a defendant was denied t h i s c o n s t i t u t i o n a l r i g h t on a record t h a t s t r o n g l y i n d i c a t e s , a s does t h i s one, t h a t t h e defendant d i d n o t want a speedy t r i a l . " Barker, 407 U.S. a t 536, 92 S.Ct. a t 2195, 33 L Ed 2d a t 120. I n t h i s case, a s i n Barker, we cannot f i n d a showing of s u f f i c i e n t a c t u a l prejudice t o invoke t h e extremely harsh remedy of dismissal of t h e cause. I n a d d i t i o n , t h e record r e f l e c t s t h a t t h e speedy t r i a l o b j e c t i o n s were again com- mingled with defendant p e r i o d i c a l l y claiming he could n o t be ready f o r t r i a l up t o t h e day t h e t r i a l commenced, i n d i - c a t i n g , of course, a need f o r a d d i t i o n a l t i m e . With t h e recognition t h a t t h e defendant has t h e r i g h t t o submit numerous and complex procedural motions p r i o r t o t r i a l , t h e r e s u l t i n g delays cannot now be charged exclusively t o t h e S t a t e . Much of t h e complexity and delay of t h i s c a s e i s t h e r e s u l t of defendant's defense and he cannot now use t h e delay t h a t r e s u l t e d t o h i s advantage w i t h r e s p e c t t o t h e speedy t r i a l without an a c t u a l showing of prejudice. W e cannot f i n d i n t h i s record a genuine d e s i r e f o r a speedy t r i a l , which makes any prejudice minimal. A s a r e s u l t , p r e j u d i c e w a s a s s e r t e d b u t never demonstrated and t h e r e a r e no o t h e r extraordinary circumstances t o compel t h i s Court t o r u l e t h a t defendant w a s denied h i s c o n s t i t u t i o n a l r i g h t t o a speedy t r i a l . EFFECTIVE ASSISTANCE - OF COUNSEL I n h i s b r i e f t o t h i s Court, defendant s t a t e s t h a t t h e ". . . i s s u e r a i s e d here i s n o t t h a t t h e t r i a l counsel were incompetent due t o t h e i r lack of s k i l l s o r a c t i o n s a t t r i a l , b u t t h a t they w e r e rendered impotent and i n e f f e c t i v e by t h e S t a t e ' s d e n i a l t o them of adequate funds t o prepare t h e defense up u n t i l a p o i n t a t which they had inadequate t i m e t o prepare. I' Defendant's argument i s divided i n t o t h r e e p a r t s . F i r s t , he claims t h e r e was a " c h i l l i n g e f f e c t " c r e a t e d by t h e District C o u r t ' s f a i l u r e t o provide funds - i n advance f o r appointed defense counsel. Second, he argues t h a t by t h e t i m e funds became a v a i l a b l e , any d e l a y s having been t h e r e s u l t of t h e S t a t e ' s r e s i s t a n c e t o c e r t a i n motions, t h e r e was inadequate t i m e i n which t o prepare a defense. Thus t h e S t a t e had a l l e g e d l y p u t t h e defense i n t h e awkward p o s i t i o n of e i t h e r having t o go t o t r i a l unprepared, o r , having t o move f o r a continuance, s a c r i f i c i n g t h e i r speedy t r i a l claim. Third, defendant complains t h a t t h e District Court f a i l e d t o provide him with an i n v e s t i g a t o r t o m e e t t h e e f f e c t of t h e manpower employed by t h e Attorney General i n t h e prosecution of t h i s case. Defendant does n o t argue t h a t t h e S t a t e must supply an i n v e s t i g a t o r i n a l l cases b u t t h a t it should have i n t h i s case because of t h e complexity of t h e case and t h e number of witnesses l i s t e d on t h e S t a t e ' s Information. here was never any question t h a t defendant's appointed counsel would be compensated; t h e problem arose with r e s p e c t t o whether they w e r e e n t i t l e d t o be compensated i n advance. The record does n o t i n d i c a t e t h a t defendant ever requested a continuance because of t h e claimed problem of preparation and hence he is i n a poor p o s i t i o n t o a l l e g e prejudice. F i n a l l y , t h e appointment of - two counsel f o r defendant ob- v i a t e d any need f o r an i n v e s t i g a t o r f o r t h e general prepara- t i o n f o r t r i a l and i n addition t h e c o u r t d i d authorize t h e h i r i n g of an i n v e s t i g a t o r i n Alaska who worked f o r t h e defense. Defendant's retained counsel moved t o withdraw from t h e c a s e i n November 1975. The D i s t r i c t Court subsequently ap- pointed counsel f o r defendant i n January 1976. The f i r s t real problem with appointment of counsel a r o s e on March 31, 1976, when t h e S t a t e moved t o set a s i d e t h e D i s t r i c t Court's March 23 order f o r interim payment of counsel i n t h e amount of $gr068.74. The S t a t e argued t h a t t h e payment w a s exces- s i v e and t h a t t h e county, as opposed t o t h e S t a t e , was l i a b l e f o r payment of defense counsel. The matter w a s appealed by t h e S t a t e t o t h i s Court, Application of Barron (1976), 170 Mont. 218, 552 P.2d 70. This Court affirmed t h e District Court's r u l i n g and remanded t h e case f o r an evi- dentiary hearing t o determine t h e amount of money due ap- pointed counsel. The decision was issued J u l y 9, 1976. A hearing w a s held on August 25 which r e s u l t e d i n t h e D i s t r i c t Court's ordered payment of $5000 and $9,760.43 t o defense counsel f o r t h e i r f e e s and expenses. B y September 15, defendant's counsel had s t i l l not received t h e i r money and moved t h e District Court on t h a t day t o permit t h e i r with- drawal a s counsel and t o dismiss t h e a c t i o n on t h e ground of misconduct on t h e p a r t of t h e Attorney General. The motion t o permit t h e i r withdrawal was based on d i s c i p l i n a r y r u l e DR2-110 (b) (2) addressing mandatory withdrawal when an a t t o r - ney cannot continue h i s employment without v i o l a t i n g another d i s c i p l i n a r y r u l e , i n t h i s case DR6-101: "Failure t o act competently: (A) A lawyer s h a l l not: ( 2 ) Handle a l e g a l matter without preparation adequate t o t h e circumstances . " The motion was submitted 21 days p r i o r t o t h e day scheduled f o r t r i a l , and defense counsel received t h e i r funds t h e following day. The problem with defendant's argument concerning t h i s i s s u e i s t h a t he has made no showing t h a t t h e alleged lack of preparation on t h e p a r t of h i s appointed counsel preju- diced him i n any way. I n f a c t , defendant asks us t o presume h i s counsel were i n e f f e c t i v e because they were not compen- sated f a r i n advance. Defendant does n o t reveal what h i s counsel had been a b l e t o accomplish during t h e time they had been on h i s case. W e can only speculate a s t o whether any prejudice r e s u l t e d due t o alleged lack of preparation on t h e p a r t of defendant's counsel. Again, without a motion f o r continuance on these grounds and without any showing of a c t u a l prejudice, w e cannot presume t h a t counsel w e r e there- by rendered i n e f f e c t i v e . PUBLICITY AND -- FAIR TRIAL Statewide p u b l i c i t y , e s p e c i a l l y concentrated i n Great F a l l s , accompanied t h e prosecution of t h i s case a t each stage. On J u l y 29, 1975, defendant moved t h e D i s t r i c t Court t o dismiss t h e charges o r , i n t h e a l t e r n a t i v e , continue t h e d a t e f o r t r i a l due t o extensive p r e t r i a l p u b l i c i t y . The c o u r t - d e n i e d t h e motion. Defendant again moved f o r d i s - missal on December 29, 1975. The c o u r t denied t h i s motion a s w e l l . ~ e f e n d a n t again r a i s e d t h e i s s u e of p r e t r i a l p u b l i c i t y a f t e r t h e swearing of t h e jury a t h i s t r i a l on October 18, 1976. By t h a t t i m e defendant had become t h e o b j e c t of heavy statewide p u b l i c i t y because of a t r i a l i n which he had been charged with and a c q u i t t e d of s o l i c i t i n g persons t o assas- s i n a t e t h e Attorney General. Also, a statewide general e l e c t i o n w a s imminent i n which,the Attorney General was a g u b e r n a t o r i a l candidate. The p u b l i c i t y continued during t h e t r i a l of t h e case. I t culminated i n t h e door-to-door d i s t r i b u t i o n of a p o l i - tical newsletter e n t i t l e d t h e "Montana Gazette" i n which defendant's name was mentioned. On October 2 7 , 1976, defen- d a n t f i l e d a motion f o r a m i s t r i a l because of t h e p u b l i c i t y . Defendant argues t h a t w e should presume, under t h e f a c t s of t h i s case, t h a t t h e m i d - t r i a l p u b l i c i t y reached t h e nonsequestered jury. H e goes on t o argue t h a t t h e t r i a l c o u r t should have examined t h e jury concerning (1) t h e i r c o n t a c t with t h e m a t e r i a l and ( 2 ) i t s p r e j u d i c i a l e f f e c t upon them. Throughout h i s argument, it is t h e Attorney General's p a r t i c i p a t i o n i n t h e p u b l i c i t y t h a t defendant o b j e c t s t o most strongly. Again, w e have a sword t h a t c u t s both ways. The record i s clear and evidence s u b s t a n t i a l regarding defendant's own attempt t o use t h e media t o h i s advantage a s w e l l a s h i s f a i l u r e t o move f o r change of venue on t h e b a s i s of t h e p u b l i c i t y . For example, on October 27, 1976, defendant moved t o hold prosecutor G i l b e r t i n contempt p a r t i a l l y on t h e grounds t h a t t h e prosecution had been seen t a l k i n g t o r e p o r t e r s . Coincidentally, t h e Great F a l l s Tribune had predicted t h i s a c t i o n and s t a t e d t h a t defendant had con- t a c t e d t h e reporter. The t h e a t r i c s r e f l e c t e d i n t h e record by defendant is n o t i n d i c a t i v e of conduct tending t o show genuine concern over t h e amount of p r e t r i a l and t r i a l pub- l i c i t y and when reported cannot be condemned. Additionally, t h e motion was not accompanied by an a f f i d a v i t leaving t h e court, again, no f a c t s upon which it could act. The c o u r t d i d s t a t e t h a t : "The c o u r t has observed and read t h e publi- c a t i o n , a t l e a s t i n t h e Great F a l l s Tribune, and they have seemed straightforward reporting, nothing else. And how t h a t is ever going t o be p r e j u d i c i a l i s beyond me." Beyond t h a t , defendant's argument t h a t t h e t r i a l c o u r t should have conducted a p o l l of t h e jury t o determine whe- t h e r t h e members had seen a copy of t h e "Montana Gazette" i s n o t properly before t h i s Court inasmuch a s defendant made no - motion f o r t h e p o l l i n t h e t r i a l c o u r t and raises t h e i s s u e f o r t h e f i r s t t i m e i n t h i s Court. Section 95-1710, R.C.M. 1947, now s e c t i o n 46-13-203 MCA, sets o u t t h e procedure t o o b t a i n r e l i e f i n a proper c a s e of untoward publicity: " ( a ) The defendant o r the prosecution may move f o r a change of place of t r i a l on t h e ground t h a t t h e r e e x i s t s i n t h e county i n which t h e charge i s pending such prejudice t h a t a f a i r t r i a l cannot be had i n such county. The motion s h a l l be made a t least f i f t e e n (15) days p r i o r t o t r i a l , unless, f o r good cause shown, it may be made t h e r e a f t e r . "(b) The motion s h a l l be i n writing and supported by a f f i d a v i t which s h a l l s t a t e f a c t s showing t h e nature of t h e prejudice alleged. The defendant o r t h e s t a t e may f i l e counteraffidavits. The c o u r t s h a l l conduct a hearing and determine t h e m e r i t s of t h e motion. " ( c ) I f t h e c o u r t determines t h a t t h e r e e x i s t s i n t h e county where t h e prosecution i s pending such prejudice t h a t a f a i r t r i a l cannot be had it s h a l l t r a n s f e r t h e cause t o any o t h e r c o u r t of competent j u r i s d i c t i o n i n any county where a f a i r t r i a l may be had." Unlike t h e cases c i t e d by defendant, t h i s case did not spawn e d i t o r i a l s crying f o r defendant's conviction. Rather, defendant has simply provided t h i s Court with h i s statement of inferences and conclusions and t h e s e are not enough. See S t a t e v. Davis (1921), 60 Mont. 426, 431, 199 P. 421, 4 2 2 . I n S t a t e v. Lewis (1976), 169 Mont. 290, 297, 546 P.2d 518, 522, w e quoted with approval t h e following excerpt from I r v i n v. Dowd (1961), 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L Ed 2d 751, 756. It seems e s p e c i a l l y appropriate i n t h e i n s t a n t case: " I t i s not required, however, t h a t t h e jurors be t o t a l l y ignorant of t h e f a c t s and i s s u e s involved. I n these days of s w i f t , widespread and diverse methods of communication, an important case can be expected t o arouse the i n t e r e s t of t h e public i n t h e v i c i n i t y , and scarcely any of those b e s t q u a l i f i e d t o serve a s jurors w i l l n o t have formed some impression o r opinion as t o t h e m e r i t s of t h e case. This i s p a r t i c u l a r l y t r u e i n criminal cases. To hold t h a t t h e mere existence of any preconceived notion as t o t h e g u i l t o r innocence of an accused, without more, i s s u f f i c i e n t t o r e b u t t h e presumption of a prospective j u r o r ' s i m p a r t i a l i t y would be t o e s t a b l i s h an impossible standard. It is s u f f i c i e n t i f t h e juror can l a y a s i d e h i s impression o r opinion and render a ver- d i c t based on t h e evidence presented i n court." A s set f o r t h above, defendant has f a i l e d t o m e e t h i s burden of showing t h e nature of t h e p u b l i c i t y , t h e e f f e c t of t h e p u b l i c i t y , and t h e necessity of such a d r a s t i c remedy. H e has a l s o f a i l e d t o m e e t t h e procedural requirements of moving f o r a change of venue and submitting an a f f i d a v i t containing s p e c i f i c a l l e g a t i o n s a s t o t h e p r e j u d i c i a l nature of t h e publicity. PROBABLE C A U S E F O R FILING INFORMATION On September 16, 1974, t h e S t a t e f i l e d an a f f i d a v i t i n support of a motion f o r leave t o f i l e an Information a g a i n s t defendant. The a f f i d a v i t l i s t e d t h e alleged victims i n a l p h a b e t i c a l order. Defendant sets f o r t h t h e charges i n h i s summary i n t h r e e b a s i c categories. The S t a t e combines defendant's f i r s t two categories, arguing t h a t t h e existence o r nonexistence of an accounting i n each c a s e i s of l i t t l e o r no relevance i n discussion probable cause. " ( 1 ) A settlement was made by t h e compensation insuror, t h e settlement check w a s deposited i n t o a bank account, some time t h e r e a f t e r , ranging from days t o years, t h e alleged victim received a check f o r t h e i r portion of t h e settlement b u t received no accounting from M r . Bretz a s t o t h e amount and d i s p o s i t i o n of t h e t o t a l settlement. (This f a c t s i t u a t i o n i s applicable t o t h e f o l - lowing alleged victims--Aker, Baran, DuBois, Early, H i l l , Springer, Stroop and Weisgerber.) " (2) A settlement w a s made by t h e compensation insuror, t h e settlement check was deposited i n t o a bank account, some time t h e r e a f t e r , ranging up t o a few years, t h e alleged victim received a check f o r t h e i r portion of t h e settlement along with an accounting from Bretz a s t o t h e amount and d i s p o s i t i o n of t h e t o t a l settlement. (This f a c t s i t u a t i o n i s applicable t o t h e following alleged victims--Curtissf Gaines, G i l b e r t , Gus- zregan, Hall, Lavalley, McMaster, Pohjola, Swims Under and Wesland.) " ( 3 ) A settlement w a s made by t h e compensation insuror, t h e settlement check was deposited i n t o a bank account and t h e alleged victim was never contacted by M r . Bretz and, t o t h e d a t e of t h e a f f i d a v i t , had not received any p o r t i o n of t h e settlement. (This f a c t s i t u a t i o n i s applicable t o t h e following alleged victims--Barry, Fischer, Gardipee, Morris and Tannehill.)" I n h i s p r e t r i a l motion f i l e d J u l y 29, 1975, defendant moved t o quash t h e Information on t h e grounds t h a t (1) t h e r e was an abuse of probable cause set f o r t h i n t h e a f f i d a v i t to j u s t i f y f i l i n g of t h e Information; and (2) no crime o r c r i m e s w e r e s t a t e d i n t h e f a c t s alleged i n t h e a f f i d a v i t . Defendant again r a i s e d t h i s i s s u e on December 29, 1975, i n another p r e t r i a l motion. Defendant argues t h a t t h e f a c t lacking i n t h e a f f i d a v i t i s t h e showing of i n t e n t r e q u i s i t e t o prove larceny. H e then argues t h a t t h e D i s t r i c t Court e r r e d i n allowing t h e S t a t e t o f i l e t h e Information where t h e supporting a f f i d a v i t f a i l e d t o e s t a b l i s h probable cause. The basic crime with which defendant was charged and upon which he w a s t r i e d w a s larceny by b a i l e e a s s e t f o r t h i n s e c t i o n 94-2701, R.C.M. 1947: "Every person who, with t h e i n t e n t t o deprive o r defraud t h e t r u e owner of h i s property, o r of t h e use and b e n e f i t thereof, o r t o appropriate t h e same t o t h e use of t h e taker, o r of any other per- son either-- "2. Having i n h i s possession, custody o r c o n t r o l , a s a b a i l e e , servant, attorney, agent, c l e r k , t r u s t e e , o r o f f i c e r of any person, association, o r corporation, o r a s a public o f f i c e r , o r a s a person authorized by agreement o r by competent a u t h o r i t y t o hold, o r take such possession, cus- tody, o r control, any money, property, evidence of debt, o r contract, a r t i c l e of value of any nature, o r thing i n a c t i o n o r possession, appro- p r i a t e s t h e same t o h i s own use, o r t h a t of any o t h e r person o t h e r than t h e t r u e owner, o r person e n t i t l e d t o t h e b e n e f i t thereof, s t e a l s such prop- e r t y and i s g u i l t y of larceny." Section 95-1301, R.C.M. 1947, now s e c t i o n 46-11-201 MCA, provides i n p e r t i n e n t p a r t : " (a) The county attorney may apply d i r e c t l y t o t h e d i s t r i c t c o u r t f o r permission t o f i l e an in- formation a g a i n s t a named defendant. The appli- c a t i o n must be by a f f i d a v i t supported by such evidence as t h e judge may require. I f it appears t h a t there is probable cause to believe t h a t an offense has been committed by t h e defendant t h e judge s h a l l g r a n t leave t o f i l e t h e information, otherwise t h e application s h a l l be denied." The r a t i o n a l e of probable cause f o r f i l i n g an informa- t i o n i s t h e same a s probable cause f o r a r r e s t . S t a t e ex rel. Pinsoneault v. D i s t r i c t Court (1965), 145 Mont. 233, "Probable cause i s t h e knowledge of f a c t s , ac- t u a l o r apparent, strong enough t o j u s t i f y a rea- sonable man i n t h e b e l i e f t h a t he has lawful grounds f o r prosecuting the defendant i n t h e manner complained of." Pinsoneault, 145 Mont. a t 239, 400 P.2d a t 272. Any determination with r e s p e c t t o t h e existence of probable cause f o r t h e f i l i n g of an Information must be made on a case-by-case b a s i s viewing t h e p e c u l i a r i t i e s of t h e p a r t i c u l a r case. I n addition, a s t h e t e r m "probable cause" implies, it i s a concept necessarily concerned with proba- b i l i t i e s . The f a c t s alleged i n t h e Information charging defendant with a number of offenses a r e s u f f i c i e n t t o es- t a b l i s h probable cause. I n so finding, w e emphasize t h e improbability t h a t t h e f a c t s alleged r e s u l t e d from innocent bookkeeping e r r o r s o r c l e r i c a l mistakes. Viewing t h e Infor- mation a s a whole, t h e D i s t r i c t Court d i d not e r r i n con- cluding t h a t probable cause e x i s t e d f o r d i r e c t l y f i l i n g t h e Information. D O U B L E JEOPARDY -- COLLATERAL ESTOPPEL Defendant was a l s o a defendant i n S t a t e v. Cline (1976), 170 Mont. 520, 555 P.2d 724, r e f e r r e d t o by t h e p a r t i e s a s t h e Wampole case. Defendant claims t h a t t h a t case could and should have been joined with t h e i n s t a n t case as being p a r t of t h e "same transaction" a s defined i n sec- t i o n 9 5 - 1 7 1 1 ( 1 ) ( a ) ( i i ) , R.C.M. 1947, now s e c t i o n 46-11-501 MCA : "(1) ( a ) The t e r m 'same transaction' includes con- duct consisting o f : " ( i i ) a series --- of a c t s o r omissions which a r e motivated by a common purpose or plan and which r e s u l t -- i n t h e repeated commission of t h e s a m e --- offense o r a f f e c t -- t h e same person o r persons o r - t h e thereof. " (Emphasis added. ) Defendant argues t h a t t h e S t a t e merely used t h e Wampole case as a "dry run" t o test t h e i r prosecution success. Defendant then argues t h a t t h e p r a c t i c a l e f f e c t of multiple prosecutions w a s t o (1) c o n t r i b u t e t o h i s eventual i n d i - gency; (2) expand p r e s s coverage; and, (3) provide p r a c t i c e f o r t h e prosecution. W e note t h a t t h e Information f i l e d i n Cascade County named d i f f e r e n t defendants than t h e Information f i l e d i n L e w i s and Clark County. I n addition, t h e Lewis and Clark County Information w a s f i l e d subsequent t o t h a t f i l e d i n Cascade County. Both p a r t i e s c i t e Ashe v. Swenson (1970), 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L Ed 2d 469, 475, f o r t h e d e f i n i t i o n of " c o l l a t e r a l estoppel": " I t means simply t h a t when an i s s u e of ultimate f a c t has once been determined by a v a l i d and f i n a l judgment, t h a t i s s u e cannot again be liti- gated between t h e same p a r t i e s i n any f u t u r e l a w s u i t . " (Emphasis added. ) The i n s t a n t case involves no i s s u e of ultimate f a c t which was twice l i t i g a t e d . I f any v a l i d objection e x i s t e d i n t h i s a r e a , it would have been proper t o make t h e objection upon t h e f i l i n g of t h e second Information i n Lewis and Clark County. JUROR'S INDEPENDENT KNOWLEDGE Juror Thomas Clary was a Great F a l l s attorney who had been asked t o act as a s p e c i a l prosecutor t o bring disbar- ment proceedings a g a i n s t another man under a Workmen's Compensation indictment. I n d r a f t i n g t h e pleadings, he had used defendant's disbarment a s a model. Juror Clary had s t a t e d during v o i r d i r e t h a t he had no knowledge of t h e p a r t i c u l a r counts defendant faced. But defendant's disbar- ment d e a l t a t length with t h e f a c t s of t h e G i l b e r t , Barry, Guszregan, Hall and Morris counts of t h i s criminal case. Defendant argues t h a t under t h e circumstances of t h i s case, C l a r y ' s knowledge r e q u i r e s r e v e r s a l of t h e conviction. A t t h e conclusion of t h e t r i a l J u r o r Clary m e t with t h e judge and counsel i n chambers and t o l d them what he knew. Defendant's attorney made no objection a t t h a t t i m e even though t h e r e w e r e t h r e e a l t e r n a t e jurors a v a i l a b l e . The defense f a i l e d t o m e e t its r e s p o n s i b i l i t y t o t h e c o u r t by i t s f a i l u r e t o properly o b j e c t and thereby give t h e c o u r t an opportunity t o remedy any alleged d e f e c t s t h a t may have e x i s t e d by replacing Juror Clary with one of t h e a l t e r n a t e jurors. Section 95-2404(b), R.C.M. 1947, now s e c t i o n 46-20- 104 MCA, provides: " ( b ) Upon appeal from a judgment, t h e c o u r t may review t h e v e r d i c t o r decision, and any order o r decision objected t o which involves t h e merits, o r necessarily a f f e c t s t h e judgment." (Emphasis added. ) CRUEL AND UNUSUAL PUNISHMENT Defendant w a s convicted of eighteen counts i n t h i s case and sentenced on sixteen. The c o u r t imposed t h e maximum t e r m of fourteen years f o r each of t h e s i x t e e n convictions and divided t h e convictions i n t o four groups of four con- v i c t i o n s each. The sentences within each group w e r e t o be served concurrently, b u t t h e four groups of ,convictions w e r e ordered t o run consecutively r e s u l t i n g i n a 56 year prison t e r m . I n imposing sentence, t h e D i s t r i c t Court s t a t e d : "NOW, t h e length of t h e sentence t h a t t h i s Court imposes cannot be understood by someone who has n o t heard t h e evidence t h a t has been presented i n t h i s case. NOW, it i s t r u e t h e defendant has n o t committed a v i o l e n t crime, b u t h i s method of oper- a t i o n i s d e c e i t , h i s playing and praying upon t h e weak and t h e poor, knowing t h e i r condition, i s more reprehensible, i n t h e view of t h i s Court, than many c r i m e s of violence. I could review some of t h e cases. The Hardy case stands o u t , and a number of o t h e r s , which a r e unbelievable. I t i s unbelievable t h a t an attorney, admitted t o t h e p r a c t i c e of l a w , would engage i n t h e type of a c t i v i t i e s t h a t M r . Bretz engaged i n . I d o n ' t want t o dramatize it, because t h e cases speak f o r themselves, and I refer t h e Sentence Review Board t o t h e f a c t s of those cases. Now, i n t h e eyes of many, o r a t least some, t h e l e g a l profession has been branded and stigmatized by Bretz. H e , of course, has been disbarred, no longer can prac- t i c e , but I ' m taking t h i s i n t o account a l s o i n t h e imposition of sentence. Now, during t h e t r i a l M r . Bretz, through t h e news media, made c e r t a i n public statements t h a t demonstrate an unbelievable arrogance and lack of conscience on h i s p a r t . N o w one thing he r e f e r r e d t o is a r e v e r s a l of t h e Wam- pole case by t h e Federal Appeals Court. That re- v e r s a l apparently c l e a r s h i s conscience. H e a l s o , i n t h a t same news i t e m , c r i t i z e d [ s i c ] t h e S t a t e f o r wasting money i n t h e prosecution of these Workmen's Compensation cases, saying t h a t only one man has spent s i x t y e i g h t days i n prison f o r a l l t h a t has been done. I take t h i s i n t o note, and perhaps I w i l l c o r r e c t t h a t imbalance. He a l s o s t a t e s t h a t he has many grounds f o r appeal, and t h a t ultimately t h e r e w i l l be a r e v e r s a l , as t h e r e w a s i n t h e Wampole case. This may be so. H i s conscience may be c l e a r , i f t h a t s o happens. But t h e harsh r e a l i t y of h i s greed t o t h e people who have been victimized w i l l never be erased by any reversal." Defendant w a s sentenced t o one-fourth of t h e maximum sentence allowed by law f o r t h e offenses of which he w a s convicted. The general r u l e i s t h a t " a sentence within t h e maximum authorized by s t a t u t e i s not c r u e l and unusual . . ." S t a t e v. Karanthos (1972), 158 Mont. 461, 468, 493 P.2d 326, 330. Considering t h e number of counts of which defendant w a s convicted, t h e unbelievable arrogance and t h e lack of any showing of remorse by defendant and t h e sentence being 25 percent only of t h a t allowed by l a w and considering a l l t h e circumstances of t h e case, t h e d i s c r e t i o n of t h e t r i a l judge cannot be c a l l e d i n t o question. CONDITIONING SUSPENSION - ON RESTITUTION The D i s t r i c t Court included t h e following conditions i n t h e judgment and order of commitment: "It i s Further Ordered, Adjudged and Decreed t h a t t h e l a s t 30 years of t h e 56 year sentence herein imposed be suspended upon t h e following conditions. "1. That t h e defendant pay i n t o d i s t r i c t c o u r t on o r before December 13, 1977, an amount s u f f i c i e n t t o pay a l l victims of t h e offenses f o r t h e f u l l amount of settlement awarded by t h e IAB/WCD in- cluding Dennis J. Aker, Stanley C. Gaines and Eu- gene R. H a l l . "2. A s a f u r t h e r penalty t h e r e s h a l l be no deduc- t i o n f o r attorney f e e s o r c o s t s claimed by t h e de- fendant. "3. A t t h i s t i m e t h e Court i s advised t h a t a f t e r allowance f o r payments made by t h e defendant, t h e t o t a l sum of $42,259.68 remains owing t o t h e claim- a n t s alleged t o have been defrauded. " 4 . Should t h e defendant n o t make f u l l payment within t h e t i m e prescribed, t h e defendant w i l l serve t h e sentences hereinabove imposed." Defendant argues t h a t these conditions are improper and amount t o c r u e l and unusual punishment f o r two reasons. F i r s t , t h e D i s t r i c t Court included t h e amount of t h e settle- ment on t h r e e counts upon which he was acquitted. Second, he argues t h i s amounted t o an excessive f i n e and was uncon- s t i t u t i o n a l l y c r u e l and unusual punishment considering defendant's indigent s t a t u s . Section 95-2206, R.C.M. 1947, now s e c t i o n 46-18-201 MCA, provides i n p e r t i n e n t p a r t : "(1) Whenever a person has been found g u i l t y of an offense upon a v e r d i c t o r a plea of g u i l t y , t h e c o u r t may: " (b) suspend execution of sentence up t o t h e maxi- m u m sentence allowed f o r t h e p a r t i c u l a r offense. The sentencing judge may impose on t h e defendant any reasonable r e s t r i c t i o n s during t h e period of suspended sentence. Such reasonable r e s t r i c t i o n s may include: " ( i v ) r e s t i t u t i o n ; " ( d ) commit t h e defendant t o a c o r r e c t i o n a l i n s t i - t u t i o n with o r without a f i n e as provided by law f o r t h e offense; " (e) impose any combination of subsections (1) (b) , (1) (c) I and (1) (dl . " When t h e judgment i s entered on t h e v e r d i c t of g u i l t y and t h e sentence i s imposed, t h e criminal proceeding i s a t an end. Any mitigation by suspension, e t c . , i s t h e begin- ning of t h e probation and r e h a b i l i t a t i o n process, and t h e defendant a t t h i s s t a g e of t h e proceeding i s not possessed of f u l l c i t i z e n s h i p and not e n t i t l e d t o a l l of t h e con- s t i t u t i o n a l r i g h t s of a f r e e man. W e have m e t t h i s problem i n r e c e n t cases and have held a s have o t h e r j u r s i d i c t i o n s and t h e United S t a t e s Supreme Court, see S t a t e v. May ( l 9 6 9 ) , 93 Idaho 343, 461 P.2d 126; F u l l e r v. Oregon (19741, 417 U.S. 40, 94 S.Ct. 2116, 40 L Ed 2d 642, t h a t r e s t i t u t i o n , p a r t i c u l a r l y i n connection with theft-type convictions, i s a proper condition f o r suspension o r probation. A considera- t i o n of t h e e n t i r e record i n t h i s case demonstrates t h a t t h e t r i a l judge has been more than f a i r and h i s granting defen- dant an opportunity f o r suspension i s an a c t of mercy he w a s n o t required t o extend t o t h i s defendant. SENTENCING HEARING After t h e v e r d i c t had been returned by t h e jury on December 1, 1976, t h e c o u r t s t a t e d : "NOW, i n view of t h e circumstances p e c u l i a r t o t h i s case, t h e Court deems i t s e l f w e l l enough advised t o impose penalty without c a l l i n g f o r a pre-sentence i n v e s t i g a t i o n and report. I am going t o set next Tuesday, December t h e 7th, a s t h e t i m e f o r sentencing, a t t h e hour of 1 1 : O O o'clock A.M. "Now, a t t h a t t i m e Counsel f o r t h e Defense may present any matters i n mitigation of punishment i f they wish it a t t h a t t i m e . " O n December 3, 1976, t h e prosecutors f o r the S t a t e s e n t a l e t t e r t o Judge Martin s e t t i n g f o r t h t h e i r views with r e s p e c t t o defendant's sentencing. They attached a copy of a l e t t e r from t h e daughter of one of t h e victims i n t h e case, which had been s e n t t o a judge i n California i n an- o t h e r matter. Because of i l l n e s s , defendant's sentencing w a s delayed u n t i l December 13. A t t h a t t i m e , defense coun- sel s t a t e d t h a t , i n h i s opinion, i n t h e absence of a pre- sentence i n v e s t i g a t i o n , " t h e Court lack[ed] t h e proper necessary information t o pass judgment i n t h i s matter." The S t a t e answered t h a t , among other things, t h e c o u r t had had access t o a copy of another presentence i n v e s t i g a t i o n pre- pared i n another t r i a l of defendant. The c o u r t s a i d t h a t it had looked a t t h e r e p o r t , found t h a t it was not h e l p f u l , and then d e t a i l e d f o r t h e record t h e reasons f o r t h e sentence it was about t o impose. Defendant o b j e c t s t o two p a r t s of t h i s procedure. F i r s t , he argues t h a t t h e D i s t r i c t Court should have ordered a presentence i n v e s t i g a t i o n and t h a t t h e p r i o r document was not an adequate s u b s t i t u t e . Citing S t a t e v. Orsborn (1976), 170 Mont. 480, 555 P.2d 509, defendant argues t h a t he should have been advised of t h e contents of t h e presentence r e p o r t from t h e p r i o r t r i a l and given t h e opportunity t o r e b u t any misinformation it might have contained. Next, he argues t h a t t h e S t a t e should have produced f o r cross-examination t h e v i c t i m ' s daughter who had w r i t t e n t h e l e t t e r t h e prose- c u t o r s presented t o t h e court. F a i l u r e t o do t h i s , says defendant, w a s a d e n i a l of due process. Section 95-2203, R.C.M. 1947, now s e c t i o n 46-18-111 MCA, provides i n p e r t i n e n t p a r t : "No defendant convicted of a crime which may re- s u l t i n commitment f o r one (1) year o r more i n t h e s t a t e prison, s h a l l be sentenced o r otherwise disposed of before a w r i t t e n r e p o r t of investiga- t i o n by a probation o f f i c e r i s presented t o and considered by t h e court, unless t h e c o u r t deems such r e p o r t unnecessary." (Emphasis added.) The obvious import of t h i s s t a t u t e i s t o provide a means by which a c o u r t can fashion a punishment which w i l l f i t not only t h e circumstances of t h e crime b u t a l s o t h e individual c h a r a c t e r i s t i c s of t h e person convicted. The c o u r t i n t h e i n s t a n t case, because of i t s f a m i l i a r i t y with defendant and h i s crimes w a s i n a p o s i t i o n t o sentence without having a presentence investigation. Defendant had seen a copy of t h e p r i o r presentence i n v e s t i g a t i o n and had t h e opportunity t o dispute its contents b u t he d i d not. Beyond t h a t , t h e c o u r t indicated t h a t it had n o t been helpful and t h e c o u r t ' s reli- ance on it i n any way i s extremely doubtful. The D i s t r i c t Court d e t a i l e d a t some length its reasons f o r t h e sentence imposed on defendant and he had t h e opportunity t o respond t o those reasons a t t h a t t i m e with any mitigating f a c t o r s he could find. The same i s t r u e of t h e l e t t e r s e n t t o Judge Martin by t h e prosecutors with i t s attachment. Defendant w a s fur- nished with a copy of t h e letters and with t h e opportunity t o m i t i g a t e any e f f e c t he f e l t it might have. The letter from t h e daughter of one of t h e victims was not mentioned by t h e judge as a contributing f a c t o r i n h i s sentencing deci- s i o n and t h e p a r t i c u l a r count t o which it r e l a t e d d i d not r e s u l t i n an enhanced punishment. ADMISSION - OF EXHIBITS The S t a t e introduced t h e f i l e s of t h e I n d u s t r i a l Acci- dent Board Worker's Compensation Division as Exhibit No. 1 under t h e Business Records a s Evidence A c t , s e c t i o n s 93-801- 1 through 93-801-6, R.C.M. 1947. Each f i l e consisted p r i - marily of t h e following documents: 1. Settlement d r a f t ; 2. P e t i t i o n f o r compromise settlement; 3. Carden settlement memorandum; 4 . Appointment of Attorney i n Fact submitted by defen- dant; 5. Medical r e p o r t s ; 6. A f f i d a v i t i n support of lump s u m settlement; 7. Correspondence between t h e IAB and defendant; 8. Order approving settlement. Section 93-801-2, R.C.M. 1947, provides: "A record of an a c t , condition o r event, s h a l l , i n so f a r a s r e l e v a n t , be competent evidence i f t h e custodian o r other q u a l i f i e d witness t e s t i f i e s t o i t s i d e n t i t y and mode of i t s prepara- t i o n , a n d ' i f it was made i n t h e regular course of business, a t o r near the t i m e of t h e a c t , condi- t i o n o r event, and i f , i n t h e opinion of t h e court, t h e sources of information, method and t i m e of preparation w e r e such a s t o j u s t i f y ad- mission." Defendant argues t h a t t h e S t a t e w a s required t o produce evidence of t h e source, mode, and t i m e of preparation of t h e IAB f i l e e x h i b i t s . I n f a c t , t h e testimony of Albert G. P i l l e n , who w a s t h e claims manager f o r t h e S t a t e Insurance Fund a t t h e t i m e of most of t h e events i n question, provided t h i s foundation. Defendant, though, claims t h a t P i l l e n could n o t l a y t h e proper foundation because he had n o t examined t h e individual documents i n t h e f i l e . W e f i n d t h a t P i l l e n was a q u a l i f i e d witness and t h a t a q u a l i f i e d witness under circumstances l i k e those presented i n t h i s case need n o t have examined every document i n a f i l e . Furthermore, again defendant has f a i l e d t o demonstrate t h a t any of t h e evidence presented i s not trustworthy . Defendant next addresses t h e admission i n t o evidence of c e r t a i n handwriting examples of defendant's t h r e e secre- t a r i e s . These included a b s t r a c t s of v e h i c l e titles, d r i v e r ' s l i c e n s e applications, notary public records, and v o t e r r e g i s t r a t i o n cards. Defendant objected t o t h e introduction of these e x h i b i t s because t h e r e was no testimony t h a t t h e signatures on t h e documents were authentic. The purpose f o r which t h e signatures w e r e introduced was f o r comparison with o t h e r questioned signatures. Defendant has never alleged t h a t t h e signatures are f a l s e . The signatures were properly admitted i n t o evidence under t h e Public Records Exception t o t h e Hearsay Rule, s e c t i o n s 93-901-1 through 93-901-5, R.C.M. 1947. Each of t h e records i s kept by an o f f i c i a l state o r county agency f o r t h e b e n e f i t of t h e public. he f a c t t h a t a number of signatures were introduced helped t o i n s u r e t h e i r a u t h e n t i c i t y . PROOF - O F ELEMENTS - O F PREPARING FALSE EVIDENCE Defendant argues t h a t t h e S t a t e f a i l e d t o prove t h e two counts of preparing f a l s e evidence. Count V I I alleged t h a t defendant's preparation of p e t i t i o n s f o r lump sum and com- promise settlements, submitted t o t h e IAB/WCD i n t h e Donald Barry case a f t e r Barry had died v i o l a t e d s e c t i o n 94-1703, R.C.M. 1947. Count L I alleged s i m i l a r circumstances with r e s p e c t t o E a r l Tannehill, who was a l s o dead. Defendant contends t h a t t h e S t a t e f a i l e d t o prove t h e following material allegations: "A. That t h e documents w e r e intended ' a s evidence.' "B. That t h e documents produced w e r e of t h e type intended t o be covered by t h e criminal s t a t u t e . "C. That t h e documents were produced i n a t r i a l , proceeding o r inquiry authorized by law. "D. That t h e documents were prepared i n Cascade County, t h e venue of t h e t r i a l . " Section 94-1703, R.C.M. 1947, provides a s follows: "Every person g u i l t y of preparing any f a l s e o r antedated book, paper, record, instrument i n w r i t - ing, o r o t h e r matter o r thing, with i n t e n t t o pro- duce o r allow it t o be produced f o r any fraudulent o r d e c e i t f u l purpose, a s genuine or t r u e , upon any t r i a l , proceeding, o r inquiry whatever, authorized by law, i s g u i l t y of a felony." The elements of t h e offense of preparing f a l s e evidence which w e r e required t o be proved i n t h e i n s t a n t case a r e (1) preparation of a f a l s e r e p o r t ; ( 2 ) with i n t e n t t o produce it f o r any fraudulent o r d e c e i t f u l purpose, a s true; (3) upon any inquiry authorized by l a w . Here, t h e p e t i t i o n s pre- supposed l i v e claimants s i n c e t h e r i g h t t o compensation ceases a t death. I n t e n t i s a f a c t u a l question f o r t h e jury, t h e fraudulent purpose being t o o b t a i n money knowing he w a s n o t e n t i t l e d t o it. The p e t i t i o n s w e r e a s t a t u t o r y pre- r e q u i s i t e t o t h e exercise of t h e board's d i s c r e t i o n i n awarding lump sum o r compromise settlements. See s e c t i o n 92-715, R.C.M. 1947, now s e c t i o n 39-71-741 MCA. With respect t o venue, we recognize t h a t venue must be proven i n a criminal case beyond a reasonable doubt. S t a t e v. W i l l i a m s (1949), 122 Mont. 279, 202 P.2d 245. I n t h i s case, s u f f i c i e n t evidence w a s presented from which t h e jury could determine t h a t t h e S t a t e proved venue beyond a reason- a b l e doubt. Both p e t i t i o n s f o r lump s u m settlement con- tained defendant's signature followed by h i s Great F a l l s address. The p e t i t i o n s f o r compromise settlement r e s u l t e d i n checks being s e n t t o defendant i n Great F a l l s . LARCENY - BY BAILEE PROOF I n t h e amended Information, with t h e exception of t h e Barry and Tannehill counts, defendant was charged with a l t e r n a t i v e counts of Larceny by Trick and Device, s e c t i o n 94-2701(1), R.C.M. 1947, and Larceny by Bailee, s e c t i o n 94- 2701 ( 2 ) , R.C.M. 1947. The S t a t e chose t o go t o t r i a l on t h e Larceny by Bailee charges and dismissed t h e a l t e r n a t e counts of Larceny by Trick and Device. Section 94-2701(2), R.C.M. 1947, provides i n p e r t i n e n t p a r t : "Larceny defined. Every person who, with t h e i n t e n t t o deprive o r defraud t h e t r u e owner of h i s property, o r of t h e use and b e n e f i t t h e r e o f , o r t o appropriate t h e same t o t h e use of t h e t a k e r , o r of any o t h e r person . . . " 2 . Having i n h i s possession, custody, o r c o n t r o l , a s a b a i l e e , s e r v a n t , a t t o r n e y , agent, c l e r k , t r u s t e e , o r o f f i c e r of any person . . . o r a s a person authorized by agreement o r by competent a u t h o r i t y t o hold, o r t a k e such possession, cus- tody, o r c o n t r o l , any money, property . . . ap- p r o p r i a t e s t h e same t o h i s own use, o r t h a t of any o t h e r person o t h e r than t h e t r u e owner, o r person e n t i t l e d t o t h e b e n e f i t t h e r e o f , s t e a l s such property and i s g u i l t y of larceny." Defendant argues t h a t t h e S t a t e f a i l e d t o prove t h r e e elements of t h e crime charged. F i r s t , he argues t h a t t h e S t a t e f a i l e d t o prove t h a t defendant was an "attorney." Second, he argues t h a t t h e S t a t e ' s proof negated t h e requi- site element of " i n t e n t t o permanently deprive" t h e owner of funds. F i n a l l y , he argues t h a t t h e S t a t e o f f e r e d proof which negated t h e element of a u t h o r i t y under which defendant was holding t h e funds. I n i t i a l l y , w e note t h a t t h e function of t h i s Court i n reviewing a jury v e r d i c t i s t o determine i f t h e v e r d i c t i s supported by s u b s t a n t i a l evidence. S t a t e v. Pepperling (1974), 166 Mont. 293, 533 P.2d 283. ". . . t h i s c o u r t i s n o t a trier of f a c t . . . I n view of t h e presumption of innocence a t t h e t r i a l , t h e jury must have been i n s t r u c t e d t o t h a t e f f e c t , b u t on appeal a f t e r conviction t h e r u l e changes. Then, i f t h e record shows any s u b s t a n t i a l evi- dence t o support t h e judgment, t h e presumption i s i n favor of such judgment." S t a t e v. Stoddard (1966), 147 Mont. 402, 408. 412 P.2d 827, 831. See a l s o S t a t e v. Cor (1964), 1 4 4 Mont, 323, 396 P.2d 86. he record i n t h i s case amply demonstrates t h a t defen- d a n t intended t o permanently deprive h i s own injured c l i e n t s of t h e i r money. Exhibits presented a t t r i a l showed low d e p o s i t s i n bank accounts maintained by defendant i n t o which t h e settlement checks from t h e c l i e n t s w e r e deposited. I n each case, it w a s demonstrated t h a t t h e r e was a t l e a s t one p o i n t i n t i m e when defendant could not possibly have d i s - t r i b u t e d t h e c l i e n t ' s share of t h e money t o t h e c l i e n t . A s applied t o t h e charges i n t h i s case, section 94- 2701(2) r e q u i r e s t h e S t a t e t o prove t h a t defendant took possession of t h e funds e i t h e r as an attorney - o r a s a person authorized by agreement o r competent a u t h o r i t y . With re- s p e c t t o each count, t h e S t a t e need prove one o r t h e o t h e r ; it need not prove both. I n each case presented here, defendant received s e t t l e - ment money because he had been retained a s an attorney; he represented himself as an attorney; d e a l t with t h e IAB a s t h e c l i e n t ' s attorney; wrote letters, received correspon- dence, f i l e d documents with t h e IAB, and received h i s c l i - e n t ' s money, a l l a s an attorney. H e cannot now claim t h a t he was not an attorney, a f t e r a jury, presented with t h i s evidence, found t h a t he w a s . The essence of defendant's next argument i s t h a t t h e S t a t e attempted t o prove t h a t defendant sought o u t h i s c l i e n t s with t h e i n t e n t t o ultimately s t e a l from them. This p r i o r i n t e n t i s n o t c o n s i s t e n t with t h e i n t e n t element present i n t h e crime of Larceny by Bailee where, defendant argues, t h e i n t e n t t o s t e a l a r i s e s a f t e r t h e point i n t i m e when t h e embezzler gains c o n t r o l of t h e funds. Here, a f i d u c i a r y r e l a t i o n s h i p w a s created when defen- d a n t acted on behalf of h i s c l i e n t s as t h e i r a t t o r n e y . Defendant is estopped, under t h e f a c t s of t h i s c a s e , from a s s e r t i n g a s a defense t h a t he harbored a felonious i n t e n t p r i o r t o t h e c r e a t i o n of t h e f i d u c i a r y r e l a t i o n s h i p . S t a t e v. Gould (1932), 329 Mo. 828, 46 S.W.2d 886. Furthermore, t h e element of i n t e n t and t h e t i m e of i t s formation i s a question f o r t h e jury, a question which w a s resolved a g a i n s t defendant. Therefore, w e f i n d t h a t t h e r e i s s u b s t a n t i a l evidence i n t h e record t o support t h e j u r y ' s determination t h a t defendant was g u i l t y of t h e crime of Larceny by Bailee. OVERZEALOUS PROSECUTION Defendant argues t h a t t h e cumulative e f f e c t of a series of a c t s by t h e prosecution denied him h i s b a s i c c o n s t i t u - t i o n a l r i g h t t o a f a i r t r i a l . He lists s i x s p e c i f i c a c t s : 1. F i l i n g of m u l t i p l e counts; 2. P a r t i c i p a t i o n i n p r e t r i a l p u b l i c i t y ; 3. Resistance of payment of appointed counsel; 4 . D i s m i s s a l and r e f i l i n g of charges without n o t i c e o r opportunity f o r hearing being afforded t o t h e defendant; 5. Demand of document from t h e defense i n v i o l a t i o n of defendant's F i f t h Amendment r i g h t t o s i l e n c e ; and, 6. S t a t e ' s withholding of names of witnesses. W e have previously addressed t h e underlying f a c t u a l circumstances of t h e f i r s t t h r e e p o i n t s made by defendant. Number 4 r e f e r s t o t h e dismissal of t h e J u l y 30, 1974, Information. Defendant s t a t e s t h a t i f he "had been allowed t o appear, t h i s c a s e might w e l l have been prosecuted on a s h o r t e r , o r i g i n a l 29-count Information with a r e s u l t i n g speedup i n t h e proceedings, s i m p l i f i c a t i o n of t h e i s s u e s and minimi zing of p u b l i c i t y . " ÿ umber 5 r e f e r s t o an exchange appearing on pages 2346 and 2347 of t h e t r a n s c r i p t . Prosecutor G i l b e r t was ques- tioning witness Earley about a v i s i t he had received from defense counsel Connor. G i l b e r t asked Earley i f Connor had shown him a l e t t e r a t t h a t time. Earley answered affirma- t i v e l y and G i l b e r t then asked him i f a letter he was holding was t h e same letter. Earley s a i d it w a s n o t and G i l b e r t then asked Connor t o check h i s f i l e s f o r t h e l e t t e r . After a b r i e f exchange, t h e two attorneys approached t h e bench f o r some discussion off t h e record. Defense counsel then moved f o r a m i s t r i a l due t o t h i s request, c i t i n g it a s v i o l a t i v e of t h e F i f t h Amendment guarantee t h a t a defendant cannot be compelled t o f u r n i s h evidence a g a i n s t himself. Number 6 r e f e r s t o t h e f a c t t h a t t h e S t a t e was per- mitted t o add c e r t a i n witnesses t o i t s l i s t of witnesses following v o i r d i r e . Three of these witnesses were u l t i - mately c a l l e d t o t h e stand i n t h e course of t h e t r i a l . Addressing t h i s l a s t i s s u e f i r s t , w e note t h a t one of t h e t h r e e witnesses who could have possibly prejudiced defendant's case w a s a witness defendant had l i s t e d a s h i s own. Aside from t h i s , t h e D i s t r i c t Court s t a t e d a t t h e t i m e t h e witnesses were l i s t e d t h a t he would g r a n t a continuance on defendant's request p r i o r t o t h e examination of these witnesses i f defense counsel needed e x t r a t i m e t o interview t h e witnesses and develop t h e i r questions. This opportunity cured any prejudice which might have otherwise developed. Concerning t h e alleged v i o l a t i o n of defendant's F i f t h Amendment r i g h t s , w e note t h a t no objection was made on F i f t h Amendment grounds a t t h e t i m e of t h e incident. More- over, t h e request was made of counsel and not of t h e defen- dant. ~ e v i e w i n g t h e t r a n s c r i p t w e cannot discern how defen- dant could have been prejudiced by t h e exchange. Certainly it i s not apparent from t h e record. I n addition, t h e record f i l e d with t h i s Court does not contain an objection by defendant with r e s p e c t t o t h e dismissal of t h e f i r s t Infor- mation and t h e f i l i n g of t h e second. Having previously discussed t h e f i r s t t h r e e matters with r e s p e c t t o o t h e r i s s u e s , we a r e l e f t with t h e t a s k of assessing t h e o v e r a l l impact of t h e s e matters considered together. W e f i n d t h a t t h e i s s u e s presented here, i f they were t o be considered e r r o r , a r e n o t of t h e q u a l i t y t o be i n any sense p r e j u d i c i a l . DENIAL - O F OPPORTUNITY - TO PRESENT DEFENSE Defendant contends t h a t c e r t a i n alleged e r r o r s and erroneous r u l i n g a t t e n d a n t t o t h i s case had t h e e f f e c t of v i o l a t i n g h i s c o n s t i t u t i o n a l r i g h t " t o have compulsory process f o r obtaining witnesses i n h i s favor a s guaranteed by t h e S i x t h Amendment t o t h e United S t a t e s Constitution and A r t i c l e 11, Section 24 of t h e Montana Constitution of 1972." H e breaks t h i s assignment of e r r o r i n t o f i v e p a r t s . 1. F a i l u r e t o pay appointed counsel; 2. Denial and quashing of subpoenas without proper b a s i s ; 3 . Refusal t o allow i n evidence of accountings sub- mitted by defendant t o an alleged victim; 4 . The r e f u s a l t o allow testimony a s t o work per- formed; 5. Having t o clear out-of-state witnesses with t h e c o u r t and S t a t e before obtaining subpoenas. W e have previously discussed defendant's f i r s t assign- ment of e r r o r i n t h i s regard and found no showing of preju- d i c e t o h i s defense. The d e n i a l and quashing of subpoenas mentioned r e f e r t o two incidents. The f i r s t involved defendant's f a i l u r e t o o b t a i n a a subpoena duces tecum commanding M r s . Robert Morris, t h e wife of an alleged victim, t o bring copies of t h e couple's I n t e r n a l Revenue r e t u r n s f o r a number of years. Defendant himself s t a t e d t h e purpose f o r which he wished t o subpoena t h e records: "Mrs. Morris w i l l be a witness i n t h i s case f o r t h e defendant, and t h e purpose of t h i s subpoena, Your Honor, it i s going t o become r e l e v a n t i n t h i s case concerning t h e addresses and employers and earnings of t h i s p a r t i c u l a r witness f o r t h e S t a t e . And t h e b e s t evidence probably of t h e earnings, employer and addresses and s o f o r t h w i l l by t h e I n t e r n a l Revenue records. I f M r . and M r s . Morris have f i l e d a j o i n t r e t u r n of course t h i s information is t h e r e and M r s . Morris can provide it. And it i s most r e l e v a n t on t h i s i s s u e . This is one of t h e main p a r t s of t h e Morris count. " The S t a t e objected t o t h e granting of t h e subpoena on t h e grounds t h a t it w a s not t h e b e s t evidence and no need was shown f o r t h e records. The D i s t r i c t Court, i n denying t h e subpoena, s t a t e d t h a t "[wlhen you e s t a b l i s h a foundation and b a s i s f o r it, then t h e c o u r t w i l l look a t i t . " I t i s not e r r o r t o r e q u i r e a proper foundation. A s i m i l a r i n c i d e n t occurred concerning a subpoena by t h e defense of a representative of t h e C r e d i t Bureau. The C r e d i t Bureau moved t o quash and t h e S t a t e supported t h e motion arguing t h a t t h e r e was no foundation l a i d f o r t h e evidence t o be gained. After some argument, defense counsel Barron asked t h a t t h e matter be postponed u n t i l a s u f f i c i e n t foundation was l a i d . The defense apparently did not pursue t h i s matter following t h a t acquiescence. This s p e c i f i c a t i o n r e q u i r e s no comment. Turning t o defendant's next argument regarding evidence of accountings, it appears t h a t t h e testimony of Greg Warner, an attorney who represented victim Hortick i n a lawsuit a g a i n s t defendant, was excluded by t h e t r i a l court. ~ e f e n d a n t ' s o f f e r of proof was t o t h e e f f e c t t h a t M r . War- n e r ' s testimony would show t h a t defendant was holding t h e money openly under a claim of r i g h t . However, t h i s pur- ported good f a i t h claim t o t h e settlement was n o t made u n t i l nearly a year a f t e r t h e settlement had been obtained and only a f t e r a demand by t h e victim through h i s attorney had been made following Hortick's being contacted by t h e a t t o r - ney g e n e r a l ' s o f f i c e thus becoming aware of t h e settlement. A s such, t h i s evidence w a s not r e l e v a n t t o h i s defense of good f a i t h . Next, defendant claims t h a t he offered t o prove t h a t victim Hortick had been involved i n criminal d i f f i c u l t i e s , t h a t he had retained defendant t o defend him, t h a t defendant d i d some work i n t h i s matter and was e n t i t l e d t o a fee. This f e e was then claimed a s an o f f s e t a g a i n s t t h e Hortick settlement. But defendant attempted t o introduce t h i s testimony through a former deputy county attorney. Only Hortick's o r defendant's testimony could have established t h a t defendant had been h i r e d by Hortick, t h a t a f e e agree- ment had been reached, t h a t he performed a c e r t a i n amount of work, t h a t he was therefore e n t i t l e d t o a f e e and t h a t , i n f a c t , he retained a portion of Hortick's Workers' Compensa- t i o n settlement f o r t h a t purpose. Hortick d i d n o t t e s t i f y t h a t he had retained defendant i n t h e matter and t h e defense d i d not examine him on t h a t point. Defendant chose not t o t e s t i f y , and we are precluded from drawing any conclusions from t h a t f a c t . However, i n t h e absence of t h e proper foundational testimony, t h e evidence was properly excluded. F i n a l l y , before obtaining subpoenas f o r out-of-state witnesses, t h e defense was required t o demonstrate t h e m a t e r i a l i t y of t h e witness' testimony. The S t a t e was al- lowed t o be p r e s e n t during such demonstrations. Defendant argues t h a t h i s defense was thereby revealed and prejudiced. This i s s u e a r i s e s o u t of a l i s t of out-of-state witnesses containing approximately 40 names submitted j u s t two weeks before trial. The l i s t included persons from Alaska, Nevada, I l l i n o i s , and West Germany. The purpose of t h e i n q u i r y was t o determine whether t h e s e were l e g i t i m a t e witnesses. Again, defendant has made no showing of preju- d i c e with r e s p e c t t o h i s i n a b i l i t y t o o b t a i n any of t h e s e witnesses. Without such a showing, t h e r e i s no e r r o r . TESTIMONY REGARDING ATTORNEY'S FEES These i s s u e s relate t o testimony regarding reasonable a t t o r n e y ' s fees. The first testimony which i s objected t o by defendant came from Bud P i l l e n , Bureau Chief of t h e S t a t e Insurance Fund. H e t e s t i f i e d t h a t i n h i s observation a t t o r - neys r e g u l a r l y charged "twenty-five percent [of settlements] unless t h e c a s e went t o hearing, and then it was u s u a l l y one-third." I f it went t o t h e Supreme Court, possibly f o r t y percent. Next, N e i l Keefer, a Montana a t t o r n e y s p e c i a l i z i n g i n Workers' Compensation, t e s t i f i e d t h a t h i s normal f e e t o Workers' Compensation c l i e n t s was 25 percent. Defendant argues t h a t t h i s testimony should n o t have been admitted because it had nothing t o do with t h e i s s u e before t h e jury, whether defendant embezzled from t h e c l i - e n t . A t t h e t i m e t h e r e w a s no s t a t u t o r y l i m i t on Workers' Compensation f e e s . A s a r e s u l t , defendant claims t h i s testimony's only e f f e c t w a s t o "inflame t h e passions of t h e jury and confuse t h e t r u e issues." Thereafter, defendant attempted t o present t h e testi- mony of James Walsh, Deputy County Attorney f o r Cascade County. H i s testimony r e l a t e d t o t h e alleged representation of Donald Hortick i n t h e criminal matter previously discussed. The testimony of witnesses P i l l e n and Keefer about t h e reasonableness of attorney f e e s w a s r e l e v a n t t o t h e tran- s a c t i o n s i n which no f e e agreement w a s made between t h e c l i e n t and Bretz. Keefer's testimony was primarily limited t o t h e Stanley Gaines f i l e and defendant w a s ultimately acquitted of t h e count. Beyond t h a t , t h e purpose of expert testimony i s t o a s s i s t t h e jury i n making i t s determination; it does not l i m i t t h e j u r y ' s capacity t o decide f o r i t s e l f . Since t h e s t a t u t e i n e f f e c t a t t h e t i m e provided t h a t an agreement a s t o a t t o r n e y ' s f e e s could be implied, some standard by which t h e jury could determine what such an implied agreement might be w a s e s s e n t i a l . I n addition t o t h i s , even where t h e r e was an agreed f e e , defendant o f t e n d i d not adhere t o t h e agreement though t h i s gave t h e jury an independent b a s i s f o r i t s determination. I n t h e G i l b e r t case, f o r example, defendant kept 80 percent f o r h i s fee. W e have already addressed t h e foundational d e f i c i e n c i e s of Walsh's testimony and f i n d no e r r o r . TESTIMONY - BY GERLACH CONCERNING O T H E R CRIMES D r . W i l l i a m Gerlach was c a l l e d by t h e S t a t e t o r e f u t e c e r t a i n medical r e p o r t s t h a t appeared i n t h e I A B f i l e s . D r . Gerlach t e s t i f i e d t h a t he would d i c t a t e medical r e p o r t s on various p a t i e n t s and then would have them typed by defen- d a n t ' s o f f i c e . They would be returned t o him f o r h i s review o r signature. D r . Gerlach went on t o t e s t i f y t h a t t h e medical r e p o r t s on Ray Pohjola and E a r l Tannehill w e r e n o t prepared o r signed by him. Defendant argues t h a t t h i s testimony was i r r e l e v a n t i n t h a t it amounted t o an accusation t h a t defendant had com- mitted t h e crimes of forgery and obtaining money by f a l s e p r e t e n s e s , crimes which he was n o t charged with i n t h e Pohjola o r Tannehill counts. Furthermore, defendant was charged i n t h e Tannehill matter with preparing a f a l s e p e t i t i o n f o r compromise settlement and t h e jury may have confused t h e i s s u e s and t h e proof. I n S t a t e v. P h i l l i p s (1953), 127 Mont. 381, 394, 264 P.2d 1009, 1016, w e s t a t e d : ". . . t r a n s a c t i o n s which a r e so r e l a t e d t o , and connected with, t h e forgery charged a s t o be otherwise admissible a r e n o t inadmissible because they tend t o prove a wholly d i s s i m i l a r crime, p a r t i c u l a r l y where they c o n s t i t u t e p a r t of a con- nected o r continuous t r a n s a c t i o n on t h e p a r t of t h e accused. " The evidence i n t h i s case tends t o show t h a t t h e Gerlach medical r e p o r t s had been f r a u d u l e n t l y submitted t o t h e IAB and c o n s t i t u t e p a r t of a connected o r continuous t r a n s a c t i o n on t h e p a r t of defendant. The testimony goes t o demonstrate t h e manner i n which defendant set up t h e system by which he could commit t h e crimes with which he was eventually charged. I M P E A C H M E N T - OF WITNESS M c M A S T E R BY - STATE George McMaster w a s t h e S t a t e ' s second witness and once he w a s on t h e stand t h e c o u r t allowed t h e S t a t e t o impeach him. Section 93-1901-8, R.C.M. 1947, provides: "The p a r t y producing a witness i s n o t allowed t o impeach h i s c r e d i t by evidence of bad c h a r a c t e r b u t he may c o n t r a d i c t him by o t h e r evidence, and may a l s o show t h a t he has made a t o t h e r t i m e s statements i n c o n s i s t e n t with h i s p r e s e n t testi- mony, as provided i n s e c t i o n 93-1901-12." Because t h e S t a t e made no showing of s u r p r i s e and because it w a s long aware t h a t McMaster's p o s i t i o n was t h a t he had n o t been a victim, defendant argues t h a t t h e c o u r t e r r e d i n permitting h i s testimony. Witness McMaster t e s t i f i e d t h a t when h e f i r s t v i s i t e d defendant's o f f i c e , t h e men agreed they would s p l i t t h e s e t t l m e n t 50-50. This w a s a s u r p r i s e t o t h e S t a t e because t h e S t a t e believed he would t e s t i f y t h e r e had been no f e e agreement. McMaster was a h o s t i l e witness as w e l l because he was suing t h e S t a t e f o r $100,000 as a r e s u l t of having been named a s a victim i n t h e Information f i l e d a g a i n s t defendant. The S t a t e w a s only aware of t h e l a t t e r hos- t i l i t y of McMaster y e t d i d not want t o dismiss t h e McMaster count. I n S t a t e v. Bloor (1898), 20 Mont. 574, 585, 52 P. 611, t h i s Court s t a t e d : " I t not i n f r e q u e n t l y happens t h a t a witness is brought under t h e influence of an adverse p a r t y , and upon t h e t r i a l completely deceives t h e p a r t y c a l l i n g him. When such i n s t a n c e s arise i n c r i m - i n a l cases, by t h e g r e a t weight of a u t h o r i t y t h e r i g h t t o cross-examine arises as one necessary f o r t h e prosecution of t h e r i g h t s of t h e S t a t e a g a i n s t t h e p e r j u r y o r evasion of an unwilling witness. 'I I n S t a t e v. Traufer (1939), 109 Mont. 275, 285, 97 P.2d 336, w e s t a t e d : " . . . A p a r t y i s n o t bound t o accept t h e testi- mony of h i s own witness a s c o r r e c t , p a r t i c u l a r l y i n c a s e s of t h i s nature where t h e r e is motive i n changing t h e e f f e c t of a previously made s t a t e - ment. . ." The D i s t r i c t Court d i d n o t err i n allowing t h e S t a t e t o impeach t h e testimony of McMaster under t h e circumstances presented i n t h i s case. This s e e m s p a r t i c u l a r l y compelling i n l i g h t of McMaster's testimony t h a t it was defendant's i d e a t h a t he make t h e c l a i m a g a i n s t t h e S t a t e . L A R R Y S A N F O R D TESTIMONY I n t h e Swims Under Count (Count 4 7 ) , an i s s u e arose a s t o whether defendant had prosecuted a products l i a b i l i t y s u i t f o r M r . S w i m s Under a g a i n s t Heston Corporation. Larry Sanford, s t a f f attorney f o r Heston, t e s t i f i e d t h a t corpora- t i o n policy was t o immediately inform i t s l i a b i l i t y c a r r i e r by l e t t e r of any claims a g a i n s t t h e corporation. Then he t e s t i f i e d no such letter appeared i n t h e i r f i l e . Defendant o b j e c t s t o t h i s testimony because Sanford w a s n o t employed by Heston when t h e s u i t was allegedly brought and had only been t o l d t h a t t h a t was t h e policy a t Heston a t t h a t t i m e a s well. Section 93-401-2, R.C.M. 1947, provides: "A witness can t e s t i f y t o those f a c t s only which he knows of h i s own knowledge; t h a t is, which a r e derived from h i s own perceptions, except i n those few express cases i n which h i s opinions o r i n f e r - ences, o r t h e declarations of o t h e r s , are admis- s i b l e . " Any problem with Sanford's testimony i s a problem of weight. Defendant had t h e opportunity t o cross-examine with r e s p e c t t o the completeness of Heston Corporation records of t h e d a t e i n question. H e was f u r t h e r e n t i t l e d t o argue t o t h e jury t h a t t h i s testimony could n o t be conclusive. JURY INSTRUCTIONS Counts 6 and 50 of t h e amended Information alleged t h a t defendant obtained money from t h e IAB by f a l s e pretenses i n t h e Barry and Tannehill cases. Counts 7 and 51 of t h e amended Information alleged t h a t defendant prepared f a l s e evidence i n those cases. I n a l l four counts t h e i t e m s alleged t o be f a l s e were P e t i t i o n s f o r Compromise S e t t l e - ment and P e t i t i o n s f i l e d by defendant. Though t h e jury was adequately i n s t r u c t e d with r e s p e c t t o t h e nature and ele- ments of t h e crimes charged, defendant o b j e c t s because no i n s t r u c t i o n explained t o t h e jury t h a t t h e items alleged t o be false w e r e t h e p e t i t i o n s . F i r s t w e note t h a t during h i s opening statement, de- fense counsel requested t h a t t h e c o u r t read t h e charging document t o t h e jury and t h e court advised him t h a t he might read those charges t o t h e jury himself. Defense counsel Barron read t h e charges which are r e f e r r e d t o i n t h i s i s s u e a t t h a t t i m e . I n addition t o t h i s , prosecutor G i l b e r t , i n h i s summation, discussed t h e f a l s e representations and f a l s e evidence r e f e r r e d t o i n t h e Information. Reviewing h i s statements i n t h i s regard, it appears t h a t t h e jury w a s ade- quately apprised of t h e nature and s u b j e c t of these charges. Beyond t h i s , t h e i n s t r u c t i o n s which were given i n t h i s a r e a were not erroneous; i f defendant f e l t f u t h e r i n s t r u c - t i o n s , including more s p e c i f i c i n s t r u c t i o n s were necessary, it was incumbent upon him t o request more s p e c i f i c i n s t r u c - t i o n s . N o such request appears i n t h e record. Defendant goes on t o o b j e c t t o t h e giving of t h r e e p a r t i c u l a r i n s t r u c t i o n s . The f i r s t i n s t r u c t i o n s t a t e d , i n essence, t h a t i n t h e c r i m e of larceny by b a i l e e r e s t i t u t i o n i s not a defense when t h e criminal 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 taking. I n o t h e r words, t h e crime i s complete a t t h e p o i n t of taking with t h e i n t e n t t o permanently de- prive. R e s t i t u t i o n i s only a defense when t h e defendant intended t o r e t u r n t h e property a t t h e t i m e it was taken. This i n t e r p r e t a t i o n i s c o n s i s t e n t with s e c t i o n 94-2717, R.C.M. 1947. Defendant next o b j e c t s t o t h e giving of t h e following i n s t r u c t i o n : "When, as i n t h i s case, it i s alleged t h a t t h e crime charged was committed on o r about a cer- t a i n date, i f t h e jury f i n d s t h a t t h e crime was committed, it i s not necessary t h a t t h e proof show t h a t it was committed on t h a t p r e c i s e date; it i s s u f f i c i e n t t h a t t h e proof shows t h a t t h e crime was committed p r i o r t o t h e f i l i n g of t h e information. " Defendant maintains t h a t no evidence w a s presented t o t h e jury as t o when t h e Information w a s f i l e d s o t h e i n s t r u c t i o n was meaningless t o t h e jury a s t o determining t h e t i m e of t h e offense. To properly u t i l i z e t h i s i n s t r u c t i o n , a jury should be apprised of t h e d a t e of t h e f i l i n g of t h e charging document. However, i n t h e absence of any showing of preju- d i c e , t h e f a i l u r e of t h i s a p p r i s a l i s n o t r e v e r s i b l e e r r o r . I n t h i s case, t h e r e i s no showing t h a t any proof was pre- sented which tended t o prove t h a t any offense had been committed a f t e r t h e Information was f i l e d . The next i n s t r u c t i o n objected t o by defendant reads a s follows: " I f t h e evidence shows t h a t defendant made s i m i - l a r f a l s e representations o r pretenses t o persons o t h e r than t h e owner, such evidence, i f believed by you, is s u f f i c i e n t corroboration." Defendant argues t h a t t h e r e i s no evidence of f a l s e repre- s e n t a t i o n s t o o t h e r s a s t o t h e f a l s e pretense counts and t h e i n s t r u c t i o n s should not have been given. The S t a t e argues t h a t c e r t a i n evidence was t o be considered a s such and it i s within t h e province of t h e jury t o have considered it. I n e i t h e r case, it would not be p r e j u d i c i a l e r r o r upon which t o gain a reversal. Defendant next complains of t h e t r i a l c o u r t ' s r e f u s a l t o i n s t r u c t t h e jury t h a t i n order t o convict defendant of embezzlement o r larceny by b a i l e e , they must f i n d t h a t t h e i n t e n t t o s t e a l w a s not present a t t h e t i m e he took posses- s i o n of t h e funds. This i s s u e has been previously discussed and w e f i n d no e r r o r . The c r u c i a l element here i s t h a t t h e defendant s t o l e t h e money by v i r t u e of h i s r e l a t i o n s h i p with h i s c l i e n t . Defendant next o b j e c t s t o c e r t a i n i n s t r u c t i o n s being refused and o t h e r s given with respect t o defendant's posi- t i o n t h a t he had a l i e n upon t h e settlement funds of t h e victims f o r l e g a l s e r v i c e s rendered. Our review of t h e i n s t r u c t i o n given and t h e i n s t r u c t i o n s refused i n d i c a t e s no e r r o r . F i n a l l y defendant argues t h a t it w a s improper f o r t h e c o u r t t o give t h e jury an i n s t r u c t i o n pertaining t o t h e purposes f o r which t h e jury could consider evidence of o t h e r crimes not charged. This i n s t r u c t i o n b e n e f i t s t h e defen- dant, not t h e S t a t e , i n t h a t it narrowly r e s t r i c t s t h e consideration which may be given such evidence. An i n t e n s e review of t h i s complex record reveals no p r e j u d i c i a l e r r o r upon which a r e v e r s a l of t h e t r i a l c o u r t could be founded. The judgment and sentence of t h e ~ i s t r i c t Court is affirmed. W e concur: 3~4$.%4L ~ l x l e f J u s t i c e F- ono or- ~ o b e r p J. Boyd, @is- 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 Daniel J. Shea. M r . J u s t i c e John C. Sheehy s p e c i a l l y concurring: I concur only i n t h e r e s u l t . The defendant i s undoubtedly g u i l t y . I am unable t o condone t h e ignoble a c t i o n s of t h e S t a t e t h a t contributed t o t h e delay i n t r i a l and t h e r e f u s a l t o pay defendant's a t t o r n e y s u n t i l forced by t h e c o u r t . Were defendant n o t an a t t o r n e y , I should have dissented. | June 13, 1979 |
073ab46a-9a32-4a94-945b-f707ed92adc8 | STATE v ALLIES | N/A | 14305 | Montana | Montana Supreme Court | No. 14305 I N THE SUPREME C O W O F THE STATE OF M3NTANA 1979 S T m O F r n A N A , Plaintiff and Respondent, -VS- GUY JOHN ALLIES, Defendant and Appellant. Appeal f m : D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t , Hanorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: Richter and Lemer, Billings, Mntana Frank Richter argued, Billings, Wntana For Respondent: Hon. Mike Greely, Attomey General, Helena, Wntana Mike m a r t e r argued, Assistant Attomey General, Helena, Mntana Harold Hanser, County Attorney, Billings, Wntana James Walen argued, Deputy County Attomey, Billings, Mntana Suhnitted: November 27, 1978 Decided: APR 2 4 1979 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. This case i s now before t h e Court on a motion t o f i x a t t o r n e y f e e s on appeal. Movants a r e a f i r m of a t t o r n e y s appoint- ed by t h e D i s t r i c t Court of Yellowstone County t o r e p r e s e n t an indigent defendant i n a major felony criminal case a t p u b l i c expense. Guy John A l l i e s , an indigent, was charged with f o u r counts of d e l i b e r a t e homicide by t h e county a t t o r n e y of Yellowstone County. A B i l l i n g s law firm w a s appointed t o r e p r e s e n t him both i n t h e D i s t r i c t Court and upon appeal. For t h e i r s e r v i c e s and expenses t o t h e t i m e of and through t h e t r i a l s t a g e s , counsel were paid a t t h e r a t e of $35.00 p e r hour f o r a t o t a l of $42,000 p l u s d o l l a r s . This sum has been paid by Yellowstone County and no i s s u e i s r a i s e d concerning t h i s f e e which covers t h e period from appointment March 1 4 , 1977 t o t h e end of t r i a l on February 3, 1978. Defendant w a s convicted a f t e r jury t r i a l and he and h i s a t t o r n e y s have i n i t i a t e d an appeal t o t h e court. The D i s t r i c t Judge, a f t e r allowing t r i a l f e e s on February 3, 1978, noted on t h e claim t h a t f e e s on t h e appeal would be l i m i t e d t o a f l a t $2,000 p l u s expenses. From t h i s $2,000 t h e d i s t r i c t judge deducted $525 f o r s e r v i c e s a t t h e sentencing which he considered as p a r t of t h e appeal. Defendant's a t t o r n e y s have f i l e d a motion i n t h i s Court seeking an order s e t t i n g t h e i r r a t e of compensation f o r s e r v i c e s on appeal a t t h e r a t e of $40.00 per hour p l u s t h e i r expenses t o be paid by Yellowstone County on a monthly b a s i s f o r a c t u a l t i m e and c o s t s expended. They contend t h a t t h e o r d e r of t h e d i s t r i c t judge f i x i n g t h e i r f e e a s heretofore set o u t i s unreasonable and an abuse of d i s c r e t i o n . s e c t i o n Section 95- 1005, R.C.M. 1947, now/46-8-201 MCA, s t a t e s : "Remuneration of appointed counsel. (1) 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 jus- tice of the state supreme court certifies to be a reasonable compensation therefor and shall be reimbursed for reasonable costs incurred in the criminal proceeding." "Reasonable compensation to relator is required by the statute. The determination of 'reasonable compensation' is a discretionary function of the judge under the statute. The exer- cise of a judge's discretion will not be disturbed absent abuse thereof. Luebben v. Metlen (1940), 110 Mont. 350, 100 P.2d 935." State ex rel. Stephens v. District Court (1976), 170 Mont. 22, "The fee need not be of an amount equal to that from a paying client, but should strike a balance between conflicting interests, including the professional obligation of a lawyer to make legal counsel available and the increasingly heavy burden on the legal profession created by expanded indigent rights. Court appointed counsel should neither be unjustly enriched nor unduly impover- ished, but must be awarded an amount which will allow the financial survival of his practice. A county shall pay a reasonable amount for all pro- fessional services which are not donated." "Elements of consideration in fixing fees include the amount of time and effort expended, the nature and extent of the services rendered, the fees paid for similar service in other jurisdictions, the traditional responsibilities of the legal profes- sion, the amount of public funds made available for such purposes, and a judicious respect for the tax paying public as well as the needs of the accused State v . Lehirondelle (1976), 15 Wash-App. 502, 550 P.2d 33, 34-35. See also Hill vs, Superior Court, Humbolt County (1956), 46 Cal.2d 169, 293 P.2d 10; Bennett v . Davis County (1971), 26 Utah 2d 225, 487 P.2d 1271; State v . Horton (1961), 34 N.J. 518, 170 A.2d 1; 18 ALR3d 1074. Movants first contend that $40.00 an hour is a reasonable compensation for their services on appeal and that a flat fee of $2,000 is not. They argue that the overhead of their law firm amounts to about $20.00 per hour and that to date of hearing they have spent 41-3/4 hours reading a transcript of approximately 1,750 pages; 104-1/2 hours in legal research and production of appellant's brief; and 8-1/4 hours in performing miscellaneous services. Their argument is unconvincing. They are not entitled to charge the entire overhead of their law firm against this one case. Apparently there are three or perhaps four lawyers in the firm, but it is inconceivable that all spent their entire time and the time of their office staff on this case to the ex- clusion of all other clients and cases. For further guidance of the District Court, we expressly disapprove of the practice of appointing an entire law firm rather than an individual lawyer as court appointed counsel for an individual charged with a crime. This practice leads to many abuses such as duplication of ser- vices, wasted effort, fragmentation of responsibility and author- ity, to name a few. The fee they are asking amounts to over $6,000 for the appeal to date and it has not yet been argued. Most of the legal research necessarily had to have been performed prior to trial for which counsel was compensated handsomely to the tune of over $42,000. As stated above, in striking a balance between the age-old responsibility of providing gratuitous service to indi- gent defendants and the increasing burdens placed on the bar by expanded indigent rights, much discretion must be left in the trial judge. We find the fixing of the flat fee of $2,000 for the appeal is not such abuse of discretion as to require inter- vention by this Court. The request for prepayment is denied. The statute requires the District Court to certify the services have been rendered. However the $525 formerly granted for services at the sentencing hearing should not be deducted from the appeal fee. As to the third issue of denial of constitutional rights, the discussion in State ex rel. Stephens vs. District Court, supra, at pp. 28, 29, is pertinent: "Be that as it may, we do not consider the con- stitutional guarantee of effective assistance of counsel impaired by denial of compensation that is not reasonable." See also Daines v . Markoff (Nev. 1976), 555 P.2d 490, 493: "The professional obligation to respond to the call of the court is an incident of the privilege to practice law, and does not offend constitutional commands. United States v. Dillon, 346 F.2d 633 (9th Cir. 1965); State v . Rush, 46 N.J. 399, 217 A . 2d 441 (1966) ; Lindh v. O'Hara, 325 A . 2d 84 (Del. 1974). Neither our state constitution nor the federal constitution precludes service to indigents without 'full' compensation." Because the problem of fixing reasonable fees is a re- curring problem this Court will set the following guidelines: That if a trial court allows fees on a hourly basis the maximum amount allowed per hour shall be not more than $30.00 per hour subject to a total maximum of $5,000 in any given criminal pro- ceeding without prior court approval. The motion is denied except that the full amount of $2,000 shall be available to pay attorney fees on the appeal of this matter. Chief Justice Justices Mr. Justice John C. Sheehy, deeming himself disqualified, did not participate in this cause. | April 23, 1979 |
069d46d6-557b-4978-a62e-26b433124c88 | NELSON v TWIN BRIDGES HIGH SCHOOL | N/A | 14538 | Montana | Montana Supreme Court | No. 14538 IN THE SUPREPIF, Cr)UHT OF THE STATE OF I'XN'I'ANA W3N S. NELSON, Plaintiff and Appellant, ~~ BRIDGES HIGH SCHOOL, TWIN ERJDQS, MJNTANA; S C H O O L DISTRICT NO. 7, State of mntana, Defendants and Wspondents. Appeal f m : D i s t r i c t Court of the Fifth Judicial District, Honorable Frank E. B l a i r , Judge presiding. Counsel of Record: For Appellant: Harlen, Norris and Picotte, Helena, Mntana C a r t e r N. Picotte argued, Helena, hbntana For Wpondents : Corette Smith, Dean, Pohlman, and Allen, Butte, Mmkana R. D. Corette, Jr., argued, Butte, mntana S*tted: March 21, 1979 -- ~ecided APR 1 ; 19: j Mr. Chief Justice Frank I . Haswell delivered the opinion of the Court. Plaintiff appeals from a summary judgment against him in the District Court of Madison County. Plaintiff Ron S . Nelson filed an action for damages against Twin Bridges High School and School District No. 7 for personal injuries allegedly suffered during a student-faculty basketball game at Twin Bridges High School on April 29, 1974. The game was part of an intra-mural program and plaintiff's participation was voluntary. Plaintiff claims that during the game he was violently hit from behind, knocked to the floor and suffered extensive and permanent injuries to his right knee. Plaintiff alleges that he filed a claim for damages with "the proper officials of defendants" on March 3, 1977. No compen- sation was paid by defendants. On October 31, 1977, plaintiff filed suit against them in the District Court, seeking damages for his alleged injuries. Defendants' amended answer alleged the action was barred by the three-year statute of limitations. The ~istrict Court granted summary judgment to defendants on the ground that plaintiff's action was barred by the statute of limitations, citing the three-year statute of limitations against personal injury actions, section 93-2605(3), R.C.M. 1947, now section 27-2-202 MCA, and the two-year statute of limitations applicable to claims against the state and its political sub- divisions, section 82-4312, R.C.M. 1947, now section 2-9-301(2) MCA. The sole issue on appeal is whether plaintiff's action is barred by the statute of limitations. Whether the two-year or three-year statute of limitations applies is immaterial as plain- tiff's action is either barred or permissible under either statute. Here the action was filed about 3-1/2 years after the alleged in- jury and about 8 months after the alleged presentation of the claim to defendants. The gist of plaintiff's contention is that the statute of limitations is no bar because his action was filed within 8 months after presentation of his claim to the defendants. He cites sections 82-4316 and 82-4317, R . C . M . 1947, (since repealed by Sec. 12, Ch. 360, Laws 1977), providing that an injured party can file a civil suit for damages within two years of filing his claim with the political subdivision, here the High School and the School District. He contends that the statute of limi- tations begins to run at the time the claim is presented to the School District and High School. Although this case is relatively simple on its facts, it is complicated by changes in the laws respecting statutes of limitation as applied to personal injury claims against state and local governmental subdivisions. The 1972 Montana Constitution abolished sovereign immunity by providing: "The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property . . ." 1972 Mont. Const., Art. 11, 518. Thereafter in 1973, the legislature enacted the Montana Tort Claims Act. Ch. 380, Laws of 1973, codified as section 82-4301 et seq., R.C.M. 1947, now section 2-9-101 et seq. MCA. This act required a claim to be filed with the proper governmental unit within 129 days of the injury before suing the state or one of its political subdivisions. Sections 82-4311, 82-4312, R.C.M. 1947, now sections 2-9-301(1), 2-9-301(2) MCA. If the claim was not paid, an injured party could commence a civil suit for damages within two years of the filing of the claim. Sections 82-4316, 82-4317, R.C.M. 1947, (since repealed by Sec. 12, Ch. 360, Laws 1977). In 1975, this Court held the 120 day claim requirement un- constitutional where a party sought to impose liability on the state. No11 v . City of Bozeman (1975), 166 Mont. 504, 534 P.2d 880. By implication, No11 also struck down the claim require- ment, applicable to actions against local governments. The No11 decision was based on our construction of the intent of the framers of the constitution "to preclude limita- tions upon the waiver of sovereign immunity." No11 at 508. We noted that the power of the legislature to enact statutes of limitation governing tort claims against the state had not been affected. No11 at 508. " . . . A true statute of limitation establishes a time period within which suit must be brought. (Citation omitted.) Its object is to suppress stale and fraudulent claims after the facts con- cerning them have become obscure from lapse of time, defective memory, or death or removal of witnesses. Eby v . City of Lewistown [1918], 55 Mont. 113, 173 P . 1163." No11 at 509. We held that the 120 day claim requirement did not meet this test and was an unconstitutional limitation of actions. The applic- able statute was cited as section 82-4317, R.C.M. 1947: "Every claim against a governmental entity permitted under the provisions of this act shall be forever barred unless an action is begun within two (2) years after the claim is filed with the govern- mental entity." Plaintiff argues that No11 struck down the 120 day re- quirement but did not affect the requirement that a claim be filed. He concludes that because the statute of limitation is made oper- ative on the filing of a claim, an injured party may bring a civil suit for damages against a governmental entity any time within two years of filing. Thus, plaintiff argues, he is clearly with- in section 82-4317 as the suit was commenced within 8 months of the filing of the claim with defendants. If plaintiff's interpretation is correct, the result would effectively nullify the purpose of any statute of limita- tions. There would be no limitation on when the claim could be filed. The state or a political subdivision could be sued at any time in the future at the option of the plaintiff, simply by delaying presentation of a claim against the state or one of its political subdivisions. No11 strikes down the same requirement as a condition precedent or a limitation on an injured party's right to sue a governmental entity. Until the legislature, by a two-thirds vote of each house provides such a requirement, it is no part of Montana's law. 1972 Montana Constitution, Art. 11, S18, amended effective July 1, 1975. The statute of limitation begins to run from the date the cause of action accrues, Cassidy v. Finley (1977) , Mont . , 568 P.2d 142, 34 St.Rep. 879, not from the date the claim is filed. We note that the statute of limitations on actions against governmental units has since been amended to provide for a three-year statute of limitations. Sec. 7, Ch. 360, Laws 1977, codified as section 82-4312.1, R.C.M. 1947, now section 2-9-302 MCA. The statute of limitations on personal injury actions remains at three years. Section 93-2605(3), R.C.M. 1947, now section 27-2- 202(3) MCA. This should eliminate such problems in the future. Affirmed. Justices 4 Chief Justice | April 16, 1979 |
17547c57-8072-4aec-9b88-d43a8615a1b1 | HELMKE v GOFF | N/A | 14230 | Montana | Montana Supreme Court | N o . 14230 IN THE SUPRE3E C O W OF THE STATE OF MXII'ANA 1979 ALBERT J . HELMKE, J R . , Plaintiff a n d Appellant, -VS- GIIJ3Em B . GOFF, Defendant and Respondent. Appeal £ r a m : District C o u r t of the Nineteenth Judicial District, Honorable Robert M . Holter, Judge presiding. Counsel of Record: For Appellant: Terry N . Trieiler argued, Whitefish, Mntana For Respondent: Murphy, Fbbinson, Heckathorn and Phillips, Kalispell, Mntana I . James Heckathorn axgued, Kalispell, lvbntana Submitted: March 23, 1979 Decided: JUN 1 8 1979 Filed: J U N 18 1979 Mr. Justice John C. Sheehy delivered the opinion of the Court. This is an appeal from a judgment based on a jury verdict for the defendant (Goff) in the District Court of the Nineteenth Judicial District, Lincoln County. Plaintiff (Helmke) filed his action against Goff alleging that on August 25, 1975 on Montana secondary highway no. 202, approximately 4.4 miles from Troy, Montana, Goff negligently drove his 1966 Volkswagen sedan in such a manner that it went out of control, off the highway, and rolled over several times. Helmke, a passenger in the vehicle at the time of the accident, was injured. In his answer, Goff admitted the happening of the accident, but denied that any negligent act on his part caused the plaintiff's injuries. Beyond the general denial of negligence, no affirmative defenses were interposed by Goff. At the close of evidence in the trial, both parties moved for directed verdicts. The motions were denied and the cause submitted to the jury. A general verdict was found for Goff. Helmke moved for a judgment notwithstanding the verdict, or in the alternative, for a new trial. His motions were denied and Helmke duly filed his appeal to this Court. The suit arises out of a single vehicle accident which occurred on a clear sunny August afternoon. The investigating highway patrolman found that the automobile crossed the center line of the two lane highway onto the unpaved left shoulder, skidded 49 feet back into the right lane, then left the roadway on the right-hand side, overturned and rolled some 86 feet before coming to rest in a ditch on the right-hand side of the road. There were no defects or obstructions in the roadway and the pavement was dry. The driver testified that his visibility was unhampered and that his car had no mechanical -2- defects. He testified he was not tired, had no physical ailments or infirmities to impede his driving, and he was not intoxicated. The evidence has shown, however, that he and plaintiff had consumed a six-pack of beer in the morning and later in the day, just before the accident, had been passing a wine bottle back and forth and that the wine was probably half consumed at the.time of the accident. He agreed that Helmke had not contributed to the happening of the accident. Neither Helmke nor Goff knew how the accident happened and testified to that effect at the trial. There was some contention during the trial that there may have been a sudden loss of air in one of the tires of the vehicle, but the patrolman testified that such an incident would have been the result of the accident itself. In its charge to the jury, the trial court instructed both on ordinary negligence and res -- ipsa loquitur. With respect to ordinary negligence, it told the jury that a violation of law had to be the proximate cause of the plaintiff's injuries; that a violation of an applicable statute was negligence as a matter of law; and instructed on the "basic rule of vehicle operation," section 32-2144(a), R.C.M. 1947, now section 61-8-303(1) MCA, and upon the necessity of driving on the right half of the road, section 32-2151, R.C.M. 1947, now section 61-8-321 MCA. The District Court did not take the MJIG instruction on res ipsa loquitur, but instructed as follows: -- "If you find, (1) that injury to the Plaintiff was proximately caused by the fact that the automobile which Defendant was driving left the road and rolled over; (2) that at the time of said accident the automobile in which the Plaintiff was injured was under the Defendant's exclusive control or management, so that the Defendant had superior means for determining the cause of the accident; and (3) that in the normal course of events the accident and ensuing injury would not have occurred without the negligence of the person having control and management of the automobile, then you may find that the accident and ensuing injury were caused by the negligence of the Defendant. "However, you shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless you believe, after weighing all the evidence in the case and drawing such inferences therefrom as you believe are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the Defendant. " The trial court also gave the "mere happening" instruction as follows: "The mere fact that an accident happened, considered alone, does not give rise to an inference that it was caused by negligence or that any party to this action was negligent." We restate the issues on appeal as follows: 1. Assuming a res -- ipsa case, is the court or jury compelled to find for the plaintiff where the defendant does not attempt to explain the accident or to show his lack of negligence? 2. What is the effect of the "mere happening" instruction in a res ipsa case? -- 3. Is the verdict of the defendant here supported by the evidence? Under the first issue, Helmke contends that the trial court should have granted his motion for a directed verdict, or for judgment notwithstanding the verdict. Goff, on the other hand, though admitting that this is a -- res ipsa case, nevertheless states that the circumstances shown in the evidence, that it happened quite fast, that there were two flat tires on the automobile after the accident, that Helmke could point to no negligent act in the driving of the automobile, and a few other circumstances, meant that the jury was properly allowed to decide the issue. The procedural effect of the res ipsa case, that -- is whether the burden of proof upon the establishment of such a case shifts to the defendant, has been discussed in some Montana cases. In Whitney v. Northwest Greyhound Lines (1952), 125 Mont. 528, 242 P.2d 257, 258, this Court examined the problem but declined to decide it: "Error is predicated upon instructions given over plaintiff's objection and in refusing some instructions offered by plaintiff. The principal legal question presented is whether the doctrine of res ipsa loquitur applies under facts and d i r c ~ a n c e s presented - by the record, and if so, was the jury properly instructed on the subject. Interwoven with this general subject is the usual difference of opinion between counsel as to whether under that doctrine there is a shifting of the burden of proof. On that point the courts are in disagreement. Even this court has gone both ways on the question." Decisions vary from state to state as to whether the burden of proof shifts to the defendant in a res ipsa case. -- Authorities attempt to explain the disparity in these decisions by determining whether the jurisdiction follows the "permissible inference" theory or the "rebuttable pre- Law of Torts S19.11 sumption" theory. See 2 Harper and James,,/pp. 1100-1102. It is safe to say that the difference between an inference and a presumption escapes all but the most nimble legal minds. Statutory definitions do not help much. Section 93-1301-2, R.C.M. 1947, now section 26-1-501 MCA defines an "inference" as a "deduction . . . from the facts proved, without an express direction of the law to that effect." On the other hand, section 93-1301-3, R.C.M. 1947 (now repealed), defined a presumption as a "deduction which the law expressly directs to be made from particular facts". Both inferences and pre- sumptions are deductions made from facts; both are forms of indirect evidence. Section 26-1-102(4) (b) MCA, formerly section 93-1301-1, R.C.M. 1947. The difference seems to be that a presumption is founded upon an express direction of ''the law". It is not necessary for us, however, to attempt to classify this jurisdiction as one following the "permissible inferenceii theory, or the "rebuttable presumption" theory. It is our opinion that a res ipsa case does not put the -- defendant in a position of having to prove an affirmative defense to escape liability. The language in Sweeney v. Erving (1913), 228 U.S. 233, 240, 33 S.Ct. 416, 418, expresses our position: ". . . res ipsa loquitur means that the facts -- of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish such circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. -- Res ipsa lo uitur, where it applies, does not convert the a + % - e en ant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff. " Obviously, the question of whether the court, at the close of all the evidence in the -- res ipsa case, should grant a motion for directed verdict, or later a judgment notwith- standing the verdict, will depend upon the facts proved in each individual case. We can conceive of situations where the inference of negligence in a -- res ipsa case would be so strong that persons of reasonable minds could not reach differing conclusions as to the negligence of the defendant. When that occurs, the course to be followed by the District Court should be no different than in any other case when faced by a motion for a directed verdict. In this case, we do not find that the District Court abused its discretion in refusing to grant a directed verdict or a judgment n. o. v. The inferences of fact raised by plaintiff's case were to be determined by a jury, which is the trier of all fact issues where a jury trial is demanded. Rule 39(a), The second issue, the giving of the "mere happening" instruction in a res ipsa case, is of more grave consequence, -- and in our view requires a reversal of this case. The statement that the fact of an accident or collision alone is no evidence of negligence has found its way into a number of opinions from this Court. See for example, Baatz v. Noble (1937), 105 Mont. 59, 69 P.2d 579; Cowden et al. v. Crippen (1936), 101 Mont. 187, 53 P.2d 98; Autio v. Miller (1932), 92 Mont. 150, 11 P.2d 1039. However, we pointed out in Hunsaker v. Bozeman Deaconess ~oundation (1978), Mont . I 588 P.2d 493, 35 St.Rep. 1647, that while occasionally, a statement in an opinion may also be a good jury instruction, opinions are not designed to be jury instructions. Also in Hunsaker, with respect to a "mere happening" instruction in a res ipsa case, this Court said: -- "In Graham v. Rolandson (1967), 150 Mont. 270, 435 P.2d 263, an ordinary negligence action, we condemned an 'unavoidable accident' instruction. There we concluded that it injected a straw issue into the case and is confusing to the jury. This is somewhat akin to 'the mere fact of an injury' instruction as was given in this case. In Gagosian v. Burdickls Television & Appliances (1967), 254 Cal.App.2d 316, 62 Cal.Rptr. 70, California eliminated 'the fact of an injury' instruction from ordinary negligence actions, stating: " ' . . . Since it but elucidates the obvious to the jury, and need not be given to meet any rule of appellate procedure, we join heartily in the recommendation of its authors for its "decent burial". The trial judge who strikes the "mere happening" instruction from his instruction book and completely erases it from his memory will save time in instruction and much in retrial after reversal.' "We also conclude that in an ordinary negligence action that such instruction should be given a 'decent burial1 in this State. " 588 P. 2d at 506, 507. The evil in giving such an instruction in a -- res ipsa case is that the jury may consider that they are foreclosed from considering the evidence provided by the happening of the accident itself. Jensen v. Minard (1955), 44 Cal.2d 325, 282 P.2d 7, 9. Therefore we hold the instructions here to be so incompatible as to require reversal. In view of our holding on the second issue, it is unnecessary to review whether the evidence supported the defendant's verdict. The cause is reversed and remanded for a new trial. We Concur: V Justice Mr. Chief Justice Frank I. Haswell and Mr. Justice John C. Harrison would affirm the judgment of the District Court. | June 18, 1979 |
6d84efe5-591f-42ec-8afc-62b013204930 | HOLLINGER v MCMICHAEL | N/A | 14600 | Montana | Montana Supreme Court | N o . 14600 IN THE SUPHEME C O W O F THE STATE O F FJSXFANA 19 79 Plaintiff and Appellant, G L A D Y S L. McMICTWL, Defendant and Respondent. Appeal from: District Court of the Fourth Judicial District, Honorable EXiward Dussault, Judge presiding. Counsel of Record: For Appellant: George, W i l l i a m s & Benn, Missoula, mntana For Respondent: Skelton and Knight, Missoula, mntana Sdmitted on briefs: April 5, 1979 Decided: Mh'f 1 6 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. P l a i n t i f f appeals t h e determination of t h e D i s t r i c t Court, Fourth J u d i c i a l D i s t r i c t , Missoula County, r e f u s i n g t o award h i s counsel a t t o r n e y f e e s f o r work done on a suc- c e s s f u l appeal and post-appeal m a t t e r s . This a c t i o n began A p r i l 9, 1976, on which d a t e p l a i n - t i f f f i l e d a complaint a g a i n s t defendant f o r a breach of a r e a l e s t a t e l i s t i n g c o n t r a c t . The D i s t r i c t Court g r a n t e d p l a i n t i f f ' s motion f o r summary judgment on October 1 8 , 1977. Defendant appealed t h e r u l i n g on t h e motion f o r summary judgment, and p l a i n t i f f cross-appealed t h e c o u r t ' s f a i l u r e t o amend t h a t p o r t i o n of t h e judgment concerning a t t o r n e y f e e s . This Court considered t h e matter and, on June 19, 1978, affirmed t h e summary judgment. That p o r t i o n of t h e judgment awarding a t t o r n e y f e e s w a s reversed, and t h e m a t t e r remanded t o t h e D i s t r i c t Court f o r a n e v i d e n t i a r y hearing. Hollinger v. McMichael (1978), Mont. I 580 P.2d 927, 35 St.Rep. 856. The D i s t r i c t Court presided over a hearing on September 21, 1978. On September 28, 1978, judgment was e n t e r e d awarding a t t o r n e y f e e s f o r s e r v i c e s rendered through t h e t i m e of hearing on t h e motion f o r summary judgment. I n i t s judgment, t h e D i s t r i c t Court s t a t e d : " [ t l h e Supreme Court d i d n o t allow c o s t s o r a t t o r n e y f e e s on appeal t o e i t h e r s i d e . Therefore, t h e itemized c o s t s and f e e s on appeal by P l a i n t i f f a r e hereby denied." P l a i n t i f f appeals t h e r e f u s a l t o award f e e s f o r s e r v i c e s rendered i n t h e appeal and i n conjunction w i t h t h e e v i d e n t i a r y hearing. Only one i s s u e i s presented on appeal: Did t h e D i s - t r i c t Court err i n r e f u s i n g t o award a t t o r n e y f e e s f o r t h e a d d i t i o n a l work? I f s o , what amount should be awarded? W e f i n d t h a t t h e t r i a l c o u r t e r r e d i n r e f u s i n g t o award a t t o r n e y f e e s f o r t h e a d d i t i o n a l work done on t h e appeal. H e r e , defendant, i n appealing t h e summary judgment d e c i s i o n of t h e D i s t r i c t Court, p u t p l a i n t i f f t o t h e expense of an appeal i n t h i s Court. Defendant f a i l e d t o o v e r r u l e t h e judgment of t h e ~ i s t r i c t Court. See, Hollinger v. McMichael, supra. The D i s t r i c t Court e r r e d i n denying p l a i n t i f f ' s r e q u e s t f o r f e e s i n c u r r e d by t h e appeal. P l a i n t i f f i s e n t i t l e d t o t h e reasonable f e e s which r e s u l t e d from defen- d a n t ' s breach of t h e l i s t i n g agreement. The record shows t h a t p l a i n t i f f submitted t o t h e is- t r i c t Court an a f f i d a v i t showing 58-1/2 hours of work f o r a t o t a l of $2,071.88 i n a t t o r n e y f e e s and $128.38 i n c o s t s , which w e f i n d reasonable. The judgment of t h e t r i a l c o u r t i s r e v e r s e d , and a judgment f o r $2,071.88 a t t o r n e y f e e s p l u s $128.38 c o s t s i s hereby awarded. W e concur: i e f J u s t l c QJl-4. *, J u s t i c e s 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 foregoing opinion, but want t o make it c l e a r t h a t t h e b a s i s f o r awarding a t t o r n e y f e e s i n t h i s c a s e i s a provision i n t h e r e a l e s t a t e l i s t i n g agreement between t h e p a r t i e s providing f o r such award. 3h-Q 8 Chief J u s t i c e M r . J u s t i c e Daniel J. Shea s p e c i a l l y concurring: I concur i n t h i s opinion on t h e same b a s i s a s does Chief J u s t i c e Haswell. | May 16, 1979 |
feeaecbc-8839-4dd8-91e8-53e142e4f9b8 | STATE v CAMPBELL | N/A | 14662 | Montana | Montana Supreme Court | N o . 1 4 6 6 2 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 7 9 THE STATE OF MONTANA, P l a i n t i f f , -vs- L E V 1 CAMPBELL, Pro Se, D e f e n d a n t . ORIGINAL PROCEEDING: C o u n s e l of R e c o r d : For D e f e n d a n t : L e v i C a m p b e l l , Pro Se, D e e r L o d g e , M o n t a n a For P l a i n t i f f : 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 H a r o l d H a n s e r , C o u n t y A t t o r n e y , B i l l i n g s , M o n t a n a S u b m i t t e d : J u l y 1 0 , 1 9 7 9 D e c i d e d : J G ; 1 1 1 9 7 9 Filed: .... , , C l e r k Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This is an original proceeding for habeas corpus by Levi Campbell, an inmate of the Montana State Prison serving a 10-year sentence for aggravated assault. On September 11, 1976, petitioner was charged with three counts of aggravated assault in violation of section 94-5-202 (1) (ar, . (b) , (c) , R.C.M. 1947 as amended, now section 45-5-202 (.a), (b) , (c) . MCA, in the District Court of Yellow- stone County. The incident forming the basis of the charges involved a fight in a bar on the south side of Billings, Montana, wherein petitioner allegedly cut and injured one Robert Haworth with a broken beer glass. Petitioner was represented by court-appointed counsel at all stages of proceedings. Petitioner initially entered a plea of not guilty to the charges. On October 26, 1976, the day his jury trial was to begin, petitioner pleaded guilty to Count I , and Counts I1 and I11 were dismissed. Petitioner was sentenced to 10 years imprisonment which he is presently serving. Prior to the petition now before us, petitioner filed a petition for habeas corpus in the District Court of Yellow- stone County. An evidentiary hearing was held thereon, and on January 8, 1979, the District Court entered findings of fact, conclusions of law, and an order denying the petition. The gist of the District Court's denial was that the rule announced by this Courq State v. Azure (1977), Mont . , 573 P.2d 179, 34 St.Rep. 1569, should not be applied retroactively. Petitioner thereafter filed the present petition in this Court seeking to have his guilty plea, conviction and sentence vacated, and the cause remanded to the District Court for a new trial. The grounds alleged are that his quilty plea was not voluntary because he did not understand the true nature of the charge of aggravated assault and he did not understand the difference between aggravated assault and the lesser included offense of misdemeanor assault. Petitioner contends this con- stitutes a denial of due process mandated by Section 1 of the Fourteenth Amendment of the United States Constitution. This Court granted petitioner's motion to file and proceed in forma pauperis and ordered the Attorney General to file a written response to the petition and brief. This has been done, and the matter has been submitted to us for decision. Petitioner first contends that at the time he entered his plea of guilty to the charge of aggravated assault he did not understand the true nature of the charge. The record belies this contention. Petitioner was given a copy of the Information specifying the charge. He was represented by counsel who dis- cussed the charge with him, the evidence against him, informed him generally that an element of the charge was serious injury with a weapon or the threat thereof, and that he understood the circumstances in which he stood and that he very probably would be convicted. The presiding judge carefully questioned petitioner concerning his guilty plea. Petitioner stated to the presiding judge that the charge was true; that he understood the possible penalty on the charge; that he had received no promises for pleading guilty; that he would be giving up his right to a jury trial; his right to call witnesses in his behalf; his right to cross-examine witnesses against him; and his right to remain silent. The presiding judge explained that the county attorney's office had indicated that they would recommend a 10-year sentence and that he had not indicated any disagreement with that recom- mendation. The presiding judge accepted petitioner's plea of guilty as voluntary. Based on this record we hold that peti- tioner, at the time he entered his plea of guilty, understood the true nature of the charge of aggravated assault, The focus of the present petition, however, is that petitioner was not advised and did not understandythe differ- ence between aggravated assault and the lesser included offense of misdemeanor assault and, therefore, his plea of guilty was not voluntary. Petitioner principally relies upon Azure, supra and Jones v. Montana (1964), 235 F.Supp. 673, in support of his contention. Doubt as to whether a plea of guilty was voluntarily or knowing should be resolved in favor of trial on merits. State v. Doty (1977), Mont . , 566 P.2d 1388, 34 St.Rep. State v. 731;/Casaras (1937), 104 Mont. 404, 66 P.2d 774. Denial of a motion to withdraw a guilty plea is addressed to the sound dis- cretion of the trial court which will not be disturbed absent a showing of abuse of that discretion. State v. Lewis (.l978), Mont . , 582 P.2d 346, 35 St.Rep. 1089; State v. Nance (19471, 120 Mont. 152, 184 P.2d 554. Specific statutory re- quirements in effect at the time of petitioner's plea of guilty were and are that the trial court must determine at the outset that a guilty plea is voluntary with an understanding of the charge. Section 46-12-204 MCA. Any time before or during trial, a plea of guilty may be accepted by the trial court after the court has advised the defendant of the consequences of his plea and the maximum penalty provided by law. At any time before or after judgment upon good cause shown, a plea of guilty may be withdrawn. Section 46-16-105 MCA. Here the record shows trial court complied with the statutory mandates then in effect. Additionally, the guidelines set forth in State v. Griffin (1975), 167 Mont. 11, 535 P.2d 498, were followed. Petitioner contends that Jones v. Montana, supra, requires that at the time of plea defendant must know and understand the difference between the crime charged and a lesser included offense where his plea of guilty is not volun- tary. Jones is distinguishable on the facts. There the defen- dant was charged with nighttime burglary and consistently maintained the burglary had been committed in the daytime, a lesser offense. His conviction on a guilty plea to the offense charged was set aside because the difference between the two was neither known by or explained to the defendant. His plea of quilty was the result of a fundamental mistake and hence involuntary. Here, petitioner knew at the time of entry of his plea of guilty that serious bodily injury to the victim with a weapon or the threat thereof was a required element of the crime of aggravated assault. He knew that he was charged with purposely and knowingly committing the offense. Petitioner now claims the assault was accidental or negligent. His counsel, in effect, struck a plea bargain with the county attorney's office on a 10-year sentence. Petitioner knew that he would be subject to a greater period of imprisonment upon conviction after a jury trial and his counsel had advised him that he would probably be convicted. Petitioner, with full knowledge of these facts, entered a plea of guilty. Unlike Jones, there was no funda- mental mistake here. Finally, petitioner contends that our decision in Azure requires that the record of arraignment in the District Court must show that he was informed of the elements and effects of lesser included offenses of which a jury could possibly find him guilty. The District Court's findings of fact on the prior petition show that, at the time petitioner entered his plea of guilty, he was not advised that in the event he had a trial by jury on the charge that the jury would in all probability have been instructed as to lesser included offenses such as misde- meanor assault; or that, if the petitioner had a trial by jury and if he testified that the events at the time of the offense occurred in the same manner as he testified at the time of this hearing, the probability is that the trial judge would in fact instruct the jury as to the lesser included offense of misde- meanor assault. At the time of entry of petitioner's plea no such requirement as thereafter articulated in Azure was present in the law of Montana. We decline to give Azure retroactive effect. Recently we articulated a three part test to determine whether a decision should be applied retroactively: (1) the decision must establish a new principle of law overruling established precedent on which litigants have relied, or it must decide an issue of first impression, the resolution of which was not clearly foreshadowed; (2) the rule in question must be examined to determine whether its retroactive applica- tion will further or retard its operation; and (-3) the equity of retroactive application must be considered. State v, LaRoque (1978) t Mont . , 583 P.2d 1059, 35 St.Rep. 1281. Azure introduced a new procedural requirement that the trial court must advise the defendant of matters relating to lesser included offenses and that the record of the plea entry alone is to be examined to determine whether this has been done. Azure established a new principle of law not previously artic- ulated. It should be obvious that retroactive application of this rule would seriously retard its operation. Litigants have a right to rely on the law in effect at the time. The admini- stration of justice would be seriously hampered by requiring conformity to an as yet unannounced new procedural requirement. Law enforcement agencies and courts are entitled to rely on the rules pertaining to guilty pleas in effect at the time the . guilty plea was entered and to determine voluntariness on the basis of such law. Our ruling in Azure does not implicate "the integrity of the factfinding process." Rather, it goes to the issue of whether a guilty plea represents "a voluntary and intelligent choice among the alternative courses of action open to defen- dant." North Carolina v. Alfred (1970), 400 U.S. 25, 91 S.Ct. The following decisions of the Montana Supreme Court have denied retroactive effect to a subsequent decision altering the law of criminal procedure: State v. Chappel (1967), 149 Mont. 114, 423 P.2d 47; Petition of Jones (19661, 148 Mont. 10, 416 P.2d 540. The United States Supreme Court has denied retro- active application in the following cases: Johnson v. New Jersey (1966), 384 U . S . 719, 86 S.Ct. 1772, 16 L.Ed.2d 848; Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601; Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Mapp v. Ohio (19611, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d. 108, 84 ALR2d 933. Other state court decisions denying retroactivity include: People v. Gonzales (1977) I Colo. , 565 P.2d 945; State v. Pierson t1977), 22 Ran. 498, 565 P.2d 270, cert.den. 434 U.S. 868, 98 S.Ct. 207, 54 L.Ed.2d 145; Wood v. Morris (1976), 87 Wash.2d 501, 554 P.2d 1032; State v. Stenrud (1976), 113 Ariz. 327, 553 P.2d 1201; King v. State (Okla. 1976), 553 P.2d 529; Hagenios v. Warden (1975), 91 Nev. 328, 535 P.2d 790. The equity of retroactive application indicates that it should not be applied. This conclusion is based on the facts of this case as well as the decisions heretofore cited. For these reasons we hold that the rule announced in State v. Azure, supra, shall not be retroactively applied. The petition is denied. Chief Justice | July 11, 1979 |
ae5a74bf-d344-4a1e-b93c-4bb4a7c5d28f | MATTER OF SAVINGS LOAN ACTIVITIES | N/A | 14277 | Montana | Montana Supreme Court | N o . 14277 I N T H E SUPREME C O U R T O F THE STATE O F M O N T A N A I N THE M A T T E R O F THE APPLICATION F O R AUTHORITY T O C O N D U C T SAVINGS AND L O A N ACTIVITIES I N THE STATE O F M O N T A N A BY G A T E CITY SAVINGS AND L O A N ASSOCIATION O F FARGO, N O R T H DAKOTA. Appeal from: D i s t r i c t Court o f t h e F i r s t J u d i c i a l D i s t r i c t , Honorable L. C. Gulbrandson, Judge p r e s i d i n g . Counsel of Record: For Appellants: Hooks and Budewitz, Townsend, Montana P a t r i c k F. Hooks argued, Townsend, Montana S c o t t , L i n n e l l , N e i l l and Newhall, Great F a l l s , Montana Kenneth N e i l l argued, G r e a t F a l l s , Montana Loble and Pauly, Helena, Montana P e t e r Pauly argued, Helena, Montana er - n , G P S & F - - a - & - E a U s 7 lhlontana For Respondents: Church, H a r r i s , Johnson and W i l l i a m s , Great F a l l s , Montana Charles Love11 argued, Great F a l l s , Montana Cannon and G i l l e s p i e , Helena, Montana R o s s W. Cannon argued, Helena, Montana Alexander, Kuennlng, M i l l e r and Ugrin, Great F a l l s , Montana Edward Alexander argued, Great F a l l s , Montana Submitted: February 1 4 , 1979 \ ! U L ~ 1975 F i l e d : Decided : JUL 3 1979 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Gate City Savings and Loan Association of Fargo, North Dakota ("Gate City") and Fidelity Savings and Loan Association of Great Falls, Montana ("Fidelity") appeal from judgment of the Lewis and Clark County District Court in a proceeding for judicial review of an administrative hearing before the Department of Business Regulation ("Department"). The District Court reversed the Department's approval of a proposed merger between Gate City and Fidelity because the statute governing merger of building and loan associations, section 7-113.2, R.C.M. 1947, now section 32-2-231 MCA, (formerly section 7-113(22), R.C.M. 1947) contained an unconstitutional delegation of legislative power. For the reasons set forth below, we affirm. The facts leading to this appeal are as follows: In 1972 Gate City applied to the Director of the Department of Business Regulation ("Director") for approval to merge with Fidelity and with Glendive Building and Loan Association of Glendive, Montana ("Glendive"). The application for merger was made pursuant to section 7-113(22), R.C.M. 1947, which provided: ". . . Any two (2) or more building and loan associations, & and with the consent - and approval -- of the superintendent of banks, [now known as the Director of the ~epartment of Business Regulation] may consolidate and unite and become incorporated in one (1) body, with or without any dissolution or division of the funds or property of any such association, or any such association may transfer its engagements, funds and property to any like association upon such terms as may be agreed upon by a majority vote of the respective board of directors, and ratified by a two-thirds (2/3) vote of the shares present and voting in person or by proxy at a special meeting or meetings of the stockholders of the respective associations convened for that purpose, upon notice given as provided by law, said notice to state the object of the meeting. No such transfer shall prejudice any right of any creditor of such association." (Emphasis and bracketed material added.) (This statute in its current, amended form is found at section 7-113.2, R.C.M. 1947, now section 32-2-231 MCA. For purposes of t h e i s s u e s considered h e r e i n , t h e amended version is i d e n t i c a l t o s e c t i o n 7-113 (22). ) Being uncertain on how t o t r e a t t h e proposed merger a p p l i c a t i o n , t h e Director requested an opinion from t h e S t a t e Attorney General. O n October 3, 1972, t h e Attorney General issued a formal opinion t h a t Montana law p r o h i b i t s t h e proposed merger because operation of branch o f f i c e s i n t h i s S t a t e by f o r e i g n savings and loan a s s o c i a t i o n s i s .forbidden. 34 Op. A t t ' y . Gen. No. 53 (1972). The Department t h e r e f o r e denied Gate C i t y ' s a p p l i c a t i o n f o r merger. Shortly t h e r e a f t e r , Gate City commenced a d e c l a r a t o r y judgment a c t i o n i n Lewis and Clark County D i s t r i c t Court seeking s t a t u t o r y construction of s e c t i o n 7-113(22) i n l i g h t of t h e proposed merger and t h e Attorney General's opinion. Glendive and F i d e l i t y were joined a s p l a i n t i f f s and t h e Director was named a s t h e defendant. The Montana Savings and Loan League, F i r s t Federal Savings and Loan Association of Great F a l l s , Montana, and Great F a l l s Federal Savings and Loan Association of Great F a l l s , Montana ( h e r e i n a f t e r "opponents") intervened i n opposition t o the proposed mergers. O n January 23, 1974, t h e D i s t r i c t Court overturned d e n i a l of Gate C i t y ' s a p p l i c a t i o n . The Director and opponents appealed and t h e judgment was affirmed by t h i s Court i n G a t e City v. P i t t s (1975), 1 6 6 Mont. 4 1 1 , 533 P.2d 1083. Gate C i t y reapplied t o t h e Department, and t h e Director held a prehearing conference f o r t h e purpose of "defining i s s u e s , determining witnesses and agreeing upon s t i p u l a t i o n s . " The r e p o r t of t h i s prehearing conference shows t h a t "counsel f o r t h e various p a r t i e s and t h e department were unable t o reach any s i g n i f i c a n t agreement as t o what c o n s t i t u t e s t h e exact i s s u e s . " The Department nonetheless s t a t e d i t s p o s i t i o n t h a t "since t h e r e are no specific statutory guidelines the issues involved are necessarily broad." The Department refused to adopt the various specific criteria proposed by the opponents. The only substantive criteria stated was whether it would be in the public interest to grant or deny the proposed mergers. Hearings began on September 23, 1975 and lasted a total of seven days. The Director finally issued his lengthy findings, conclusions and order on July 19, 1976 wherein he concluded that the proposed merger of Gate City and Fidelity was in the public interest but the proposed merger of Gate City and Glendive was not. The Department therefore approved the Gate City/Fidelity merger and disapproved the Gate City/Glendive merger. Inquiries were made on if and when petitioners for rehearing would be entertained. The Department responded on August 11, 1976 with a detailed time schedule for petitions, briefing and argument. All specified deadlines were followed by both opponents and applicants, Gate City and Fidelity. The Department denied the petitions for rehearing on November 1, 1976. On November 30, 1976, opponents brought the present suit for judicial review of the Department's findings and conclusions in Lewis and Clark County District Court. Gate City, the Director and Fidelity all filed responses to the petitions for judicial review that did not question the timeliness of the petitions, but rather contended that the opponents' petitions failed to state any of the grounds prescribed in section 52-4216(7), R.C.M. 1947, now section 2-4-704(2) MCA, for reversal or modification of the Department's rulings. After extensive briefing and oral argument, the court issued an order reversing the Department's ruling insofar as it purported to approve the proposed merger of Gate City and Fidelity. The Department's ruling was reversed on the ground that the statute permitting such mergers, section 7-113.2, -4- contained an unconstitutional delegation of legislative power to the Department by reason of a lack of statutory standards to guide its discretion. The court also stated "even if it be assumed that the legislative oversight might have been cured by the administrative agency, it is plain that such was not accomplished here." Gate City and Fidelity appeal from this order and present the following issues for our consideration: (1) Whether the District Court erred in ruling that opponents' petitions for judicial review were timely filed under section 82-4216 (2) (a), R.C.M. 1947, now section 2-4-702 (2) (a) MCA. (2) Whether opponents were estopped from challenging the constitutionality of section 7-113.2, R.C.M. 1947, now section 32-2-231 MCA. (3) Whether the District Court erred in holding section 7-113.2 constitutes an unconstitutional delegation of legislative power due to the absence of standards. (4) If an agency may supply appropriate standards in the absence of statutory standards, were adequate standards provided here? Gate City, alone, insists this case can be decided on a nonconstitutional ground; that the District Court was without jurisdiction because the opponents' petitions for judicial review were not timely filed in accordance with section 82-4216(2)(a), R.C.M. 1947, now section 2-4-702 (2) (a) MCA. In pertinent part, this statute provides: "Proceedings for review shall be instituted by filing a petition in district court within 30 days after service of the final decision of the agency or, if a rehearing is requested, within 30 days after the decision thereon." Gate City argues that this provision does not create a right to petition for rehearing; it merely accomodates such right where adopted pursuant to administrative rulemaking procedure. Gate City relies on Koehn v. State Bd. of Equalization (Cal.App. 1958), 333 P.2d 125, 128 for the "general rule" that an administrative agency has no inherent power to rehear its decision. While this may be the general rule in California, it is not nationally. See, 73 C.J.S. Public Administrative Bodies and Procedure 8156, n. 82; Annot., 73 A.L.R.2d 939. The - annotation summarizes: "Some authorities have expressed the view that, like a court of general jurisdiction, an administrative agency exercising functions of a judicial nature has the inherent power to grant a rehearing or otherwise to reconsider a previous decision. Other authorities deny the existence of such power and proceed on the theory that the power does not exist, in the absence of specific statutory authority. An intermediate position is taken by those authorities which consider the controlling statute as a whole with a view to determining whether it was the intention of the legislature to confer the power of reconsideration upon the agency." (Footnotes omitted.) 73 A.L.R.2d at 942-43. Notably, even the California court more recently stated that all administrative bodies have inherent power to reconsider their decisions unless it is such that it may not be set aside or unless reconsideration is precluded by statute. In Re Fain Thus far, this Court has not ruled on whether an admin- istrative agency has inherent power to reconsider its decision. The facts of the instant case do not require that we do so. The Department's final decision and order of July 19, 1976 stated: "You are entitled to judicial review of the Final Decision and Order pursuant to and in accordance with the provisions of section 82-4216, R.C.M. 1947." On August 11, 1976, the Department responded to inquiries about possible rehearing by issuing a detailed time schedule for petitions, briefing and argument. Gate City participated in opposing the petitions for rehearing and did not raise the jurisdictional issue cited here. Its position at that time was stated in its brief in opposition to rehearing as follows: "While section 82-4216, R.C.M. 1947, indicates that a rehearing may be requested, we submit that it is within the sound discretion of the agency decision-maker, in this instance the Director of the Department, as to whether or not to grant any such rehearing." It seems Gate City interpreted section 82-4216(2) (a) as creating a right to petition for rehearing (as did opponents and the Department). Given this factual matrix and the language of section 82-4216(2) (a), the District Court did not err in concluding that the opponents' petitions for judicial review were timely. Under issue two, Gate City contends opponents are estopped from challenging the constitutionality of section 7-113.2 for their failure to raise the issue when it first came before this Court in Gate City v. Pitts, supra. Although not mentioned, Gate City is apparently referring to the doctrine of res judicata by which all questions that might have been litigated under the issues formed (as well as those actually adjudged) in a prior appeal must be taken as at rest forever. 5B C.J.S. Appeal and Error 81822; Phalen v. Rilley (1970), 156 Mont. 91, 475 P.2d 998. Here, it is important to bear in mind the nature and scope of proceedings leading to this and the prior appeal. The 1972 proposed merger was denied on the basis of an Attorney General's opinion that foreign savings and loan associations are prohibited from merging with domestic associations. Gate City sought declaratory judgment in District Court for construction of section 7-113(22), R.C.M. 1947, in light of their application and the Attorney General's opinion. It was the District Court's decision, reversing the Department's ruling, that was appealed by the Director and joined in by the opponents. On the appeal, the scope of review was limited to correction of errors committed by -7- the District Court (See, section 93-8907, R.C.M. 1947, now section 27-8-312 MCA, and Rule 2, Mont.R.App.Civ.P.), and Gate City framed the issue. That issue was the scope of section 7-113(22), not its implementation in a particular case. Constitutional issues should generally be raised at the earliest opportunity. Johnson v. Doran (1975), 167 Mont. 501, 511, 540 P.2d 306, 311. Here, the earliest opportunity was in 1975, when the Department first implemented the provision in the manner giving rise to the constitutional challenge. Gate City also argues that opponents are estopped from questioning the constitutionality of section 7-113.2 by actively supporting passage of the statute during the 1977 legislative session. The 1977 amendment to section 7-113.2 had no bearing on the constitutionality of that portion of the provision granting the Department power to approve or disapprove applications for merger. As already indicated, section 7-113.2, enacted in 1977, only changed section 7-113(22) to the extent that it restricted applications for merger to domestic savings and loan associations. There is nothing inconsistent in opponents' support of a statutory amendment precluding merger by foreign savings and loan associations and the present constitutional challenge. The dispositive issue in this case is whether section 7- 113.2, R.C.M. 1947, now section 32-2-231 MCA, contains an unconstitutional delegation of legislative power. The central theme of Gate City's and Fidelity's argument against finding section 7-113.2 an unconstitutional delegation of legislative power is that the trend is away from requiring that statutory standards or guides be specified and toward finding the establish- ment of procedural safeguards sufficient for constitutional purposes. While this may be the trend under federal law and in some states, it is not Montana's position. - 8- All the cases dealing with the nondelegation doctrine in Montana have done so with respect to the Montana Constitution. Article 111, section 1, of the 1972 Montana Constitution (formerly Article IV, section 1, 1889 Montana Constitution) specifically states: ". . . Separation of powers. The power of the sovernment of thisstate is divided into three J distinct branches--legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted." Two recent cases clarify what is and is not an overly broad delegation of legislative power in Montana. In Douglas v. Judge (1977), Mont . , 568 P.2d 530, 34 St.Rep. 975, a statute authorizing the Department of Natural Resources to make loans to farmers and ranchers who proposed "worthwhile" renewable resource development programs was held to be insufficient under the test set out in Bacus v. Lake County (1960), 138 Mont. 69, 354 P.2d 1056. The Court articulated the test by quoting the following excerpt from Bacus: "In the case of State v. Stark, 100 Mont. 365, 371, 52 P.2d 890, 892, this court has stated: "'Delegation of power to determine who are within the operation of the law is not a delegation of legislative power.. . . But it is essential that the Legislature shall fix some standard by which the officer or board to whom the power is delegated may be governed, and not left to be controlled by caprice. ' "We agree w further by broad that rith this statement of the law and go saying that the standard must not be so the officer or board will have unascer- tainable limits within which to act." Douglas v. Judge, 568 P.2d at 534 (quoting Bacus v. Lake County, 354 P.2d at 1062.) In State ex rel. Department of Health and Environmental Sciences v. Lincoln County (1978), Mont. , 584 P.2d 1293, 35 St.Rep. 1402, the Clean Air Act, which authorized the Depart- ment of Health and Environmental Sciences to establish limits on pollutant emissions and to prohibit facilities causing or contributing to air pollution, was held - not to be an unconstitutional delegation of legislative power. This Court stated: "While the powers of the Board are expressed in broad and general language, they necessarily must be as air pollution control is an emerging field of environmental protection for which detailed and precise standards have not yet been fully developed." State Dept. of Health and Environmental Sciences v. Lincoln County, 584 P.2d at 1296. The instant case presents a delegation of legislative power that provides no standards or guidelines either expressed or otherwise ascertainable. There is nothing in the statute "to enable the agency to know its rights and obligations." Huber v. Groff (1976), 171 Mont. 442, 457, 558 P.2d 1124, 1132 (quoting Milk Control Bd. v. Rehberg (1962), 141 Mont. 149, 161, 376 Gate City attempts to characterize the statute as within the qualification enunciated in Altop v. City of Billings (1927), 79 Mont. 25, 35, 255 P. 11, 14: ". . . that where it is impracticable to lay down a definite or all-comprehensive rule, or where the ordinance relates to the administration of a police regulation and is necessary to protect the general welfare, morals and safety of the pub- lic, it is not essential to the validity of the ordinance that it prescribe all the conditions upon which such license shallbeyanted or refused." (Emphasis added.) However, the statute in the instant case provides absolutely no standards, guides or conditions. Gate City also argues that the ascertainable standards are that the merger be made "upon terms agreed upon by a majority vote of the respective board of directors, and ratified by a two-thirds vote" of the shareholders (section 7-113.2). This contention ignores the clear meaning of the statute. The majority vote ratification requirement and the approval of the Department requirement are obviously independent prerequisites for merger. -10- Finally, Gate City urges that any constitutional infirmity in the statute was cured by the Department's supplying appropriate standards to govern the hearing. Relying on S.E.C. v. Chenery Corp. (1947), 332 U.S. 194, 91 L.Ed. 1995, 67 S.Ct. 1575, Gate City argues that in unforseeable situations involving a statutory delegation of legislative power, determination on an ad hoc or case-by-case basis is appropriate. In Chenery, the contention was thatthe agency could not apply a general standard it had formulated for the first time in that proceeding, but instead, must promulgate new standards through its rulemaking procedures. See, N.L.R.B. v. Bell Aerospace Co. (1974), 416 U.S. 267, 292, 40 L.Ed.2d 134, 153, 94 S.Ct. 1757, 1770. Thus, Chenery more closely resembles Altop v. City of Billings, supra, where at least some standards were provided by the legislature. Here, however, we find no - statutory standards or guidelines from which the Department could extra- polate new ones. Indeed, the preliminary prehearing conference report shows that the opponents desired ad hoc formulation of standards sufficient to apprise them of the relevant issues before the hearing. The only standard announced was "public interest." It was only after the hearing, when the Department issued its fkdings and conclusions that the substantive meaning of that term was clarified. Section 7-113.2, R.C.M. 1947, now section 32-2-231 MCA, contains an overly-broad delegation of legislative power and is hereby declared unconstitutional. We Concur: Justices -11- | July 3, 1979 |
11cdf381-45d4-4774-abb4-038d6e34fb22 | SWANSON v ST JOHN S LUTHERAN HOSP | N/A | 14304 | Montana | Montana Supreme Court | No. 14304 I N THE SUPREME C m O F THE STATE O F MONTANA Plaintiff an3 Appellant, ST. JOHN'S LUTHERAN HOSPITAL, a Mntana Corporation, Defendant a n d Respondent. Appeal frm: D i s t r i c t Court of the Nineteenth Judicial District, Honorable Ibbert M. Holter, Judge presiding. Counsel of Record: For Appllant: Fennessy , Crocker and Harman, Libbv, blontana David Harman argued, Libby, Wntana Jean Galloway Koreski argued, Washington, D. C. For Respondent: Lawrence H. Sverdrup, Libby, Ebntana Smith L a w Fixm, Helena, Mntana Cha6wic.k Smith argued, Helena, Fbntana Filed: - j U N 1 3 5979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. This is an appeal from the District Court, Nineteenth Judicial District, Lincoln County, on a judgment against Marjorie C. Swanson who was discharged from her employment as a nurse-anesthetist at St. John's Lutheran Hospital in Libby. She brought her action in the District Court upon the ground that she had been wrongfully dismissed from her employment because she had asserted her rights under former section 69-5223, R.C.M. 1947, now section 50-5- 502 through -505 MCA. Former section 69-5223, has been referred to in briefs before this Court, as it was during its legislative history, as the "conscience statute". For ease of reference, we will use that term here, although the Court implies nothing by the use of that term. The conscience statute defined certain rights of medical persons who are confronted with sterilization procedures as a part of their employment. Specifically, the conscience statute includes these provisions: "(2) All persons shall have the right to refuse to advise concerning, perform, assist, or participate in sterilization because of religious beliefs or moral convictions. If requested by any hospital or health carefacility, or person desiring sterilization, such refusal shall be in writing signed by the person refusing, but may refer generally to the grounds of 'religious beliefs and moral convictions'. The refusal of any person to advise con- cerning, perform, assist, or participate in sterilization, shall not be a consideration in respect to staff privileges of any hospital or health care facility, nor a basis for any discriminatory, disciplinary, or other recriminatory action against such person, nor shall such person be liable to any person for damages allegedly arising from such refusal. "(3) It shall be unlawful to interfere or attempt to interfere with the right of refusal authorized by this section, whether by duress, coercion or any other means. The person injured thereby shall be entitled to injunctive relief, when appropriate and shall further be entitled to monetary damages for injuries suffered." The Court notes parenthetically that the legislature adopted virtually the same provisions with respect to abortion procedures in former section 94-5-620, R.C.M. 1947, now section 50-20-111 MCA. The two-fold purpose of the conscience statute is plain: (1) It mandates that no person can be compelled to participate in sterilization against his moral or religious principals; (2) It prohibits firing any person for refusing to participate in sterilization on such grounds. The law is statewide in its effect, embracing as well the largest metropolitan hospitals and clinics and the smallest hospital or medical office in Montana. Marjorie Swanson is a Certified Registered Nurse- Anesthetist (CRNA) who was employed by the hospital for eight years prior to discharge in her professional capacity as a nurse-anesthetist. In the four years preceding August 1977, she had assisted professionally in twenty surgical procedures that involved sterilizations and in the year preceding August 1977, six such procedures. On August 19, 1975, she assisted professionally in a surgical procedure that was listed on the surgery schedule in the hospital as a "D and C", a dilatation and curettage. Immediately prior to the operation, in examining the chart of the patent, she had discovered that an abortion permit was required by the hospital medical staff for this particular procedure. Nevertheless, she went ahead professionally and gave anesthetic to the patient. During the course of the procedure she observed that a human fetus was removed from the uterine lining of the patient, part by part, by the use of instruments. Her observation of the dissection and removal of the fetal tissue caused her to be "horrified and very upset". August 19, 1977 was a Friday. Over the weekend, she learned that a procedure described as a bilateral part- salpingectomy, a tubal ligation, was scheduled for Tuesday, August 23, 1977. The operation had been listed on the surgical schedule posted by the hospital on August 10, 1977, but the anesthetist first became aware of it over the weekend immediately preceding the Tuesday operation date. On Monday, August 22, 1977, at about 10:OO a.m., she advised the administrator of the hospital, Dan Wigart, that she would not participate in the tubal ligation, which is a sterilization procedure. The administrator "tried to convince [her] that [she] could participate in it". He also indicated that she should be able to assist at therapeutic abortions. Wigart asked her to withhold making a final decision until he had spoken to her local priest, and she said she would also speak to him, although Wigart reported "she did have a sense of finality in it at that time." Rev. Charles Strom testified that on the afternoon of August 22, at about 3:00 p.m. he was approached by Dan Wigart who asked him for his help and "sounding out about her attitude on sterilization". In fact, Dan Wigart testified in part: ". . . She repeated two or three times 'If I have to resign, I will. But I am not going to do tubal ligations.' I asked her to give me some background on this. I asked her to withhold her final decision until I talked to Father Strom and Dr. Seifert, and also the two physicians who were involved in the D & C. I made every attempt to try to reduce her anxiety about the procedure. I felt that there were other factors that were bothering her. And I hoped that Father Strom would have talked to her and supported her from the standpoint that participation in a tubal ligation does not represent direct participation. This is something that Dr. Seifert and I had talked about that same morning." At 7:00 p.m. that evening, Marjorie Swanson called Wigart and informed him that her mind was made up and she was not going to participate in tubal ligation. Thereupon Wigart obtained the services of a nurse- anesthetist from Bonners Ferry, Idaho, and the surgery went ahead as scheduled. At 4:30 p.m. on August 23, 1977, Wigart telephoned Marjorie Swanson at her home and informed her that she was discharged from her position as nurse-anesthetist at the hospital. She requested that he give her a written statement of the reasons for her discharge. He did so, sending her a letter in full as follows: "23 August 1977 "Marjorie Swanson "Rt 2, Box 556 "Libby MT 59923 "Dear Marj : "This is to confirm our telephone conversation of August 23, 1977 wherein I informed you that St. John's Lutheran Hospital will continue to pay your salary for two weeks until September 6, 1977 at the usual rate. "I sincerely regret having to terminate your services. However, your untimely refusal to perform customary and needed services puts me in a position where I have few viable alternatives. "I wish you the very best in all future endeavors and I will pray that God leads you in a direction in which you can perform satisfactorily and grow as an individual within the limits of your conscience. "Sincerely, "Dan Wigart" No request was made by the hospital, nor by the person desiring sterilization, that Marjorie Swanson state in writing her grounds for refusal. At the trial, when asked upon what basis she did not wish to participate in the tubal ligation, she replkcl, "on moral and religious grounds". After her discharge, appellant was paid by the hospital from August 23, 1977 through September 6, 1977 representing two weeks pay. On Wednesday, August 24, 1977, Wigart, in his office, told Nurse Marlys Mongan, an employee of the hospital, that the dismissal of Marjorie Swanson was upsetting to him "because in the last three months he thought Marge had really come along as being a good team member". On Wednesday evening, August 24, 1977, at a nurses meeting, Wigart said, "Marge had refused to give anesthetic for a tubal ligation that was scheduled on Tuesday morning and that he had no alternative but to give her two weeks notice." He stated no other reasons for her dismissal. In a subsequent conversation with Rev. Strom, either on Thursday, Thursday, August 25 or/september 1, 1977, Wigart indicated his feelings toward the state law concerning sterilization. Rev. Strom testified: "During those two conversations Dan Wigart first advised me about his experience in California. His experience with a union and then went into the idea that he changed his mind about the going for the union doings, and that he now was very conservative and certainly was not union minded. And he saw the state law in the same category, and that it was his job to not let unions or state laws interfere with the operation of the hospital. " Marjorie Swanson filed her complaint against the hospital on September 13, 1977, alleging that she had been discharged because of her refusal to participate in the sterilization procedure. Defendant filed its answer on November 22, 1977, and trial was had before the court, sitting without a jury on February 15, 1978. On April 5, 1978, the court entered its findings of fact and conclusions of law ruling against plaintiff Swanson. On April 11, 1978, Swanson moved to amend the findings of fact and conclusions of law and judgment or in the alternative for a new trial and these motions were denied on April 13, 1978. Timely notice of appeal was filed on April 17, 1978. Swanson presents four issues for review: 1. The District Court finding that Swanson was an "employee of questionable value" is irrelevant and against the evidence. 2 . The District Court erred in concluding that Swanson, having participated in sterilization procedures in the past was precluded from refusing to participate on August 22, 1977. 3. The District Court erred in concluding that Swanson's rights under the conscience statute are outweighed by her employer's necessities, and her inability to maintain herself as an effective employee. 4. The District Court erred in holding that Swanson was required to cite her reasons for nonparticipation of the sterilization procedure at the time of her refusal. THE ISSUE THAT SWANSON WAS "AN EMPLOYEE OF QUESTIONABLE - - - VALUE " In its finding no. 5, the District Court found that Swanson was an employee of "questionable value" to the hospital for several reasons, including (a) when Swanson did not get the raise she expected, she did not talk to the administrator "for a day" and informed the administrator that he could find another anesthetist; (b) that Swanson abrasively handled a situation involving blood supplied from the hospital laboratory outside of the scope of her duties, causing disharmony; (c) Swanson argued about proceeding with a tonsillectomy procedure in such a manner as to upset the physician and cause disharmony; (d) it was constantly necessary for the administrator to assure Swanson that she was a "team member" capable of holding up her end of the hospital work; (e) the hospital had difficulty with Swanson because she made excessive demands, had difficulties with other employees, failed to recognize authority, refused to stay with patients recovering from anesthesia and naintained outdated drugs; and (f) in order to effectively operate a hospital, it is necessary that harmony prevail and that the staff act as a team and that Swanson did not so act. All of the foregoing reasons utilized by the District Court to determine that Marjorie Swanson was an employee of questionable value were irrelevant, because they were outside of or not included in the August 23, 1977 letter of Wigart to Swanson stating the reasons for her discharge. The letter had been delivered in accordance with the demand of the discharged employee. Under section 41-1311, R.C.M. 1947, now section 39-2-801 MCA, upon such demand, the employer must furnish to the discharged employee a "full, succinct and -8- complete reason of discharge". The letter of August 23, 1977 was the employer's compliance with that statute. The writing required of the employer by former section 41-1311 is known as a "service letter" (51 C.J.S. Labor Relations, 815, p. 588). A statute such as former section 41-1311 becomes a part of any employment contract entered into by an employer and an employee in the State of Montana. Brinks Inc. v. Hoyt (8th Cir. 1950), 179 F.2d 355, 358. The wording of such service letter statutes varies from state to state, but generally it is held that such a statute requires valid, clear and true reasons for the discharge, or a statement of the "real, honest and factual" reasons. Cumby v. Farmland Industries, Inc. (Mo.App. 1975), 524 S.W.2d 132, 135. Where, as in Montana, the purpose of the statute is to prevent "blacklisting", it is our duty to interpret former section 41-1311 requiring a "full, succinct and complete" statement to mean exactly what it says. Therefore, in the case at bar, the only reason which could be considered by the District Court was the reason set forth in the letter of August 23, 1977, her "untimely refusal to perform customary and needed services." The other reasons found by the District Court that made the employee one of questionable value were irrelevant because those reasons were not contained in the August 23, 1977 letter defining the reasons for her discharge. Moreover, the finding by the District Court of other reasons for her discharge not set out in such letter are not supported by the evidence. The finding that Marjorie Swanson did not get the raise she expected in April 1977, that she did not talk to the administrator and that she informed him he could find another anesthetist, is based on evidence to which an objection was sustained by the District Court during the trial. It is not a part of the record. The clear weight of the evidence relating to the situation involving blood from the laboratory is on Marjorie Swanson's side. The attending physician, in a surgical procedure, had ordered whole blood and instead, the laboratory sent packed cells. Because she objected that the laboratory was not following the physician's orders, eventually the laboratory began sending whole blood as ordered. Her objection may have caused disharmony with the laboratory, but she felt it was within her professional competence to alert the staff about the problem. She is not to be blamed for alerting the hospital to a disregard of the doctor's orders. The finding relating to the tonsillectomy procedure is again not based on the evidence. In this case, the patient had an elevated temperature and as an anesthetist, she refused to be responsible for administering anesthetic to a patient in that condition. This was completely within her competence. When she refused to go along with that procedure unless the hospital would accept the responsibility, the administrator of the hospital refused to accept it, under the undisputed evidence. Moreover, these incidents all occurred in October or November 1976, except for her pay raise dispute which occurred in April 1977. As to the general findings of the court that Marjorie Swanson made excessive demands, had difficulties with other employees, failed to recognize authority, refused to stay with patients recovering from anesthia, and maintained outdated drugs, none of these are supported by the evidence. Her only demands related to her wage negotiation; the only employee of the hospital appearing to testify, testified in her favor; Swanson recognized the authority of the admini- strator and of the doctors by becoming a good team member; and the questions with respect to patients recovering from anesthia and maintaining outdated drugs were refuted by her. No other evidence was produced of any kind by the hospital to indicate that answers to the line of questioning addressed to her on those points were otherwise than what she answered. Finally, the finding that Marjorie Swanson was not a good "team member" is against the clear weight of the evidence. Marjorie Swanson testified that Dan Wigart had told her that she was a good employee, and a good team member; on the day of her firing, Dan Wigart told Rev. Strom, concerning her job performance, that during the past few months she had done a fine job and that they had no complaints, and that she was becoming a good team member. Marlys Mongan, a fellow employee, testified Dan Wigart had told her that in the three months he thought that Marge had really come along as a good team member. But the most telling evidence is the testimony of the administrator himself who said: "Q. During the summer of 1977, say from May, 1977, until the time of Marge Swanson's discharge, did you tell Marge Swanson that she was really a member of the team? "A. Yes, I did. "Q. Did you tell her this on more than one occasion? "A. Yes, I did. "Q. During the summer of 1977, did you ever tell Marge Swanson that she was a good employee? "A. Yes, I did. "Q. Did you tell Marge Swanson that she was a good employee on more than one occasion? "A. Yes. "Q. During the summer of 1977, did you ever tell Marge Swanson that she was doing good work? "A. Yes, I did." When viewed against the state of the record, the finding that Marjorie Swanson was not a good "team member" cannot stand. Finally, however, the findings of the District Court citing other reasons for her discharge cannot stand in the face of the overwhelming evidence that the single and only reason for her discharge was her refusal to parti- cipate in a tubal ligation. In addition to all of the events and actions by the administrator surrounding plaintiff's discharge that we have set forth above in stating the facts of this case, there is the testimony of the admini- strator that had she participated in the sterilization --- -- procedure, she would not --- have been discharged. Therefore, regardless of any other reasons that may have existed for her discharge, and had they existed, it is nevertheless true that she was discharged on August 23, 1977, for her refusal to participate in a tubal ligation, a sterilization procedure. Her discharge constitutes a violation of former section 69-5223. Another factor in this connection is that in April 1977 the contract of employment of Marjorie Swanson was renewed. The renewal took place after the events which are now claimed as reasons for her dismissal. Not only was her contract renewed, but she was given a substantial raise of $1,000 (true, she had demanded more). Her renewal in that manner, without warning of the necessity of improvement, or any indication of dissatisfaction with her past services, shows that there is little substance to the now claimed reasons for her discharge. Where there is no substantial basis for District Court findings and if a clear and satisfactory showing is not made to support the findings, this Court will set such findings aside. Magelssen v. Mouat (1975), 167 Mont. 374, 538 P.2d 1015, 1019; Kasala v. Kalispell Pee Wee Baseball League (1968), 151 Mont. 109, 439 P.2d 65, Judson v. Anderson (1945), 118 Mont. 106, 165 P.2d 198. Both parties cite the United States Supreme Court case of Mt. Healthy City School District Board of Education v. Doyle (1977), 429 U . S . 274, 97 S.Ct. 568, 50 L.Ed.2d 471, in support of their positions. Our examination of this case leads us to the conclusion that it bolsters Marjorie Swanson's case. In Mt. Healthy, Doyle an untenured teacher, had previously been involved in an altercation with another teacher and in arguments with cafeteria employees, swearing incidents with students, the making of obscene gestures, and had conveyed through a telephone call to a local radio station, the substance of a new school rule relating to the dress code of teachers. Thereafter, adopting a recommenda- tion from the superintendent, the School Board advised respondent that he would not be rehired, citing his lack of tact in handling professional matters with specific mention of the radio station and the obscene -13- gesture incident. Doyle brought an action against the School Board for reinstatement or damages claiming that the refusal to rehire him violated his rights under the First and Fourth Amendments. The Federal District Court found that the telephone call was clearly protected under the First Amendment and that because it played a substantial part in the School Board's decision not to rehire Doyle, Doyle was entitled to reinstatement with back pay. The District Court was affirmed by the court of appeals, Doyle v. Mt. Heale City School District Board of Education (1975)~ 529 F.2d 524. The United States Supreme Court vacated the decision and remanded the case upon the ground that the constitutionally-protected conduct may not have played a substantial part in the decision not to rehire the teacher and amounted to a constitutional violation justifying remedial action. The Supreme Court required that the District Court should go on to determine whether the Board of Education had shown by a preponderance of the evidence that it would have reached the same decision even in the absence of protected conduct of the teacher. 429 U.S. at 287. Applying the rationale of the Mt. Healthy decision to the case at bar, it is clear from the testimony of the administrator, Dan Wigart, that Marjorie Swanson would not have been discharged in the absence of her refusal to participate in tuba1 ligations, which is protected conduct under former section 69-5223. There is no question in this case that the claimed reasons found by the District Court were not sufficient in August 1977 to bring about her discharge, as far as the employer was concerned; there is also no question that her refusal to participate in the sterilization did bring about her discharge. As a matter of fact, under the rationale of Mt. Healthy, once Marjorie Swanson established that her discharge was brought about in -14- substantial part by her refusal to participate in the sterilization, it then became the burden of the hospital to prove by a preponderance of the evidence that it would have discharged her without the exercise of her protected conduct. The hospital did not meet this burden under the state of the record. SWANSON'S PARTICIPATION IN PAST STERILIZATIONS -- The second issue we discuss is whether Marjorie Swanson is precluded from refusing to participate in sterilization procedures by reason of her past participation in such procedures. The hospital argues that because she had participated in the past, her refusal on August 22, 1977 to participate further demonstrated she had "flexible" religious principles and scruples. Because we are interpreting this statute for the first time and as far as we can determine, no other court has interpreted such a statute, we have no guidelines by way of legal precedent on this argument. Former section 69-5223 makes no differentiation with respect to the right of refusal and it is "unlawful to interfere or attempt to interfere with the right of the refusal authorized" by the section, Given the propensity of the human conscience to define its own boundaries and the fact that such boundaries might be widened or limited by experience, it seems natural that a person's concept of the propriety or morality of a procedure or situation might change from time to time. The right given by the statute is unqualified, irrespective of past participation. WHETHER THE RIGHT TO REFUSE IS OUTWEIGHED BY OTHER --- - -- CONSIDERATIONS The third issue that we address relates to the conclusions of law adopted by the District Court. In both of these conclusions, the District Court determined that Swanson's right to refuse to participate in sterilization was "outweighed" by considerations outside the scope of her conscience. The first conclusion of the District Court was that the right of refusal to participate in sterilization was "far outweighed" by the rights of the hospital under the circumstances of this case to maintain its standards as an effective employer and operator of the only hospital in an isolated geographic area. The District Court bases this conclusion upon its findings that substitute nurse-anesthetists available to replace Swanson must be procured from Bonners Ferry, Idaho, a 55 mile distance or Kalispell, Montana, a 90 mile distance; that such substitutes are employed at other hospitals and available only when their schedules do not conflict; that continual arrangements for substitutes are unacceptable to the hospital because of traveling and scheduling difficulties; that uncertainty results in the hospital as to when a sterilization procedure might be accomplished, that are detrimental to patients; and that the cost of substitutes is greater, and is an additional burden to the hospital and to the hospital patients. By so concluding, the District Court reads into former section 69-5223 provisos that the legislature itself did not see fit to include. Instead, the legislature said, "All - persons shall have the right to refuse . . . to participate in sterilization . . ." The statutory right is unqualified, and it may not be qualified or limited by the District Court on other considerations. It is noteworthy that the hospital does not attack the validity or constitutionality of section 69-5223. By accepting the statute as constitutional, the hospital must accept the statute in the way it is written, which in this case means it applies to "all persons" irrespective of their geographic location and the discomfitures that might result from the exercise of the statutory right. Secondly, the District Court concludes that the right of Swanson under the conscience statute is "far outweighed" by her inability to maintain herself as an effective employee of the defendant. We assume this means that by exercising her right of refusal, the employment duties that Marjorie Swanson would ordinarily perform in the operating room must be handled by someone else in sterilizations and therefore she is not an "effective employee". Again, former section 69-5223 admits of no such limitation or qualification, nor may the statutory rights of Marjorie Swanson be so weighed because to do so would emasculate her statutory rights. WHETHER EMPLOYEE MUST CITE MORAL - OR RELIGIOUS BELIEFS AT THE TIME OF REFUSAL- ---- The fourth issue relates to the finding of the District Court that on August 22, 1977, when Marjorie strator Swanson informed the admini/ that she would not participate in the tuba1 ligation, she "did not cite moral or religious beliefs as controlling her at that time". Aside from the overwhelming evidence that all parties knew at the time why she was refusing to participate, the finding is irrelevant. Under former section 69-5223, she was not required to state her reasons unless "requested by [the] hospital". No such request occurred here. Moreover, if requested, under the statute she could refer generally "to the grounds of religious beliefs and moral convictions". She did this the only time she was asked, during the trial before the District Court. Even upon request, under the statute, she is not required to state the precise commandment, dogma, or tenet that leads to her refusal. The intent of the legislature in so providing is manifest: a person's conscience about sterilization need not be related to any particular religion, cult, or sect, but may be a part of the person's indefinable concept of the an natural law, not easily explained inh-B-c fashion. In like manner, the finding of the Court that neither party may have been aware of the existence of the statute at the time is also irrelevant. If "ignorance of the law is no excuse", neither is it an escape hatch. UNTIMELINESS OF THE REFUSAL -- There is but one remaining factor to discuss with respect to her refusal, that is whether the exercise of that refusal by her was untimely. This is a legitimate issue to examine because it is a ground within the Wigart letter of August 23, 1977, giving the hospital's reason for her discharge. The District Court made no finding or conclusion regarding this factor, except to note that the tuba1 liga- tion had been scheduled by a member of the medical staff on August 10, 1977 for 8:00 a.m. on August 23, 1977 and that on August 22, 1977 at approximately 10:OO a.m. Marjorie Swanson informed the hospital's Nigart of her refusal. Upon being so informed, the hospital administrator did not immediately begin to seek a nurse-anesthetist substitute, although he admits that when he was first informed, he found in her a "sense of finality". Instead he hoped to talk her out of it, apparently, by convincing her that she was not "participating" in the sterilization if she did not wield the instrument. Because of his requested delay - in her decision, she did not finally inform him until approximately 7:00 p.m. In spite of this, however, he was able to obtain the services of a nurse-anesthetist from Bonners Ferry, and the surgery went on as scheduled. Thus, there was no evidence in the record which would support a finding of untimeliness. Sterilization is an elective procedure, at least in this case. There is no showing in the evidence that the hospital was unduly prejudiced, nor the patient was endangered. The attending doctor testified over objection that in his opinion such notice of refusal would not be timely unless given -- at the commencement -- of the employment. This obviously must be rejected because it would lead to the very recrimination that former section 69-5223 was established to prevent. In light of the record therefore, we have no occasion here for us to determine whether in a proper case an untimely notice might outweigh the statutory right of a person to refuse to participate in a sterilization procedure. CONCLUSION AND DISPOSITION We find therefore, that Marjorie Swanson, having a statutory right to do so, validly refused to participate in the sterilization procedure. Having done so, she was entitled to the further protection of the statute that her refusal should not be a consideration in respect to staff privileges nor a basis for any discriminatory, dis- ciplinary or other recriminatory action against her. Her firing because of her refusal is exactly the kind of recrimination that is countermanded by the conscience statute. -19- She would be entitled to reinstatement to her position provided that the term of her employment contract would have continued to the present time. However, it was Marjorie Swanson's contention that her employment by the hospital was for a period of one year, from April 1977 through April 1978. Since that time has passed, we cannot order that she be reinstated to her position. Under section 50-5-504(2) MCA, she is entitled "to monetary damages for injuries suffered". It is the function of the District Court to determine the amount of and kind of monetary damages to which she is entitled. Reversed and remanded to the District Court with instructions to undertake such further proceedings as are necessary to enter a judgment in favor of Marjorie Swanson and to determine the damages she has sustained. Justice M r . J u s t i c e John Conway Harrison dissenting: For purposes of t h i s d i s s e n t , I w i l l discuss t h e i s s u e s i n t h e order presented by appellant. I do n o t q u a r r e l with p l a i n t i f f ' s a s s e r t i o n t h a t , under Montana l a w , a l l persons have t h e r i g h t t o r e f u s e t o p a r t i - c i p a t e i n a s t e r i l i z a t i o n because of r e l i g i o u s b e l i e f s o r moral convictions. However, s e c t i o n 69-5223 ( 2 ) and ( 3 ) , R.C.M. 1947, now s e c t i o n 50-5-504 and -505 MCA, i s invokable only i f o n e ' s r e f u s a l t o p a r t i c i p a t e is, i n t h e s t a t u t o r y language, "because of r e l i g i o u s b e l i e f s o r moral convic- tions." H e r e , t h e r e are a number of inconsistencies i n p l a i n t i f f ' s position. While it i s t r u e t h a t one need n o t hold r e l i g i o u s b e l i e f s o r moral convictions f o r a s p e c i f i e d period of t i m e before enjoying t h e protection of t h e s t a t u t e , i n these circumstances r e l i a n c e on t h e s t a t u t e s t r i k e s a discordant note. For t h e s i x years p r i o r t o her termination, p l a i n t i f f p a r t i c i p a t e d i n 20 s t e r i l i z a t i o n s without objection, includ- i n g s i x such operations i n t h e year p r i o r t o these events. Also, being g r e a t l y upset, as p l a i n t i f f t e s t i f i e d she w a s by t h e August 19 operation, i s a physical and emotional reac- t i o n , b u t not a r e l i g i o u s b e l i e f o r a moral conviction, Assuming arguendo, t h a t a p l a i n t i f f ' s r e f u s a l t o p a r t i c i p a t e i s grounded i n r e l i g i o u s b e l i e f s o r moral convictions, p l a i n t i f f t e s t i f i e d a t t h e hearing so as t o b e l i e t h a t assumption. She t e s t i f i e d t h a t she does n o t have any objec- t i o n t o administering anesthesia f o r an ordinary D&C. This m e r i t s some elaboration i n l i g h t of p l a i n t i f f ' s attempt t o discount her own testimony i n t h i s regard. H e r testimony was t h a t she would have no objection t o admin- i s t e r i n g anesthesia f o r an ordinary D&C. I n her reply b r i e f , she accuses respondent of "misunderstanding" t h e nature and uses of a D&C and states t h a t t h e use of a D&C f o r a therapeutic abortion i s " r e l a t i v e l y minor" compared t o o t h e r ordinary uses of D&C. Respondent h o s p i t a l asserts t h a t a D&C, a s performed a t t h a t h o s p i t a l , i s a therapeutic abortion. P l a i n t i f f had given t h e a n e s t h e t i c i n o t h e r D & C 1 s which apparently w e r e therapeutic abortions and which she, as a medical p r a c t i - t i o n e r , understood t o be j u s t t h a t . P l a i n t i f f t e s t i f i e d she would not o b j e c t t o giving t h e a n e s t h e t i c f o r an ordinary D&C, which c e r t a i n l y may be therapeutic abortion. I f she were upset by t h e D&C, then her r e f u s a l t o p a r t i c i p a t e i n any more D & C 1 s would be understandable; b u t t h a t apparently i s not her position. Another b a f f l i n g inconsistency i s p l a i n t i f f ' s r e f u s a l t o p a r t i c i p a t e i n one s u r g i c a l procedure, s t e r i l i z a t i o n , based on experience with a t o t a l l y d i f f e r e n t s u r g i c a l pro- cedure, d i l a t i o n and curettage. I t would be l o g i c a l l y c o n s i s t e n t f o r p l a i n t i f f t o r e f u s e t o p a r t i c i p a t e i n o t h e r D & C 1 s , b u t her r e f u s a l t o p a r t i c i p a t e i n a t o t a l l y d i f f e r e n t s u r g i c a l procedure: makes a s much sense as saying, "Because I had a bad experience with a tonsilectomy, I w i l l n o t do any more appendectomies." P l a i n t i f f responds t h a t one need n o t hold h i s b e l i e f s o r convictions f o r a p a r t i c u l a r period of t i m e before rea- l i z i n g t h e protection of t h e s t a t u t e , and t h a t one need n o t be aware of t h e existence of t h e s t a t u t e t o enjoy i t s pro- t e c t i o n . Both contentions a r e t r u e , b u t they do n o t m e e t t h e p r i o r problem--was she relying on t h e s t a t u t e a t t h e t i m e of t h e s e events, o r i s t h e r e l i a n c e an after-the-fact means t o g e t t i n g r e i n s t a t e d ? P l a i n t i f f ' s second argument i s improperly advanced. Respondent does n o t c o n t e s t t h e c o n s t i t u t i o n a l i t y of t h e s t a t u t e i n question, and t h e i s s u e was n o t properly pre- served i n t h e lower c o u r t proceedings. To d e a l with t h e t h i r d and f o u r t h arguments, a r e c i t a - t i o n of c e r t a i n of t h e testimony presented during t h e hearing i s necessary. The D i s t r i c t Court determined t h a t " P l a i n t i f f had been an employee of questionable value t o Defendant", o f f e r i n g t h e following reasons i n support of i t s conclusion. Reference w a s made t o an incident during which p l a i n t i f f , who negotiated her own s a l a r y with t h e h o s p i t a l administra- t o r , would not t a l k with him f o r "some period of time" ( a c t u a l l y , one day) a f t e r being refused t h e s u b s t a n t i a l r a i s e she had requested. I n another episode, p l a i n t i f f questioned a delivery made by t h e h o s p i t a l laboratory per- sonnel. I n t h a t incident, p l a i n t i f f became embroiled i n an argument with one of t h e l a b personnel. Another i n c i d e n t t o which t h e D i s t r i c t Court a l l u d e s i s t h a t i n which plain- t i f f refused t o administer a n e s t h e t i c s f o r a tonsilectomy when t h e p a t i e n t had an elevated temperature. P l a i n t i f f r e g i s t e r e d her complaint with Wigart, t h e h o s p i t a l adminis- t r a t o r , who concurred i n her decision, t e s t i f y i n g t h a t " i n t h a t p a r t i c u l a r instance t h e s a f e s t approach was t h e best." The D i s t r i c t Court a l s o found t h a t " i t was constantly necessary f o r t h e administrator t o assure p l a i n t i f f she, indeed, w a s a ' t e a m member' capable of holding up her end of t h e h o s p i t a l work." The testimony on t h i s p o i n t is con- f l i c t i n g . P l a i n t i f f t e s t i f i e d t h a t t h e h o s p i t a l adminis- t r a t o r t o l d her she was doing a good job and t h a t she was a good t e a m member, p a r t i c u l a r l y during t h e t h r e e months before her termination. The h o s p i t a l administrator cor- roborated t h a t testimony. H i s version, however, included an explanation t h a t he d i d s o t o give p o s i t i v e reinforcement t o t h e p l a i n t i f f , whom he believed w a s n o t working as w e l l a s he s a i d she w a s . r is explanation w a s t o t h e e f f e c t t h a t he w a s using " t h i s team concept p o s i t i v e enforcement with her t o overcome [ c e r t a i n ] d i f f i c u l t i e s " she w a s having a t t h e h o s p i t a l . H e acknowledges t h a t he t o l d p l a i n t i f f a number of t i m e s t h a t she was a good employee and a good team member and does not claim t h a t he offered c r i t i c i s m of her work i n conjunction with t h e p r a i s e . I t seems f a i r , there- f o r e , t h a t she could take t h a t p r a i s e a t f a c e value. After t h e f a c t , however, Wigart i n e f f e c t claims t h a t he w a s j u s t saying t h a t t o encourage p l a i n t i f f ' s performance t o come i n l i n e with t h e p r a i s e which she w a s given, apparently pre- maturely . A s p a r t of t h e r a t i o n a l e f o r t h e same finding of f a c t , t h e D i s t r i c t Court determined t h a t " t h e d i f f i c u l t i e s of P l a i n t i f f ' s r e l a t i o n s h i p with Defendant can be characterized a s making excessive demands, d i f f i c u l t i e s with other em- ployees, f a i l u r e t o recognize a u t h o r i t y , r e f u s a l t o s t a y with p a t i e n t s recovering from anesthesia and maintaining outdated drugs.'' Making excessive demands r e f e r s t o t h e i n c i d e n t i n which p l a i n t i f f requested an inordinately high pay r a i s e . D i f f i c u l t i e s with o t h e r employees apparently r e f e r s t o her r e f u s a l t o administer an a n e s t h e t i c i n t h e tonsilectomy r e f e r r e d t o above and i n another operation i n which t h e p a t i e n t had a slow pulse. The f a i l u r e t o recog- n i z e a u t h o r i t y seemingly r e f e r s t o t h e i n c i d e n t i n which t h e laboratory d i d not d e l i v e r t h e blood which t h e doctor had ordered. A r e f u s a l t o s t a y with p a t i e n t s recovering from anesthesia r e f e r s apparently t o p l a i n t i f f ' s questioning of t h e h o s p i t a l procedure whereby one other than a q u a l i f i e d medical p r a c t i t i o n e r , a r e g i s t e r e d nurse, f o r example, would s t a y with p a t i e n t s recovering from surgery. The reference t o maintaining out-dated drugs i s puzzling, as the record i s devoid of any reference t o t h i s . The D i s t r i c t Court determined t h a t p l a i n t i f f ' s r e f u s a l t o p a r t i c i p a t e i n t h e s t e r i l i z a t i o n scheduled f o r August 23, 1977, described by Wigart as "the s t r a w t h a t broke t h e camel's back," w a s "only t h e l a s t of many problems involving P l a i n t i f f , and while it w a s t h e i n c i d e n t which gave rise t o t h i s controversy, it was not t h e primary moving cause of discharge." This finding i n v i t e s discussion of t h e l e g a l p r i n c i p l e s a r t i c u l a t e d by t h e United S t a t e s Supreme Court i n M t . Healthy City Board of Ed. v. Doyle (1977), 429 U.S. 274, 97 S.Ct. 568, 50 L Ed 2d 471. Although M t . Healthy involved a controversy surrounding t h e r e f u s a l t o r e h i r e an untenured teacher, t h e test a r t i c u - l a t e d t h e r e i s applicable t o t h e i n s t a n t case. The test i s designed t o be applied i n those circumstances i n which an employee, who has not been rehired o r i n p r a c t i c a l e f f e c t discharged, c l a i m s t h a t h i s discharge w a s unlawful because t h e conduct which p r e c i p i t a t e d it w a s c o n s t i t u t i o n a l l y protected. The i s s u e on which t h e Court focused i s whether, even i f it w e r e t h e case t h a t t h e employer l e g a l l y could have dismissed t h e employee had t h e one p r e c i p i t a t i n g i n c i d e n t never come t o i t s a t t e n t i o n , " t h e f a c t t h a t t h e protected conduct played a ' s u b s t a n t i a l p a r t ' i n t h e a c t u a l decision [ t o terminate] would necessarily amount t o a con- s t i t u t i o n a l v i o l a t i o n j u s t i f y i n g remedial action." 429 U.S. a t 285. The Court concluded t h a t it would not. The ra- t i o n a l e was: "A r u l e of causation which focuses s o l e l y on whether protected conduct played a p a r t , 'sub- s t a n t i a l ' o r otherwise, i n a decision not t o r e h i r e , could place an employee i n a b e t t e r p o s i t i o n a s a r e s u l t of t h e e x e r c i s e of con- s t i t u t i o n a l l y protected conduct than he would have occupied had he done nothing. . . A bor- d e r l i n e o r marginal candidate should n o t have t h e employment question resolved a g a i n s t him because of c o n s t i t u t i o n a l l y protected conduct. But t h a t same candidate ought not t o be able, by engaging i n such conduct, t o prevent h i s employer from assessing h i s performance record and reaching a decision not t o r e h i r e on t h e b a s i s of t h a t record, simply because t h e pro- t e c t e d conduct makes t h e employer more c e r t a i n of t h e correctness of i t s decision." 429 U.S. a t 285-86. After announcing i n passing t h a t an employer would n o t be precluded from attempting t o prove t h a t q u i t e a p a r t from t h e protected conduct, t h e employee's record w a s such t h a t he would n o t have been rehired i n any event, 429 U.S. a t 286, t h e Court announced a test, "one which likewise pro- tects a g a i n s t t h e invasion of c o n s t i t u t i o n a l r i g h t s without commanding undesirable consequences n o t necessary t o t h e assurance of those r i g h t s . " 429 U.S. a t 287. The burden i n i t i a l l y i s placed upon t h e complaining employee t o show t h a t h i s conduct w a s protected and t h a t t h e conduct was a " s u b s t a n t i a l f a c t o r , " o r a "motivating f a c t o r , " i n t h e decision t o terminate h i s employment. Once t h e employee c a r r i e s t h i s burden, however, it i s incumbent upon t h e employer t o show by a preponderance of t h e evidence t h a t it would have reached t h e s a m e decision even i n t h e absence of t h e protected conduct. 429 U.S. a t 287. I t appears, then, t h a t i f a p l a i n t i f f f a i l s t o prove both t h a t h i s conduct w a s c o n s t i t u t i o n a l l y (or a s i n t h i s case, s t a t u t o r i l y ) protected and t h a t such conduct was a motivating f a c t o r i n t h e decision n o t t o r e h i r e ( o r as i n t h i s case, t o terminate) t h e inquiry i s then ended. The burden would not s h i f t , because it would n o t have been c a r r i e d by t h e p l a i n t i f f i n t h e f i r s t instance. Therefore, t h e f i r s t determination must be whether p l a i n t i f f ' s r e f u s a l t o p a r t i c i p a t e i n t h e s t e r i l i z a t i o n was i n f a c t s t a t u t o r i l y protected. The second half of p l a i n t i f f ' s burden has been c a r r i e d . I t i s c l e a r by t h e admission of t h e h o s p i t a l administrator himself t h a t t h e r e f u s a l was a motivating f a c t o r i n t h e decision t o terminate p l a i n t i f f . Note, however, it was n o t t h e r e f u s a l per - se which was a s troublesome as t h e timing of t h e r e f u s a l . P l a i n t i f f allowed less than 24 hours "lead time" f o r t h e h o s p i t a l administrator t o f i n d an a n e s t h e t i s t who could s u b s t i t u t e f o r her. That t a s k w a s no easy one, given t h e geographical i s o l a t i o n and paucity of q u a l i f i e d p r a c t i t i o n e r s i n t h e Libby area. Because of f o r t u n a t e circumstances, t h e operation did go ahead a s scheduled, b u t t h a t appeared t o be a matter of sheer dumb-and-blind luck, r a t h e r than what reasonably could have been expected. To r e t u r n t o t h a t i n i t i a l inquiry: d i d p l a i n t i f f prove t h a t her conduct w a s c o n s t i t u t i o n a l l y protected? Here again we must examine t h e inconsistencies i n t h e p l a i n t i f f ' s position. She had p a r t i c i p a t e d i n 20 s t e r i l i z a t i o n s i n t h e s i x years p r i o r t o her termination; s i x of those operations were performed within t h e l a s t year of her tenure. Being g r e a t l y upset, as p l a i n t i f f assuredly w a s , i s , a s respondent characterized it, a physical and emotional r e a c t i o n , b u t i s n o t a r e l i g i o u s b e l i e f o r moral conviction. One might reasonably argue t h a t t h e r e a c t i o n would n o t have been forthcoming had it n o t been f o r a r e l i g i o u s b e l i e f o r moral conviction held by p l a i n t i f f , f o r however s h o r t a t i m e . However, t h e r e i s p l a i n t i f f ' s testimony during t h e hearing t h a t she would p a r t i c i p a t e i n ordinary D & C t s I even though t h e operation which caused her stress w a s i t s e l f a D&C. There i s a l s o t h e l o g i c a l l e a p which one must make i n cor- r e l a t i n g a r e f u s a l t o a s s i s t i n a s t e r i l i z a t i o n t o an upset- t i n g experience i n a t o t a l l y d i f f e r e n t s u r g i c a l procedure, t h e therapeutic D&C. It is t r u e t h a t t h e D i s t r i c t Court made no s p e c i f i c finding a s t o whether p l a i n t i f f ' s conduct was s t a t u t o r i l y protected, b u t a f a i r inference from t h e findings as a whole and t h e conclusions drawn therefrom i s t h a t t h e c o u r t found it was not. I f it may be i n f e r r e d t h a t t h e D i s t r i c t Court found p l a i n t i f f ' s conduct w a s n o t s t a t u t o r i l y protected, then t h e determinations made with r e s p e c t t o t h e o t h e r reasons f o r p l a i n t i f f ' s termination are unnecessary and i r r e l e v a n t , as p l a i n t i f f contends. But given t h a t t h e employer has t h e r i g h t t o p u t on proof demonstrating t h a t t h e p l a i n t i f f was terminated f o r permissible reasons, then findings with r e s p e c t t o t h a t evidence a r e appropriately made. The o t h e r j u s t i f i c a t i o n s f o r p l a i n t i f f ' s termination advanced by Wigart a r e somewhat tinny; they do not r i n g t r u e . The reason which appears soundest i s t h e one involved i n t h i s controversy--plaintiff's announcement of her inten- t i o n not t o p a r t i c i p a t e within 24 hours of t h e scheduled operation. There i s no doubt t h i s w a s d i s r u p t i v e . The p a t i e n t had been "prepped" and w a s physically and emotionally ready f o r t h e operation. Had p l a i n t i f f made her objections known on t h e 19th of August, giving t h e h o s p i t a l adminis- t r a t o r a longer and more reasonable period of t i m e i n which t o secure a s u b s t i t u t e , it would be an easy m a t t e r t o con- clude t h a t her termination was unlawful. Given t h a t she waited u n t i l the proverbial eleventh hour t o announce her i n t e n t i o n not t o p a r t i c i p a t e , however, goes t o strengthening respondent's case. This, then, i s t h a t on which t h e decision turns. The D i s t r i c t Court, with i t s superior advantage t o observe t h e demeanor of t h e witnesses, concluded t h a t t h e h o s p i t a l had ample j u s t i f i c a t i o n independent of t h i s p a r t i c u l a r event f o r terminating p l a i n t i f f ' s employment. I t i m p l i c i t l y found t h a t p l a i n t i f f ' s conduct was not s t a t u t o r i l y protected. I t i s axiomatic t h a t , where t h e r e i s a c o n f l i c t i n t h e evidence, t h i s Court w i l l defer t o t h e findings of t h e t r i a l c o u r t , which are presumed t o be c o r r e c t i f supported by s u b s t a n t i a l c r e d i b l e evidence. I n a nonjury t r i a l , t h e findings of t h e D i s t r i c t Court w i l l not be reversed on appeal, unless t h e r e i s a c l e a r preponderance of evidence a g a i n s t those findings. See, e.g., Montana Farm Service Co. v. Marquart (1978), Mont. , 578 P.2d 315, 35 St.Rep. 631, and cases c i t e d t h e r e i n . This Court may consider only whether s u b s t a n t i a l c r e d i b l e evidence supports t h e findings of f a c t and conclu- sions of l a w made by t h e D i s t r i c t Court. See, e.g., Kartes v. Kartes (1977), Mont. - , 573 P.2d 191. I n t h i s case I believe t h a t it does and would a f f i r m t h e judgment. Mr. Chief Justice Frank I. Haswell dissenting. I concur in the foregoing dissent of Mr. Justice Harrison. I would add that in my view, the real issue in this case is whether plaintiff's refusal to participate in the operation on "conscience" grounds was bona fide or sham. Although the District Court did not make an express finding on this issue, its findings implied the latter. Such implied finding is supported by substantial, though conflicting > evidence and warrants affirmance of the District Court judgment in my opinion. - ............................. Chief Justice | June 13, 1979 |
1b8bacbe-c07f-4d6f-bfaa-6a7ae7ac65d2 | MATTER OF A FAMILY | N/A | 14815 | Montana | Montana Supreme Court | N o . 14815 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 I N T H E M A T T E R O F THE "A" FAMILY. ORIGINAL PROCEEDING: Counsel of Record: For Appellant: Ted 0. Lympus, County Attorney, K a l i s p e l l , Montana Johnathan B. Smith argued, Deputy County Attorney, K a l i s p e l l , Montana For Respondent : Cannon and G i l l e s p i e , Helena, Montana R o s s W. Cannon and Richard G i l l e s p i e argued, Helena, Montana John Albrecht argued, Choteau, Montana Submitted: August 2 2 , 1979 Decided: i979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. Child A is the male adopted son of H A and B A, the respondents in this case. Child A is within the age parameters of those entitled to special education as a handicapped child. The appellant is the school district in which the parents are residents. The appeal is from the mandatory injunctive order of the District Court, Eleventh Judicial District, Flathead County, requiring the school district to provide an educational placement for Child A including an intensive psychotherapy program at the Devereux Foundation, Santa Barbara, California, for one year. Transportation costs of the parents in connection with the placement of Child A were also required to be paid in the court's order. The District Court denied the motion of the school district to amend or alter the findings of fact and mandatory injunction and this appeal timely followed. For several years Child A was identified by the school district as mildly mentally retarded. He had been placed in the special education program in the public school system of his county, being "mainstreamed" into several classes for nonhandicapped students. His parents felt that he was not progressing in school and that he had periods of retrogression emotionally that made him uncontrollable, a danger to himself, and a threat to others. The parents took Child A at their own expense to the Developmental and Evaluation Clinic of the Children's Hospital in Denver, Colorado, for a complete educational evaluation. There the staff concluded that Child A was functionally retarded as a result of a primary handicapping condition of severe emotional disturbance, schizophrenic process. The parents delivered the Children's Hospital report to the Child Study Team of their home school system. They asked -2- that Child A's identification be changed to severe emotional disturbance, schizophrenic process. They further asked that Child A be placed at the Devereux Foundation, in Santa Barbara, California, to receive intensive psychotherapy, along with a residential school program. The Child Study Team decided that Child A was not severely emotionally disturbed, schizophrenic process, but rather that he was mildly mentally retarded and that he should not be placed in the Devereux Foundation. The parents requested a special education hearing regarding Child A's identification and placement. A hearing, however, was not held because the rules then in effect on special education complaints were repealed by the Superintendent of Public Instruction. On May 15, 1978, the state Superintendent adopted emergency rules for special education complaints (Montana Administrative Register, May 25, 1978, issue no. 5, pages 764, 770). The parents of Child A renewed their request for a hearing. They named both the school district and the state Superintendent as antagonistic parties. A hearing at the county level was held first. The hearing officer found that Child A was severely emotionally disturbed, schizophrenic process. He concluded that Child A was in need of an intensive psychotherapy program in a residen~l school such as provided by the Devereux ~oundation. He dismissed the Superintendent as a party. The school district appealed to the Superintendent of Public Instruction, who appointed a hearing officer for another hearing at the level of the Superintendent's office. The parents again named the Superintendent as a party. The hearing officer reached the same conclusions as the hearing officer at the county level. -3- The parents filed cause no. 29516 in the District Court, requesting a mandatory injunction ordering the Superintendent of Public Instruction and the Board of Trustees of the school district immediately to comply with the hearing officer's decision. That suit was filed on August 21, 1978. On September 26, 1978, the hearing officer appointed by the Superintendent issued findings, conclusions, and an order which generally affirmed the order entered by the local hearing officer. On October 26, 1978, the Board of Trustees of the school district filed complaint no. 29,732 in the District Court, seeking review of the hearing officer's decision. Both cases were eventually consolidated. The hearing officer that had been appointed by the Super- intendent of Public Instruction also dismissed the Superintendent as a party. On March 20, 1979, the District Court entered its findings of fact, conclusions of law, mandatory injunction and declaratory judgment, generally affirming the decision of the hearing officer, and requiring an educational place- ment of Child A in the Devereux Foundation for one year. The court also entered a declaratory order that the administrative rules of procedure adopted by the Superintendent of Public Instruction created a dual hearing procedure in which a parent must also proceed against the Superintendent of Public Instruction in this type of case. The District Court declared that such procedure violated the Education of All Handicapped Children Act of 1975, 20 U.S.C., 81415, on the ground that the administrative rules prevented a final decision being made where both the Board of Trustees and the Superintendent of Public Instruction were not a party to the same procedure. The school district, through its Board of Trustees, appeals from the mandatory injunction finding that Child -4- A is severely emotionally disturbed, schizophrenic process and requiring that he be placed for one year in the Devereux Foundation. The Superintendent of Public Instruction appeals from the order of the District Court requiring that she be a party for final decision in the case at bar, and from the conclusion of the District Court that her administrative regulations deprived the parents of due process. The school district presents these issues for review: (1) Insufficiency of the evidence to support the findings of the District Court that Child A is severely emotionally disturbed, schizophrenic process, requiring his institutionalization at Devereux. (2) Whether the institutionalization of Child A is in compliance with the requirement that he be educated in the least restrictive environment. ( 3 ) Whether the school district is responsible for the provision of psychotherapy for Child A. At a hearing before the District Court in which all parties were represented by counsel, it was stipulated that "Montana is a state which receives assistance under part B of the [federal] Education of the Handicapped Act, and that Georgia Ruth Rice is a state educational agency that receives assistance under part B of the Education of the Handicapped Act." It was further stipulated that in this case the State of Montana is bound by the applicable provisions of Public Law 94-142, Stat. , the federal Education For All Handicapped Children Act of 1975. The federal statutes relating to the education of handicapped persons are found in 20 U.S.C. beginning at section 1401. Section 1415(e)(2) of Title 20 allows a party aggrieved by administrative hearings such as took place here to appeal to any state court of competent jurisdiction. That section also provides: -5- ". . . In any action brought under this paragraph, the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." The District Court found that Child A was severely emotionally disturbed, schizophrenic process. It agreed with the Children's Hospital of Denver, Colorado, that Child A had perceptual difficulties, audio, visual and neurological incoordination and that Child A was classified as functionally retarded. His intelligence quotient has been measured at varying levels from 58 to 80. His academic progress showed a failure to learn; he had a history of periodic withdrawals from friendship, being socially insecure, fighting and complaining about being hurt; he had hidden in a bathroom for one-half hour at his school; had showed signs of frustration and nervousness. During his periods of withdrawal, his speech is slurred, he seems frightened, his dress habits are poor, and he does not appear to be oriented. He regresses to infantile behavior in these periods. Moreover, the District Court found that he had exhibited self-destructive behavior by running a razor over the back of his arm and standing in a dangerously hot shower. Doctors and Child Study Teams that had observed him reported him to be having severe emotional problems, severe emotional distress, and being emotionally insecure. Two hearing officers had deter- mined that he was severely emotionally disturbed, schizophrenic process. Based on these findings, the District Court concluded that in order to give Child A an education appropriate to his needs, it was necessary that he be placed in Devereux for a period of one year, thereafter to be evaluated again. The school district, on the other hand, claims that the findings of the District Court are insufficiently based on the evidence. It points to the evidence of Dr. William - 6 - Cook, a clinical psychologist who testified that Child A is not seriously emotionally disturbed and that he does not demonstrate a functional retardation; that his mental retardation is not the result of emotional problems, but rather is true mental retardation, secondary to which are emotional problems. Dr. Cook emphasized that Child A had excellent care in his parents' home and was in an environment which is stimulating and productive to his overall growth. Dr. Cook also attacked the findings of Children's Hospital based upon the educational competence of the staff that evaluated Child A. Dr. Cook also doubted that the child was suicidal or self-destructive, or a danger to others. Another witness, Ronald Holter, a clinician at the Comprehensive Development Center in Missoula, testified that he was able to understand Child A, and that Child A made no inappropriate responses or suffered no blackouts during the time he observed him. He also criticized the Denver report in the use of some of the tests that were described in the Denver report. Some of Child A's teachers also testified. One testified that Child A gets along socially, had no discipline problems and is making progress. Another testified that Child A puts forth effort in class though he does not do as well academically as other students, but he gets along well socially. Two school psychologists testified observing no abnormal activity by Child A in class or on the playground. They disagreed with the recommendations of the Children's Hospital because that hospital did not observe Child A in the educational setting in which he had been placed. The school district has argued that in this case involving a mandatory injunction, we are dealing with a matter of an equitable nature. Therefore it contends, our duty of review is governed by section 3-2-204(5), MCA: -7- "In equity cases and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, as well as questions of law, unless for good cause a new trial or the taking of further evidence in the court below be ordered. Nothing herein shall be construed to abridge in any manner the powers of the supreme court in other cases." The order appealed from in this case is termed a "mandatory permanent injunction." If it were a true in- junction, it would be equitable in nature, and perhaps section 3-2-204(5), MCA, would apply as to our duty of review. However, the true nature of the proceedings in the District Court was one of mandamus. Mandamus is an action at law, though it is sometimes controlled by equitable principles. 52 Am.Jur.2d 357 Mandamus S32. The distinction between injunction and mandamus is noted as follows: "Another material distinction between the two remedies is found in the relief which they are designed to afford. Injunction is a remedy to restrain the doing of injurious acts or, in its mandatory form, to require the undoing of injurious acts and restoration of the status quo, while mandamus commands the performance of a particular duty which rests upon the defendant, or respondent, because of his official status or by operation of law. . ." 42 Am.Jur.2d 750 In junctions S19. (Emphasis added. ) The order of the District Court here in effect commands the school district to perform a duty that devolves upon it by operation of law. Its true nature is that of mandamus, and it should be governed by like consideration. Miguel v. McCarl (1934), 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901. Therefore, section 3-2-204 (5) , MCA does not apply to our review here. We are not called upon to determine the issues of fact. Instead, the findings of fact by the District Court come to us for review on appeal in the cloak of Rule 52 (a) , Mont. R.Civ.P., not to be set aside unless they are clearly erroneous. - 8- Moreover, the school district maintains that the report of the Children's Hospital in Denver, to which the school district made objection at the time of the trial, should not have been received into evidence, and that the District Court should have struck that report from the evidence on motion of the district. On this argument however, the school district is foreclosed by the provisions of 20 U.S.C. S1416, which provides that "the court shall receive the records of the administrative proceedings." The report of the Children's Hospital is a part of the administrative record and accord- ingly it is a part of the evidence which the District Court had to consider in determining the preponderance. This special provision of federal statutory law overrides any other consideration with respect to the reception into evidence of the Children's Hospital report even though we recognize the inherent evil in accepting hearsay evidence not subject to cross-examination. On review of the record, on the facts set forth above, we sustain the finding of the District Court that Child A is severely, emotionally disturbed, schizophrenic process, requiring his placement in an educational surrounding such as Devereux. The next issue raised by the district is whether it is in compliance with federal estate statutes and regulations to place Child A in Devereux when those statutes and regulations require that handicapped children be educated in the least restrictive environment. It must be admitted that the policy of the State and federal statutes is to place handicapped children as far as possible to be educated with children who are not - 9- handicapped. 20 U.S.C. 81412(5) requires a state which desires to participate in federal funding to establish procedural safeguards "to assure that . . . handicapped children . . . are educated with children who are not handicapped, and . . . that separate schooling . . . occurs only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. . ." The Montana statute agrees (section 20-7-411, MCA). Yet the requirement is not ironclad because both the federal and state statutes provide that where the education of the child in regular classes cannot be achieved satisfactorily, separate schooling or other removal from the regular educational environment may be provided. Section 20-7-411, MCA. The question becomes therefore whether the evidence supports the removal of Child A from the regular school environment in his county, or whether the special education program in his county, aided by such supplementary programs as the special education program of that county permits, is satisfactory to provide Child A with a "free appropriate public education". 20 U . S.C. 51412 (1) ; Section 20-7-411 (1) , MCA; See 1972 Mont. Const., Art. X I 51. Under section 20-7-414, MCA, the determination of what children require special education and the type of special education needed is the responsibility of the school trustees. The District Court concluded that the trustees in this case had abused their discretion in continuing to contend that the special education program in which Child A was participating in his home county was sufficient to meet his needs. The conclusion of the District Court stems from the facts which we have set forth above. We find before us on the one hand the school district which contends that Child A is mildly mentally retarded, and the parents on the other hand who claim their child is severely emotionally disturbed. It is a difference in degree, but it is a difference the effect of which may be beyond our measure respecting the child. The District Court found from the evidence that as a participant in the mildly mentally retarded special education program, Child A has not been making substantial progress and may be retrogressing. It also found from the evidence that Child A is indeed severely emotionally disturbed. Once it hai accepted that premise, it was necessary that Child A be placed in the Devereux Foundation school. The evidence supports no other choice. "In order to avoid any misunderstanding, it may be proper to add here that no more is required of the applicant [for a writ of mandate] than that he establish the material allegations of his complaint by a preponderance of the evidence." State v. Ford (1944), 116 Mont. 190, 202, 151 P.2d 171, 176. Therefore, when we review this case under Rule 52(a), Mont.R.Civ.P., substantial evidence supports the finding. We affirm the finding of the District Court that Devereux is a proper placement for Child A. We come now to the third issue raised by the school district, that is, that psychotherapy is not properly allowable as a related cost for Child A, and that such costs should be born by the parents or other public agency. In large measure, this issue arises out of confusing if not conflicting federal and state statutes and regulations relating to special education. The pertinent federal statutes relating to the case at bar are these: "Title 2 0 , U.S.C. §1401(1) "The term 'handicapped children' means mentally retarded,. . . speech impaired, visually handicapped, seriously emotionally disturbed children . . . who by reason thereof require special education - - and related services. "Title 20, U.S.C. S1401(16) "The term 'special education' means specially designed instruction, ---- at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction - in hospitals and institutions. "Title 20, U.S.C. §1401(17) "The term 'related services' means transportation, and such developmental, corrective and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children. "Title 20, U.S.C. 81401 (18) "The term 'free appropriate public education' means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) - - - are provided in conformity with -- the individualized education program required under section 1414(a) (5) of this title. "Title 20, U.S.C. §1401(19) "The term 'individualized education program' means a written statement for each handicapped child developed in any meeting by a representative of the local educational agency . . . who shall be qualified to provide . . . specially designed instruction to meet the unique needs of handicapped children, the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall include (A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation, and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved." (Emphasis added. ) Under the foregoing statutes, and others, the Department of Health, Education and Welfare has promulgated certain federal regulations relating to the administration of the powers granted by the statute. The following definition contained in the regulations is pertinent: 45 C.F.R. 121a. 5 (b) (8) (1978) : "'Seriously emotionally disturbed' is defined as follows: (i) The term means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree, which adversely affects education performance: "(A) an inability to learn which cannot be explained by intellectual, sensory, or health factors. "(B) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; "(C) Inappropriate types of behavior or feelings under normal circumstances; "(D) A general pervasive mood of unhappiness or depression; or " (E) A tendency to develop physical symptoms or fears associated with personal or school problems. " (ii) The term includes children who are schizo- phrenic or autistic.. . ." We note parenthetically that Child A fits many of the criteria set forth in the definition of a seriously emotionally disturbed child. "Related services", as used in the statute are admini- stratively defined as follows: 45 C.F.R. 121ae13(a) : "As used in this part, the term 'related services' means transportation and such developmental corrective and other supportive services as are required to assist a handicapped child to benefit from special education, and includes . . . psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services, and medical services for diagnostic or evaluation purposes.. . . 45 C.F.R. 121a.13 (b) (4) : "'Medical services' means services provided by a licensed physician to determine a child's medically related handicapping condition which results in the child's need for special education and related services. 45 C.F.R. 121a.13 (b) (8) : "'Psychological services' include: " (v) Planning and managing a program of psychological services, inciuding psy~ological counseling for children and parents." (Emphasis added.) We note from the federal regulations foregoing that "medical services" are provided only for diagnostic purposes and are paid for under the program when they result in establishing the child's need in special education and related services. On the other hand, "psychological services" a r e not so limited to diagnosis as specific authority is included for "planning and managing a program of psychological services" for the child which would come under the special education program. The word "psychotherapy" is not specifically mentioned in the federal statutes or regulations. However, Webster's Seventh New Collegiate Dictionary (1965) defines "psychotherapy" as "treatment of mental or emotional disorder or of related bodily ills by psychological means." By that definition, psychotherapy comes within the meaning of the term "psycholo- gical services". The Montana statutes on special education begin at section 20-7-401, MCA. The state definition of an emotionally disturbed child is consonant with that found in the federal provisions as is the definition of special education. The attendance of a child in an out-of-state special education program is authorized in section 20-7-422, MCA. The conflict with respect to psychotherapy arises out of the state administrative regulations promulgated by the Board of Education, in conjunction with the Superintendent of Public Instruction, as found in 48 A.R.M. 2.18(22)- S18430 (2) , as follows: "When a child is handicapped to such a degree that a totally controlled environment is needed, residential school placement may be essential. Room and board and tuition costs are considered allowable costs in the district's special education budget. The public school is only responsible for room and board and the educational kinds of costs. Other services -- such as psychiatric therapy and/or medical treatment must -- be deleted from the special education costs and assumed by -- Parents and/or other agencies. When an out-of- histrict placement involves the payment of tuition or board and room, the placement must be approved by the Superintendent of Public Instruction." (Emphasis added.) There is an obvious conflict between the specific deletion provided in the state administrative regulation above quoted, and the federal statutes and regulations which we have heretofore cited. The dilemna is answered however, by the state regulations which provide for submission to federal regulations when a conflict exists. 48 A.R.M. 2.18(46)- S18750 provides: "FEDERAL PROGRAMS GENERALLY. (1) There are several federal programs which have a portion of the program charged to serve handicapped children. Specific regulations published by each program must be followed as well as the Special Education Rules - and Regulations. If the Special Education - Rules -- and Regulations are in conflict with the federal requirements, then the federal requirements supercede (sic) .. . ." (And the department of education too,:) We therefore hold that the federal regulations allowing for psychological services, which includes psychotherapy, overrides the state regulations which exclude psychotherapy. We are comforted in this holding by the testimony of Dr. Paul Spore, the federal programs manager in the office of the Superintendent of Public Instruction. He testified: ". . . As long as the local team of professionals, the Child Study Team, or as a result of a hearing like this one, as long as the professionals there rule that [Child A] needed the intensive psychotherapy or family therapy kind of services in order again to benefit from the public school instruction, those would be appropriate and allowable costs and we would certainly approve that." The school district contends that our holding in Doe v. Colburg (1976), 171 Mont. 97, 555 P.2d 753, is controlling because there we held that the special education rules and regulations, which we have quoted above, as promulgated by the State, delete psychiatric therapy and/or medical assistance. However, we distinguish - Doe insofar as it applies to this case. The effect of the federal statutes and regulations were not considered in Doe and moreover, Doe was involved with medical services provided - - by Dr. Kuska in Denver, Colorado. It is enough to say that we find psychotherapy is not regarded as medical services for the purpose of determining "related costs" under the special education program promulgated by the federal government but rather is included as part of psychological services, which are a part of the related costs. Since in this case it was stipulated that the special education program in the home county of Child A was funded in part by the federal government, the federal regulations apply and supersede whatever regulations the state may have promulgated to the contrary. We turn now to the contention of the Superintendent Public Instruction on her appeal that the District Court erred in determining that the regulations promulgated by the Superintendent offend due process in that a dual procedure is necessary to obtain approval of an out of state special education program. The issue is more technical than real, as an examination of the statutes, regulations, and the record will reveal. Section 20-7-422, MCA, provides with respect to out-of- state special education: "(2) Whenever the attendance of a child at an out-of-state special education program is approved by the superintendent of public instruction, it shall be the responsibility of the superintendent of public instruction, in cooperation with the department of social and rehabilitation services and the department of institutions, to negotiate the program for the child and the amount and manner of payment of tuition . . ." The language of the quoted statutes implies that discretion is vested in the Superintendent in this case to grant approval or withhold approval for the out of state special education program. This implication runs counter to the language of the federal statutes which require that the decision of the hearing officer in the appeal to the Superintendent of Public Instruction is final. The applicable federal statute is 20 U.S.C. S1414 (e) (1) , as follows: "A decision made in a hearing conducted pursuant to paragraph (2) of subsection (b) [the hearing conducted before the Board of School Trustees] of this section shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (c) and paragraph of this subsection. A decision made under subsection (c) of this section [the hearing conducted by the hearing officer for the Super- intendent of Public Instruction] shall be final, except that any party may bring an action under paragraph (2) [providing for an appeal to the District Court] of this subsection." (Emphasis and bracketed material added.) It is evident from the foregoing federal statute that it is the intent of Congress that a party having gone through the administrative hearing processes before the local agency and the Superintendent of Public Instruction shall be entitled to a final decision, subject only to court appeal. This means that once the hearing officer for the Superintendent of Public Instruction had reached his decision in favor of the A family, under the federal statute, the Superintendent had no further right of discretion as to approval or nonapproval of the out- of-state education plan. It is apparent to us that the Superintendent understood this intent of Congress because in the regulations which she promulgated to administrate the State special education program, and particularly with respect to hearings before her relating to proposed special education programs, it is provided "[tlhe decision of the hearing officer is final unless a party seeks judicial review pursuant to section 82-4216, R.C.M. 1947, or brings a civil action pursuant to 20 U.S.C. 1415." Section A.R.M. 48 h.18 (42) , S18780 (11). The District Court received the impression during the trial that the Superintendent of Public Instruction had an adversary position to the A family with respect to the proposed program at Devereux. Because there was uncertainty, even among counsel, as to the extent of the Superintendent's right of approval or nonapproval of the application, the District Court denied a motion to dismiss the Superintendent as a party and eventually found that the State regulations instituted a dual procedure for approval which violated the due process requirement of the federal statute, 20 U.S.C. S1415 (b) (2). Later during the trial, unfortunately, counsel for the Superintendent requested an opinion of Dr. Spore as to the -18- appropriateness of the proposed placement at Devereux. Over objection Dr. Spore testified that it was his opinion that Kalispell rather than Devereux would be the appropriate program for Child A. He went on, however, to state that if the court ruled in Child A's favor, the Superintendent would approve the application without further claim of right of approval. It was inappropriate for Dr. Spore to give his opinion as to the advisibility of the proposed placement at Devereux because the decision of the hearing officer both at the local level and before the Superintendent was that Devereux was a proper placement and their decisions were final under the federal law and the State's regulations. Neither the Superintendent nor her agents have authority to overrule the hearing officer who is required to be impartial, although appointed by the Superintendent. 20 U.S.C. §1415(b)(2). Since, however, the Superintendent took the position during the trial that a decision of the District Court would be binding upon her and would be approved with no further claim of right of rejection on her part, such a stance was in harmony with the federal statutes, and with the State . regulations. Therefore, we do not find a dual procedure rising out of the State regulations for special education programs, as long as the Superintendent maintains that she is bound by the findings of the hearing officer, and by the court, if an appeal is taken from the hearing officer. The answer to the first contention of the Superintendent with respect to the claim of dual procedures under the regulations, also answers the second part of the Superintendent's appeal, that she is not properly a party to the case. The federal statutes and the State regulations contemplate that she not be a party. She has administrative duties, but she is limited and has no discretion with respect to special education programs -19- decided either by the Board of School Trustees, or by hearing officers upon appeals from decisions of the School Trustees. The hearing officers were therefore correct in dismissing the Superintendent as a party to the controversy. Likewise, the Superintendent is not a proper party in a court appeal from such hearing officer as long as the Superintendent adopts the stance that she has no discretion once the court has acted. She would, of course, be a necessary party if at anytime she contended that she had a right of discretion to approve or deny the application for special education after the hearing officers have acted, or after the court has made a final decision. In light of the foregoing, therefore, the judgment of the District Court that Child A is severely emotionally disturbed, schizophrenic process, and requires placement in the Devereux Foundation for a period of one year, after which Child A shall again be evaluated, is affirmed; the decision of the District Court that the regulations promulgated by the Superintendent of Public Instruction for administrative hearings of appeals deny due process is reversed; the decision of the District Court that the Superintendent is a proper party to the action is also reversed, in view of the stance taken during the trial by the Superintendent that she had no power of discretion once the court had acted. The Court commends the actions of the parties in providing for the placement of the child at Devereux Foundation pending the final decision of this Court. .--, Justice We Concur: -. Justices -20- The Honorable Gordon R. Bennett dissenting: Neither the Superintendent nor the school district is responsible for providing free psychiatric treatment for Child A. Such coverage is not mandated by the Education of the Handicapped Act (Ch. 33, Title 20, U.S.C., S1401- 1461, incl.) and it is effectively excluded by state regulation 48 A.R.M. 2.18(22)-S18430(2). The federal act contains definitions of relevant terms, specifically, "related services" and "free appropriate education." These terms are defined as follows: " (17) The term 'related services' means transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a handicapped child to benefit from special education, and includes the early identification and assessment of handicapping conditions in children. (18) the term 'free appropriate public education' means special education and related services which (A) -- have been provided at public expense, under public supervision and direction, and without charge, (B) meet -- the standards of -- the State educational agency, (C) include an appropriate preschool, elementary or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under Section 614(a)(5)." (Emphasis supplied.) The definition of "free appropriate public education" in 45 C.F.R. 121a.4 is identical to that in the code, with the exception of one word in the first part: " . . . special education and related services which: (a) Are - provided at public expense,. . ." (Emphasis supplied.) Related services are further defined in 45 C.F.R. 1211.13. In that section, "'Counseling Services' means services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel." "'Psychological services' include (i) Administering psychological and educational tests, and other assessment procedures; (ii) Interpreting assessment results; (iii) Obtaining, integrating, and interpreting information about child behavior and conditions relating to learning; (iv) Consulting with other staff members in planning school programs to meet the special needs of children as indicated by psychological tests, interviews, and behavioral evaluations; and (v) Planning and managing a program of psychological services, including psychological counseling for children and parents." The Act does not express the requirement that all "related services" mentioned in the Act must be provided by the State. A careful reading of the definitions of "appropriate public education" and the rest of the Act and the accompanying regulations disclose the intent of the Act to be two-fold. First, it is intended that - all handicapped children will be provided with the "related services" it presently provides to any handicapped child. This purpose is reflected in the - requirement that the local educational agency identify those handicapped children receiving the related services and those handicapped children who are not. (20 U. S.C. 51414 (a) (1) (A) . ) Second, it is intended that the Act be an incentive for the State to expand and improve its services to handicapped children. This is reflected in 20 U.S.C. §1414(a)(l)(c) which requires establishment of a goal of providing full educational opportunities to all handicapped children. In other words, if the State wants to participate in the federal program it is required to offer to all handicapped children the related services which it presently provides to some, and which meet the standards of the Superintendent of Public Instruction, and it is also required to aim at improving and expanding its present services to ultimately achieve "full educational -22- opportunities" for all handicapped children. The Act does not intend that every state provide every imaginable "related service" just because a handicapped child would benefit by it. And the "related services" listed in the Act are not exhaustive. See Comment after 45 C.F.R. 121a.13. Each state must develop its own standards and goals in achieving full educational opportunities for all handicapped children. The federal act is not attempting to compel each state to provide identical or fully comprehensive services. Montana has its own standards for providing services to handicapped children. In 48 A.R.M. 2.18(22)-S18430(2), the Superintendent of Public Instruction has interpreted the federal act in such a way that psychiatric therapy and/or medical treatment is excludable from special education costs. In pertinent part this regulation provides: "The public school is only responsible for room and board and the educational kinds of costs. Other services such as psychiatric therapy and/or medical treatment must be deleted from the special education costs and assumed by parents and/or other agencies." Three years ago, this Court announced it found this same rule and this same language ". . . is reasonable and entirely the of consistent with/carrying out/the legislative direction of Montana's statutes . . ." Doe v . Colburg (1976), 171 Mont. 97, 100, 555 P.2d 753, 754. Upon this finding, this Court set aside a District Court judgment ordering the Superintendent of Public Instruction to find a behavioral modification program to be carried on out of state by somebody with the title of "doctor". The issue was simply stated: " . . . whether special education funding can be used to provide psychiatric-medical treatment outside the State of Montana." The answer was an unequivocal "no". We are dealing here with the same funding the same federal and state acts, the same regulation and the same kind of treatment. The only perceivable difference is that we have a different doctor and a different Superin- tendent. This Court now reverses itself on the ground it didn't consider the pertinent federal statutes and regulations three years ago. This year it holds the federal statutes and regulations require the financing of psychiatric-medical services. I have attempted to show there is no such require- ment discoverable in the federal statutes and regulations. There is absolutely no showing that in the three intervening years the "feds" raised any question whatever, legally or administratively, about this Court's former ruling. As a matter of fact, the United States Commissioner of Education has continued since that time to approve of the "state plan" required to be submitted by the Superintendent of Public Instruction annually as a condition of funding (20 U.S.C. S1413). This statute requires the Superintendent to disclose every conceivable facet of her education for the handicapped program except the names of her nearest of kin, and it clearly requires inclusion of all regulations propounded under the federal act. And, as would be expected, if the Commismer finds the plan does not comply with the Act he may cut off the federal money (20 U.S.C. S1413 (c) (2) ) . There is, as has been noted, no showing whatever that the Commissioner has attempted to do so with regard to this or any other Montana regulation made under the Act. The holding of the Court is that the federal regulations allowinq for psychological services, which includes psycho- therapy, overrides the state regulations which exclude psychotherapy. In the first place, the state regulations do not exclude psychotherapy, they exclude payment for psychiatric therapy and/or medical treatment. Psychotherapy, not mentioned in either the federal act or regulations, may well come within the gamut of the psychological services authorized by the Act and regulations. And one can hardly argue with the heirs of Noah Webster, called upon to decide this case, that psychotherapy is "treatment of mental or emotional disorders or of related bodily ills by psychological means." Psychiatric therapy may well be one of those means. The only question here, as in the Colburg case, is whether the Superintendent is required to pay for it. The holding of the Court answers the question. The federal act may allow psychiatric therapy I I understand there is considerable controversy in Washington and elsewhere on the point, but it does not require it, thus there is no conflict between the federal act and regulations and the state regulation. The state regulation is, then, authorized by federal and state law and is, therefore, to be treated as law, not as a policy statement. Contrary to what is said in Colburg, this substantive legislative rule is entitled to more than respectful consideration. Being duly and properly propounded in conformity with the applicable statute (section 20-7-402(2), MCA) it is as binding on this Court as a legislative enactment. Section 2-4102(11) (a), MCA. To ignore or evade the rule is to repeal it, which is a legislative act not a judicial function. For this reason, I would remand the case to the District Court for modification of the order appealed from to exclude payment by the Superintendent of Public Instruction and the school district for psychiatric therapy and medical treatment. I must note in passing that the Court, with its unquestioned procedural rulemaking power, has made a new rule of evidence in this case. That rule could be stated: if federal statutes require, the Montana Rules of Evidence may be waived. This is the net effect of the ruling made here with regard to reception and consideration of the report of the Denver Children's Hospital, loaded as it is with hearsay, speculation and confusing conclusions, without providing the appellants an opportunity to examine its authors. It is said the school district was foreclosed from objecting to consideration of this report by the District Court because 20 U.S.C. 81415 (el (2) provides in part, "In any action brought under this paragraph the court shall receive the records of the admini- strative proceedings,. . ." It could be that federal law may be invoked to nullify the provisions of parts (2) and (5) of section 2-4-612, MCA, the provisions of the Administrative Procedure Act requiring adherence at the administrative level to the rules of evidence and providing for cross examination of the authors of documents. And if the federal law requires it, I suppose there is no harm in the District Court receiving the entire record of an administrative proceeding, regardless of how filled up it might be with procedural and evidentiary error. But that cannot possibly mean that the District Court, in hearing and considering the matter, must disregard the rules of procedure and evidence in making its determination. Here there was, apparently, a timely motion to strike the report of the Denver Children's Hospital from consideration by the Court. In my opinion the motion should have been granted unless the authors of the report were presented to lay the foundation for its consideration and be subjected to cross examination with regard to it. To require less would be to abdicate the -26- authority of the Montana courts and legislature to determine procedure and evidentiary qualification to the composers of rules for the United States Department of Health, Education and Welfare. I would not do so. Hon. Gordon R. Bennett District Court Judge sitting in for Justice Gene B. Daly L Justice I N THE SUPREME C O U R T O F THE STATE O F M O N T A N A No. 14815 I N THE MATTER O F T H E "A" FAMILY. O R D E R PER CURIAM: I T I S O R D E R E D t h a t t h e following c o r r e c t i o n s be made i n t h e above-named opinion. O n t h e T i t l e Page t h e words "ORIGINAL PROCEEDING" should be d e l e t e d and t h e following p u t i n t h e i r place. "APPEAL F R O M : 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 Honorable Arnold Olsen, Judge presiding." The words "For Respondent" should be d e l e t e d and t h e same words "For Respondent" should be p u t j u s t above t h e name of John Albrecht, who i s t h e counsel f o r respondent. Cannon and G i l l e s p i e a r e counsel f o r a p p e l l a n t a l s o , s o t h e i r names may remain where they a r e . O n page 9, l i n e 7 from t h e t o p of t h e page, p l e a s e change t h e c i t e "20 U.S.C. S1416" t o "20 U.S.C. §1415(e) ( 2 ) ". O n page 9 , l i n e 7 from t h e bottom of t h e page, p l e a s e i n s e r t t h e word "and" i n between t h e word "federal" and t h e word " e s t a t e " . O n page 16, from t h e top of t h e page, please d e l e t e l i n e 1 0 which reads: "(And t h e department of education t o o . ) " . O n page 17, l i n e 15 from t h e bottom of t h e page should be changed t o read: "20 U.S.C. § 1 4 1 5 ( e ) ( l ) , a s follows:" O n page 18, l i n e 13 from t h e bottom of t h e page, p l e a s e change "48 A.R.M. 2.18 (42) ,Sl8780 (11) " a s follows: "48 A.R.M. 2.18 ( 4 2 - S18780 (11). " O n page 18, l i n e 1 from t h e bottom of t h e page, please change t h e s p e l l i n g of t h e name of D r . Spore t o "Dr. Spoor". O n page 19, l i n e 2 and l i n e 7 from t h e top of t h e page, p l e a s e change t h e s p e l l i n g of t h e name of D r . Spore t o "Dr. Spoor". O n page 2 1 , l i n e 5 from t h e bottom of t h e page, p l e a s e change t h e c i t e "45 C.F.R. 1211.13" t o read: "45 C.F.R. 121a.13. O n page 25, l i n e 7 from t h e bottom of t h e page, p l e a s e change "Section 2-4102(11) ( a ) " t o read: "Section 2-4-102(11) ( a ) " . DATED t h i s 3&- day of October, 1979. f J u s t i c e s u & | October 26, 1979 |
90e80231-000f-49d4-934e-4311fa775e61 | MARRIAGE OF GREEN v GREEN | N/A | 14532 | Montana | Montana Supreme Court | No. 14532 IN THE SUPHEME COURT O F THE STATE O F MXTANA 1979 IN RE THE MARRIAGE O F IRENE L A . GREEN, Petitioner and Respondent, Respondent and Appellant. Appeal f m : D i s t r i c t Court of the Fourth Judicial D i s t r i c t , Homrable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: Balyeat and Kamwrer, Missoula, Pbntana John Balyeat argued, Missoula, Pbntana For Respondent: Tipp, Haven and Skjelset, Missoula, Pbntana Thamas Frizzell argued, Missoula, Mxkana Sutnnitted: March 15, 1979 n - % , A =ided: ;".F ' : 1 3 . 7 -% . ..- Filed: - - . . - ;?:$ M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. D r . Norman Green appeals from t h e findings of f a c t and conclusions of law entered by t h e D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , Missoula County, t h e Honorable Edward T. Dussault presiding, r e l a t i n g t o t h e d i v i s i o n of t h e p a r t i e s ' a s s e t s i n conjunction with t h e i r d i s s o l u t i o n of marriage. The court, s i t t i n g without a jury, heard t h e matter on two nonsuccessive days. On t h e f i r s t , February 7, 1978, a decree of d i s s o l u t i o n w a s entered pursuant t o s t i p u - l a t i o n of t h e p a r t i e s ; t h e April 11, 1978, hearing w a s confined t o questions of t h e property settlement. The c o u r t ' s findings and conclusions were f i l e d June 23, 1978. Appellant presents twelve i s s u e s f o r review, many of which are r e p e t i t i v e . D i s t i l l e d t o t h e i r essence, they c e n t e r on t h e following: 1. Did t h e D i s t r i c t Court equitably apportion t h e assets of t h e p a r t i e s a s required by s e c t i o n 48-321, R.C.M. 1947, now s e c t i o n 40-4-202 MCA, of Montana's Uniform Mar- r i a g e and Divorce Act? 2. Were t h e findings and conclusions properly made and based on s u b s t a n t i a l c r e d i b l e evidence? 3 . Did t h e c o u r t err i n awarding I r e n e Green main- tenance and attorney fees? 4. Did t h e D i s t r i c t Court err i n admitting respon- d e n t ' s Exhibit N o . 4 , s u b s t a n t i a l l y prejudicing appellant thereby? The p a r t i e s were married December 5, 1969, a t which t i m e respondent I r e n e Green w a s a cook a t a truck s t o p and a p p e l l a n t w a s , a s now, a physician. Both had been married previously, and each had minor children. Each, too, had a s s e t s : respondent had t h e seller's i n t e r e s t i n a c o n t r a c t f o r deed on r e a l e s t a t e near Lolo, Montana; a p p e l l a n t had $5000 i n a Keough retirement plan, owned an a i r p l a n e , and owned a building used a s a medical c l i n i c i n Shaunavon, Saskatchewan, Canada, t h e s u b s t a n t i a l loans f o r which were paid off during t h e marriage. A t t h e t i m e of t h e i r separation, t h e District Court found t h a t t h e p a r t i e s owned t h e following: t h e seller's i n t e r e s t i n t h e c o n t r a c t on t h e Lolo property, t h e a i r p l a n e , t h e c l i n i c , a house on t e n acres on M i l l e r Creek i n Missoula, and an i n t e r e s t i n t h e Riverside B a r i n Hamilton. I n addi- t i o n , D r . Green had $17,500 i n t h e Keough retirement plan. The p a r t i e s a l s o had various personal property, which appel- l a n t acknowledges was divided evenly. I n addition, t h e p a r t i e s had debts and l i a b i l i t i e s t o t a l i n g some $127,000. The D i s t r i c t Court divided t h e property as follows: t o M r s . Green, t h e s e l l e r ' s i n t e r e s t i n t h e c o n t r a c t f o r deed on t h e Lolo property and t h e half i n t e r e s t i n t h e Hamilton bar, where she works; t o D r . Green, everything else. I t appears t h a t each received property b e s t s u i t e d t o t h a t individual. M r s . Green makes her l i v i n g from t h e bar--it makes sense t h a t she receive t h e p a r t i e s ' i n t e r e s t i n t h a t prop- e r t y . She had acquired t h e Lolo property c o n t r a c t f o r deed from her former husband i n l i e u of monthly support payments f o r her two children by t h a t p r i o r marriage--it makes sense t h a t she receive t h a t , a l s o . D r . Green i s t h e only one of t h e p a i r who has a p i l o t ' s l i c e n s e ; hence, t h a t he should g e t t h e plane i s reasonable. H e i s a physician, who came i n t o t h e marriage with an in- terest i n t h e medical c l i n i c ; it is reasonable t h a t he keep t h a t property and t h e attendant share of t h e income from it. ~ i k e w i s e , it i s economically s e n s i b l e t h a t he keep h i s Keough retirement plan. M r s . Green moved o u t of t h e M i l l e r Creek house a t t h e t i m e of separation. D r . Green continued t o l i v e i n t h e home a f t e r t h e separation. It appears reasonable t h a t D r . Green should be awarded a l l of t h e proceeds from t h e s a l e of t h e home. A t t h e t i m e of t h e separation, t h e home was worth a t least $82,000. Appellant had t o provide $43,000 t o r e t i r e t h e d e b t owing on t h e half i n t e r e s t i n t h e Riverside Bar, t h e $4000 f o r e i g h t months of maintenance and, perhaps, a s w i l l be discussed l a t e r , $1500 f o r c o s t s and attorney f e e s . That he assume c e r t a i n of t h e debts does n o t appear inequitable. For example, a s i z e a b l e loan had been taken o u t i n M r s . Green's name t o pay D r . Green's arrearages i n support owed h i s wife and o f f s p r i n g from a p r i o r marriage; t h a t he should assume r e s p o n s i b i l i t y f o r t h a t does not appear inequitable and unreasonable. Unclear from t h e record i s t h e why and t h e wherefore of some of t h e loans. W e cannot speculate about them, b u t absent compelling explanations t o t h e contrary, it does not appear inequitable t h a t D r . Green, t h e p a r t y earn- ing approximately $6000 per month, a s opposed t o M r s . Green, who earns w e l l under $1000 per month, i s t o discharge t h e obligations. The s i t u a t i o n i s not, a s appellant suggests, one of leaving him "with some f u r n i t u r e and an o l d c a r , " while t h e wife i s " s i t t i n g on t h e s i d e laughing." Given t h e nature of t h e property t o be d i s t r i b u t e d and with due consideration of t h e i t e m s elaborated i n s e c t i o n 48-321, R.C.M. 1947, now s e c t i o n 40-4-202 MCA, it appears t h a t t h e d i s t r i b u t i o n made by t h e ~ i s t r i c t Court indeed was e q u i t a b l e . It i s well s e t t l e d t h a t " [ t ] he apportionment made by t h e District Court w i l l n o t be d i s t u r b e d on review u n l e s s t h e r e has been a c l e a r abuse of d i s c r e t i o n a s manifested by a s u b s t a n t i a l l y i n e q u i t a b l e d i v i s i o n of t h e m a r i t a l assets r e s u l t i n g i n s u b s t a n t i a l i n j u s t i c e . " I n re Marriage of Brown (1978), Mont. 587 P.2d 361, 364, 35 St.Rep. 1733, c i t i n g i n t e r alia, I n re Marriage of B l a i r (1978), Mont. , 583 P.2d 403, 405, 35 St.Rep. 1256, and Eschenburg v. Eschen- burg (1976), 171 Mont. 247, 557 P.2d 1 0 1 4 , 1016, 33 St.Rep. 1198. I n t h e i n s t a n t case, no c l e a r abuse of d i s c r e t i o n i s manifest; t h e r e has been no s u b s t a n t i a l l y i n e q u i t a b l e d i v i - s i o n of t h e m a r i t a l assets r e s u l t i n g i n s u b s t a n t i a l i n j u s t i c e t o e i t h e r party. The D i s t r i c t Court i s affirmed as t o t h e d i v i s i o n of t h e p a r t i e s ' property. Considering t h e second i s s u e , a f t e r reviewing t h e t r a n s c r i p t of proceedings, w e f i n d t h a t t h e f i n d i n g s and conclusions are based on s u b s t a n t i a l c r e d i b l e evidence. I t i s t r u e t h a t some of t h e f i n d i n g s of f a c t are more properly conclusions of l a w and v i c e versa, b u t a mislabeling such a s has occurred here w i l l n o t form t h e b a s i s f o r repudiating t h e determinations of t h e District Court. Appellant has s u f f e r e d no s u b s t a n t i a l i n j u s t i c e a s a r e s u l t of t h e m i s - l a b e l i n g . Such e r r o r i s harmless and may n o t be used t o d e f e a t t h e judgment. The D i s t r i c t Court w i l l n o t be r e - versed f o r harmless e r r o r , e.g., Halko v. Anderson (1939), 108 Mont. 588, 593, 93 P.2d 956, 959, and t h e cause w i l l n o t be remanded i n those cases wherein t h e eventual r e s u l t must be t h e same. Green v. Green (1978), - Mont. - , 579 P. 2d 1235, 1237, 35 St-Rep. 800. The t h i r d i s s u e concerns t h e award of maintenance and a t t o r n e y f e e s t o M r s . Green. A c o u r t may g r a n t maintenance f o r e i t h e r spouse only i f it f i n d s t h a t t h e spouse seeking maintenance meets two conditions: (1) he o r she l a c k s s u f f i c i e n t property t o provide f o r h i s o r her reasonable needs; and, (2) i s unable t o support himself o r h e r s e l f through appropriate employment - o r i s t h e custodian of a c h i l d whose condition o r circumstances make it appropriate t h a t t h e c u s t o d i a l p a r e n t n o t be required t o seek employment o u t s i d e t h e home. Section 48-322 (1) ( a ) , (b) , R.C.M. 1947, now s e c t i o n 40-4-203 (1) ( a ) , (b) MCA. Furthermore, i n making t h e award, t h e c o u r t i s prohibited from considering any marital misconduct of t h e p a r t i e s , b u t must consider t h e following: " t h e f i n a n c i a l resources of t h e p a r t y seeking main- tenance, including m a r i t a l property apportioned t o him, and h i s a b i l i t y t o meet h i s needs independently, including t h e e x t e n t t o which a provision f o r support of a c h i l d l i v i n g with t h e p a r t y includes a sum f o r t h a t p a r t y a s custodian; " t h e time necessary t o acquire s u f f i c i e n t education o r t r a i n i n g t o enable t h e p a r t y seeking maintenance t o f i n d appropriate employment; " t h e standard of l i v i n g e s t a b l i s h e d during t h e m a r - r i a g e ; " t h e d u r a t i o n of t h e marriage; " t h e age, and t h e physical and emotional condition of t h e spouse seeking maintenance; and " t h e a b i l i t y of t h e spouse from whom maintenance i s sought t o m e e t h i s needs while meeting those of t h e spouse seeking maintenance. " Section 48-322 ( 2 ) ( a ) - (f) , R.C.M. 1947, now s e c t i o n 40-4-203 (2) (a) - ( f ) MCA. I n t h i s case, t h e D i s t r i c t Court t w i c e r e f e r s t o t h e maintenance award: "18. The Respondent should pay and t h e P e t i t i o n e r i s awarded t h e sum of $500.00 per month f o r t h e c a r e and support of P e t i t i o n e r beginning June 1, 1977, and through t h e month of January 1978 f o r a t o t a l s u m of $4,000.00." " 3 . That P e t i t i o n e r with no formal education p a s t high school, having no work experience during t h e marriage of note, s u f f e r i n g from a progressive d i s a b l i n g d i s e a s e of u l c e r a t i v e c o l i t u s a s diagnosed by Respondent, and unable t o hold g a i n f u l employment g r e a t e r than s e v e r a l s h i f t s per week a s a bartender and s h a l l experience a low and reducing r a t e of per- sonal income h e r e a f t e r . " Based on t h e latter, a finding mislabeled a conclusion, t h e D i s t r i c t Court had ample foundation f o r making t h e s h o r t t e r m maintenance award and d i d s o i n s u f f i c i e n t compliance with s t a t u t o r y mandate. Section 48-327, R.C.M. 1947, now s e c t i o n 40-4-110 MCA, states: "The c o u r t from t i m e t o t i m e a f t e r considering t h e f i n a n c i a l resources of both p a r t i e s may order a p a r t y t o pay a reasonable amount f o r t h e c o s t t o t h e o t h e r p a r t y of maintaining o r defending any proceeding un- d e r t h i s a c t and f o r a t t o r n e y ' s f e e s including sums f o r l e g a l s e r v i c e s rendered and c o s t s incurred p r i o r t o t h e commencement of t h e proceeding o r a f t e r e n t r y of judgment. The c o u r t may order t h a t t h e amount be paid d i r e c t l y t o t h e a t t o r n e y , who may enforce t h e o r d e r i n h i s name." A s t o t h e award of a t t o r n e y ' s f e e s , t h e D i s t r i c t Court found: "19. That Respondent should pay toward t h e P e t i - t i o n e r ' s a t t o r n e y f e e s and t h e P e t i t i o n e r i s here- by awarded t h e sum of $1,500.00 a s f o r and towards t h e P e t i t i o n e r ' s a t t o r n e y f e e s and c o s t s i n t h i s matter." "11. The Respondent should be ordered and i s hereby required t o pay t h e sum of $1,500.00 towards t h e P e t i t i o n e r ' s a t t o r n e y f e e s and c o s t s of s u i t incurred." The D i s t r i c t Court determined t h a t a p p e l l a n t i s "a t r a i n e d , licensed and p r a c t i c i n g medical doctor, age 53, without any claimed physical o r mental impairment, with earnings of approximately $6,000.00 per month" who " s h a l l continue t o have a high rate of personal income." The record supports t h e s e determinations. I n c o n t r a s t , t h e wife, who had no formal education beyond high school and no s i g n i f i c a n t employment experience during t h e p a r t i e s ' marriage, s u f f e r s from u l c e r a t i v e c o l i t i s and i s unable t o hold g a i n f u l employment o t h e r than working s e v e r a l s h i f t s as a bartender. H e r income nowhere approaches t h a t of appel- l a n t and, as t h e D i s t r i c t Court found, it w i l l gradually diminish a s she ages and t h e d i s e a s e progresses. Clearly t h e c o u r t considered t h e f i n a n c i a l resources of both p a r t i e s . Under t h e s e circumstances, an award of $1500 toward payment of her a t t o r n e y f e e s and c o s t s does n o t appear s o i n e q u i t a b l e a s t o mandate r e v e r s a l . W e have held, however, t h a t evidence must be introduced t o support an award of a t t o r n e y f e e s . A s s t a t e d i n S t a t e Highway Comm'n v. Marsh (1978), - Mont. - , 575 P.2d 38, 43, 35 St.Rep. 105, 1 1 0 , ". . . A n award of a t t o r n e y f e e s must be based on a hearing allowing f o r o r a l testimony, t h e i n t r o d u c t i o n of e x h i b i t s , and an opportunity t o cross- examine i n which t h e reasonableness of t h e a t t o r n e y f e e s claimed i s demonstrated. . ." A s i n Marriage of Barron (1978) Mont. , 580 P.2d 936, 938, 35 St.Rep. 891, 8 9 4 : "We f i n d a lack of evidence t h a t would s a t i s f y t h e requirements of Crncevich v. Georgetown Rec. Corp. (1975), 168 Mont. 113, 541 P.2d 56, and F i r s t S e c u r i t y Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 547 P.2d 1328, t o support t h e award of a t t o r n e y f e e s i n t h e judgment." A s i n Barron and Hollinger v. McMichael (1978), Mont. , 580 P.2d 927, 35, St.Rep. 856, t h e cause must be remanded t o t h e D i s t r i c t Court f o r an e v i d e n t i a r y hearing on t h e question of a t t o r n e y f e e s . F i n a l l y , a p p e l l a n t complains of e r r o r i n t h e admission of respondent's E x h i b i t No. 4 , used t o show t h e income of t h e Riverside B a r where respondent w a s working. Appellant objected t o its admission on t h e grounds (1) t h a t M r s . Green could t e s t i f y t o t h e matters contained t h e r e i n ; (2) t h a t he had no opportunity t o examine t h e bookkeeper who prepared it; ( 3 ) t h a t it had no r e l a t i o n t o t h e case; and ( 4 ) t h a t it was very misleading. The D i s t r i c t Court s p e c i f i c a l l y s t a t e d t h a t t h e e x h i b i t was being admitted only f o r t h e purpose of showing t h e w i f e ' s n e t income. Immediately p r i o r t o i t s introduction, Irene Green t e s t i f i e d twice, without any objection, a s t o t h e income she received from t h e bar during an eight-month period i n 1977. Thus, t h e information was before t h e c o u r t f o r i t s consideration even before t h e introduction of t h e e x h i b i t . W e need not decide whether t h e r e was e r r o r i n t h e admission of t h i s e x h i b i t , f o r even were t h e r e e r r o r , it w a s n o t p r e j u d i c i a l t o appellant, a f f e c t i n g h i s s u b s t a n t i a l r i g h t s s o as t o be made t h e b a s i s f o r r e v e r s a l . Rule 6 1 , M.R.Civ.P. Harmless e r r o r w i l l not be made t h e b a s i s f o r r e v e r s a l , e.g., Halko v. Anderson, 108 Mont. a t 593, 93 P.2d a t 959. For t h e D i s t r i c t Court t o be reversed f o r improp- e r l y admitting evidence, s u b s t a n t i a l prejudice t o t h e com- plaining p a r t y must be shown. Rule 103, Mont.R.Evid., states t h a t " [ e l r r o r may n o t be predicated upon a r u l i n g which admits o r excludes evidence unless a s u b s t a n t i a l r i g h t of t h e p a r t y i s affected. . ." Appellant has made no show- ing t h a t a s u b s t a n t i a l r i g h t has been a f f e c t e d t o h i s d e t r i - ment so as t o warrant r e v e r s a l . The judgment i s affirmed, except a s noted above regard- i n g remand t o t h e D i s t r i c t Court f o r an evidentiary hearing on t h e question of attorney f e e s and c o s t s . We concur: ~ ~ ! b q q Chief Justice w -' . \ \ \ - . . &$ m y & , --- ,' Justices - i : ' I | April 12, 1979 |
a5ea6dc0-ea6a-4dcf-a8b5-1c3b76ab9162 | PRETTY ON TOP v CITY OF HARDIN | N/A | 14519 | Montana | Montana Supreme Court | No. 14519 IN THE SUPREME COURT OF THE STATE OF MONTANA REGINA. PRETTY ON TOP, as surviving spouse, and DOROTHY MARCHINGTON, Administratrix of the Estate of MELVIN PRETTY ON TOP, Deceased, Plaintiffs and Appellants, CITY OF HARDIN, MONTANA and ROBERT HAMILTON, chief of police of the City of Hardin, Montana Defendants and Respondents. Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellants: Lynaugh, Fitzgerald, Schoppert, Skaggs, and Essman, Billings, Montana Thomas J. Lynaugh argued, Billings, Montana For Respondents: Keefer and Roybal, Billings, Montana J. Dwaine Roybal argued, Billings, Montana Submitted: February 13, 1979 Decided: APE 1 ' 1979 . - Filed: - -- : .fig 2 M r . J u s t i c e John C. Sheehy d e l i v e r e d t h e Opinion of t h e Court. O n t h e afternoon of September 18, 1973, Hardin C i t y patrolman Harvey Kern observed t h r e e men s i t t i n g i n a truck behind t h e Big Horn Bar i n Hardin, Montana. They were passing a b o t t l e from one person t o another. Patrolman Kern watched t h e men f o r approximately f i f t e e n minutes before one of t h e men g o t o u t of t h e t r u c k and l e f t t h e scene. The patrolman then approached t h e v e h i c l e and informed t h e occupants of t h e c i t y ordinance which prohibited p u b l i c possession of an open b o t t l e containing an a l c o h o l i c beverage. After informing t h e men of t h e i r r i g h t s , patrolman Kern a r r e s t e d them and took them t o t h e Hardin City J a i l where they w e r e searched and incar- cerated. One of t h e men was Melvin P r e t t y O n Top, a Native American. H e had been a r r e s t e d numerous times i n t h e p a s t f o r alcohol-use offenses. O n t h i s occasion it appeared t o t h e patrolman t h a t P r e t t y O n Top had been drinking, but t h a t he w a s i n c o n t r o l of h i s body. He d i d not s t a g g e r and he was coherent. O n t h e morning a f t e r h i s a r r e s t , P r e t t y O n Top pleaded g u i l t y t o t h e open-bottle charge. The P o l i c e Court imposed a $100 f i n e . Because P r e t t y O n Top was unable t o pay t h e f i n e , he was returned t o t h e j a i l t o s e r v e t i m e a t a r a t e of $10 per day. The Hardin City J a i l i s used almost e n t i r e l y f o r d e t o x i f i c a t i o n . Of t h e 300 persons incarcerated i n t h e j a i l f o r a twelve month period immediately preceding September 1973, 98 percent were j a i l e d on alcohol-use offenses. Of these offenders,95 percent of those jailed were Native Americans. The jail is inspected, but not searched, numerous times each day by the police chief and the officers on duty. Visiting hours are from 8:00 a.m. until 4:00 p.m. Visitors are permitted to go back to the cell and talk to prisoners through the bars. Before doing so, the visitor is asked to remove his coat and leave behind packages, but a search of the visitor is not made. Overall, the security maintained by the authorities depends on the jail population. Since the jail is used primarily for detoxification, minimum security is usually maintained. On September 22, at 6:03 p.m., four days after his arrest, Melvin Pretty On Top committed suicide by stabbing himself in the throat, neck and chest with a wooden paring knife. None of the authorities knew how Pretty On Top obtained the knife or how long he possessed it prior to his death. However, one of the trusties (a prisoner who receives $5.00 credit each day for doing janitorial work in the cell and reporting anything unusual to the officer on duty) knew that Pretty On Top had the knife in his possession, but failed to inform anyone. Pretty On Top's wife, Regina, had asked to see her husband approximately one hour before his death, but her request was denied because visiting hours had ended. This was the only record of anyone attempting to visit Pretty On Top. Hardin City Police Chief Robert Hamilton observed Pretty On Top each day before his death during inspections. His general demeanor, attitude and activities were normal. Pretty On Top did not have a history of mental disease or emotional disturbances, nor had he attempted suicide previously. -3- On January 2, 1974, Regina Pretty On Top and the administratrix of Pretty On Top's estate (plaintiffs) filed a complaint in District Court, Big Horn County, alleging that Pretty On Top's death was caused by the negligence of defendants City of Hardin and Police Chief Robert Hamilton in failing to exercise due care in the maintenance and supervision of the jail facility. On October 28, 1975, defendants moved for summary judgment, stating: "The City of Hardin and Robert Hamilton submit that the undisputed facts do not support any theory of liability and therefore they are entitled to judgment as a matter of law. Three independent and equally supportable reasons are here presented in support of notion for summary judgment. "1. The defendants breached no duty owed to the deceased. "2. The suicide of Melvin Pretty On Top was not foreseeable by any defendant. " 3 . The suicide of Melvin Pretty On Top was his own volitional act and as such was a sufficient superceding and inter- vening act to cut off responsibility for any negligence of the defendant." An order granting defendants' motion for sumary judgment was entered by the District Court on September 20, 1978, and this appeal followed. The ultimate issue to be decided in this case is whether the s u r r i i a r y judgment is proper. A party against whom a claim is asserted may, at any time, move for suxnary judgment in his favor. Rule 56(b), M0nt.R.Civ.P. The judgnent sought shall be rendered forthwith if the pleadings, depositions, answers to in- terrogatories, and admissions on file, together with any affidavits, shcw 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. The party moving for summary judgment has the burden of establishing the absence of any genuine issue of material fact and the party opposing the motion must come forward with evidence supporting the existence of a genuine fact issue. Hollinger v. McMichael (1978), Mon t . , 580 P.2d 927, 35 St.Rep. 856. In the case before us, the District Court considered the pleadings, depositions, answers to interrogatories, and the parties' briefs before granting defendants' motion for summary judgment. For purposes of testing the propriety of the summary judgment, defendants do not dispute the material facts found in the court's file. Those material facts are set forth above. Actionable negligence arises only from a breach of legal duty, and tc sustain an action for damages resulting from negligence, the complaint must allege the duty, its breach, the damages, and that the breach of duty was the proximate cause of the injury. Ritchie v. Northern Pac. Ry. Cc. (1954), 128 Mont. 218, 272 P.2d 728. Related to these basic rules of negligence law is the rule that a defendant who could not reasonably foresee any danger of direct injury resulting from his conduct or any risk from an intervening force is not negligent. Mang v. Eliasson (1969), 153 Mont. 431, 458 P.2d 777. A jailer owes a duty to the prisoner to keep him safe and to protect him from unnecessary harm. Reasonable and ordinary care must be exercised for the life and health of the prisoner. Porter v. County of Cook (1976), 42 Ill. App.3d 287, 355 N.E.2d 561; see also: 79 A.L.R.3d 1210; 60 Arn.Jur.2d, Penal and Correctional Institutions, S17, p . 821. As stated in Kendrick v . Adamson (1935), 51 Ga.App 402, 180 S.E. 647, "A sheriff owes to a prisoner placed in his custody a duty to keep the prisoner safely and free from harm, to render him medical aid when necessary, and to treat him humanely and refrain from oppressing him." However, ". . . a jailer is not liable to a prisoner in his keeping for injuries resulting from the prisoner's own intentional conduct [citation omitted.] Absent some possible special circumstances a jailer is under no duty to prevent the latter from taking his own life." Lucas v. City of Long Beach (1976), 60 Cal.App.3d 341, 131 Cal.Rptr. 470. "Special circumstances" form the basis of virtually every decision involving a jailer's liability for a prisoner's acts of self-destruction. In Porter v. County of Cook, supra, the plaintiff had been incarcerated in the Cook County House of Correction for threatening to harm his wife. He was physically examined by a county-employed psychiatrist who recommended "that he be admitted to a hospital immediately as an emergency for the protection from physical harm of himself or others." The plaintiff was then placed in an isolated cell where he began hearing voices that threatened him. He yelled for the guards to come to his aid and for medication. None came. The voices kept getting worse and worse. In an attempt to drive the voices away, the plaintiff set his mattress on fire. Soon his hair caught on fire and he started screaming. A guard from two tiers above his cell rescued him, but not before he had suffered severe burns on his face and hands. The Appellate Court of Illinois upheld the trial court's factual determination that the county, which was obligated to provide reasonable care for -6- its prisoners, did not do so when its employees failed to strip the defendant, take away his personal effects, and protect him from harming himself. In the above-discussed case the defendant knew or should have known that the prisoner was suicidal, thereby satisfying the requirement that "special circumstances" exist before liability will attach. But liability is not limited to cases involving prisoners with suicidal histories. For example, numerous courts have held the jailer respon- sible for the prisoner's actions when the prisoner injures himself because he is in a state of helpless intoxication. Decisions stating that a greater duty is owed when a person is so intoxicated as tc be incapacitated for physical or mental effort are: Thomas v. Williams (1962), 105 Ga.App. 321, 124 S.E.2d 409; Barlow v. City of New Orleans (1970), 257 La. 91, 241 So.2d 501; and Shuff v. Zurich-American Ins. Co. (1965 La.App. ) , 173 So.2d 392. Finally, a case arising in the neighboring state of North Dakota provides a clear insight into the problem. In Falkenstein v. City of Bismarck (N.D. 1978), 268 N.W. 2d 787, the decedent was placed in a cell known as "the hole" following an incident in which he "foulmouthed" a police officer. The next morning the decedent was found dead, hanging from the cell door bars. The North Dakota Supreme Court, noting the Lucas case, held that substantial evidence existed in the record to support a conclusion that the decedent's suicide was the result of a morbid state of mind proximately caused by his incarceration in "the hole" for an extended period of time. The North Dakota Supreme Court noted that, "[Iln most situations a death by suicide is not an actionable -7- event because, even though there may have been tortious conduct preceding the suicide, the suicide is ordinarily considered as an intentional act and not the result of the tort. This relieves the original actor of liability." Therefore, a plaintiff does not have a cause against a jailer for negligently causing the suicide of a prisoner unless "special circumstances" are offered which elevate the jailer's duty of care and tend to prove that the jailer's acts or omissions constituted the proximate cause of the suicide, rather than the prisoner's own intentional conduct. The jailer is not an insurer of the safety of its prisoners. However, once the jailer knows or should know of the suicidal tendencies of a prisoner, a duty arises to provide reasonable care necessary to prevent the prisoner from committing suicide. The rule applies whether the prisoner is mentally anguished, helplessly intoxicated, or temporarily insane because of conditions forced upon him by the jailer. Melvin Pretty On Top committed suicide four days after being incarcerated in the Hardin City Jail. He did not have a history of mental disease or emotional disturbances, nor had he attempted suicide previously. His conduct and general demeanor while in jail was normal. There is no evidence in the District Court file that Pretty On Top was suffering from delerium tremens. Plaintiffs contend the defendants were negligent in the supervision and maintenance of the jail facility, thereby permitting the paring knife to be accessible to Pretty On Top. A similar attempt to impose liability was made in Maricopa County v. Cowart (1970), 106 Ariz. 69, 471 P.2d 265, an action to recover for the suicide of a boy confined in a reformatory. Responding to the allegation that the - 8- physical plant was negligently constructed, the Supreme Court of Arizona said: ". . . [Ulnder the general theory of negligence, in order to show liability, the plaintiff must prove a causal connection between the alleged breach of duty and the resulting injury. Here again, the proof is nil that any breach of the detention home's duty to provide a reasonably safe building, if in fact such a breach was shown, was the proximate cause of the resulting suicide of the deceased. There was absolutely no testimony that the structure produced or contributed to a morbid state of mind of the deceased precipitating his suicide." Under plaintiffs' theory, it would be necessary to prove that the jail's security policy caused Pretty On Top to commit suicide. Plaintiffs' contention that the security policy made it possible for Pretty On Top to take his own life is insufficient. Defendants were required to exercise reasonable and ordinary care for Pretty On Top's life and health. There was nothing before the District Court that tended to prove that the proximate cause of the suicide was anything but the intentional act of Melvin Pretty On Top. Without a showing of "special circumstances" which would elevate the defendants' duty of care and thereby create the possibility that defendants' acts were the proximate cause of the death, the District Court was required to follow the general rule that suicide is an intentional act and grant defendants' motion for sumary judgment. Affirmed . Justice v We Concur: -----------,--------------- Justices Justice Daniel J. Shea will file a dissent. No. 14519 REGINA PRETTY ON TOP, Administratrix of Estate of Melvin Pretty on Top, CITY OF HARDIN, and the Chief of Police. Dissent of Justice Daniel J. Sfiea. Mr. Justice Daniel J. Shea dissenting: I would reverse the summary judgment and send the case back for trial. There are genuine factual issues involved which must be tried by a jury. This case, con- trary to the conclusion of the majority, is controlled by the "special circumstances" which created a higher duty of care than merely that of an ordinary jailer. The City was openly and avowedly running its jail as a de facto detoxification center, and that is the focal point from which we must measure duty, foreseeability, and efficient intervening cause. The nature of the duty owed to the deceased depends, of course, on the nature of his incarceration. Here the purported legal reason why the city judge ordered the deceased to jail is because he had violated the open container law and could not pay the fine imposed. Consequently, he was ordered to work off the $100 fine in jail, with credit allowed at a rate of $10 per day. The actual reason, however, for the deceased's incarceration was that he was a chronic abuser of alcohol and in the wisdom of the City, he needed detoxification. As the majority has recognized, the deceased was no stranger to the City jail, having been there many, many times before for primary alcohol-related offenses. The majority expressed the true nature of the City jail in the following manner: "The Hardin City Jail is used almost entirely ---- for detoxification. Of the 300 persons in- carcerated in the jail for a twelve month period immediately preceding September 1973, 9 8 - percent were jiiied on alcohol-use offenses. Of these offenders, 95 percent of those jailed - were Native Americans. . . " (Emphasis added. ) Based on these disclosures, I do not understand why the majority refuses to attach special significance to these facts in analyzing the duty which the City owed to the deceased. By imposing the $100 fine which the deceased was unable to pay, and then requiring the deceased to pay off the fine at the rate of $10 per day for each day spent in jail, the City starts off with a strike against it. The record before this Court indicates that the deceased was ordered to spend time in jail solely because he did not have the $100 with which to pay the fine. Almost two years before this incident, the United States Supreme Court squarely condemned this practice as a violation of equal protection of the law. Tate v. Short (1971), 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130. Therefore, from the very moment he was sentenced, the deceased was being held illegally. It appears however, that the actual reason for placing the deceased in jail was that the City in its wisdom, determined that he needed detoxification due to his chronic abuse of alcohol. As the majority has noted, for at least a year immediately preceding the deceased's suicide, the City was using the jail almost exclusively as a detoxification center. This is a far cry from the normal uses to which a City jail is put, and it is for this reason that the normal duty owed by the jailer to the inmates of the jail does not apply. When the City changed the general nature of the use of the jail, it also changed the nature of its duties owed to the occupants of the jail. The deceased was in essence being treated (however ineptly) as one of many persons with a chronic alcohol abuse problem. It is therefore of no consequence that the City did not know of the deceased's particular propensities to attempt suicide. The City is charged with the general knowledge that chronic alcohol abusers do not act like ordinary prisoners, particularly when they are involuntarily committed. The process of detoxification is a painful physical and mental process. One going through this process may develop extreme psychosis, delirium tremens, and is certainly more likely to attempt suicide than the prisoner without this problem. The City is charged with this knowledge because it openly and avowedly ran the jail as a detoxification center. It was not therefore required that the City have specific knowledge that the deceased was a potential candidate for suicide. Given this general duty imposed upon the City, it is a foreseeable event that a prisoner held as a chronic abuser of alcohol may attempt suicide. It was the duty of the City to take appropriate preventative steps, not simply to prevent the deceased from attempting or committing suicide, but to prevent all occupants from attempting or committing suicide. Absent these preventative measures, the City could not prevent an inmate from either harming another or harming himself. The facts here indicate the City did absolutely nothing to prevent the occupants from harming others or from harming themselves. The City took no steps to determine if weapons or other dangerous instruments were coming into the jail. This is hardly the way to run a detoxification center. The majority opinion recited the essential facts con- cerning the lack of jail inspection. Anyone could have slipped a weapon to the occupants of the jail. It is not at all unreasonable to conclude that a weapon finding its way into a jail is either for the purpose of effectuating an escape, harming another, or harming oneself. That a chronic alcoholic may attempt suicide while involuntarily jailed, is a clearly foreseeable event. I do not think the status of the trustie who knew the deceased had the knife can be ignored. This knowledge, under the facts of this case, is also chargeable to the City. The trustie knew the deceased had the knife but failed to notify anyone of this potentially dangerous situation. The trustie received a $5.00 credit each day for performing the duties of janitorial work and reporting anything unusual to the officer on duty. If it is not unusual for a jail inmate to have an unauthorized knife, I do not know what is. The trustie, working for the City, became the de facto agent of the City, and his knowledge was properly chargeable to the City. The trustie should have foreseen that the deceased planned to either harm someone else or himself. The aid of the trustie having been enlisted and having granted him special privileges in exchange for this aid, the City cannot now disavow that he was its agent. I stress, however, that even if the trustie did not know the deceased had possession of the knife, an attempted suicide by one undergoing involuntary detoxification, was a forseeable event. We next get to the question of whether the deceased was responsible for his own act of suicide, thereby exonerating the City. If we accept the proposition that the City owed deceased a duty under the "special circumstances" rule and further accept that the deceased's suicide was foreseeable while confined in a detoxification center, then it would be ludicrous to hold that the City was exonerated simply because the deceased's intentional act intervened. At the very least, it is a question of fact as to whether the deceased was in sufficient control of his mind and faculties such as to absolve the City of any responsibility for his ultimate suicide. For t h e foregoing reasons, I would reverse t h e D i s t r i c t Court and hold t h a t summary judgment was improperly granted. | April 17, 1979 |
0b9fe07a-6e15-43cc-94a4-8fc207173160 | DOWNS v DOWNS | N/A | 14514 | Montana | Montana Supreme Court | I N THE S U P R E M E C O U R T O F THE STATE O F MONTANA No. 14514 G L A D Y S T H E L M A D O W N S , P l a i n t i f f and Respondent, v. R O B E R T FRED D O W N S , Defendant and Appellant. O R D E R This Court having considered t h e p e t i t i o n f o r rehearing and t h e p e t i t i o n f o r c l a r i f i c a t i o n f i l e d by a p p e l l a n t i n t h e above e n t i t l e d cause, t h e Opinion of t h i s Court i s amended a s follows: Page 7 is d e l e t e d i n i t s e n t i r e t y (except f o r s i g n a t u r e s ) and t h e following paragraphs a r e t o be i n s e r t e d i n i t s place: The f i n a l matter f o r consideration i s d i r e c t e d a t t h e award of a t t o r n e y f e e s i n t h e amount of $50,000. The record d i s c l o s e s it w a s s t i p u l a t e d and agreed t o by counsel f o r both respondent and a p p e l l a n t t h a t respondent's a t t o r n e y f e e s were t o be paid by t h e respondent, M r s . Downs, o u t of any judgment received by her. Therefore, t h e cases of t h i s Court c i t e d by a p p e l l a n t , Crncevich v. Georgetown Recreation Corp. (1975), 168 Mont. 113, 541 P.2d 56; F i r s t S e c u r i t y Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 547 P.2d 1328; and I n re Marriage of Barron (1978), Mont. , 580 P.2d 936, 35 St.Rep. 891, a r e n o t ap- p l i c a b l e . Therefore, t h e f e e s set by Judge Gulbrandson and agreed t o by s t i p u l a t i o n of t h e p a r t i e s , t o be paid by respondent, M r s . Downs, a r e approved. The judgment of t h e t r i a l c o u r t i s affirmed. The p e t i t i o n f o r rehearing is hereby denied. DATED t h i s day of April, 1979. X L d ! We.&' CMef J u s t i c e M r . J u s t i c e John C. Sheehy did not p a r t i c i p a t e . No. 14514 I N THE SUPRTDE c o w O F T H E : S T A T E O F m m 1979 G L A D Y S TiBlNA D O W N S , Plaintiff and Respondent, R O m FRED m s , Defendant and Appellant. Appeal f m : District Court of the Thirteenth Judicial D i s t r i c t , Hon. L. C. Gulbrandson, Judge presiding. Counsel of Record: For Appellant: Mbert L. Stephens, Jr., Billings, Mntana Hibbs, Sweeney & Colberg, Billings, rJbntana For Respondent: Lucas and Pbnaghan, Miles City, mntana Jams E. Seykora, Hardin, Mntana Suhitted on briefs: February 16, 1979 Decided: i!f(fl"- : : c 7 ~ Filed: i ' 2 7 f 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 by respondent Robert Downs from a judgment entered i n 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 , Big Horn County, Montana, t h e Honorable L. C. Gulbrandson presiding. This case was previously before t h i s Court i n 1976 wherein on appeal w e reversed t h e judgment of t h e lower c o u r t and ordered a new t r i a l concerning t h e d i s t r i b u t i o n of m a r i t a l property. See Downs v. Downs (1976), 170 Mont. 150, 551 P.2d 1025. The f a c t s i t u a t i o n i s set f o r t h i n t h e above c i t e d a c t i o n and w i l l s e r v e f o r t h e f a c t s i n t h i s case. Appellant s e t s f o r t h four i s s u e s f o r review: 1. Did t h e D i s t r i c t Court e r r i n f a i l i n g t o make s p e c i f i c f i n d i n g s of f a c t and conclusions of law concerning t h e elements s p e c i f i e d i n s e c t i o n 48-321, R.C.M. 1947, now s e c t i o n 40-4-202 M C A ? 2. Did t h e D i s t r i c t Court e r r i n e n t e r i n g a judgment which contained m a t e r i a l variances from i t s f i n d i n g s of f a c t and conclusions of law? 3 . Did t h e D i s t r i c t Court abuse i t s d i s c r e t i o n i n i t s d i s t r i b u t i o n of t h e a s s e t s and l i a b i l i t i e s of t h e p a r t i e s ? 4. Did t h e D i s t r i c t Court e r r i n making an award of a t t o r n e y ' s f e e s without evidence of amount o r reasonableness? W e note t h a t t h r e e of t h e i s s u e s concern whether o r n o t t h e D i s t r i c t Court e r r e d i n i t s d i s t r i b u t i o n of t h e a s s e t s of t h e marriage. W e w i l l d i s c u s s t h e s e i s s u e s together. This Court, i n r e t u r n i n g t h e f i r s t appeal, noted t h e u n r e l i a b i l i t y of t h e record a s t o t h e n e t worth of appel- l a n t a t t h e t i m e of t h e marriage and a t t h e time of t h e divorce. For t h i s reason t h e judgment i n t h e e a r l i e r t r i a l was set a s i d e . I t i s a l s o t o be noted t h a t counsel on appeal is n o t t h e same counsel t h a t t r i e d e i t h e r of t h e c a s e s below b u t appears here only a s counsel of record on ap2eal. The c a s e was remanded t o t h e lower c o u r t t o d e t e r - mine t h e t r u e n e t worth of a p p e l l a n t a t t h e time of h i s marriage. I n again reviewing t h i s record a f t e r two years, w e note t h a t e f f o r t s were made t o schedule t h e matter f o r t r i a l on two s e p a r a t e occasions. Additional discovery was accom- p l i s h e d and new testimony and documentary evidence has been introduced f o r our consideration on t h i s second hearing. Appellant's main t h r u s t on appeal i s t h a t t h e lower c o u r t e r r e d i n n o t s e t t i n g f o r t h s p e c i f i c f i n d i n g s of f a c t , con- c l u s i o n s of law, and t h a t t h e record does n o t support t h e f i n d i n g s of f a c t and conclusions of law. W e observe t h a t throughout both t h e f i r s t and t h e second hearing, a p p e l l a n t w a s n e i t h e r eager nor h e l p f u l i n giving t h e t r i a l c o u r t s u f f i c i e n t information concerning h i s n e t worth a t t h e t i m e of t h e marriage i n 1956. Throughout t h e two-year period it was respondent who seems t o have made t h e e f f o r t s t o l o c a t e , uncover and discover a p p e l l a n t ' s a s s e t s a t t h e time of t h e marriage. Two depositions were taken of a p p e l l a n t t o s o l i c i t t h e information needed t o e s t a b l i s h t h e a s s e t s a t t h e time of t h e marriage and a t t h e time of t h e divorce. I t appears from t h e record t h a t appel- l a n t made l i t t l e e f f o r t and was r e s i s t a n t t o t h e e f f o r t s of respondent i n acquiring t h e information needed t o decide t h e question of a s s e t s . W e do n o t f e e l t h a t t h e t r i a l judge must become an a p p r a i s e r , an accountant, a computer, and an all-around genius t o appropriately decide t h e f a c t s a s e s t a b l i s h e d by t h e documentation given a t trial. I t i s t h e p a r t i e s ' d u t i e s t o a s s i s t t h e t r i a l c o u r t i n g e t t i n g t h i s information s o a proper judgment i s made a s t o t h e i r mutual a s s e t s . The elements f o r t h e t r i a l c o u r t ' s consideration i n making a d i s p o s i t i o n of m a r i t a l property a r e d e t a i l e d i n s e c t i o n 48-321, R.C.M. 1947, now s e c t i o n 40-4-202 MCA. This Court has held i n a number of r e c e n t c a s e s t h a t t h e t r i a l c o u r t must make s p e c i f i c f i n d i n g s concerning t h e value of t h e p a r t i e s ' a s s e t s a t t h e time of marriage and a t t h e t i m e of d i s s o l u t i o n . Appellant sets f o r t h a number of cases: I n re Marriage of Jorgenson (1979), Mont . - P.2d , 36 St.Rep. 233; Vivian v. Vivian (1978), Mont. , 583 P.2d 1072, 35 St.Rep. 1359; Capener v. Capener (1978) Mont. , 582 P.2d 326, 35 St.Rep. 1026; and, I n r e Marriage of Johnsrud (1977), Mont. I 572 P.2d 902, 34 St.Rep. 1417. I n Jorgenson t h i s Court affirmed a D i s t r i c t Court d e c i s i o n which awarded t h e husband a s s e t s valued a t approxi- mately $693,000 and t h e wife a s s e t s valued a t approximately $83,000. There t h e D i s t r i c t Court r e l i e d upon t h e f a c t t h a t a s u b s t a n t i a l p o r t i o n of t h e a s s e t s w e r e acquired by t h e husband p r i o r t o t h e marriage and had increased i n value s o l e l y by reason of i n f l a t i o n . Jorgenson can be f a c t u a l l y d i s t i n g u i s h e d from t h e p r e s e n t case. I n Jorgenson most of t h e assets of t h e husband had been given t o him by h i s f a t h e r p r i o r t o t h e marriage. I n t h i s c a s e t h e base of a p p e l l a n t ' s wealth occurred i n t h e swapping of and purchas- i n g of farm property. A t t h e t i m e of t h e marriage t h e value could not have been more than approximately $120,000. I t was on t h i s b a s i c a c q u i s i t i o n of property t h a t a p p e l l a n t w a s a b l e t o develop an e s t a t e t h a t , a t t h e t i m e of t h e separa- t i o n and divorce, w a s valued a t over two m i l l i o n d o l l a r s . W e hold t h a t Jorgenson i s n o t c o n t r o l l i n g i n t h i s m a t t e r , b u t r a t h e r look t o another r e c e n t c a s e of t h i s Court, Robertson v. Robertson (1978), Mont. 590 P.2d 113, 35 St.Rep. 1889. I n Robertson w e found t h a t t h e t r i a l c o u r t d i d n o t weigh t h e f a c t o r s enumerated i n s e c t i o n 48-321, R.C.M. 1947, now s e c t i o n 40-4-202 MCA, i n consider- i n g t h e d i s t r i b u t i o n of t h e a s s e t s of t h e couple; nor was t h e r e any i n d i c a t i o n t h a t t h e c o u r t assessed t h e value of t h e t o t a l m a r i t a l e s t a t e and made an e f f o r t t o equitably apportion it. H e r e , we have a s i t u a t i o n where t h e t r i a l c o u r t c a r e f u l l y weighed a l l t h e f a c t o r s involved i n assessing t h e value of t h e m a r i t a l e s t a t e . I t made a v a l i a n t attempt t o equitably apportion t h e a s s e t s even though it was n o t given t h e f u l l support of a p p e l l a n t i n a s c e r t a i n i n g those a s s e t s . A t t r i a l respondent, through her a t t o r n e y , gave t h e t r i a l c o u r t a breakdown showing t h e a s s e t s a t t h e t i m e of t h e f i r s t t r i a l , a t t h e second t r i a l , and a t t h e d a t e of marriage, by both testimony and documentary evidence. The f i g u r e s show t h a t , a t t h e time of h i s marriage, a p p e l l a n t ' s a s s e t s were valued somewhere between $92,035.57 and $132,610. These a s s e t s increased i n value during t h e marriage t o $2,500,000. The t r i a l c o u r t d i d a l l it was required t o do under t h e s t a t u t e t o determine t h e a s s e t s of t h e p a r t i e s involved. W e f i n d no e r r o r . Appellant argues t h a t t h e r e a r e g r e a t variances among t h e f i n d i n g s of f a c t , conclusions of law and judgment which a r e n o t supported by t h e record. W e f i n d no m e r i t t o t h i s argument. he record r e v e a l s t h a t both p a r t i e s w e r e uncer- t a i n of t h e t r i a l c o u r t ' s o r i g i n a l f i n d i n g s of f a c t and conclusions of law. Several documents were f i l e d before t h e c o u r t t o amend i t s conclusions and t o c l a r i f y some of t h e i s s u e s , On June 1, 1978, an instrument was executed by t h e then a t t o r n e y s and f i l e d on June 5, 1978, giving t h e t r i a l c o u r t power t o determine a l l matters r e l a t i n g t o t h e f i n a l d i s p o s i t i o n based on t h e hearing of June 1, 1978. The c o u r t made i t s f i n a l judgment based upon amended conclusions. This judgment does n o t show s u f f i c i e n t variance from t h e f i n d i n g s of f a c t and conclusions of law a s t o n e c e s s i t a t e a rehearing. W e next consider whether o r n o t t h e e f f e c t of t h e decree d i s t r i b u t i n g t h e a s s e t s of t h e p a r t i e s i s i n con- formity with p r e s e n t law. There a r e s u f f i c i e n t f a c t s here, under s e c t i o n 48-321, R.C.M. 1947, now s e c t i o n 40-4-202 MCA, t o i n d i c a t e t h a t t h e t r i a l c o u r t assessed t h e value of t h e t o t a l m a r i t a l e s t a t e and d i d i t s b e s t t o equitably apportion t h e same. The f i n d i n g s and conclusions r e f l e c t a 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 divorce. Although t h e r e were s m a l l v a r i a t i o n s concerning t h e p r i n c i p l e and payments on a promissory note, t h i s does n o t change t h e b a s i c f i n d i n g of t h e value of t h e property a t t h e time of t h e marriage and value a t t h e t i m e of t h e divorce. Appellant argues t h a t t h e c o u r t d i d n o t take i n t o con- s i d e r a t i o n t h e t a x consequences of i t s judgment. W e f i n d no m e r i t t o t h i s argument. The c o u r t c a r e f u l l y considered t h e testimony given by M r . Bob White, a t a x e x p e r t , his testi- mony d i d n o t i n any way d e f e a t t h e type of property s e t t l e - ment made here by t h e t r i a l court. The f i n a l m a t t e r f o r c o n s i d e r a t i o n i s t h e award of a t t o r n e y ' s f e e s . Pursuant t o a s t i p u l a t i o n between counsel i n t h i s m a t t e r , t h e t r i a l c o u r t awarded a t t o r n e y ' s f e e s i n t h e amount of $50,000. Appellant argues t h a t r e c e n t c a s e s of t h i s Court hold t h a t a showing must b e made on t h e rea- sonableness of a t t o r n e y ' s f e e s . Crncevich v. Georgetown Recreation Corp. (1975), 168 Mont. 113, 541 P.2d 56; F i r s t S e c u r i t y Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 547 P.2d 1328; and, I n re Marriage of Barron (1978), Mont. , 580 P.2d 936, 35 St.Rep. 891. Respondent argues t h a t counsel, by s t i p u l a t i o n and by a copy of a letter t o t h e t r i a l c o u r t , gave t h e t r i a l judge t h e power t o award a t t o r n e y ' s f e e s , a s he d i d i n t h e judgment. I n t h e above c i t e d c a s e s , t h i s Court h e l d t h a t a hearing must be h e l d on a t t o r n e y ' s f e e s . The m a t t e r i s t h e r e f o r e r e t u r n e d f o r t h a t purpose. Judgment of t h e t r i a l c o u r t on t h e m e r i t s is affirmed. The cause i s remanded t o t h e t r i a l c o u r t f o r a n e v i d e n t i a r y hearing t o determine a t t o r n e y ' s f e e s . P W e concur: J u s t i c e s | March 22, 1979 |
1d86facd-3402-4d93-9dfd-8d84c0d062ac | NORMAN v STATE | N/A | 14522 | Montana | Montana Supreme Court | No. 14522 I N THE S U P R E M F , COURT OF T H E STATE OF MXTANA 1979 DAYID NORMAN, Plaintiff and Respondent, T H E STATE OF MXTANA; THE STATE HIGHbmY ~ S S I O N OF THE STATE OF MXTANA; et dl., Defendant and Appellant, and Defendant and Respondent. Appeal from: D i s t r i c t Court of the Second Judicial District, Honorable J a m e s D. Freebourn, Judge presiding. Counsel of W r d : For Appellants : N. A. Mtering, James R. Beck and Donald A. Douglas, Helena, Mntana Donald A. Douglas argued, H e l e n a , mntana For Respondents: Corette, 9nith, Dean, Pohlman and Allen, Butte, Mntana Kendrick Smith argued, Butte, Mntana MTaffery and Peterson, Butte, Mntana W i l l i a m D. Murray, Jr., argued, Butte, Mntana Submitted: W c h 20, 1979 Decided : JUN 1 3 1979 -pr; 7 c &<.-7Q Filed : '- Mr. Justice John C. Sheehy delivered the Opinion of the Court. The State of Montana appeals from a judgment and order dated June 8, 1978, of the District Court, Second Judicial District, Silver Bow County sitting without a jury. The judgment and order quieted title to a certain parcel of land in David Norman and awarded damages against the State to William Gozden. On September 18, 1946, the State of Montana purchased a certain parcel of land in Butte, Montana, from William and Paul Gozden. The State Highway Department in 1974 decided to sell this parcel containing 5.3 acres as excess highway lands and published a notice to that effect asking for bids. Envelopes presumably containing bids were received by the Department including one from respondent Gozden, but the Department decided to withdraw the parcel of land from sale and returned the "bids" unopened. In February 1975, the State, acting through the Department of Highways, again sought to dispose of this same excess land and prepared an advertising copy for publication in the Montana Standard, Silver Bow County, Montana, and a letter of instruction for such publication dated February 6, 1975. This copy and letter were placed in the regular Department of Highways' office channels for mailing to the Montana Standard in the regular course of the Department's business. This copy, however, was never published by the newspaper. No bids were received by the Department of Highways by the time specified in the notice and the official in charge of excess lands, unaware no publication was made, assumed the lack of bids was due to a doubling of appraised value from 1974 to 1975. Subsequently, in the summer of 1975, respondent Norman was advised by another party that the land was available for sale. Norman visited the local office of the Department of Highways for information. As a result of his inquiries Norman wrote a letter to the official responsible for the sale of excess lands offering to purchase the parcel in question for $5,962.50 which was 90% of the 1975 appraised value of $6,625.00. Norman was advised his offer would be considered. Thereafter, in September 1975, the offer was accepted and Norman secured a quit claim deed to the property from the State, paid the $5,962.50 and recorded the deed. He also erected a fence around the property. At no time prior to the sale did the officials involved ascertain whether in fact publication had been made as required by statute before a private sale may be consummated. Testimony at trial indicated the officials responsible for sale of excess lands customarily did not wait for proof of publication before sale of lands. In September 1976, the Department of Highways received a letter from an individual questioning the validity of the sale. The Department then inquired of the Montana Standard whether publication had been made. Receiving no answer, the Department searched the back issues of the newspaper and determined no publication had been made. Thereupon, in February 1977, the Department tendered to Norman the purchase price previously received and offered to pay him the cost of the fence that had been erected. Norman refused the offer and instituted this quiet title action. Norman named as defendants the State of Montana and William Gozden, original owner of the property. Norman claimed in the alternative, to quiet title to the property in question in himself, to estop the State of Montana from denying the validity of the sale, or to require the State to pay damages of $26,600 to Norman for its failure to convey the property to him. Defendant Gozden answered and crossclaimed against the State for $30,000 damages alleged to have arisen from the State's negligence. Gozden claimed the State's negligence in not ascertaining whether publication had been made, prevented him from exercising his right pursuant to statute as original owner to reacquire the property. At the trial before the Hon. James Freebourn, sitting without a jury, the testimony elicited the facts set forth above. In addition, Norman testified he had been offered $26,600 for the land approximately three weeks after notification by the State that the sale was invalid. Gozden also testified, based upon his experience in land sales in the area, the property was worth $6,000 per acre in 1978. The court entered its findings, conclusions, judgment, and order on June 8, 1978. The court concluded the State was estopped from questioning the title of Norman and quieted that title in Norman. The court further concluded the State was negligent in not following the procedures for sale as outlined by statute. The court concluded with respect to Gozden that the State's negligence had precluded him from exercising his statutory rights to reacquire the property and awarded damages in the amount of $25,837.50. (The court arrived at this figure by deducting from the total price of 5.3 acres at $6,000 per acre, $31,800, the amount Gozden would have had to pay to reacquire the property, $5,962.50.) The issues raised by this appeal may be framed as follows. 1. Was the District Court correct as a matter of law in concluding appellant State of Montana was estopped from denying the validity of its deed to respondent Norman? 2. Are the findings and conclusions of the District Court supported by substantial, credible evidence? 3. If the deed is held valid as to these parties, is respondent Gozden prevented by the prohibition against retro- activity from asserting his right as a prior owner to reacquire the property? With respect to the first issue, the State contends the constitutional and statutory framework for the sale of excess lands established publication of notice of an intended sale, a condition precedent to the grant of power to sell. Without such publication, appellant argues there was no authority to sell and the "sale" was therefore void. The State then asserts it cannot be estopped to deny the deed because its agents had no authority to make the "sale". In response, Norman asserts the State in disposing of excess lands was acting in a proprietary capacity and is therefore subject to estoppel both by deed and on equitable grounds. Therefore, Norman argues, the State is precluded from denying the validity of its deed to him and from asserting any right or title in derogation of the deed. The question presented to this Court by the first issue is whether the State may be estopped, either by deed or equitably from denying the validity of its deed to respondent Norman. If this Court decides the State may not be estopped then we need not consider the other issues raised. Estoppel by deed precludes one party to a deed from asserting as against the other party any right or title in derogation of the deed, or from denying the truth of any material facts asserted in it. 28 Am.Jur.2d Estoppel - and Waiver 8 4 , p. 602. Equitable estoppel is a term applied to a situation -5- where, because of something which he has done or omitted to do, a party is denied the right to plead or prove an otherwise important fact. 28 Arn.Jur.2d Estoppel - and Waiver S27, p. 627. Generally, the State, when acting in a proprietary capacity as it was here, is subject to either doctrine. Strand v. State (1943), 16 Wash. 2d 107, 132 P.2d 1011, 1016; People v. Gustafson (1942), 53 Cal. App. 2d 230, 127 P.2d 627, 634; 31 C.J.S. Estoppel SS49, 140, pp. 354, 695. However, it is widely recognized that regardless whether acting in a governmental or proprietary capacity, a state cannot be estopped by the unauthorized acts of its officers or agents. Murphy v. State (1947), 65 Ariz. 338, 181 P.2d 336, 355; Strand v. State, 132 P.2d at 1017. See, Utah Power & Light Co. v. United States (1916), 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791. Thus, this Court must decide whether the actions of the State in this cause were unauthorized or merely improper. The 1972 Montana Constitution provides in Article X I S11, that all lands of the State acquired by grant shall be public lands held in trust for the people. The section further provides that no such land shall be disposed of except pursuant to the statutes providing for such disposition The section also indicates "full market value" should be received for the property; this Court has indicated "full market value" as used in this provision means actual value. Rider v. Cooney (1933), 94 Mont. 295, 23 P.2d 261. The lands in question here were acquired by the State in 1946 by purchase from William and Paul Gozden and therefore fall within the ambit of the above constitutional provision. See section 70-1-507 MCA (formerly section 67-1508, R.C.M. 1947. ) To effectuate the policy respecting lands held in trust for the people announced by Article X I S11, the legislature enacted, with respect to State lands designated as excess -6- highway lands, sections 60-4-202, -203, -204, -205 MCA (formerly sections 32-3910, -3911, -3912, -3913, R.C.M. 1947). These sections provide for first a public sale and then, if necessary, a private sale. The Department of Highways must publish notice of the intended sale stating a value of the property based upon an appraisal made within three months of the date of sale. Section 60-4-203 MCA. The original owner or his successor in interest is given the opportunity to meet the highest bid received pursuant to the published notice. Section 60-4-204 MCA. If "after proper notice is published" no bid is received nor an offer by the original owner is made, the Department may sell the property at a private sale. Section 60-4-205 MCA. No Montana cases directly address the question presented, namely, whether the State's action here was unauthorized or merely improper; however, in Franzke v. Fergus County (1926), 76 Mont. 150, 245 P. 962, an analogous situation was at issue. There the county commissioners attempted to sell county property via an executory contract. Although authorized by statute to sell county lands, the mode the commissioners chose did not conform exactly to the procedure provided by the statute. This Court held the county was without authority to sell the land in such a manner and the contract would therefore be void, stating, "since the Legislature has seen fit to indicate with particularity the essential steps necessary to be taken, and has prescribed the precise mode of procedure, the statute must be held to exclude any other." 245 P. at 964. In Murphy v. State (1947), 65 Ariz. 338, 181 P.2d 336, the Arizona Court was faced with a problem similar to the one presented by this appeal. In 1940, the State exchanged lands with Murphy without regard to provisions of ~rizona's Enabling Act, constitution and statutes requiring notice, bidding and amount of land that may be conveyed to an individual. When the State later sued to cancel the deeds, one of the arguments opposing its suit was that the doctrine of estoppel prevented the State from denying the validity of the transaction and resulting deeds. The Arizona Supreme Court disagreed, stating: "The state is not estopped to deny its deed against a bona fide mortgagee of its grantee where its officers were not authorized by -- law in the first to deed away its land and, as in this case, were positively prohibited from doing so without complying with -- the provisions of -- the [Enabling Act] --- and the Constitution." 181 P.2d at 355-356. (Emphasis added. ) See, Penner v. State (Okla. 1955), 302 P.2d 144, 150. The Montana Constitution unequivocally states that no lands shall be disposed of without complying with the appropriate statutory provisions. Those provisions require publication of notice before any sale is consummated. We conclude therefore that not having complied with the statute, the State through its Department of Highways, was without authority to make the sale and cannot be estopped from denying the validity of the deed. Franzke, supra; Murphy, supra; Strand v . State, 132 P.2d at 1017. See also, Utah Power & Light Co. v. United States, 243 U.S. at 409; Walsonavich v. United States (3rd Cir. 1964), 335 F.2d 96, 101; Stone v. United States (8th Cir. 1961), 286 F.2d 56, 59; Weatherly v. Jackson (1934), 123 Tex. 213, 71 S.W.2d 259, 266. Because there was no authority to make the sale, the resulting deed was void. Franzke, 245 P. at 965. We recognize it was the negligence of the State's agents that caused the situation which gave rise to this appeal. However, the interest we seek to protect is that of the citizens -8- of this State to receive the highest value from the sale of the lands their State government holds in trust for them. Strict compliance with the constitutional and statutory provisions relating to those lands is the best mode to insure that protection. It is generally conceded that while estoppel may be effected against State government, it may not be asserted where it would interfere with the protection of the public's interest in lands. People v. Bradford (1939), 372 Ill. 63, 22 N.E.2d 691; 28 Am.Jur.2d Estoppel and Waiver S122, p. 782. The United States Supreme Court has indicated that the government's efforts to enforce and maintain a policy respecting lands held in trust for the people stand on a different plane from an ordinary suit to regain title or remove a cloud upon it. Utah Power and --- Light Co., 243 U.S. at 409. Because we conclude the State was without authority to issue this deed and thus it is void, we need not consider the remaining issues of this appeal. The judgment of the District Court quieting title to this land in David Norman is reversed as is the injunction against the State and William Gozden enjoining them from asserting any claim or interest in this real property. The award of damages to William Gozden is also reversed. Because the sale and deed were void, Gozden has suffered no actual damage and can now assert his interest under the statute as a prior owner should the land be again put up for sale. The State of Montana is directed to tender again the purchase price of the property paid by Norman plus the cost of any improvements upon the land to the date of this opinion to David Norman. In addition, because its negligence has caused Norman to be without the use of the amount of his purchase price for almost five years, and because it is regaining property currently worth over $31,000, the State is directed to pay, pursuant to our authority as stated in section 3-2- 204 MCA (formerly section 93-216, R.C.M. 1947), interest upon the sum of $5,962.50 at 6% per annum from September 16, 1975 until the date of this opinion. Judgment reversed and remanded to the District Court with instructions to enter judgment according to this opinion. Because of the circumstances under which this case arose, we award costs on appeal to respondents Norman and Gozden against the State. Justice u We Concur: p i e £ Justice | June 13, 1979 |
eca522e8-151a-45d2-8938-a3f87987fc2b | LITTLE HORN STATE BANK v REAL BIRD | N/A | 14630 | Montana | Montana Supreme Court | No. 14630 I N THE S U P R E M E COUKL' O F THE STATl3 O F M3NTANA 19 79 LI'ITLE HORN STATE BANK, a hbntana Banking Corporation, Plaintiff and Respondent, -VS- WW REAL BIRD, J R . and l w ! D I w REAL BIRD, Defendants and A p ~ l l a n t s . Appeal fm: District Court of the Thirteenth Judicial D i s t r i c t , Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellants: D. Michael Eakin, Legal Services, argued, Hardin, Ibntana Steven L. Bunch, Legal Services, argued, H e l e n a , Fkx&ana For Respondent : Clarence T . Belue argued, H a r d i n , Mntana Suhitted: June 1 1 , 1979 Decided: RUG - 9 1 9 7 9 A ~ G - ' ! g p 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. P l a i n t i f f bank brought t h i s a c t i o n i n J u s t i c e Court, Big Horn County, t o recover money owing from defendant on c e r t a i n promissory notes. The J u s t i c e Court e n t e r e d a d e f a u l t judgment i n f a v o r of p l a i n t i f f . Defendant's motion t o s e t a s i d e t h e de- f a u l t was denied, and she appealed t o t h e D i s t r i c t Court. The D i s t r i c t Court dismissed t h e appeal, and defendant a p p e a l s from t h e d i s m i s s a l . I n December 1977, p l a i n t i f f i n i t i a t e d t h i s a c t i o n i n Jus- tice Court t o recover money owing from two l o a n s made t o de- fendant. S e r v i c e of process was completed on defendant on January 10, 1978. On January 12, defendant appeared b e f o r e t h e J u s t i c e Court and sought t h e c o u r t ' s a s s i s t a n c e i n n e g o t i a t i n g a s e t t l e m e n t . N o w r i t t e n appearance was made nor was t h e r e any showing t h e defendant had an a t t o r n e y a t t h a t t i m e . A t t h e suggestion of t h e J u s t i c e Court, defendant contacted p l a i n - t i f f ' s a t t o r n e y and t r i e d t o reach a s e t t l e m e n t . She paid t h e a t t o r n e y $150 on h e r account and l e f t w i t h t h e understanding t h a t no a c t i o n would be taken i n t h e m a t t e r while she attempted t o s e c u r e a loan t o pay o f f t h e remainder of t h e indebtedness. On January 2 3 , without n o t i c e t o t h e defendant, t h e Jus- tice Court e n t e r e d a d e f a u l t judgment i n f a v o r of t h e bank and i s s u e d a w r i t of execution. The judgment d i d n o t g i v e t h e defen- d a n t c r e d i t f o r t h e $150 paid by h e r t o p l a i n t i f f ' s a t t o r n e y . Defendant learned of t h e d e f a u l t when h e r o n l y nonexempt a s s e t was s e i z e d pursuant t o t h e w r i t of execution. Defendant t h e n contacted an a t t o r n e y and f i l e d a timely motion t o set a s i d e t h e d e f a u l t judgment, supported by an a f f i d a v i t s e t t i n g o u t defenses, counterclaims, and f a c t s t o show defendant was n o t r e q u i r e d t o f i l e a w r i t t e n answer. The J u s t i c e Court denied t h e motion. Defendant then f i l e d n o t i c e of appeal i n J u s t i c e Court. She was unable t o f i n d s u r e t i e s f o r undertaking, s o she sub- m i t t e d an a f f i d a v i t of i n a b i l i t y t o provide t h e undertaking. P l a i n t i f f o b j e c t e d t o t h e j u r i s d i c t i o n of t h e District Court t o hear t h e appeal when no undertaking was provided. The D i s - t r i c t Court dismissed t h e appeal, and t h i s appeal followed. Defendant presented two i s s u e s on appeal involving v i o l a - t i o n of c o n s t i t u t i o n a l r i g h t s , both s t a t e and f e d e r a l . Due t o t h e p e c u l i a r f a c t s surrounding t h e e n t r y of t h e d e f a u l t judg- ment here, w e f i n d it unnecessary t o consider t h e two i s s u e s on appeal. Rather, w e base our d e c i s i o n on Montana c a s e law d e a l i n g w i t h c o n s i d e r a t i o n s s i m i l a r t o t h o s e presented i n t h i s case. I n Brothers v. Brothers (1924), 71 Mont. 378, 383-84, 230 P. 60, 61, t h i s Court s a i d : "No g r e a t abuse of d i s c r e t i o n by t h e t r i a l c o u r t i n r e f u s i n g t o set a s i d e a d e f a u l t need be shown t o warrant a r e v e r s a l , f o r t h e c o u r t s u n i v e r s a l l y f a v o r a t r i a l on t h e m e r i t s . " The Court went on t o s t a t e it i s p r e f - e r a b l e t o d i s p o s e of c a s e s on t h e i r m e r i t s than t o maintain t o o strict a regard f o r t e c h n i c a l r u l e s of procedure. Brothers, 71 Mont. a t 384, 230 P. a t 61. Here, t h e record shows t h e p l a i n t i f f took a d e f a u l t a f t e r t h e defendant f e l t she had been assured she would be given t i m e t o n e g o t i a t e a s e t t l e m e n t , and t h e judgment e n t e r e d exceeds t h e amount defendant owed p l a i n t i f f a t t h e t i m e t h e c o u r t e n t e r e d judgment by $150. Given t h e above r u l e favoring hearing c a s e s of t h i s n a t u r e on t h e i r m e r i t s , defendant should have her day i n c o u r t . W e t h e r e f o r e f i n d t h e judgment erroneous and remand t h e c a s e t o t h e D i s t r i c t Court of Big Horn County w i t h d i r e c t i o n s t o set a s i d e t h e d e f a u l t e n t e r e d and r e t u r n t h e cause t o t h e J u s t i c e Court f o r f u r t h e r proceedings. We concur: I 1 , / , $ i f 1 A ; 1 . ?r--,u& J u s t i cbq | August 9, 1979 |
8964408d-e842-4496-a650-2c0cff384436 | NOR PLAINS RESOURCE COUNCIL v BRD | N/A | 14215 | Montana | Montana Supreme Court | No. 14215 I N THE S U P R E M E COUIZT O F THE S T A T E OF MONTANA 1978 NOF?EEF!N PLAINS RESOURCE COUNCIL AND NOIiTHEEW CHEYENNE TRIBE, I N C . , Petitioners and Respondents, -VS- BQARD O F NATURAL RESOURCES AND C O N S E F W i T I O N , et al., Respondents and Appllants. Appeal from: D i s t r i c t Court of the First Jdicial D i s t r i c t , Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellants: W. H. Bellingham argued, Billings, Pbntana John L. Peterson argued, Butte, PJbntana Richard Andriolo argued, Bozeman, I4mta.m Wurice F. Hennessey argued, Butte, lbntana C. W. Leaphart, Jr., Helena, Pbntana N e i l S. Keefer, Billings, Fbntana John W. Ross, Butte, PJbntana For Respondents : Leo C. Graybill, Jr. argued and G r e g o r y W a r n e r argued, G r e a t Falls, Pbntana For Amicus Curiae: Benjamin W. Hilley argued, Great Falls, Pbntana D. Patrick ?&Kittrick, Great Falls, Pbntana Sulsanitted: October 24, 1978 5 + & = Decided: : 193 Filed : -- - , . q , '3 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. Pursuant t o t h e Montana Major F a c i l i t y S i t i n g A c t , s e c t i o n 70-801 e t seq., R.C.M. 1947, now s e c t i o n 75-20-101 e t seq. MCA ( h e r e i n a f t e r "Siting Act") , t h e Board of Natural Resources and Conservation ( h e r e i n a f t e r "Board of Natural Resources"), on J u l y 22, 1976, granted t o t h e Montana Power Company, Puget Sound Power and Light Company, Portland General E l e c t r i c Company, t h e Washington Water Power Com- pany, and P a c i f i c Power and Light Company ( h e r e i n a f t e r " U t i l i t i e s " ) , a c e r t i f i c a t e of environmental compatability and public need f o r t h e construction of t h e f a c i l i t y known as C o l s t r i p Units 3 and 4. Respondents and cross-appellants appealed t h i s decision t o t h e F i r s t J u d i c i a l District Court, L e w i s and Clark County, under the provisions of t h e Montana Administrative Procedure Act, section 82-4201 e t seq., R.C.M. 1947, now s e c t i o n 2-4-101 e t seq. MCA ( h e r e i n a f t e r "MAPA"). The D i s t r i c t Court reversed and remanded t h e matter t o t h e Board of Natural Resources f o r rehearing. From t h i s order both appellants/cross-respondents and respon- dents/cross-appellants appeal t o t h i s Court. The two ap- peals have been consolidated f o r hearing and decision. To properly i n d i c a t e t h e monumental proportions t h i s m a t t e r has taken, w e believe it i s necessary t o s e t f o r t h i t s background i n some d e t a i l a s was done by t h e Board of Natural Resources i n i t s findings of f a c t , conclusions of l a w , opinion, decision, order and recommendations. This a l s o w i l l help t o illuminate t h e i s s u e s on appeal and place t h i s controversy i s perspective. Pursuant t o t h e t e r m s of t h e S i t i n g Act, on June 6, 1973, t h e U t i l i t i e s f i l e d with t h e Montana Department of Natural Resources and Conservation ( h e r e i n a f t e r "Department of Natural Resources") an a p p l i c a t i o n f o r a c e r t i f i c a t e of environmental c o m p a t i b i l i t y and p u b l i c need f o r t h e proposed C o l s t r i p Units 3 and 4. F i l e d contemporaneously was a p e t i t i o n f o r waiver of t i m e requirements a s set f o r t h i n s e c t i o n 70-806, R.C.M. 1947, now s e c t i o n 75-20-211 MCA, and a f i l i n g f e e of $1,232,930. The U t i l i t i e s a l s o f i l e d with t h e Department of Natural Resources t h e i r environmental a n a l y s i s of t h e proposed p r o j e c t and r e l a t e d f a c i l i t i e s e n t i t l e d " C o l s t r i p Generation and Transmission Project." This environmental a n a l y s i s w a s dated November 1973 and w a s prepared by t h e environmental systems department of Westing- house E l e c t r i c Corporation. The Department of Natural Resources, pursuant t o sec- t i o n s 70-807 and 70-816, R.C.M. 1947, now s e c t i o n s 75-20-216 and 75-20-503 MCA, of t h e S i t i n g Act, conducted an extensive study over a period of 600 days of t h e a p p l i c a t i o n and issued i t s d r a f t environmental impact statement i n November 1974, recommending a g a i n s t t h e g r a n t i n g of t h e a p p l i c a t i o n . Subsequent t o i s s u i n g t h e d r a f t environmental impact s t a t e - ment, t h e Department of Natural Resources conducted a series of p u b l i c meetings t o g a i n i n p u t from t h e p u b l i c regarding t h e proposed p r o j e c t and t h e a n a l y s i s thereof contained i n t h e d r a f t environmental impact statement. On o r about January 2 1 , 1975, t h e Department of Natural Resources re- leased i t s f i n a l environmental impact statement on t h e proposed p r o j e c t containing i t s recommendations a g a i n s t g r a n t i n g t h e a p p l i c a t i o n and transmitted t h e same t o t h e Board of Natural Resources. The Board of Natural Resources, on r e c e i p t of t h e recommendations from t h e Department of Natural Resources and a f t e r due and d e l i b e r a t e consideration, issued an o r d e r dated January 2 4 , 1975. I n i t s order t h e Board of Natural Resources deemed t h a t t h e matter before it, i.e., t h e a p p l i - c a t i o n f o r a c e r t i f i c a t e of environmental c o m p a t i b i l i t y and p u b l i c need f o r t h e proposed C o l s t r i p Units 3 and 4 , would be considered a contested c a s e a s defined i n M A P A , s e c t i o n 82-4201 e t seq., R.C.M. 1947, now s e c t i o n 2-4-101 e t seq. MCA. Subsequent t o i s s u i n g t h i s o r d e r , t h e Board of Natural Resources issued o r d e r s on February 7, 1975 and February 1 4 , 1975, p e r t a i n i n g t o m a t t e r s of procedure t o be followed, p a r t i c u l a r l y r e f e r r i n g t o t h e methods of discovery and determining t h e burden of proof. The Board of Natural Resources f u r t h e r ordered t h a t t h e hearing would commence on March 10, 1975, a t Bozeman, Mon- tana. Notice of t h e time and place of t h e hearing was given t o a l l p a r t i e s and published i n d a i l y newspapers throughout Montana t o inform t h e public. O n March 1 0 , 1975, t h e hear- i n g began, a t which time motions w e r e presented t o t h e Board of Natural Resources by t h e opponents of t h e a p p l i c a t i o n t o continue t h e hearing u n t i l May 13, 1975, t o a f f o r d t h e p a r t i e s time t o complete discovery procedures. Also, objec- t i o n s w e r e made t o a member of t h e Board of Natural Re- sources serving a s hearings examiner. On ~ p r i l 17, 1975, t h e Board of Natural Resources continued t h e hearing u n t i l A p r i l 21, 1975, and on A p r i l 1 0 , 1975, Carl M. ~ a v i s was appointed by t h e Board a s hearings examiner t o p r e s i d e over t h e p u b l i c hearing phase of t h e proceedings. Following a p r e t r i a l conference with t h e p a r t i e s , t h e hearings examiner, by order dated A p r i l 15, 1975, d i r e c t e d t h e proceedings t o reconvene on A p r i l 21, 1975, a t ~ e l e n a , Montana. By letter dated A p r i l 10, 1975, t h e d i r e c t o r of t h e Department of Health and Environmental Sciences ( h e r e i n a f t e r " ~ e p a r t m e n t of Health") n o t i f i e d t h e Board of Natural Re- sources t h a t t h e Department of Health c e r t i f i e d t h a t t h e proposed f a c i l i t y w i l l n o t v i o l a t e s t a t e and f e d e r a l l y e s t a b l i s h e d water q u a l i t y standards. I t d i d n o t c e r t i f y t h a t t h e proposed f a c i l i t y w i l l n o t v i o l a t e s t a t e and f e d e r a l l y e s t a b l i s h e d a i r q u a l i t y s t a n d a r d s and implementa- t i o n p l a n s . O n A p r i l 18, 1975, t h e Northern P l a i n s Resource Council f i l e d Cause No. 38934 i n t h e District Court of L e w i s and Clark County. A w r i t of p r o h i b i t i o n was served upon t h e Board of Natural Resources and t h e h e a r i n g s examiner, d i r e c t - i n g them t o d e s i s t and r e f r a i n from any f u r t h e r proceedings u n t i l f u r t h e r o r d e r of t h e c o u r t and f u r t h e r d i r e c t e d them t o appear i n c o u r t on A p r i l 22, 1975. Following t h e hearing t h e c o u r t , on A p r i l 29, 1975, quashed t h e w r i t of p r o h i b i - t i o n , thereby allowing t h e hearing t o continue. The c o u r t f u r t h e r ordered t h e Board of Health and Environmental Sci- ences ( h e r e i n a f t e r "Board of Health") t o hold a h e a r i n g t o determine whether t h e c e r t i f i c a t e r e q u i r e d by s e c t i o n 70- 810(1) ( h ) , R.C.M. 1947, now s e c t i o n 75-20-301(i) (h) MCA, should be i s s u e d . The hearing was reconvened i n Helena on May 5, 1975. Motions by t h e opponents f o r f u r t h e r continuances were presented and g r a n t e d by t h e h e a r i n g s examiner, continuing t h e hearings u n t i l May 20, 1975. On May 9, 1975, t h e Northern Cheyenne ~ r i b e , I n c . , f i l e d a n a p p l i c a t i o n f o r a w r i t of p r o h i b i t i o n i n t h e is- t r i c t Court of Lewis and Clark County, Cause No. 39000. This m a t t e r was heard by t h e c o u r t on May 19, 1975, and judgment was entered on t h e same d a t e dismissing t h e a p p l i - cation. The public hearing before t h e Board of Natural Re- sources formally began on May 20, 1975, and continued u n t i l June 5, 1975, a t which t i m e t h e hearing before t h e Board of Health was commenced with Carl M. Davis serving as hearings examiner. The hearing before t h e Board of Health consumed a t o t a l of 53 hearing days and concluded on September 15, 1975 with 53 witnesses having t e s t i f i e d . A f t e r studying t h e testimony and e x h i b i t s , and t h e f i n d i n g s of f a c t submitted by t h e p a r t i e s , t h e Board of Health heard o r a l arguments by counsel, v i s i t e d t h e site of t h e proposed f a c i l i t i e s and rendered i t s d e c i s i o n on November 21, 1975, i s s u i n g i t s c o n d i t i o n a l c e r t i f i c a t i o n , pursuant t o s e c t i o n 70-810(1)(h), R.C.M. 1947, now s e c t i o n 75-20-301(1)(h) MCA, of t h e S i t i n g Act. On J u l y 23, 1975, a t t h e conclusion of U t i l i t i e s ' case- in-chief i n t h e Board of Health hearing, t h e opponents t o t h e a p p l i c a t i o n moved t o dismiss t h e U t i l i t i e s ' proceedings f o r c e r t i f i c a t i o n , together with a motion t o continue f u r - t h e r hearings u n t i l t h e Board of Health r u l e d upon t h e motions. The motion t o continue t h e Board of Health hearing was denied on J u l y 24, 1975. The opponents t o t h e applica- t i o n f i l e d 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 , Cause No. 39228, an a p p l i c a t i o n f o r a w r i t of pro- h i b i t i o n o r mandate commanding t h e Board of Health and t h e hearings examiner t o cease and r e f r a i n from f u r t h e r pro- ceedings u n t i l f u r t h e r order of t h e c o u r t o r t o show cause t o t h e c o u r t why t h e Board of Health should n o t be perma- n e n t l y r e s t r a i n e d from f u r t h e r proceedings u n t i l t h e ~ o a r d had r u l e d upon opponents' motion t o dismiss. O n J u l y 25, 1975, t h i s Court granted t h e U t i l i t i e s ' a p p l i c a t i o n f o r a w r i t of supervisory c o n t r o l and d i r e c t e d t h e ~ i s t r i c t Court t o e i t h e r withdraw i t s w r i t of prohibi- t i o n o r , i n t h e a l t e r n a t i v e , t o appear before t h e Supreme Court on J u l y 28, 1975. O n J u l y 28, 1975, t h i s Court heard t h e m a t t e r , and a t t h e conclusion of t h e hearing d i r e c t e d t h a t t h e w r i t of p r o h i b i t i o n be set a s i d e and t h a t t h e hearings proceed. The hearings examiner f o r t h e Board of Natural Re- sources issued an order dated December 1 0 , 1975, recovening t h e Board of Natural Resources' hearing on January 19, 1976, a t Helena. I n a d d i t i o n he s e t f o r t h c e r t a i n procedures t o be followed by a l l p a r t i e s t o t h e proceedings regarding t h e p r e s e n t a t i o n of d i r e c t testimony and cross-examination. Notice of t h e time and p l a c e of t h e hearing was served on a l l p a r t i e s and published i n d a i l y newspapers throughout t h e s t a t e t o inform t h e public. The Department of Natural Resources and t h e Northern P l a i n s Resource Council f i l e d motions with t h e Board of Natural Resources, moving t h e Board t o terminate i t s hearing on t h e b a s i s t h a t t h e Board of Health had n o t c e r t i f i e d , o r had m i s c e r t i f i e d , t h a t t h e proposed C o l s t r i p Units 3 and 4 would m e e t a p p l i c a b l e a i r and water q u a l i t y standards. After a hearing, t h e motion was denied. The reconvened hearing commenced on January 19, 1976, and was concluded on March 30, 1976. A t o t a l of 255 w i t - nesses t e s t i f i e d , including 132 p u b l i c witnesses. The t r a n s c r i p t of t h e proceedings i n both t h e Board of Health hearing and t h e Board of Natural Resources hearing, con- s i s t i n g of approximately 17,000 pages, including copies of t h e e x h i b i t s received i n t o evidence, w e r e served upon each member of t h e Board of Natural Resources together with t h e p a r t i e s ' proposed f i n d i n g s of f a c t . he Board of Natural Resources v i s i t e d and inspected t h e proposed f a c i l i t i e s on two occasions. After due and timely n o t i c e being served and published, it heard o r a l arguments on May 19 and 20, 1976, by a l l p a r t i e s who were p r e s e n t and d e s i r e d t o p r e s e n t arguments. The Board of Natural Resources having inspected t h e site, read t h e record of t h e proceedings and t h e proposed f i n d i n g s of f a c t of t h e p a r t i e s , and heard t h e arguments of counsel and p u b l i c p a r t i e s , and having duly considered t h e same and being f u l l y advised i n t h e premises, announced i n a r e g u l a r l y scheduled and noticed meeting on June 24, 1976, t h a t it w a s ready t o a c t upon t h e a p p l i c a t i o n . A motion t o approve t h e a p p l i c a t i o n t o c o n s t r u c t C o l s t r i p Units 3 and 4 and a s s o c i a t e d f a c i l i t i e s and t o g r a n t a p p l i c a n t s a c e r t i - f i c a t e of environmental compatibility and p u b l i c need, s u b j e c t t o c e r t a i n s t a t e d conditions, was seconded and c a r r i e d with f o u r members voting i n favor of t h e motion and t h r e e members voting a g a i n s t t h e motion. A majority of t h e Board having approved granting t h e a p p l i c a t i o n , t h e Board made i t s f i n d i n g s of f a c t and conclu- s i o n s of l a w , together with i t s d e c i s i o n , opinion, order and recommendations. It granted t h e c e r t i f i c a t e of environ- mental compatibility and p u b l i c need t o t h e u t i l i t i e s on J u l y 22, 1976. ~espondents/cross-appellants appealed t o t h e ~ i s t r i c t Court of L e w i s and Clark County, which reversed and remanded t h e matter t o t h e Board of Natural Resources, ~ p p e a l t o t h i s Court from t h e D i s t r i c t Court's opinion i s taken by a l l p a r t i e s . Before discussing t h e many individual i s s u e s i n t h i s case, t h e r e a r e s e v e r a l o t h e r matters which r e q u i r e emphasis by t h i s Court. Section 82-4216(7), R.C.M. 1947, now s e c t i o n 2-4-704 MCA, enacted i n 1971 a s a p a r t of MAPA, e s t a b l i s h e s t h e standards of j u d i c i a l review of contested agency decisions. The foregoing subsection commences by s t a t i n g t h a t t h e c o u r t s h a l l not s u b s t i t u t e i t s judgment f o r t h a t of t h e agency a s t o t h e weight of t h e evidence on questions of f a c t . I t continues by providing t h a t t h e c o u r t may reverse o r modify t h e agency decision i f s u b s t a n t i a l r i g h t s of t h e appealing p a r t y have been prejudiced because t h e administrative find- ings, inferences, conclusions, o r decisions a r e : (a) i n v i o l a t i o n of c o n s t i t u t i o n a l o r s t a t u t o r y provisions; (b) i n excess of t h e s t a t u t o r y a u t h o r i t y of t h e agency; ( c ) made upon unlawful procedure; (d) a f f e c t e d by o t h e r e r r o r of law; (e) c l e a r l y erroneous i n view of t h e r e l i a b l e , probative and s u b s t a n t i a l evidence on t h e whole record; ( f ) a r b i t r a r y o r capricious o r characterized by abuse of d i s c r e t i o n o r c l e a r l y unwarranted exercise of d i s c r e t i o n ; o r (g) because findings of f a c t , upon i s s u e s e s s e n t i a l t o t h e decision, were not made although requested. I t i s c l e a r from t h i s s t a t u t e t h a t t h e burden r e s t i n g upon an appealing p a r t y t o a ~ i s t r i c t Court from an agency decision i s a s u b s t a n t i a l one. This Court r e c e n t l y set f o r t h t h r e e b a s i c p r i n c i p l e s underlying s e c t i o n 82-4216 which a D i s t r i c t Court must consider i n determining what t h e scope of review of an administrative decision should be: (1) t h a t limited judi- c i a l review of administrative decisions strengthens t h e administrative process by encouraging t h e f u l l presentation of evidence a t t h e i n i t i a l administrative hearing; ( 2 ) j u d i c i a l economy r e q u i r e s c o u r t r e c o g n i t i o n of t h e e x p e r t i s e of a d m i n i s t r a t i v e agencies i n t h e f i e l d of t h e i r responsi- b i l i t y ; and ( 3 ) l i m i t e d j u d i c i a l review i s necessary t o determine t h a t a f a i r procedure was used, t h a t q u e s t i o n s of l a w w e r e properly decided, and t h a t t h e d e c i s i o n of t h e a d m i n i s t r a t i v e body was supported by s u b s t a n t i a l evidence. v i t a - ~ i c h Dairy, I n c . v. Department of Business Regulation (1976), 170 Mont. 341, 553 P.2d 980. A r e c e n t United S t a t e s Supreme Court d e c i s i o n has a g r e a t d e a l t o say on t h e s u b j e c t of j u d i c i a l review of agency d e c i s i o n s . The Court expresses i t s views on t h e p r a c t i c e of some f e d e r a l judges i n p l a c i n g themselves i n t h e p l a c e of t h e agency i n making t h e d e c i s i o n , r a t h e r than following t h e c o r r e c t course and s e t t i n g a s i d e agency d e c i - s i o n s only f o r s u b s t a n t i a l procedural o r s u b s t a n t i v e reasons as mandated by s t a t u t e . I n Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. (1978), 435 U.S. 519, 98 S.Ct. 1197, 55 L Ed 2d 460, t h e Supreme Court unanimously reversed a d e c i s i o n of t h e Court o f Appeals f o r t h e D i s t r i c t of Columbia C i r c u i t which had overturned t h e Atomic Energy Commission's d e c i s i o n t o g r a n t Vermont Yankee a l i c e n s e t o o p e r a t e a nuclear power p l a n t . The Court of Appeals r u l e d t h a t t h e rule-making proce- dures of t h e AEC w e r e inadequate d e s p i t e t h e f a c t t h a t t h e agency had employed a l l t h e procedures required by t h e Federal Administrative Procedure A c t and more. The Supreme Court concluded t h a t t h e Court of Appeals had s e r i o u s l y misapplied s t a t u t o r y and d e c i s i o n a l law cautioning reviewing c o u r t s a g a i n s t e n g r a f t i n g t h e i r own n o t i o n s of proper pro- cedures upon agencies e n t r u s t e d w i t h s u b s t a n t i v e f u n c t i o n s by Congress, 435 U.S. a t 525, and t h a t " [ a l b s e n t c o n s t i t u - t i o n a l c o n s t r a i n t s o r extremely compelling circumstances t h e ' a d m i n i s t r a t i v e agencies "should be f r e e t o f a s h i o n t h e i r own r u l e s of procedure and t o pursue methods of i n q u i r y capable of p e r m i t t i n g them t o discharge t h e i r multitudinous d u t i e s . " ' . . ." Vermont Yankee, 435 U.S. a t 543. I n cautioning t h e lower c o u r t t o judge a n agency deci- s i o n by t h e a p p r o p r i a t e standards of review, t h e Supreme Court noted t h a t t h e lower c o u r t should " n o t s t r a y beyond t h e j u d i c i a l province t o explore t h e procedural format o r t o impose upon t h e agency i t s own notion of which procedures are ' b e s t ' o r most l i k e l y t o f u r t h e r some vague, undefined p u b l i c good." 435 U.S. a t 549. The c o u r t l e f t l i t t l e doubt i n s t a t i n g : ". . . t h e r o l e of a c o u r t i n reviewing t h e s u f f i c i e n c y of an agency's c o n s i d e r a t i o n of environmental f a c t o r s i s a l i m i t e d one. l i m i t e d both by t h e t i m e a t which t h e d e c i s i o n was made and by t h e s t a t u t e mandating review. "'Neither t h e s t a t u t e -- nor i t s l e g i s l a t i v e h i s - t o r y contemplates -- t h a t a c o u r t should s u b s t i - t u t e i t s judgment f o r t h a t of t h e agency a s t o -- ---- - - t h e environmental consequences of i t s a c t i o n s . ' - - - - - [ C i t a t i o n omitted.]" Vermont Yankee, 435 U.S. a t 555. (Emphasis s u p p l i e d . ) A s t o nuclear energy, t h e Court pointed o u t t h a t Con- g r e s s had made a choice t o a t l e a s t t r y nuclear energy, e s t a b l i s h i n g a reasonable review process i n which c o u r t s a r e t o p l a y only a l i m i t e d r o l e . " . . .The fundamental p o l i c y q u e s t i o n s a p p r o p r i a t e l y resolved i n Congress and i n t h e state l e g i s l a t u r e s a r e not s u b j e c t t o reexamination i n t h e f e d e r a l c o u r t s under t h e g u i s e of j u d i c i a l r e v i e w of agency a c t i o n . . ." 435 U.S. a t 558. The Court concluded with t h e s t r o n g language: ". . . It i s t o i n s u r e a f u l l y informed and well-considered d e c i s i o n , n o t n e c e s s a r i l y a d e c i s i o n t h e judges of t h e Court of Appeals o r of t h i s Court would have reached had they been members of t h e decisionmaking u n i t of t h e agency. Administrative d e c i s i o n s should be set a s i d e i n t h i s c o n t e x t , a s i n every o t h e r , o n l y f o r s u b s t a n t i a l procedural o r s u b s t a n t i v e reasons a s mandated by s t a t u t e , Consolo v. FMC, 383 U.S. 607, 620 (1966), n o t simply because t h e c o u r t is unhappy with t h e r e s u l t reached . . ." 435 U.S. a t 558. Because s o many of t h e i s s u e s i n t h i s case involve t h e f i n d i n g s of a t l e a s t one board below, w e review b r i e f l y what t h i s Court has s t a t e d regarding t h e r u l e s of c o n s t r u c t i o n a p p l i e d t o f i n d i n g s of f a c t . I n Ballenger v. Tillman (1958), 133 Mont. 369, 324 P.2d 1045, t h i s Court s t a t e d t h a t u l t i m a t e f a c t s , as d i s t i n g u i s h e d from e v i d e n t i a r y ones, a r e t h e f i n d i n g s a t r i a l c o u r t should make. Findings a r e t o r e c e i v e such a c o n s t r u c t i o n as w i l l uphold, r a t h e r than d e f e a t , t h e judgment. This Court quoted with approval a C a l i f o r n i a c a s e t o t h e e f f e c t t h a t t h e r e i s no e r r o r i n t h e f a i l u r e of a t r i a l c o u r t t o make a n express f i n d i n g upon a n i s s u e i f it was i m p l i c i t i n t h e f i n d i n g s made, and t h a t t h e r e i s no n e c e s s i t y t o negate c o n t r a d i c t o r y a l l e g a t i o n s . Ballenger was quoted w i t h approval i n Erickson v. F i s h e r (1976), 170 Mont. 491, 554 P.2d 1336, where t h e Court r e j e c t e d a proposed f i n d i n g of f a c t o f f e r e d by t h e a p p e l l a n t because it was merely a n e v i d e n t i a r y f a c t a s d i s t i n g u i s h e d from a n u l t i m a t e f a c t . I t has been s t a t e d another way t h a t f i n d i n g s a r e s u f f i - c i e n t i f they d i s p o s e of m a t e r i a l i s s u e s . 76 Am J u r 2d, T r i a l , 51259; 89 C.J.S. T r i a l , 5626. This i s a p p l i c a b l e t o c o u r t t r i a l s , and i t i s obvious t h a t stricter r u l e s should n o t be imposed upon a d m i n i s t r a t i v e agencies. This record c o n t a i n s some 17,000 pages of t r a n s c r i p t ; hundreds of e x h i b i t s , including a monumental "environmental a n a l y s i s " ; and hundreds of proposed f i n d i n g s of f a c t and conclusions of law. The findings of f a c t and conclusions of law of t h e Board of Health are 23 pages long, and those of t h e Board of Natural Resources run 46 pages. Approximately 300 pages of b r i e f s were submitted. Many of the questions involved r e q u i r e f i r s t impression decisions a s t o t h e re- quirements of t h e M A P A and of t h e S i t i n g A c t . Due t o t h e many i s s u e s presented, t h e i r complexity, and t h e voluminous pages of t r a n s c r i p t , w e f i n d it impractical t o set f o r t h t h e e n t i r e statement of f a c t s i n a s i n g l e portion of t h i s opinion. Further necessary and appropriate f a c t s w i l l be discussed with each i s s u e . The i s s u e s presented t o t h i s Court, as agreed t o by t h e p a r t i e s and addressed by t h e D i s t r i c t Court, a r e : 1. Whether t h e D i s t r i c t Court's r u l i n g t h a t prohibi- t i o n of cross-examination of agency witnesses v i o l a t e d c o n s t i t u t i o n a l standards, s t a t u t e s , and regulations, was e r r o r ? 2. Whether t h e Board of Health proceedings, record, t r a n s c r i p t , e x h i b i t s , findings, conclusions and orders i n t h e Board of Natural Resources record i s s u b j e c t t o review? 3. Whether t h e D i s t r i c t Court erred i n requiring t h e Board of Health t o consider s t a t e o r f e d e r a l implementation plans i n reaching c e r t i f i c a t i o n pursuant t o s e c t i o n 70- 810 (1) (h) , R.C.M. 1947, now s e c t i o n 75-20-301 (1) (h) M C A ? 4 . Whether t h e D i s t r i c t Court e r r e d i n requiring t h e Board of Health t o make findings and conclusions a s t o whether c e r t a i n a i r and w a t e r q u a l i t y standards would be complied with, and whether t h e f a c i l i t i e s would have a major impact on ground water q u a l i t y ? 5. Whether t h e D i s t r i c t Court erred i n requiring t h e Board of Natural Resources t o consider and make adequate f i n d i n g s of f a c t and conclusions of law w i t h r e s p e c t t o whether t h e f a c i l i t i e s w i l l r e s u l t i n t h e minimum adverse environmental impact? 6. Whether t h e D i s t r i c t C o u r t ' s r u l i n g t h a t t h e Board of Health i s r e q u i r e d t o c e r t i f y without c o n d i t i o n , compli- ance w i t h a i r and water q u a l i t y s t a n d a r d s and s t a t e imple- mentation p l a n s , was e r r o r ? 7. Whether t h e D i s t r i c t Court p r o p e r l y r u l e d t h a t t h e Board of Natural Resources be r e q u i r e d t o consider and make adequate f i n d i n g s a s t o t h e s i t i n g and l o c a t i o n of t h e transmission c o r r i d o r f o r t h e 430 m i l e s o f transmission l i n e s ? 8. Whether t h e District Court e r r e d i n holding t h a t t h e r e was n o t 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 Board of Natural Resources' f i n d i n g s , conclusions, and d e c i s i o n t h a t t h e proposed f a c i l i t y r e p r e s e n t s t h e minimum adverse environmental impact? 9. Whether t h e D i s t r i c t Court p r o p e r l y accepted and r u l e d t h a t p a r t i e s t o t h e p e t i t i o n w e r e adequately served? 10. Whether t h e Board of N a t u r a l Resources p r o p e r l y denied a motion t o deny t h e a p p l i c a t i o n based on t h e Board of H e a l t h ' s m i s c e r t i f i c a t i o n o r n o n c e r t i f i c a t i o n of t h e a i r and water q u a l i t y m a t t e r s r e q u i r e d under s e c t i o n 7 0 - 8 1 0 ( 1 ) ( h ) , R.C.M. 1947, now s e c t i o n 75-20-301(2) (h) M C A ? 11. Whether t h e Board of Natural ~ e s o u r c e s ' r e f u s a l t o consider t h e minimum adverse environmental impact as t o r e q u i r i n g more e f f i c i e n t technology f o r t h e removal of SO2 and t h e D i s t r i c t C o u r t ' s opinion a f f i r m i n g t h a t r e f u s a l i s e r r o r under t h e S i t i n g Act? 12. Whether t h e r e f u s a l of t h e Board of ~ a t u r a l Re- sources t o allow i t s members t h e o p p o r t u n i t y t o review f i n d i n g s of f a c t and conclusions of law p r i o r t o adoption, and t h e D i s t r i c t C o u r t ' s affirming t h a t d e c i s i o n , was a r - b i t r a r y and c a p r i c i o u s on t h e p a r t of t h e agency and a d e p r i v a t i o n of p e t i t i o n e r s ' c o n s t i t u t i o n a l r i g h t s t o due process and a f u l l and f a i r hearing before t h e Board? The f i r s t i s s u e t o be addressed i s I s s u e No. 9--whether t h e D i s t r i c t Court properly accepted and r u l e d t h a t p a r t i e s t o t h e p e t i t i o n w e r e adequately served. W e b e l i e v e t h a t it d i d . While t h e D i s t r i c t Court d i d not make a s p e c i f i c r u l i n g a s t o t h e e f f e c t u a t i o n of proper s e r v i c e on a l l p a r t i e s , it s u r e l y i s c l e a r l y implied by i t s various pre- t r i a l o r d e r s and by i t s f i n a l order reversing and remanding. Surely n e i t h e r t h e U t i l i t i e s nor t h e agency a p p e l l a n t s / cross-respondents have any standing t o complain about s e r - v i c e i n t h i s matter. Any complaint they might have had was waived by agreeing t o t h e d e l i n e a t i o n of i s s u e s which w e r e f i n a l i z e d by t h e D i s t r i c t Court's order of February 27, 1977. I t i s contended by t h e Union and REA, appellants/ cross-respondents, t h a t they a r e each " p a r t i e s of record" f o r t h e purposes of s e c t i o n 82-4216 ( 2 ) (a) , R.C.M. 1947, now s e c t i o n 2-4-702 MCA, of t h e MAPA, and thereby e n t i t l e d t o i n d i v i d u a l s e r v i c e of a copy of t h e p e t i t i o n of review. W e f i n d t h a t t h e Union and REA w e r e not indispensable p a r t i e s under t h e circumstances e n t i t l e d t o i n d i v i d u a l s e r v i c e of a copy of t h e p e t i t i o n of review. Compare, C i s s e l l v. Colorado S t a t e Bd. of Assessment App. (Colo. 1977), 564 P.2d 1 2 4 , and L i f e of t h e Land v. Land U s e Comn. (1977), 58 Haw. 292, 568 P.2d 1189. They were j o i n t l y represented by counsel and t h e I n t e r n a t i o n a l Brotherhood of E l e c t r i c a l Workers, an a c t i v e p a r t i c i p a n t i n t h e agency proceeding w a s a c t u a l l y served with a copy of t h e p e t i t i o n f o r review. Had t h e s e appel- lants/cross-respondents communicated with one another, they would have had a c t u a l knowledge of t h e p e t i t i o n , i f they d i d n o t have such knowledge from t h e i r counsel o r t h e newspapers. W e do n o t f e e l t h a t j u d i c i a l review of t h e Board's a c t i o n should be thwarted by a p a r t y n o t p a r t i c i p a t i n g i n a proceeding, even though it had knowledge of it, and l a t e r allowed t o complain t h a t t h e c o u r t had no j u r i s d i c t i o n over t h e matter. The motion of t h e Union and REA t o dismiss t h i s proceeding i s hereby denied. I s s u e No. 2 w i l l be considered next. This i s s u e could more properly be phrased by asking whether t h e d e c i s i o n of t h e Board of Health was a f i n a l d e c i s i o n under t h e provi- s i o n s of s e c t i o n 82-4216, R.C.M. 1947, now s e c t i o n 2-4-702 MCA, of t h e M A P A , and, i f s o , whether an appeal of such o r d e r i s mandatory o r permissive. O n pages 16 and 17 of i t s o r d e r , t h e D i s t r i c t Court held t h a t t h e granting of t h e Board of Health c e r t i f i c a t i o n should properly be viewed as a "preliminary, procedural o r intermediate agency a c t i o n " which i s n o t reviewable because review of t h e f i n a l agency a c t i o n ( i . e . , t h a t of t h e Board of Natural Resources) provides n o t only an adequate remedy b u t t h e only necessary remedy." The D i s t r i c t Court held t h a t t h e Board of Health c e r t i f i c a t i o n had no l e g a l e f f e c t whatsoever u n t i l and u n l e s s t h e Board of Natural Resources granted i t s c e r t i f i c a t i o n under s e c t i o n 70-804, R.C.M. 1947, now s e c t i o n s 75-20-201 and 75-20-203 MCA. The c o u r t con- cluded t h a t t h e Board of Health d e c i s i o n could not be ap- pealed u n t i l t h e Board of Natural Resources granted a f i n a l c e r t i f i c a t e of environmental compatibility. S e c t i o n 82-4216, R.C.M. 1947, now s e c t i o n 2-4-702 MCA, provides: " (1) ( a ) A person who has exhausted a l l adminis- t r a t i v e remedies a v a i l a b l e w i t h i n t h e agency and who i s aggrieved by a f i n a l d e c i s i o n i n a c o n t e s t e d c a s e i s e n t i t l e d t o j u d i c i a l review under t h i s p a r t . This s e c t i o n does n o t l i m i t u t i l i z a t i o n of o r t h e scope of j u d i c i a l review a v a i l a b l e under o t h e r means of review, r e d r e s s , r e l i e f , o r t r i a l d e novo provided by s t a t u t e . A preliminary, procedural, o r i n t e r m e d i a t e agency a c t i o n o r r u l i n g i s immediately review- a b l e i f review of t h e f i n a l agency d e c i s i o n would n o t provide a n adequate remedy." The i s s u e t h e n i s whether o r n o t t h e d e c i s i o n of t h e Board of Health d a t e d November 21, 1975, c e r t i f y i n g t h a t C o l s t r i p U n i t s 3 and 4 would n o t v i o l a t e s t a t e and f e d e r a l l y e s t a b l i s h e d s t a n d a r d s and implementation p l a n s , w a s a f i n a l d e c i s i o n under t h e p r o v i s i o n s of t h e M A P A and, accordingly, should have been appealed t o t h e D i s t r i c t Court by t h e p e t i t i o n e r s a t t h a t t i m e . S e c t i o n 70-810 (1) (h) , R.C.M. 1947, now s e c t i o n 75-20- 3 0 1 ( l ) ( h ) MCA, provides t h a t t h e Board of Natural Resources may n o t g r a n t a c e r t i f i c a t e u n t i l it determines t h a t t h e a u t h o r i z e d s t a t e a i r and w a t e r q u a l i t y agencies have certi- f i e d t h a t t h e proposed f a c i l i t y w i l l n o t v i o l a t e s t a t e and f e d e r a l l y e s t a b l i s h e d standards and implementation p l a n s . There i s no q u e s t i o n t h a t t h e Board of Health i s t h e duly a u t h o r i z e d s t a t e a i r and w a t e r q u a l i t y agency i n t h i s c a s e . S e c t i o n 70-810, R.C.M. 1947, now s e c t i o n 75-20-301 MCA, f u r t h e r provides t h a t judgments of t h e a u t h o r i z e d a i r and water q u a l i t y agencies " a r e conclusive" on a l l q u e s t i o n s r e l a t i n g t o t h e s a t i s f a c t i o n of s t a t e and f e d e r a l a i r and water q u a l i t y standards. The Board of Natural Resources had no a u t h o r i t y t o review t h e d e c i s i o n of t h e Board of Health under any circumstances. Accordingly, t h e Board o f Health order w a s n o t a preliminary o r i n t e r l o c u t o r y order. I t was f i n a l f o r a l l purposes. Thus, an appeal should have been made by p e t i t i o n e r s a t t h a t time. The f a c t t h a t t h e Board of Health's c e r t i f i c a t i o n was n o t t h e f i n a l order i n p o i n t of t i m e i n t h e proceedings i s n o t conclusive on t h e question of a p p e a l a b i l i t y . " . . . For purposes of j u d i c i a l review t h e f i n a l i t y of an agency order depends upon t h e nature of t h e order r a t h e r than i t s chro- nology i n r e l a t i o n t o t h e whole of t h e agency proceedings. . ." Goodman v. Public Service Commission, (D.C. C i r . 1972), 467 F.2d 375, 377, c i t i n g Federal Power Comm'n v. Metro- p o l i t a n Edison Co. (1938), 304 U.S. 375, 384, 58 S.Ct. 963, 82 L.ed. 1408. Goodman involved a hearing before t h e Washington, D.C. Public Service Commission concerning a p e t i t i o n f o r a r a t e increase. The hearing was b i f u r c a t e d i n t o two "phases." I n i t s Phase I o r d e r , t h e PSC e s t a b l i s h e d t h e f a i r r a t e of r e t u r n a t 7.1 percent. The Power Company w a s then ordered t o submit proposed schedules t o i n c r e a s e i t s revenue accord- ingly. The PSC Phase I1 order was an order e f f e c t u a t i n g t h e above d i r e c t i v e by approving a schedule of r a t e s . Goodman appealed from t h e Phase I order and n o t t h e Phase I1 o r d e r . The f e d e r a l d i s t r i c t c o u r t dismissed t h e appeal holding t h a t t h e Phase I o r d e r was n o t a f i n a l order o r d e c i s i o n and t h a t Goodman w a s n o t a f f e c t e d u n t i l e n t r y of t h e Phase I1 o r d e r . The C i r c u i t Court of Appeals reversed, holding t h a t t h e Phase I order was a f i n a l order: ". . . Its f i n a l c h a r a c t e r i s i n no sense a f f e c t e d by t h e need f o r t h e later Phase I1 o r d e r a l l o c a t i n g t h e i n c r e a s e among t h e s e v e r a l d i f f e r e n t c a t e g o r i e s of customers. The in- c r e a s e i n r a t e s , and t h e f i n d i n g s of t h e Com- mission upon t h e b a s i s of which t h e i n c r e a s e was allowed, w e r e i n no way l e f t f o r f u r t h e r d e c i s i o n by t h e Phase I1 order. "While it i s t r u e t h a t i n our case t h e r e was something else f o r t h e Commission t o do, t h e v a l i d i t y of t h e over-all i n c r e a s e [Phase I ] was n o t conditioned upon anything y e t t o be resolved by t h e l a t e r order authorizing t a r i f f schedules. What remained t o be done w a s n o t concerned with t h e v a l i d i t y of t h e i n c r e a s e i n rates which had been granted--the a c t i o n of t h e Commission which M r . Goodman took t o c o u r t . That a c t i o n ' w a s expected t o and d i d have l e g a l consequences' which were n o t modified nor intended t o be modi- f i e d by t h e Phase I1 order which followed. [Citing cases.]" Goodman, 467 F.2d a t 377-78. A s with t h e PSC Phase I order i n Goodman, t h e Board of Health's c e r t i f i c a t i o n w a s n o t conditioned upon anything y e t t o be resolved by t h e l a t e r order of t h e Board of Natural Resources. The remaining a d m i n i s t r a t i v e procedures were n o t concerned with a i r and water q u a l i t y c e r t i f i c a t i o n . The Board of Health order i n t h i s regard w3.d f i n a l and conclu- s i v e . The Board of Health's a c t i o n "was expected t o and d i d have l e g a l consequences" which were n e i t h e r modified nor intended t o be modified by t h e l a t e r order of t h e Board of Natural Resources. The Board of Health's order of November 2 1 , 1975, marks t h e consummation of t h e a d m i n i s t r a t i v e process within t h a t p a r t i c u l a r agency. The Board of Health's d e c i s i o n was f i n a l f o r purposes of j u d i c i a l review and should have been appealed a t t h a t t i m e . "The p r i n c i p l e of f i n a l i t y i n a d m i n i s t r a t i v e law i s not, however, governed by t h e adminis- t r a t i v e agency's c h a r a c t e r i z a t i o n of i t s ac- t i o n , b u t r a t h e r by a r e a l i s t i c assessment of t h e nature and e f f e c t of t h e order sought t o be reviewed. Hence, ' a f i n a l order need n o t neces- s a r i l y be t h e very l a s t o r d e r ' i n an agency pro- ceeding, b u t r a t h e r , i s f i n a l f o r purposes of j u d i c i a l review when it 'impose[s] an o b l i g a t i o n , d e n [ i e s ] a r i g h t , o r f i x [ e s ] some l e g a l r e l a t i o n - s h i p a s a consummation of t h e a d m i n i s t r a t i v e process.' . . ." F i d e l i t y Television, Inc. v. F.C.C. (D.C. C i r . 1974), 502 F.2d 443, 448. W e f i n d t h a t t h e Board of Health's o r d e r of November 2 1 , 1975, was f i n a l on t h a t d a t e . An appeal from t h a t order had t o be f i l e d w i t h i n t h i r t y days t h e r e a f t e r pursuant t o t h e t e r m s of t h e MAPA. N o appeal was timely f i l e d and, t h e r e f o r 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 review t h e order. The D i s t r i c t Court i s reversed accordingly. I n view of t h e f a c t t h a t t h i s Court has r u l e d t h a t 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 review t h e Board of H e a l t h ' s o r d e r dated November 2 1 , 1975, t h e following i s s u e s become moot and need n o t nor can be decided by us: I s s u e No. 3 involving t h e alleged f a i l u r e of t h e Board of Health t o consider s t a t e and f e d e r a l implementation plans; I s s u e No. 4 concerning t h e requirement t h a t t h e Board of Health make a d d i t i o n a l findings and conclusions concerning c e r t a i n a i r and water standards; and I s s u e No. 6 which r a i s e d t h e question of t h e v a l i d i t y of t h e c o n d i t i o n a l c e r t i f i c a t e issued by t h e Board of Health. I s s u e Nos. 10, 1 1 and 12 involve i s s u e s wherein respon- dents/cross-appellants contend t h e District Court e r r e d . I s s u e No. 10 questions t h e d e n i a l by t h e Board of Natural Resources and t h e concurrence of t h e D i s t r i c t Court of respondents/cross-appellants' motion t o deny t h e appli- c a t i o n because of f a u l t y c e r t i f i c a t i o n by t h e Board of Health. W e f i n d t h a t t h e D i s t r i c t Court properly concurred i n t h e d e n i a l of t h e motion. On January 7 and 8 , 1976, respondents/cross-apellants f i l e d motions t o terminate t h e proceedings before t h e Board of Natural Resources on t h e grounds of t h e a l l e g e d i n v a l i d i t y of t h e c e r t i f i c a t i o n of t h e f a c i l i t y by t h e Board of ~ e a l t h . The Board of Natural Resources denied t h e motions. Under t h e provisions of s e c t i o n 70-810 (1) (h) , R.C.M. 1947, now s e c t i o n 70-20-301(2)(h) MCA, of t h e S i t i n g A c t , t h e Board of Health i s required t o c e r t i f y t o t h e Board of Natural Resources ". . . t h a t t h e proposed f a c i l i t y w i l l n o t v i o l a t e s t a t e and f e d e r a l l y e s t a b l i s h e d standards and imple- mentation plans . . ." This was done by t h e Board of Health on November 2 1 , 1975. The g r a n t was c a l l e d a "conditional c e r t i f i c a t e , " b u t t h a t q u a l i f i c a t i o n has no s i g n i f i c a n c e f o r t h e purposes of t h i s i s s u e . The above s e c t i o n of t h e S i t i n g Act provides f u r t h e r t h a t t h e judgments of t h e Board of Health ". . . a r e conclusive on a l l questions r e l a t e d t o t h e s a t i s f a c t i o n of s t a t e and f e d e r a l a i r and water q u a l i t y standards." (Emphasis added.) Therefore, from a s t a t u t o r y standpoint alone, t h e Board of Natural Resources had no choice b u t t o look upon t h e c e r t i f i c a t i o n by t h e Board of Health a s "conclusive" and deny t h e motions of respondents/ cross-appellants. There i s a n even more compelling reason why t h e Board of Natural Resources was j u s t i f i e d i n denying t h e motions. The c e r t i f i c a t i o n and o r d e r of t h e Board of Health was dated November 2 1 , 1975. W e held under I s s u e No. 2 t h a t such c e r t i f i c a t i o n and order was a " f i n a l d e c i s i o n i n a contested case" and s u b j e c t t o mandatory j u d i c i a l review w i t h i n t h i r t y days a f t e r i t s i s s u e . The motions of respondents/cross- a p p e l l a n t s were n o t f i l e d u n t i l January 7 and 8, 1976, well beyond t h e thirty-day period f o r j u d i c i a l review, thus making t h e c e r t i f i c a t i o n and order of t h e Board of Health doubly "conclusive" n o t only upon t h e Board of Natural Resources b u t a l s o upon t h e D i s t r i c t Court. The remedy a v a i l a b l e t o respondents/cross-appellants on t h i s i s s u e of c e r t i f i c a t i o n by t h e Board of Health w a s t o i n s t i t u t e judi- c i a l review within t h e s t a t u t o r y thirty-day period. I s s u e No. 1 1 concerns t h e D i s t r i c t C o u r t ' s upholding t h e r e f u s a l of t h e Board of Natural Resources t o r e q u i r e more e f f i c i e n t technology f o r t h e removal of SO2 a t t h e f a c i l i t y i n considering minimum adverse environmental i m - pact. This i s s u e s o l e l y involves questions of f a c t thoroughly reviewed by t h e Board of Natural Resources before making i t s f i n d i n g s , conclusions and orders. I n t h e i r b r i e f s both appellants/cross-respondents and respondents/cross-appellants argue about highly t e c h n i c a l matters, which more properly should be presented before t h e a d m i n i s t r a t i v e agencies. W e b e l i e v e t h e D i s t r i c t Court decided t h e matter properly, and i t s reasons were adequately s t a t e d a t pages 34 and 35 of i t s opinion: ". . . The disagreement seems t o a r i s e over t h e a s s e r t i o n by a p p l i c a n t s t h a t BACT can be equated t o t h e h i g h e s t s t a t e of t h e a r t o r t o minimum adverse environmental impact. P e t i t i o n e r s i n s i s t t h e l a t t e r sets a higher standard t h a t BACT and t h a t t h e evidence here shows t h e p o l l u t i o n re- moval equipment proposed does n o t m e e t t h a t stan- dard. I n m y opinion, t h e BACT, o r NSPS and PSD, standards a r e empirical and q u a n t i f i a b l e and a r e set o u t s p e c i f i c a l l y i n t h e EPA r e g u l a t i o n s . These should be determined by t h e Department of Health, a s t h a t department attempted t o do here. On t h e o t h e r hand, t h e determination as t o whether various a s p e c t s of t h e proposed f a c i l i t y w i l l provide minimum adverse environmental i m - p a c t ( o r r e p r e s e n t t h e h i g h e s t s t a t e of t h e a r t ) i s a judgmental matter, r e q u i r i n g comparison, t h e weighing of s e v e r a l f a c t o r s and t h e balancing of pros and cons. This i s t h e business of t h e Board of Natural Resources. ( I n t h i s case, Find- i n g of Fact #79 of t h e Board of Natural Resources sets f o r t h some, o r a l l of t h e f a c t o r s considered.) Here t h e p e t i t i o n e r s argue t h a t t h e evidence pro- vided by t h e witness Brink shows c l e a r l y t h a t t h e h i g h e s t s t a t e of t h e a r t would provide 90% removal of SO2. The a p p l i c a n t p o i n t s o u t t h a t Brink's technology a p p l i e s t o a high s u l f u r c o a l i n s t a l l a t i o n with an open loop s e t t l i n g system. The proposed f a c i l i t y takes advantage of low s u l - phur c o a l and a closed loop system t h a t would ' t r a d e o f f ' higher s u l f u r emission (purportedly w i t h i n NSPS and PSO standards) f o r minimization of water p o l l u t i o n . Thus, t h e type of p o l l u t i o n c o n t r o l equipment proposed by t h e a p p l i c a n t s approved by t h e Board of Natural Resources may con- t r i b u t e t o a t o t a l system t h a t provides minimum adverse environmental impact. Such an express conclusion a s applied t o t h e p o l l u t i o n c o n t r o l equipment would have been h e l p f u l ; b u t it can be f a i r l y implied from t h e f i n d i n g s of both Boards. I t can c e r t a i n l y be deemed t o come under t h e a l l - encompassing statement i n Finding of F a c t #3 and Conclusion of Law #4 of t h e BNR c e r t i f i c a t i o n . I t seems t o m e t h e conclusion on t h i s p a r t i c u l a r as- p e c t of t h e c a s e has been adequately s t a t e d and t h a t it is n o t ' c l e a r l y erroneous', although it would have benefited from more s u b s t a n t i a l fac- t u a l f i n d i n g s t o support i t . " The D i s t r i c t C o u r t ' s holding on t h i s i s s u e was n o t i n e r r o r . I s s u e No. 1 2 r a i s e s t h e p o i n t a s t o whether t h e r e f u s a l by t h e Board of Natural Resources t o allow members t o review f i n d i n g s and conclusions p r i o r t o adoption was a d e p r i v a t i o n of respondents/cross-appellants' r i g h t s t o due process and a f u l l and f a i r hearing before t h e Board of Natural Resources. W e f i n d no such deprivation. A review of t h e D i s t r i c t Court opinion i n d i c a t e s t h a t it a c t u a l l y d i d n o t make any r u l i n g on t h i s p o i n t . And, a review of t h e record a l s o i n d i c a t e s t h a t respondents/cross- a p p e l l a n t s d i d n o t r a i s e t h i s i s s u e i n t h e D i s t r i c t Court. Therefore, it 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 t o t h i s Court. W e have repeatedly held t h a t we w i l l n o t consider questions of claimed e r r o r n o t previously r a i s e d o r presented t o t h e t r i a l c o u r t . Hayes v. J.M.S. Const. (1978), Mont. , 579 P.2d 1225, 35 St.Rep. 722; Mont. Ass'n - of Underwriters v. S t a t e , Etc. (1977), - Mont. - , 563 P.2d 577, 34 St-Rep. 297; Kearns v. McIntyre Const. Co. (1977) Mont. , 567 P.2d 433, 34 St.Rep. 703. W e p o i n t o u t , however, t h a t i n our opinion t h e r e was no d e p r i v a t i o n of r i g h t s o r even u n f a i r p r a c t i c e s i n t h e adop- t i o n of f i n d i n g s and conclusions by t h e Board of Natural Resources. A reading of t h e e n t i r e separate volume of t r a n s c r i p t regarding procedural matters before t h e Board of Natural Resources dated J u l y 22, 1976, c l e a r l y demonstrates t h i s . The record i n d i c a t e s t h a t p r i o r t o t h e meeting of t h e Board of Natural Resources i n June 1976, each board member prepared h i s own set of findings and conclusions, a f t e r which a vote was taken a t t h e June 1976 meeting "as t o which r o u t e they would choose." Following t h e vote, t h e hearings examiner was requested by t h e Board t o prepare findings of t h e majority, which had voted t o approve t h e application. O n J u l y 8, 1976, two weeks p r i o r t o t h e f i n a l meeting of July 22, 1976, a l e t t e r was s e n t t o each board member with a copy of t h e hearings examiner's proposed findings of f a c t , conclusions of l a w , opinion, decision, order and recom- mendations. The hearings examiner requested t h a t he be n o t i f i e d of any changes any member wanted made. The hear- i n g s examiner noted t h a t t h e r e w e r e some changes t o be made such a s s p e l l i n g and typographical e r r o r s , and some provi- s i o n s were changed. These findings and conclusions w e r e adopted by t h e Board of Natural Resources simultaneously with t h e granting of t h e c e r t i f i c a t e of environmental com- p a t i b i l i t y and public need. Under t h e s e circumstances t h e Board of Natural Resources' a c t i o n could not be held t o be a r b i t r a r y and capricious, o r a deprivation of respondents/ cross-appellants' c o n s t i t u t i o n a l r i g h t s t o due process and a f u l l and f a i r hearing. Issue No. 5 involves t h e D i s t r i c t Court's requirement t h a t t h e Board of Natural Resources make a d d i t i o n a l findings and conclusions regarding t h e use of ~ o s e b u d coal versus McKay c o a l and t h e mine-mouth versus load-center generation q u e s t i o n . The D i s t r i c t Court admits t h e r e was ample testi- mony on both p o i n t s b u t i n s i s t s t h e s t a t u t o r y f i n d i n g s and conclusions t h a t t h e f a c i l i t i e s w i l l m e e t t h e "minimum adverse environmental impact" t e s t of t h e S i t i n g Act, a s r e q u i r e d by s e c t i o n 70-810(l) ( c ) , R.C.M. 1947, now s e c t i o n 75-20-301(2) ( c ) MCA, must be accompanied by a " p r e c i s e and e x p l i c i t statement of t h e underlying f a c t s supporting t h e f i n d i n g s " a s provided under t h e t e r m s of t h e I~APA, s e c t i o n 82-4213, R.C.M. 1947, now s e c t i o n 2-4-623 MCA. W e agree. I n connection w i t h t h e Rosebud v e r s u s McKay c o a l p o i n t i n t h i s i s s u e , t h e D i s t r i c t Court h e l d t h a t t h e Board of Natural Resources d i d n o t make adequate f i n d i n g s of f a c t and conclusions of l a w regarding whether t h e u s e of only Rosebud c o a l , without t h e u s e of any McKay c o a l , r e p r e s e n t e d t h e minimum environmental impact. The testimony i n d i c a t e s t h e r e a r e e x t e n s i v e McKay c o a l d e p o s i t s i n t h e same a r e a a s t h e Rosebud c o a l d e p o s i t s . The use of one c o a l seam t o t h e e x c l u s i o n of t h e o t h e r could, of course, r e s u l t i n an i n - creased e f f e c t of t h e impact of s t r i p mining and reclamation. The l a c k o f any s p e c i f i c f i n d i n g s i n t h i s d i s p u t e d f a c t u a l a r e a , d i r e c t l y a f f e c t i n g t h e environmental impact of t h e f a c i l i t y , w a s e r r o r on t h e p a r t of t h e Board of Natural Resources. The D i s t r i c t Court p r o p e r l y h e l d t h a t a c o n c i s e and e x p l i c i t statement of t h e underlying f i n d i n g s of f a c t w a s necessary t o support t h e u l t i m a t e conclusion. gardi ding t h e second p o i n t i n t h i s i s s u e , t h e ~ i s t r i c t Court h e l d t h a t t h e Board of Natural Resources be r e q u i r e d t o make adequate f i n d i n g s of f a c t and conclusions of law w i t h r e g a r d to: " (b) Whether mine-mouth g e n e r a t i o n as opposed t o l o a d c e n t e r g e n e r a t i o n r e p r e s e n t s minimum environmental impact, and t h e reasons t h e r e f o r , including consider- a t i o n s as t o r e l a t i v e energy e f f i c i e n c y and t h e r e l a - t i v e impact o f e l e c t r i c a l transmission v e r s u s c o a l haulage, b o t h a s r e q u i r e d by S e c t i o n 70-810(l) ( c ) . " AppelLantd/cross-respondents maintain t h a t only u l t i - mate f a c t u a l conclusions need be drawn by t h e Board of Natural Resources and underlying supporting f i n d i n g s of f a c t are n o t required. Such a p o s i t i o n i s c o n t r a r y t o t h e re- quirements of MAPA. S e c t i o n 82-4213, R.C.M. 1947, now s e c t i o n 2-4-623 MCA. The i s s u e i s p r i m a r i l y one of whether c l e a r - c u t a l t e r - n a t i v e s i n t h e evidence need be considered i n t h e f i n d i n g s by t h e Board of N a t u r a l Resources i n reaching t h e s t a t u t o r y conclusion t h a t t h e f a c i l i t i e s w i l l m e e t t h e minimum adverse environmental impact. The Board of N a t u r a l Resources made no f i n d i n g s , f o r example, a s t o whether t h e economic d e t r i - ment, i f any, i n t e r m s of d e p r e c i a t e d land v a l u e s and e f f e c t on b u s i n e s s and commerce, caused by t h e t a k i n g of 430 m i l e s of double right-of-way a c r o s s t h e S t a t e of Montana v e r s u s t h e u t i l i z a t i o n of e x i s t i n g r a i l r o a d right-of-way s a t i s f i e d t h e minimum impact test. The D i s t r i c t Court r u l i n g t h a t t h e Board of Natural Resources be r e q u i r e d t o make f i n d i n g s a s t o t h e " n a t u r e and economics of t h e v a r i o u s a l t e r n a t i v e s , " a s set f o r t h i n s e c t i o n 7 0 - 8 1 0 ( 1 ) ( c ) , R.C.M. 1947, now s e c t i o n 75-20-301(2)(c) MCA, was proper and i n accordance w i t h a p p l i c a b l e law. I s s u e N o . 7 q u e s t i o n s t h e D i s t r i c t C o u r t ' s requirement t h a t t h e Board of N a t u r a l Resources make a d d i t i o n a l f i n d i n g s a s t o t h e s i t i n g and t h e l o c a t i o n of t h e transmission l i n e c o r r i d o r . The D i s t r i c t Court h e l d t h a t t h e Board of Natural Resources made inadequate f i n d i n g s a s t o t h e environmental criteria and the identification and designation of the transmission line corridor as required by the I I I A P A in section 82-4313, R.C.M. 1947, now section 2-4-623 MCA. The transmission line, as a part of the facilities, calls for the location of approximately 430 miles of right- of-way for two 500 k.v. transmission lines from Colstrip to the western boundary of the state. The District Court held that the Board of Natural Resources was required to "clearly designate a transmission line corridor, make findings of fact as to why the Board preferred the chosen corridor to the alternative corridors, and conclusions of law as to what state and local legal requirements must be met, and whether they have in fact been met, in accordance with Section 70-810(1)(f)." We concur. Appellants/cross-respondents point out the apparent inconsistency of the District Court's opinion wherein the court refused to consider the lack of findings as to the environmental impact of the alternative corridor segments, and its final ruling set forth above. Although the opinion could be clearer in this regard, it is apparent that the District Court rejected respondents/cross-appellants' argu- ment on the issue of minimum adverse environmental impact as to the alternative corridors. However, the District Court refused to affirm the granting of a certificate by the Board of Natural Resources, without some actual identification of the corridors subject to approval. With respect to the transmission facilities, appellants/ cross-respondents' Exhibit 92 sets forth a number of alter- native segments which, in combination, could make up possibly five or six different routings, rather than 54 alternative routes as suggested by appellants/cross-respondents. ~ l s o , respondents/cross-appellants submitted proposed f i n d i n g s on t h e p r e f e r a b i l i t y of a l t e r n a t i v e c o r r i d o r s , p a r t i c u l a r l y t h e use of e x i s t i n g r a i l r o a d r i g h t of way over t h e r o u t e s --- proposed by appellants/cross-respondents. BNR Proposed Findings N.P.R.C. #13-16, 32, 34-36, 66-69, 104-105, 108, 115. DNRC #814-820. The f i n d i n g s of f a c t touching on t h i s i s s u e were con- clusory i n nature and presented no b a s i s o r underlying supporting f a c t s f o r t h e conclusion reached. See Board of Natural Resources Finding of Fact No. 48. Furthermore, i n a subsequent finding, No. 74, t h e Board of Natural Resources found t h a t f u r t h e r meteorological d a t a w a s necessary f o r a determination of a f i n a l s e l e c t i o n of -- t h e "proposed c o r r i d o r . " (Emphasis supplied.) The conclusions of law go no f u r t h e r than t o make a r e f e r e n c e i n one of t h e conditions t o a "proposed corridor." Board of Natural Resources Conclusion of Law No. 1 2 (L) ( 3 ) . A s s t a t e d by t h e D i s t r i c t Court, t h e p e r t i n e n t f i n d i n g s of f a c t and conclusions of law with r e s p e c t t o t h e trans- mission f a c i l i t i e s are t o t a l l y conclusory i n n a t u r e with r e s p e c t t o t h e i r l o c a t i o n . Furthermore, they f a i l t o a c t u a l l y reach t h e conclusion t h a t a transmission r o u t e has been located. This i s , of course, t h e fundamental purpose of t h e e n t i r e agency process. Section 82-4213, R.C.M. 1947, now s e c t i o n 2-4-623 MCA, provides i n p a r t : ". . . Each conclu- s i o n of law s h a l l be supported by a u t h o r i t y o r by a reasoned opinion. " ~ppellants/cross-respondents a l l u d e t o c i t a t i o n s of t h e record t o s a t i s f y t h e e s s e n t i a l fact-finding o b l i g a t i o n of t h e Board of Natural Resources with r e s p e c t t o t h e require- ment t h a t t h e l o c a t i o n conform t o s t a t e and l o c a l laws and r e g u l a t i o n s ( s e c t i o n 70-810 (1) ( f ) R.C.M. 1947, now s e c t i o n 75-20-301(2) (b) MCA). The District Court c o r r e c t l y held t h a t t h e i d e n t i f i c a t i o n of t h e laws determined t o be com- p l i e d w i t h was necessary t o support Conclusion of Law No. 8. The ~ i s t r i c t Court i n t h i s i n s t a n c e could n o t s u b s t i t u t e i t s judgment f o r t h e agency i n t h e absence of any d e f i n i t i v e d e c i s i o n by t h e agency. ~ppellants/cross-respondents' c o n t e n t i o n t h a t r e f e r e n c e s i n t h e f i n d i n g s t o t h e f a c t t h a t t h e transmission l i n e s would be l o c a t e d t o avoid population c e n t e r s a s much a s p o s s i b l e , without even a c o n s i d e r a t i o n of what population c e n t e r s w e r e involved, t h e e f f e c t of t h e impact, o r t h e corresponding b e n e f i t s , i f any, does n o t s a t i s f y t h e f a c t - f i n d i n g o b l i g a t i o n of t h e Board of Natural Resources. F i n a l l y , subsequent approval of a segment of c e n t e r l i n e has no bearing on t h e v a l i d i t y of t h e Board of Natural Resources w i t h r e s p e c t t o l o c a t i o n of a c o r r i d o r . The f a c t t h a t members of t h e Board of Natural Resources may subse- q u e n t l y i d e n t i f y a c e n t e r l i n e l o c a t i o n does n o t a i d t h e incompleteness of t h e Board of N a t u r a l Resources' determina- t i o n w i t h r e g a r d t o a c o r r i d o r l o c a t i o n . The District Court p r o p e r l y found t h a t something more t h a n conclusory f i n d i n g s of f a c t o r conclusions of law was necessary t o meet t h e requirements of t h e S i t i n g Act w i t h r e s p e c t t o l o c a t i o n of transmission l i n e f a c i l i t i e s , espe- c i a l l y of t h e magnitude sought by appellants/cross-respondents. W e now t u r n t o I s s u e No. 8 concerning t h e District C o u r t ' s f i n d i n g a s t o whether t h e r e was 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 Board of Natural ~ e s o u r c e s ' f i n d i n g s , conclusions and d e c i s i o n t h a t t h e proposed f a c i l i t y repre- s e n t s t h e minimum adverse environmental impact, The p a r t i e s i n t h i s matter phrased t h i s i s s u e a s t o whether t h e D i s t r i c t Court e r r e d i n holding t h e r e w a s n o t s u b s t a n t i a l evidence t o support a f i n d i n g of minimum adverse environmental impact. A c a r e f u l reading of t h e D i s t r i c t Court opinion i n d i c a t e s t h a t such a statement of t h e i s s u e i s n o t c o r r e c t . The D i s t r i c t Court i n i t s d e c i s i o n on t h i s i s s u e set f o r t h nine d i f f e r e n t headings. The D i s t r i c t Court on a l l t h e headings except possibly number 8 r u l e d i n favor of t h e u t i l i t i e s . I t found t h e r e was 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 Board of Natural Resources' f i n d i n g s , conclusions and d e c i s i o n t h a t t h e proposed f a c i l i t y repre- s e n t s t h e minimum adverse environmental impact. Concerning number 8 t h e D i s t r i c t Court held t h e r e i s s u b s t a n t i a l evi- dence b u t then beclouds t h e i s s u e by adding, almost paren- t h e t i c a l l y , t h a t t h e Board of Natural Resources d i d n o t support i t s u l t i m a t e conclusion with any f i n d i n g s a s t o underlying f a c t s . W e f i n d t h a t t h e language concerning supporting u l t i m a t e f a c t s i s surplusage a s f a r a s t h i s i s s u e i s concerned. W e agree with t h e D i s t r i c t Court and f i n d t h a t t h e r e i s s u b s t a n t i a l c r e d i b l e evidence i n t h e record t o support t h e Board of Natural Resources' f i n d i n g s , conclu- s i o n s and d e c i s i o n t h a t t h e proposed f a c i l i t y r e p r e s e n t s t h e minimum adverse environmental impact. The f i n a l i s s u e f o r t h i s Court t o decide and probably t h e most far-reaching with regard t o a d m i n i s t r a t i v e law i n t h i s s t a t e , i s I s s u e No. 1--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 Board of Natural Resources must provide respondents/cross-appellants t h e opportunity t o cross- examine witnesses of t h e Department of Health and t h e Depart- ment of Natural Resources i n t h e hearings before each ~ o a r d . The ~ i s t r i c t Court i n i t s d e c i s i o n and order held t h a t t h e hearings examiner e r r e d i n r u l i n g t h a t p a r t i e s opposing t h e u t i l i t i e s ' a p p l i c a t i o n could n o t cross-examine witnesses c a l l e d by o t h e r p a r t y opponents i n both t h e Board of Health and Board of Natural Resources hearings. W e disagree. To f u l l y comprehend t h e n a t u r e and reason f o r t h e r u l i n g , we examine t h e background of t h e proceedings p r i o r t o t h e r u l i n g . A f t e r reading t h e record and t h e b r i e f s i n t h i s c a s e , t h e p o s i t i o n of t h e main p a r t i e s i n t h e two hearings becomes obvious e a r l y . On t h e one s i d e were t h e proponents con- s i s t i n g of t h e u t i l i t i e s a s applicants. O n t h e o t h e r s i d e were t h e opponents t o t h e a p p l i c a t i o n c o n s i s t i n g of Northern P l a i n s Resource Council, Northern Cheyenne Tribe, Inc., t h e Department of Natural Resources and t h e Department of Health. Each of t h e above opponents was represented by s e p a r a t e counsel. With i n t e r e s t w e note t h a t when it came t i m e t o submit t o t h e Board of Health proposed f i n d i n g s of f a c t and conclusions of law, as well a s comments on t h e u t i l i t i e s ' proposed f i n d i n g s of f a c t and conclusions of l a w and f i n a l memoranda, t h e f o u r main opponents submitted j o i n t plead- ings--not s e p a r a t e ones, each pleading being signed by t h e four s e p a r a t e counsel representing each main opponent. I n f a c t , t h e t i t l e of each pleading designates t h e four p a r t i e s a s "opponents" t o t h e a p p l i c a t i o n . Any attempt t o c a s t doubt upon t h e d i v i s i o n of p a r t i e s i n t o d i s t i n c t proponents and opponents, a s t h e D i s t r i c t Court attempted t o do i n i t s opinion and order of March 3 , 1978, i s without,merit. N o one involved i n t h e proceedings expected an e a r l y conclusion, y e t it soon became apparent t h a t t h e proceedings could l a s t f o r months unless s t e p s w e r e taken t o shorten t h e hearings, For example, t h e f i r s t witnesses c a l l e d averaged over f i v e days of testimony each, including extensive cross- examination by attorneys f o r t h e four main opponents t o t h e application. Extended discussions among t h e attorneys and t h e hearings examiner ensued i n an e f f o r t t o break t h e impasse. The apprehension of t h e hearings examiner became more noticeable a s t h e proceedings progressed. Thus, e a r l y i n t h e hearings he noted t h a t t h e Board of Health proceedings w e r e i n t h e second week and the second witness was s t i l l on t h e stand. A t t h e beginning of t h e second month of hearings, four witnesses had n o t y e t been completed. F i n a l l y , t h e hearings examiner ruled t h a t a l l witnesses would t h e r e a f t e r present t h e i r testimony i n writing, and t h a t t h e opponents t o any witness would have s i x hours of cross-examination t i m e , divided among them a s they might agree. The hearings examiner f u r t h e r reserved the r i g h t t o permit a d d i t i o n a l cross-examination i f it was material and i f without it prejudice might occur. A l i m i t a t i o n was a l s o placed upon r e d i r e c t and recross examinations. Approximately a month l a t e r , and a f t e r t h e u t i l i t i e s had r e s t e d t h e i r case-in-chief, objections were made by t h e opponents t o not being allowed t o cross-examine witnesses c a l l e d by other opponents. A t t h a t time, t h e hearings examiner ruled t h a t no p a r t y opposing t h e application would be allowed t o cross-examine witnesses presented by any o t h e r p a r t y opponent. However, t h e r e was a t l e a s t one exception t o t h e r u l e expressed a t t h e t i m e , and followed t h e r e a f t e r , i n t h a t counsel f o r Northern P l a i n s Resource Council was allowed t o cross-examine Department of Health witnesses a s t o t h e water aspects of t h e case because t h e Department had indicated t h a t it could c e r t i f y t h a t t h e p r o j e c t would meet a l l applicable state and f e d e r a l water standards. With t h i s p o s i t i o n , Northern P l a i n s d i d not agree. The comments of t h e hearings examiner on t h i s s u b j e c t a r e most illuminating, including h i s comments a s t o who opposed t h e application. I n response t o a question a s t o whether o r not t h e c h a i r had ruled t h a t t h e Northern P l a i n s Resource Council could not cross-examine a Department of Natural Resources' witness, the hearings examiner s t a t e d : "HEARINGS EXAMINER: That's c o r r e c t , except on matters pertaining t o water. I t ' s m y understanding a t t h e o u t s e t of t h i s thing, w e l i n e up on two s i d e s , proponents and opponents. NOW, t h e r e was some conversation t h a t you weren't l i n e d up t h a t way, b u t t h e c h a i r , t h e Hearings Examiner, has observed throughout these proceedings t h a t a l l t h e attorneys from t h e opponents' s i d e have been i n and o u t of t h e conference room, sharing exhi- b i t s , passing notes, conferring between examina- t i o n s , and i f t h e r e ' s a question one f o r g o t t o ask, he confers and t h e next guy asks it, and I ' v e never heard of a proceeding where you take t h e s i d e of an opponent t o an a p p l i c a t i o n and you cross-examine t h e other opponent's witnesses." Could t h e hearings examiner have made it any c l e a r e r a s t o t h e d i v i s i o n of t h e p a r t i e s ? W e think not. J u s t i f i c a t i o n f o r t h e r u l e was s t a t e d by t h e hearings examiner a s follows: "HEARINGS EXAMINER: . . . It seems t o m e t h a t t h e only person who has t h e r i g h t t o cross-examine i s t h e person who i s on t h e opposite s i d e . I think t h a t ' s t h e function of cross-examination. I f it weren't t h a t way, t h i s new r u l e w e made could be very nicely abused. I n other words, t h e Appli- c a n t s take two hours on cross-examination, t h e o t h e r p a r t i e s , on t h e other s i d e , we go back on t h e merry-go-round we've been on. You'll have an adequate opportunity t o put i n your c l i e n t ' s case i n f u l l , with a s many witnesses a s you choose, and s t a t e your p o s i t i o n very firmly, and t h e y ' l l have a r i g h t t o cross-examine your witnesses. I d o n ' t contemplate granting t h e DNR t h e r i g h t t o cross-examine your witnesses when t h e y ' r e - not i n an adverse p o s i t i o n t o them. That's not -- -- cross-examination. It can be c a l l e d c r o s s , b u t it can, i n e f f e c t , be r e d i r e c t , unless t h e r e ' s some p a r t i c u l a r i s s u e t h a t you want t o p u t on ------ t h e record, t h a t you have o p p o s i t e i s s u e a s f a r --- a s g r a n t i n g t h i s a p p l i c a t i o n i s concernedx-then, - I t h i n k y o u ' d b e o a t h a t could l e g a l l y - - - - - be c a l l e d c r o s s , b u t j u s t t o encumber t h e record - and say, ' I want t o cross-examine t h i s w i t n e s s , ' and then go ahead and t r y t o support t h e w i t n e s s , I see where t h e r e could be a g r e a t d e a l of abuse and u n f a i r n e s s i n t h a t . " (Emphasis added.) The hearings examiner i n t h e foregoing q u o t a t i o n l e f t t h e door a t l e a s t p a r t i a l l y open a s t o opponents cross- examining o t h e r opponents' w i t n e s s e s when an "opposite i s s u e " was involved, and he f u r t h e r expounded upon t h i s l a t e r . H i s answer t o a q u e s t i o n as t o whether he would permit cross-examination by a n opponent of another opponent's w i t n e s s i f they f i r s t s t a t e d t h e a r e a s i n which they d i s - agreed was t h a t h e would n o t say t h a t he would permit it b u t he would l i s t e n and see whether t h e r e was indeed a v a l i d i s s u e . I t should be noted t h a t t h e r e a f t e r opponents' counsel r a r e l y requested f u r t h e r permission t o cross-examine w i t - n e s s e s c a l l e d by o t h e r opponents. I n no c a s e i s it apparent t h a t counsel ever informed t h e h e a r i n g s examiner t h a t they w e r e opposed t o a c e r t a i n w i t n e s s ' testimony upon any p a r t i - c u l a r s u b j e c t , nor d i d they ever r e q u e s t permission t o cross-examine a n opponent's witness on any p a r t i c u l a r sub- j e c t . I n s t e a d , t h e i r o b j e c t i o n s were g e n e r a l only, based mainly on MAPA and t h e C o n s t i t u t i o n . I f t h e f l o o d g a t e s had been opened by t h e hearings examiner i n allowing unlimited cross-examination, it could have r e s u l t e d i n a n avalanche of testimony, making t h e p r e s e n t 17,000 page t r a n s c r i p t look l i k e a summary o r con- densation. P u b l i c w i t n e s s e s by t h e dozens turned o u t t o t e s t i f y both a g a i n s t and i n favor of t h e u n i t s . Under s e c t i o n 70-808(1) ( c ) , R.C.M. 1947, now s e c t i o n 75-20- 361 (1) (c) MCA, of t h e S i t i n g Act, "any o t h e r i n t e r e s t e d person" i s a p a r t y t o t h e proceeding although he waives h i s r i g h t under subsection ( 2 ) i f he does n o t p a r t i c i p a t e o r a l l y a t t h e hearing. Any of t h e s e " p a r t i e s " who t e s t i f i e d a t t h e hearing might w e l l have i n s i s t e d upon t h e i r r i g h t a s a p a r t y t o t h e proceeding t o cross-examine a l l t h e witnesses, some- thing t h a t was n o t l o s t upon t h e hearings examiner a s re- vealed i n h i s various comments. W e f i n d t h e hearings examiner was l i t e r a l l y forced t o i n s t i t u t e a r u l i n g r e s t r i c t - i n g t h e examination of witnesses, and t h i s he d i d with f a i r n e s s and dispatch. I n s p i t e of t h e background of t h e hearings and t h e n e c e s s i t y t o r e s t r i c t examination of witnesses, t h e D i s t r i c t Court held t h a t a t l e a s t t h e opponent-petitioners below had t h e a b s o l u t e r i g h t t o "cross-examine" witnesses c a l l e d by o t h e r opponents, Department of Health and Department of Natural Resources. Having provided t h e background, our a t t e n t i o n i s next d i r e c t e d t o t h e s t a t u t e s and case law. Section 70-809(1), R.C.M. 1947, now s e c t i o n 75-20- 222(3) MCA, of t h e S i t i n g Act provides i n p a r t : ". . . t h e contested case procedures of t h e Montana Administrative Procedure Act [82-401 t o 82-42251 s h a l l apply t o t h e hearing, except t h a t n e i t h e r common l a w nor s t a t u t o r y r u l e s of evi- dence need apply, b u t t h e board may make r u l e s designed t o exclude r e p e t i t i v e , redundant o r i r r e l e v a n t testimony." Section 82-4210, R.C.M. 1947, now s e c t i o n s 2-4-612(2) and 2-4-612(5) MCA, of t h e MAPA provides: " (1) Except a s otherwise provided by s t a t u t e re- l a t i n g d i r e c t l y t o an agency, agencies s h a l l be bound by common law and s t a t u t o r y r u l e s of evi- dence. . . " ( 3 ) A p a r t y s h a l l have t h e r i g h t t o conduct cross-examinations required ----- f o r a f u l l and t r u e d i s c l o s u r e of f a c t s , including t h e r i g h t t o cross-examine t h e author of any document prepared by o r on behalf of o r f o r t h e use of t h e agency and o f f e r e d i n evidence." (Emphasis added.) I t should be noted t h a t s e c t i o n 556(d) of t h e Federal Administrative Procedure A c t (5 U.S.C.A. 8556 (d) ) i s almost i d e n t i c a l t o t h e f i r s t p a r t of subsection (3) above i n providing t h a t "A p a r t y i s e n t i t l e d t o . . . conduct such cross-examination a s may be required f o r a f u l l and t r u e d i s c l o s u r e of t h e f a c t s . " The provision f o r cross-examination of t h e authors of agency documents o f f e r e d i n evidence found i n t h e latter p a r t of s e c t i o n 82-4210(3) i s n o t found i n t h e Federal Adminstrative Procedure Act nor i n t h e Model S t a t e Adminis- t r a t i v e Procedure Act. Rather, t h e provision was f i r s t proposed i n Montana i n 1959 i n a proposed Administrative Procedure Act which t h e Montana L e g i s l a t u r e d i d n o t pass. (Senate B i l l 179.) Subsequently, t h e M A P A passed i n 1971 preserved t h i s language. Both proposals w e r e made a t times when t h e c o u r t s w e r e concerned with t h e u n f a i r n e s s t h a t would b e f a l l claimants f o r r i g h t s o r p r i v i l e g e s from govern- mental agencies i f t h e claimants d i d n o t have t h e oppor- t u n i t y t o challenge t h e f a c t u a l b a s i s of c r i t i c a l r e p o r t s prepared f o r t h e agencies. Greene v. McElroy (1959), 360 U.S. 474, 79 S . C t . 1400, 3 L Ed 2d 1377; Cedar Rapids S t e e l Transp. v. Iowa S t a t e Corn. Comm'n (Iowa 1968), 160 N.W.2d 825; Application of Plainfield-Water Co. (1953), 1 1 N.J. 382, 94 A . 2 d 673. W e f i n d t h a t t h e i n c l u s i o n of t h e fore- going provision i n our s t a t u t e regarding t h e r i g h t t o cross- examine t h e author of agency documents was merely a safe- guard t o make c e r t a i n t h a t t h e e x i s t i n g c a s e law w a s recog- nized by s t a t u t e . Its i n c l u s i o n does n o t broaden t h e scope of t h e remainder of t h e s t a t u t e , and it should n o t be con- s t r u e d as a s e p a r a t e e n t i t y b u t r a t h e r w i t h t h e s t a t u t e as a whole. Although t h e LAPA does n o t s p e c i f i c a l l y d e f i n e cross- examination, r e s o r t i n t h i s regard can b e made t o s e c t i o n 93-1901-4, R.C.M. 1947, now s e c t i o n 26-1-101(1) MCA, which provides i n p a r t : " D i r e c t and cross-examination d e f i n e d . The examination of a w i t n e s s by t h e p a r t y producing him i s denominated t h e d i r e c t examination; t h e examination of t h e same witness, upon t h e same m a t t e r , by t h e adverse p a r t y , t h e cross-examina- -- t i o n . . ." (Emphasis added.) I t i s obvious t h a t t h e t e r m "adverse p a r t y " was n o t included i n t h e s t a t u t e f o r any o t h e r r e a s o n b u t t o narrow t h e scope of cross-examination t o t h e adverse p a r t y . The Montana Supreme Court, l i k e t h e c o u r t s of o t h e r j u r i s d i c t i o n s and t h e t e x t s , i n enunciating t h e g e n e r a l r u l e t h a t cross-examination i s a matter of r i g h t , l i m i t s such cross-examination t o w i t n e s s e s of t h e opposing p a r t y o r adverse p a r t y . McGonigle v. P r u d e n t i a l I n s . Co. of America (1935), 100 Mont. 203, 46 P.2d 687; Goldberg v . Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L Ed 2d 287; 98 C.J.S. Witnesses S368; 8 1 Am J u r 2d, Witnesses, 8464. The r i g h t t o cross-examination i s s u b j e c t t o another l i m i t a t i o n . The l a t i t u d e of such examination is l a r g e l y w i t h i n 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 , w i t h which t h e reviewing c o u r t w i l l n o t i n t e r f e r e u n l e s s t h e r e has been a m a n i f e s t abuse of d i s c r e t i o n . McGonigle v . P r u d e n t i a l I n s . Co. of America, supra; S t a t e v. Carns (1959), 136 Mont. 126, 345 P.2d 735. I n t h i s connection, s e c t i o n 82-4211(2), R.C.M. 1947, now s e c t i o n 2-4-611(2) MCA, provides t h a t hearings examiners s h a l l be authorized t o " r e g u l a t e t h e course of hearings." The Federal Administrative Procedure Act i s almost i d e n t i c a l t o t h e Montana provision i n pro- viding t h a t t h e presiding p a r t y may " r e g u l a t e t h e course of t h e hearing." 5 U.S.C.A. S556(c) ( 5 ) . W e f i n d i n view of t h e s t a t u t e s and c a s e law t h a t t h e r e i s r e a l l y no d i s t i n c t i o n between a c o u r t t r i a l and a con- t e s t e d a d m i n i s t r a t i v e proceeding i n s o f a r a s t h e r u l e s a p p l i - c a b l e t o cross-examination and t h e d i s c r e t i o n of t h e c o u r t o r hearings examiner a r e concerned. Should t h e r e be one r u l e f o r c i v i l c a s e s and another r u l e f o r a d m i n i s t r a t i v e proceedings? W e think not. I t would be d i f f i c u l t t o f i n d a c a s e more i n p o i n t than National N u t r i t i o n a l Foods Assln v. Food & Drug Admin. (2nd C i r . 19741, 504 F.2d 761, c e r t . denied 4 2 0 U.S. 946. Be- cause National N u t r i t i o n a l i s s o c l o s e t o t h i s case, more space w i l l be devoted t o it than o r d i n a r i l y done. The c a s e involved t h e review of two f i n a l r e g u l a t i o n s of t h e United S t a t e s Food & Drug Administration (FDA). During t h e presen- t a t i o n of t h e FDA's case, a l l p a r t i e s were permitted l i b e r a l cross-examination pursuant t o t h e hearings examiner's pre- t r i a l order which provided f o r cross-examination by any p a r t i c i p a n t d e s i r i n g t o do so. The Court of Appeals, Judge Friendly w r i t i n g f o r t h e c o u r t , wryly noted t h a t s o l i b e r a l a r u l e n o t unexpectedly had i t s c o s t . A f t e r the opposition t o t h e F D A began t o o f f e r its evidence, almost 18 months a f t e r t h e hearing commenced, t h e hearings examiner decided t o l i m i t t h e r i g h t s of p a r t i c i p a n t s t o cross-examine t h e witnesses c a l l e d by o t h e r p a r t i c i p a n t s . I n an o r d e r t h e hearings examiner divided t h e 2 a r t i e s i n t o two categories--just a s was done i n t h i s case--with t h e F D A on one s i d e and a l l o t h e r p a r t i c i p a n t s on t h e other. I f any p a r t i c i p a n t wished t o cross-examine t h e witness of another p a r t i c i p a n t , he was t o serve a n o t i c e of i n t e n t i o n t o do so. The n o t i c e had t o s t a t e t h a t t h e w r i t t e n d i r e c t testimony of t h e witness was adverse t o t h e i n t e r e s t of t h e p a r t i c i p a n t , make s p e c i f i c reference t o t h e portion of t h e testimony considered t o be adverse, and s t a t e t h e reasons t h e r e f o r . The hearings examiner would then determine whether t o g r a n t permission t o cross-examine i n h i s d i s c r e t i o n . The decision of t h e Court of Appeals approved t h e l i m i t a t i o n on cross-examination of c o p a r t i c i p a n t s ' witnesses where no adversity e x i s t e d between them; however, t h e c o u r t d i d f i n d t h a t i n t h e case of one p a r t i c u l a r l y important witness c a l l e d by t h e American Medical Association ( D r . S e b r e l l ) , t h e hearings examiner had i n c o r r e c t l y determined t h a t no adversity e x i s t e d between t h e AMA and t h e National Health Federation. Accordingly, t h e c o u r t remanded t h e case t o t h e F D A f o r t h e limited purpose of permitting reasonable cross-examination of D r . S e b r e l l by t h e N H F o r counsel of some o t h e r s i m i l a r l y i n t e r e s t e d p a r t i c i p a n t . I t appears t h a t t h e hearings examiner had made h i s r u l i n g t h a t D r . S e b r e l l could not be cross-examined by t h e N H F even though it was explained t o him a t t h e time t h a t t h e i n t e r e s t s of t h e N H F and AMA were opposite r a t h e r than i d e n t i c a l . I n commenting upon t h i s a d v e r s i t y , t h e c o u r t noted s p e c i f i c a l l y t h a t t h e two organizations c l e a r l y d i d n o t have "common i n t e r e s t s " and t h a t t h e N H F was substan- t i a l l y a s adverse t o t h e AMA a s it was t o t h e FDA. Judge Friendly predicated t h e r u l i n g upon subsection (d) of 5556 of t h e Federal ~ d m i n i s t r a t i v e Procedure Act which provides, almost i d e n t i c a l l y t o s e c t i o n 82-4210(3) I R.C.M. 1947, now s e c t i o n 2-4-612(5) MCA, t h a t a p a r t y i s e n t i t l e d t o conduct such cross-examination a s may be required f o r a f u l l and t r u e d i s c l o s u r e of t h e f a c t s . The court pointed o u t t h a t t h e foregoing provision does not confer a r i g h t of so-called "unlimited" cross-examination and t h a t presiding o f f i c e r s w i l l have t o make t h e necessary i n i t i a l determination where t h e cross-examination i s pressed t o unreasonable lengths. The c o u r t f u r t h e r recognized t h a t a hearings examiner must be allowed, indeed encouraged, t o take s t e p s t o avoid r e p e t i t i o u s o r aimless cross-examination, p a r t i c u l a r l y i n a proceeding which has become so gargantuan a s t h e one before it. O f more than passing i n t e r e s t i s t h e c o u r t ' s t e r s e comment on t h e p o i n t which most t r i a l lawyers have learned through sad experience--that e a r l y dreams of confounding experts by cross-examination usually are dreams indeed. The c o u r t wonders how much more t h e r e would have been f o r t h e agency t o l e a r n b u t t h a t D r . S e b r e l l was no ordinary witness and i n f a c t played a key p a r t i n t h e preparation of t h e regulation. One of t h e most cogent statements by Judge Friendly i n National N u t r i t i o n a l i s t h e following: ". . . I n t h e absence of a showing of prejudice, p a r t i c i p a n t s with common i n t e r e s t s should be grouped by t h e hearing examiner, and p a r t i c i - pants i n a group should not be permitted t o cross-examine witnesses c a l l e d by o t h e r members of t h e group." 504 F.2d a t 795. W e can i d e n t i f y t h e s i t u a t i o n involving D r . S e b r e l l , t h e key witness involved i n National N u t r i t i o n a l , with t h e s i t u a t i o n i n t h i s case where Northern P l a i n s Resource Coun- c i l w a s opposed t o t h e Department of Health on water i s s u e s . I n t h a t case t h e matter was remanded f o r cross-examination of D r . S e b r e l l ; i n t h i s case Northern P l a i n s Resource Coun- c i l was allowed t o cross-examine t h e Department of Health witnesses because of t h e adversity of i n t e r e s t . I t i s t r u e t h a t i n t h i s case t h e procedure was n o t a s s t r u c t u r e d a s i n National Nutritional. O n t h e o t h e r hand, on a t l e a s t two occasions t h e hearings examiner here pointed o u t t o counsel t h e p o s s i b i l i t y of opening cross-examination i n t h e event of a v a l i d adverse issue. H e d i d i n f a c t allow cross-examination on t h e water i s s u e s , where an adverse p o s i t i o n existed. This should have been proof enough t h a t , upon a proper showing of adversity, f u r t h e r cross-examina- t i o n would be allowed. Furthermore, none of t h e counsel f o r the opposing p a r t i e s , other than on water i s s u e s , ever pointed o u t i n what r e s p e c t h i s c l i e n t was i n opposition t o another opponent. O n t h e contrary a l l t h a t was ever done was t o interpose general objections, and when given t h e s p e c i f i c opportunity t o explain t h e s u b j e c t s where adversity e x i s t e d , opposing counsel d i d not do so. The f e d e r a l c o u r t s have i n many instances upheld r u l i n g s i n administrative proceedings which denied completely cross- examination. Thus i n Fried v. United S t a t e s (S.D. N.Y. 1963), 212 F.Supp. 886, p l a i n t i f f s alleged d e n i a l of due process of l a w because t h e hearings examiner c u r t a i l e d completely t h e i r r i g h t t o cross-examine an allegedly c r u c i a l witness b u t t h e c o u r t upheld t h e r u l i n g i n view of t h e cumulative nature of t h e witness' testimony. And i n ~ m e r i - can Public Gas Ass'n v. Federal Power Cornm'n. (D.C. cir. 1974), 498 F.2d 718, a l l d a t a upon which t h e commission r e l i e d was tendered t o t h e p e t i t i o n e r s f o r comment, c r i t i - cism and f o r t h e submittal of rebutting material. ~ e t i - t i o n e r s complained t h a t they were denied t h e r i g h t t o test through cross-examination t h e underlying bases f o r t h e sub- mitted d a t a but t h e c o u r t r e j e c t e d t h e claim i n holding t h a t under t h e Federal Administrative Procedure Act, cross- examination i s not always a r i g h t and t h a t t h e p e t i t i o n e r s had f a i l e d t o demonstrate t h a t cross-examination w a s r e - quired f o r a " f u l l and t r u e d i s c l o s u r e of t h e f a c t s " under t h e Act. The purposes of cross-examination have been s t a t e d a s follows: "The o f f i c e of cross-examination i s t o test t h e t r u t h of statements of a witness made on d i r e c t examination. Cross-examination serves a s a safeguard t o combat u n r e l i a b l e testimony, pro- viding a means f o r d i s c r e d i t i n g a witness' t e s t i - mony, and i s i n t h e nature of an a t t a c k on h i s t r u t h o r accuracy. . . The o b j e c t of cross- examination, therefore, i s t o weaken o r disprove t h e case of one's adversary, and break down h i s testimony i n c h i e f , test t h e r e c o l l e c t i o n , vera- c i t y , accuracy, honesty, and b i a s o r prejudice of t h e witness, h i s source of information, h i s motives, i n t e r e s t , and memory, and e x h i b i t t h e improbabilities of h i s testimony." 98 C.J.S. Witnesses 5372, pp. 125-26. Certainly examination by t h e opponents of other oppo- nents' witnesses would hardly meet t h e t r u e objectives of cross-examination including t h e main one, t o test t h e t r u t h of t h e witness' statements. A s revealed by t h e record, with t h e exception of t h e water aspects of t h e case, t h e four main opposing p a r t i e s were united i n opposing t h e applica- t i o n . H o w examination of each o t h e r ' s witnesses could be termed "cross-examination" under t h e circumstances i s d i f f i - c u l t t o understand. I n f a c t , any such i n t e r r o g a t i o n would r e a l l y have amounted t o nothing more than d i r e c t o r r e d i r e c t examination because t h e s o l e a i m and purpose would have been t o b o l s t e r and support t h e testimony already produced on t h e d i r e c t examination. The D i s t r i c t Court took t h e p o s i t i o n t h a t s e c t i o n 82- 4210(3), R.C.M. 1947, now section 2-4-612(5) MCA, imposes a mandatory r i g h t i n a l l p a r t i e s t o conduct "cross-examination" of a l l witnesses including t h e r i g h t t o "cross-examine" t h e author of a l l agency documents. W e f i n d t h a t t o construe t h e s t a t u t e so l i t e r a l l y , without considering i n t h e l e a s t o t h e r s t a t u t e s and case law, i s t o ignore t h e e n t i r e scheme of t h e M A P A . The District Court ordered t h e Board upon rehearing t o provide opponents an opportunity t o cross-examine agency witnesses. This would involve approximately 30 witnesses who a r e s c a t t e r e d throughout t h e United S t a t e s and t h e world. The c o s t involved, not only i n money b u t a l s o i n t i m e , would be staggering. W e have a s e r i o u s doubt, a s a p r a c t i c a l matter, i f t h e main hearings are any c r i t e r i a (and w e believe they a r e ) , t h a t t h e procedure could be accom- plished, i f a t a l l , i n less than s i x months o r more. Judge Friendly i n National N u t r i t i o n a l , supra, points o u t t h a t t h e reviewing c o u r t should n o t remand when t h e outcome would c l e a r l y be only a r e p e t i t i o n of t h e o r i g i n a l decision. There must be, a s he s t a t e s i n t h e main t e x t , "a s i g n i f i c a n t probability" t h a t t h e proceeding f o r which t h e case was remanded would cause t h e agency t o a l t e r i t s orig- i n a l decision, o r a need t o c r e a t e a b e t t e r record f o r a p p e l l a t e review of t h e findings. 504 F.2d a t 798. W e f i n d t h a t no s u b s t a n t i a l r i g h t s of respondents/ cross-appellants have been prejudiced. The hearings ex- aminer's decision o r procedure was n o t erroneous o r i n any manner a v i o l a t i o n of c o n s t i t u t i o n a l o r s t a t u t o r y provisions. W e do, however, wish t o emphasize t h a t t h i s case i s unique i n both i t s length and complexity. While w e have held t h a t t h e hearings examiner d i d not err on t h i s cross- examination i s s u e , t h e procedures followed i n the hearings should not be used as a model f o r f u t u r e hearings before various s t a t e boards and agencies. W e suggest, absent general procedural r u l e s f o r t h e conduct of hearings adopted by a board o r agency pursuant t o t h e provisions of t h e MAPA, t h a t p r i o r t o any hearing, a s t a t e board o r agency should i s s u e an order s e t t i n g t h e procedural guidelines t o be followed r a t h e r than delegating t h e e n t i r e r e s p o n s i b i l i t y t h e r e f o r t o t h e hearings examiner. I n summary w e hold t h a t t h e D i s t r i c t Court's opinion should be affirmed on Issue Nos. 5, 7 , 8, 9 , 10, 1 1 and 1 2 , reversed on i s s u e s 1 and 2 , with i s s u e s 3 , 4 and 6 being rendered moot. The opinion of t h e D i s t r i c t Court i s affirmed and reversed t o t h e e x t e n t set f o r t h herein. The decision of t h e Board of Natural Resources t o g r a n t t o appellants/cross- respondents a c e r t i f i c a t e of environmental compatibility and public need i s hereby suspended pending compliance with t h i s order. This cause i s hereby remanded t o t h e Board of Natural Resources t o cure c e r t a i n procedural d e f e c t s found by t h e D i s t r i c t Court and concurred i n by us with t h e order and d i r e c t i o n t h a t t h e Board of Natural Resources do t h e following: (1) Make adequate findings of f a c t and conclusions of law with regard to: (a) whether using Rosebud coal and n o t McKay c o a l represents minimum environmental impact, and the reasons t h e r e f o r , and (b) whether mine-mouth generation a s opposed t o load- c e n t e r generation represents minimum environmental impact and t h e reasons t h e r e f o r , including considerations a s t o r e l a t i v e energy e f f i c i e n c y and t h e r e l a t i v e impact of elec- t r i c a l transmission v e r s u s c o a l haulage, a s r e q u i r e d by s e c t i o n 70-810(l) (c) , R.C.M. 1947, now s e c t i o n 75-20-301 (2) (c) MCA. (2) Make adequate f i n d i n g s of f a c t and conclusions of law w i t h regard t o : ( a ) c l e a r l y d e s i g n a t i n g a transmission l i n e c o r r i d o r ; (b) why t h e Board of Natural Resources p r e f e r s t h e chosen c o r r i d o r t o t h e a l t e r n a t i v e c o r r i d o r s ; and (c) what s t a t e and l o c a l l e g a l requirements must be m e t , and whether i n f a c t they have been m e t a s r e q u i r e d by s e c t i o n 7 0 - 8 1 0 ( l ) ( f ) , R.C.M. 1947, now s e c t i o n 75-20-201 (2) ( f ) MCA. Such f i n d i n g s of f a c t and conclusions of law s h a l l be propounded and e n t e r e d by t h e Board of N a t u r a l Resources, served on t h e p a r t i e s h e r e t o , and r e t u r n e d t o us f o r review and approval w i t h i n 90 days from t h e d a t e hereof. W e concur: . Gulbrandson, D i s t r i c t f o r M r . Chief Jus- Hon. B. W. Thomas, ~ i s t r i c t Judge, s i t t i n g f o r M r . J u s t i c e Judge, s i t t i n g f o r M r . J u s t i c e 1 Sheehy M r . J u s t i c e Daniel J. Shea concurs i n p a r t and d i s s e n t s i n p a r t and w i l l f i l e a n opinion l a t e r . Justice Daniel J. Shea dissenting: There are many factors concerning this opinion which bother me deeply, but the speed with which it is suddenly being sent down and the last paragraph of the opinion are something that I must presently confine my remarks to--due to a lack of time. Just today I learned that the opinion was going down--today. Only yesterday one of the members of our Court, at the expense of the State, chartered a plane to take the opinion to each of the district judgdso that their signatures could be obtained. The politics behind the urgency of putting this opinion down in this fashion are not something that any Court should be proud of. I know approximately a month to a month and a or half ago the Governor andlone or more of his agents talked to a member of this Court involved in this case, and expressed concern about the political bind in which the Governor was being placdbecause of the passage or threatened passage of the new bill on Colstrip 3 and 4. I can only say that this Court member was not me. The obvious intent was that it would sure be nice if this Court could somehow get the Governor off the hot seat by speeding up our decision. I am not suggesting that those involved intimated at all how our decision should go - It is common knowledge that the countdown has started for the Governor to either veto or sign the legislation con- cerning Colstrip 3 and 4. Undoubtedly, putting our opinion down today will help considerably in helping the Governor reach the "right" political decision. To me this entire process is shocking. Now for a few brief comments on the final paragraph of the majority opinion--for which there is no foundation in law. The paragraph states: "Such findings of fact and conclusions of law shall be propounded and entered by the Board of Natural Resources, served on the parties hereto, and returned to us for review and approval within 90 days from the date hereof." Where in the law, may I ask, does it give this Court the power to exercise continuing jurisdiction over governmental agencies once we have remanded the case to them for further determinations? And where in the law do we have the authority, without an appropriate petition, after the governmental agency has acted, to completely bypass the Administrative Procedure Act and the District Court, in the event one or more of the aggrieved parties would have chosen to file a petition for review in the District Court? There is nothing in the Administrative Procedure Act which authorizes this Court to tell any agency how soon it may act after a remand from this Court. There is nothing that I know of in any of the remaining statutes or case law of this State to justify such a result. Once this Court has acted on an appeal and remanded a case, either to a District Court, or to an administrative agency, we lose jurisdiction. We cannot sit here like a king with strings still attached to the parties and directing them like puppets to comply with our orders. Here we have told the agency to act and get the results back to us within ninety days. This is judicial usurpation at its worst. Mr. Justice Daniel J. Shea dissenting: There are many factors concerning this opinion which bother me deeply, but because of the speed with which it was sent down, I have not had time to formulate a dissent. For this reason I must confine my comments at this point to the final paragraph of the majority opinion--for which there is no foundation in law. The paragraph states: "Such findings of fact and conclusions of law shall be propounded and entered by the Board of Natural Resources, served on the parties hereto, and returned to us for review and approval within 90 days from the date hereof." Where in the law, may I ask, does it give this Court the power to exercise continuing jurisdiction over governmental agencies once we have remanded the case to them for further determinations? And where in the law do we have the authority without an appropri- ate petition, after the governmental agency has acted, to completely bypass the Administrative Procedure Act and the District Court, in the event one or more of the aggrieved parties would have chosen to file a petition for review in the District Court? There is nothing in the Administrative Procedure Act which authorizes this Court to tell any agency how soon it may act after a remand from this Court. There is nothing that I know of in any of the remaining statutes or case law of this State to justify such a result. Once this Court has acted on an appeal and remanded a case, either to a District Court, or to an administrative agency, we lose jurisdiction. We cannot sit here like a king with strings still attached to the parties and directing them like puppets to comply with our orders. Here we have told the agency to act and get the results back to us within ninety days. This is judicial usurpation at its worst. # ' | April 9, 1979 |
5abd7170-66f5-42a0-af17-ba48773c9222 | STATE v BOARD OF CO COMMISSIONERS | N/A | 14481 | Montana | Montana Supreme Court | I N THE SUPREFILE COURT OF THE STATE OF MONTANA No. 1 4 4 8 1 THE STATE OF MONTANA, U p o n t h e r e l a t i o n of PROFESSIONAL CONSULTANTS, INCORPORATED, P e t i t i o n e r and A p p e l l a n t , VS. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF RAVALLI e t a l . , R e s p o n d e n t s and R e s p o n d e n t s . . < O R D E R PER CURIAM: I n t h e above n a m e d cause on page on l i n e 8 a t t h e end of t h e first paragraph, t h e f o l l o w i n g sentence i s added: " P e t i t i o n e r q u a l i f i e s under both tests." DATED t h i s *day of M a r c h , 1 9 7 9 . L " Justices u No. 14481 IN THE SUPREME COURT OF THE STATE OF MONTANA THE STATE OF MONTANA, Upon the relation of PROFESSIONAL CONSULTANTS, INCORPORATED, Petitioner and Appellant, THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF RAVALLI et al., Respondents and Respondents. Appeal from: District Court of the Fourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: James L. Tillotson, Missoula, Montana For Respondents: Douglas G. Harkin, Hamilton, Montana Submitted on briefs: December 21, 1978 Decided : MAP C ' ' ' z75 Filed: F. . . M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. Professional Consultants, Inc., p e t i t i o n e d t h e D i s t r i c t Court, Fourth J u d i c i a l D i s t r i c t , Ravalli County, f o r a w r i t of mandate t o compel t h e county commissioners of Ravalli County t o a c t concerning f i v e minor subdivisions. From t h e d e n i a l of i t s p e t i t i o n , Professional Consultants, Inc., appeals. The s o l e 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 finding t h a t p e t i t i o n e r had no standing t o maintain t h i s a c t i o n because it lacked s u f f i c i e n t i n t e r e s t t o i n i t i a t e and maintain t h e l i t i g a t i o n . P e t i t i o n e r , Professional Consultants, Inc., i s an engineering survey group which was hired t o p l a t subdivisions i n Ravalli County. O n February 2 1 , 1978, p e t i t i o n e r sub- mitted f i v e minor subdivisions t o t h e Ravalli County plan- ning board f o r review and approval by t h e county commis- s i o n e r s a s required under s e c t i o n 11-3866(6), R.C.M. 1947, now s e c t i o n 76-3-609 MCA. The planning board approved t h e p l a t s and submitted t h e i r recommendations t o t h e county commissioners. Respondent commissioners had n e i t h e r ap- proved, disapproved, o r conditionally approved any of t h e minor subdivisions by May 17, 1978. A s a r e s u l t , t h i s a c t i o n w a s brought a l l e g i n g t h a t t h e commissioners a r e i n v i o l a t i o n of t h e i r c l e a r l e g a l duty under t h e above s t a t u t e . I t should be noted t h a t t h e subdivision questionnaire submitted by each of t h e f i v e minor subdivisions d i d n o t contain t h e signature of p e t i t i o n e r . Rather, they contained t h e signatures of t h e owners of t h e lands i n question. P e t i t i o n e r had no l e g a l i n t e r e s t i n any of t h e minor sub- d i v i s i o n s ; was n o t t h e l e g a l t i t l e owner of any of t h e f i v e minor subdivisions; and was not t h e purchaser of any of t h e property involved. P e t i t i o n e r set f o r t h no l e g a l o r equi- t a b l e i n t e r e s t i n any of t h e land contained i n t h e f i v e minor subdivisions. The p e t i t i o n d i d n o t a l l e g e t h a t p e t i - t i o n e r had been authorized by any of t h e owners of t h e property t o commence any l e g a l a c t i o n regarding t h e prop- e r t y . I t appears t h a t t h e only i n t e r e s t of p e t i t i o n e r i s t h a t i t s employees conducted survey work and engineering work on t h e property. Section 93-9103, R.C.M. 1947, now s e c t i o n s 27-26-102(2) and 27-26-201 MCA, has long been a p a r t of our s t a t u t e s . It provides: "Writ--when and upon what t o i s s u e . The w r i t must be issued i n a l l cases where t h e r e i s n o t a p l a i n , speedy, and adequate remedy i n t h e ordinary course of law. It must be i s s u e d upon a f f i d a v i t , on t h e a p p l i c a t i o n of t h e p a r t y bene- f i c i a l l y i n t e r e s t e d . " W e f i r s t note t h a t under Rule 52, M.R.Civ.P., t h a t ". . . Findings of f a c t s h a l l n o t be set a s i d e unless c l e a r l y erroneous . . ." This standard f o r review has been o f t e n repeated by t h i s Court and i s a p p l i c a b l e i n t h i s case. See Lovely v. Burroughs Corp. (1974), 165 Mont. 209, 527 P.2d 557; I n re Mickich's E s t a t e (1943), 1 1 4 Mont. 258, 136 P.2d 223. While an a c t i o n involving a w r i t of mandate i s one i n e q u i t y , numerous cases have held t h a t t h e f i n d i n g s of t h e D i s t r i c t Court should n o t be reversed i n an equity a c t i o n u n l e s s t h e evidence c l e a r l y preponderates a g a i n s t them. See Kosel v. Stone (1965), 146 Mont. 218, 404 P.2d 894; Larsen Farms v. C i t y of Plentywood (1965), 145 Mont. 509, 402 P.2d 410. I n a mandamus a c t i o n t h e p e t i t i o n e r f a c e s a heavy burden of proving t h a t it i s e n t i t l e d t o a w r i t of mandamus. See S t a t e v. F i r e Department Relief Ass'n (1943), 1 1 4 Mont. 430, 136 P.2d 989, and S t a t e ex rel. S l e t t e n Const. Co. v. C i t y of Great F a l l s (1973), 163 Mont. 307, 516 P.2d 1149. Courts have employed t h e "standing" d o c t r i n e t o r e f u s e , t o determine t h e m e r i t s of l e g a l a c t i o n , on t h e ground t h a t even though t h e claim may be c o r r e c t , t h e l i t i g a n t advancing it i s n o t proper. See Wright, M i l l e r & Cooper, Federal P r a c t i c e and Procedure: J u r i s d i c t i o n S3531. See a l s o Data Processing Service v. Camp (1970), 397 U.S. 150, 90 S.Ct. 827, 25 L Ed 2d 184. P e t i t i o n e r has s t a t e d no l e g a l i n t e r e s t i n any of t h e minor subdivisions s u b j e c t of t h i s a c t i o n . I t i s n o t t h e owner o r purchaser of any of t h e property involved i n t h i s cause, and admits t h a t it l a c k s any l e g a l o r e q u i t a b l e i n t e r e s t i n t h e land. Some form of ownership i n t h e land i s necessary t o embark standing t o bring a mandamus a c t i o n . See People v. Vaglica (1968), 99 111.App.2d 213, 240 N.E.2d 271; Sun o i l Co. v. Macauley (1946), 72 R . I . 206, 49 A.2d 917; and Boron O i l Company v. City of Southfield (1969), 18 Mich.App. 135, 170 N.W.2d 517. The d e c i s i o n of t h e D i s t r i c t Court denying standing t o t h e p e t i t i o n e r i s affirmed. W e concur: / ' \ Chief J u s t i c e / - - ' , M r . Chief Justice Haswell dissenting: I would reverse and remand this case to the District Court for determination of the merits of the action. The majority deny "standing" to petitioner to prosecute a writ of mandamus because petitioner has no ownership interest in the land, relying on Vaglica, Sun Oil and Boron Oil cited in the majority opinion. In my opinion, none of these cases is authority for this holding. Vaglica, a criminal case not involv- ing mandamus, held that defendant had standing to seek suppres- sion of evidence seized in alleged violation of the rights of the owner of the premises where the evidence was seized. Sun Oil involved no issue of "standing" but was decided on the basis of insufficiency of the pleadings. Boron Oil was decided on the basis of whether petitioner for a writ of mandate was "the real party in interest." "The concepts of 'standing to sue' and 'real party in interest' are very different." Stewart v. Bd. of Cty. Mont. C o r n r n ' r s of Big Horn Cty. (19771, , 573 P.2d 184, 188, 34 St.Rep. 1594, 1599; 6 Wright & Miller, Federal Practice and Procedure: Civil S1542. Here I would grant standing to petitioner to prosecute a writ of mandamus. Petitioner is a professional engineering survey corporation hired by the landowners to survey, plot and qualify five minor subdivisions in Ravalli County. The corporation claims it cannot complete its contract because of the alleged failure of the county commissioners to act when they have a clear legal duty to do so. In my view, petitioner's contract rights are sufficient to invest it with standing to prosecute this action. We have twice previously permitted a surveyor to prosecute a writ of mandamus in similar situations. State ex rel. Swart v. Stucky (1975), 167 Mont. 171, 536 P.22 762; State ex rel. Swart v. Casne (1977), Mont . , 564 P.2d 983, 34 St.Rep. 394. As I see it, the essence of "standing" is twofold: (1) to insure that petitioner has such a personal stake in the outcome of the controversy that concrete adverseness and full develop- ment of the issues in controversy is assured (cf. Flast v. Cohen (1968), 392 U.S. 83, 88 S.Ct. 1942, 20 L Ed 2d 947) and (2) to conserve the time and judicial resources of the courts by elirnin- ating adjudication of matters purely of academic interest (cf. Association of Data Processing Service Org., Inc. v. Camp (1970), 397 U.S. 150, 90 S.Ct. 827, 25 L Ed 2d 184). The majority would limit "standing" in a mandamus action to those who possess "some form of ownership in the land." This is indeed a novel position that would exclude lessees, lien- holders, mortgagees and others who have legitimate contract and statutory interests to protect short of ownership. For these reasons, I respectfully dissent. Chief Justice Mr. Justice Gene B. Daly concurs with the dissent. Justice I I / | March 27, 1979 |
cb8869e9-d32a-412a-b305-b15a68f50940 | STATE v PUZIO ALLEN | N/A | 14628 | Montana | Montana Supreme Court | No. 14628 I N THE SUPREME COuKr O F THE STATE O F Imwmw 1979 THE STATE O F MXFANA, Plaintiff and Appellant, -vs- GRJXDW P U Z I O and CELESTE ALLEN, Defendants and Respondents. Appeal fran: D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t , Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Pbntana Mike WCarter, Assistant Attomey General, argued, Helena, Mtana Harold F. Hanser, County Attorney, Billings, Wntana Jock W e s t argued, Deputy County Attomey, Billings, mntana For Respondents: mses, Tolliver and Wright, Billings, mntana Ralph S. Wright argued, Billings, lbntana John L. Adams argued, Billings, mntana -- Submitted: M a y 1, 1979 Decided : Lrm~ 3 0 1979 Filed: -KAY in 1 9 7 9 -- - & ! W . 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. Defendants w e r e a r r e s t e d on November 28, 1977, and subsequently charged with t h e crime of c r i m i n a l possession w i t h i n t e n t t o s e l l dangerous drugs. T r i a l w a s set by t h e D i s t r i c t Court f o r October 10, 1978, some t e n and one-half months, o r 317 days, a f t e r a r r e s t . On September 26, 1978, defendant Puzio moved t o dismiss t h e m a t t e r f o r l a c k of a speedy t r i a l . The D i s t r i c t Court granted t h e motion. The S t a t e appeals under s e c t i o n 95-2403, R.C.M. 1947, now sec- t i o n 46-20-103 MCA. Before considering t h e speedy t r i a l i s s u e , however, w e must c l a r i f y a q u e s t i o n of t h e record w e w i l l consider. Both p a r t i e s i n t h e i r b r i e f s make statements of f a c t con- cerning t h e p a r o l e revocation of defendant Puzio which are n o t supported i n t h e record. The p a r t i e s on appeal a r e bound by t h e record and may n o t add a d d i t i o n a l f a c t s i n t h e i r b r i e f s o r by appendices t h e r e t o . T h r i f t v. T h r i f t (1918), 54 Mont. 463, 171 P. 272; Farmers S t a t e Bank of Conrad v. Iverson (1973), 162 Mont. 130, 509 P.2d 839. The statements of f a c t n o t contained i n t h e record concerning t h e p a r o l e revocation of defendant Puzio have n o t been considered. I n S t a t e v. Tiedemann (1978), Mont. , 584 P.2d 1284, 1287, 35 St.Rep. 1705, 1706-07, t h i s Court d i s - cussed t h e r i g h t t o a speedy t r i a l : "The r i g h t t o a speedy t r i a l i s guaranteed by 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 . U.S. Const., Amend. V I ; 1972 Mont. Const., a r t . 11, S24. The r i g h t t o a speedy t r i a l i s funda- mental, Klopfer v. North Carolina (1967), 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1, 8, and t h e f e d e r a l standard, as a minimum, i s imposed by t h e due process c l a u s e of t h e Four- t e e n t h Amendment on t h e states. See Dickey v. F l o r i d a (1970), 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26; Smith v. Hooey (1969), 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607. "The touchstone i n any a n a l y s i s of t h e speedy t r i a l i s s u e i s Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116-17, i n which t h e Supreme Court set o u t a f o u r f a c t o r balancing approach w i t h t h e conduct of both prosecution and defense being weighed. The f o u r f a c t o r s t o be considered a r e : " (1) Length of delay; " ( 2 ) Reason f o r t h e delay; " (3) Defendant's a s s e r t i o n of t h e r i g h t ; and, " ( 4 ) P r e j u d i c e t o t h e defendant. "The Court emphasized t h e n e c e s s i t y of balanc- i n g t h e f a c t o r s : "'We regard none of t h e f o u r f a c t o r s i d e n t i f i e d above a s e i t h e r a necessary o r s u f f i c i e n t con- d i t i o n t o t h e f i n d i n g of a d e p r i v a t i o n of t h e r i g h t of speedy t r i a l . Rather, they a r e r e l a t e d f a c t o r s and must be considered t o g e t h e r w i t h such o t h e r circumstances a s may be r e l e v a n t . I n sum, t h e s e f a c t o r s have no t a l i s m a n i c q u a l i t i e s ; c o u r t s must s t i l l engage i n a d i f f i c u l t and sen- s i t i v e balancing p r o c e s s . ' 407 U.S. a t 533, 92 S.Ct. a t 2193, 33 L.Ed.2d a t 118. "This Court has adopted and a p p l i e d t h e f o u r fac- t o r balancing t e s t of Barker i n a series of de- c i s i o n s d a t i n g back t o 1973. See S t a t e v. C o l l i n s (1978) I - Mont. , 582 P.2d 1179, 35 St.Rep. 993; S t a t e v. Cassidy (1978), Mont. I 578 P.2d 735, 737, 35 St.Rep. 612; S t a t e ex rel. Briceno v. D i s t r i c t Court (1977), - Mont. -, 568 P.2d 162, 164, 34 St.Rep. 927; S t a t e v. Keller (1976), 170 Mont. 372, 377, 553 P.2d 1013, 1016; S t a t e ex rel. Sanford v. District Court (1976), 170 Mont. 196, 199, 551 P.2d 1005, 1007; S t a t e v. Steward (1975), 168 ?40nt. 385, 389, 543 P.2d 178, 181; F i t z p a t r i c k v. C r i s t (1974), 165 Mont. 382, 388, 528 P.2d 1322, 1325; S t a t e v. Sanders (1973), 163 Mont. 209, 213, 516 P.2d 372, 375. W e r e a f f i r m o u r support of t h i s t e s t a s t h e cor- rect and most complete standard a v a i l a b l e t o judge speedy t r i a l questions." The Court i n Tiedemann then went on t o d i s c u s s t h e f i r s t f a c t o r , l e n g t h of delay: "Length of delay. Length of d e l a y has been re- f e r r e d t o a s t h e t r i g g e r s e t t i n g o f f t h e speedy t r i a l i s s u e i n q u i r y : "'The l e n g t h of t h e d e l a y i s t o some e x t e n t a t r i g - g e r i n g mechanism. U n t i l t h e r e i s some d e l a y which i s presumptively p r e j u d i c i a l , t h e r e i s no neces- s i t y f o r i n q u i r y i n t o t h e o t h e r f a c t o r s t h a t go i n t o t h e balance. Nevertheless, because of t h e imprecision of t h e r i g h t t o speedy t r i a l , t h e l e n g t h of d e l a y t h a t w i l l provoke such an i n q u i r y i s n e c e s s a r i l y dependent upon t h e p e c u l i a r circum- s t a n c e s of t h e c a s e . ' Barker, 407 U.S. a t 530-31, 92 S.Ct. a t 2192, 33 L.Ed.2d a t 117. "Accord, Keller, 170 Mont. a t 377, 553 P.2d a t 1017; Steward, 168 Mont. a t 389, 543 P.2d a t 181." 584 P.2d a t 1287-88, 35 St-Rep. a t 1707. I n t h e i n s t a n t c a s e , t h e t i m e l a p s e i s s u f f i c i e n t t o t r i g g e r a n i n q u i r y i n t o t h e o t h e r t h r e e f a c t o r s of t h e balancing test. The d e l a y (317 days, t e n and one-half months, from d a t e of a r r e s t t o d a t e set f o r t r i a l ) i s longer than o r comparable t o t h e d e l a y s found s u f f i c i e n t t o w a r r a n t d i s m i s s a l i n F i t z p a t r i c k (seven months), Cassidy ( e i g h t months), Sanford ( t e n months), Briceno ( t e n and one-half months), and Keller (eleven months). "The l e n g t h of d e l a y t h u s s h i f t s t h e burden t o t h e S t a t e of e x p l a i n i n g t h e reason f o r t h e d e l a y and showing absence of p r e j u d i c e t o defen- dant." Tiedemann, 584 P.2d a t 1288. See a l s o Cassidy, 578 P.2d a t 738; Sanford, 170 Mont. a t 200, 551 P.2d a t 1007; and F i t z p a t r i c k , 165 Mont. a t 388, 528 P.2d a t 1326. Reason -- f o r t h e delay. The p a r t i e s a g r e e t h a t n e i t h e r defendants nor t h e county a t t o r n e y ' s o f f i c e was t h e cause of any g r e a t delay i n t h i s case. They contend t h a t t h e main reason f o r t h e d e l a y was crowded c o u r t dockets and inade- q u a t e calendaring procedures. W e agree. Judge Sande had j u r i s d i c t i o n of t h e c a s e a t two d i f - f e r e n t t i m e s a s d i d Judge Luedke. Both Judge Wilson and Judge Martin assumed j u r i s d i c t i o n once. The main cause of t h e d e l a y w a s t h a t t h e c a s e simply s a t from t h e t i m e Judge Wilson assumed j u r i s d i c t i o n i n A p r i l 1978 u n t i l he excused himself August 9, 1978. On August 16, 1978, Judge Sande a g a i n assumed j u r i s d i c t i o n and was a g a i n s u b s t i t u t e d by defendant Puzio. Judge Luedke a g a i n assumed j u r i s d i c t i o n , and t h e m a t t e r was e v e n t u a l l y set f o r t r i a l on October 10, The S t a t e argues it prosecuted t h e c a s e with reasonable d i l i g e n c e and should n o t be r e s p o n s i b l e f o r crowded c o u r t dockets and t h e method of scheduling trials. W e do n o t agree. The c o u r t i n Cassidy f l a t l y h e l d t h a t t h i s p o s i t i o n of t h e S t a t e i s without m e r i t . 578 P.2d a t 738. The s i t u a - t i o n h e r e i s very s i m i l a r t o t h a t found i n Briceno i n t h a t t h e m a t t e r simply s a t on t h e calendar from A p r i l 1978 u n t i l it was e v e n t u a l l y set f o r t r i a l i n October 1978. I n United S t a t e s v. Jones (D.C. C i r . 1975), 524 F.2d 834, 849, t h e Court s t a t e d : ". . . The Supreme Court has h e l d t h a t d e l a y s due t o t h e o p e r a t i o n of t h e system a l s o must be placed a t t h e Government's door, s t a t i n g i n Barker v. Wingo: " ' A defendant has no duty t o b r i n g himself t o t r i a l ; t h e S t a t e has t h a t duty a s w e l l a s t h e duty of i n s u r i n g t h a t t h e t r i a l i s c o n s i s t e n t w i t h due p r o c e s s . . . [Tlhe r u l e w e announce today, which comports w i t h c o n s t i t u t i o n a l prin- c i p l e s , p l a c e s t h e primary burden on t h e c o u r t s and t h e p r o s e c u t o r s t o a s s u r e t h a t cases a r e brought t o trial. ' " W e f i n d t h a t d e l a y s i n h e r e n t i n t h e system a r e n o t chargeable t o defendants b u t r a t h e r t o t h e S t a t e . The type of i n s t i t u t i o n a l d e l a y s w e have h e r e i n enumerated, where a c a s e i s allowed t o merely s i t awaiting t r i a l , cannot be overlooked, a b s e n t counterbalancing f a c t o r s . Defendants' a s s e r t i o n of - r i g h t s . W e f i n d t h a t defen- d a n t s a s s e r t e d t h e i r r i g h t s properly under t h e g u i d e l i n e s set f o r t h by t h i s Court i n S t a t e v. Steward (1975), 168 Mont. 385, 543 P.2d 178. The following statement by t h i s Court i n Cassidy i s d i s p o s i t i v e on t h i s f a c t o r : "3. Defendant's A s s e r t i o n of t h e Right. -- "The S t a t e argues, i n t h i s r e g a r d , t h a t defendant has f a i l e d t o e x p e d i t e t h e proceedings i n t h i s c a s e through any a c t i v e pleadings b e f o r e t h e D i s - t r i c t Court, such as by r e q u e s t i n g an e a r l i e r t r i a l d a t e . I n a d d i t i o n , it i s maintained t h a t d e f e n d a n t ' s motion t o dismiss f o r d e n i a l of a speedy t r i a l w a s untimely, and should have been made a t some p o i n t between e n t r y of p l e a and t h e s e t t i n g of t h e t r i a l d a t e . The S t a t e does n o t s p e c i f i c a l l y contend, however, t h a t defendant i n some manner waived h i s r i g h t t o a s s e r t a d e n i a l of a speedy t r i a l . " I t is, of course, t h e g e n e r a l r u l e under t h e p r e s e n t s t a t e of t h e law t h a t '. . . an accused must t a k e some a f f i r m a t i v e a c t i o n t o o b t a i n a t r i a l t o be e n t i t l e d t o a d i s c h a r g e f o r d e l a y . ' S t a t e v. Steward, 168 Mont. 390, 543 P.2d 182. Such burden i s s a t i s f i e d , however, by t h e mak- i n g of an a p p r o p r i a t e motion, discussed by t h i s Court i n Steward a s follows: "'The " a p p r o p r i a t e motion" i s a motion t o d i s m i s s f o r d e n i a l of a speedy trial. The proper t i m e t o a s s e r t t h e r i g h t t o a speedy t r i a l i s p r i o r t o t h e a c t u a l commencement of t h e t r i a l , u s u a l l y a t t h e t i m e t h e t r i a l d a t e i s set, o r t h e t i m e t h e c a s e i s c a l l e d t o t r i a l . . .' 168 Xont. 390-91, 543 P.2d 182. "Defendant's a s s e r t i o n of t h e r i g h t i n t h i s c a s e was i n a l l r e s p e c t s proper under t h e standard o u t l i n e d i n Steward, having been made between t h e t i m e t h e m a t t e r w a s set f o r t r i a l and t h e t r i a l d a t e i t s e l f ." 578 P.2d a t 739. P r e j u d i c e - t o defendants. The f i n a l f a c t o r t o be con- s i d e r e d i n t h e balancing process i s t h e q u e s t i o n of whether defendants were prejudiced by t h e delay. This p r e j u d i c e i s f u r t h e r d e f i n e d i n Barker: " P r e j u d i c e , of course, should be a s s e s s e d i n l i g h t of t h e i n t e r e s t s of defendants which t h e speedy t r i a l r i g h t was designed t o p r o t e c t . This Court has i d e n t i f i e d t h r e e such i n t e r e s t s : (i) t o prevent oppressive p r e t r i a l incarcera- t i o n ; (ii) t o minimize a n x i e t y and concern of t h e accused; and (iii) t o l i m i t t h e p o s s i b i l i t y t h a t t h e defense w i l l be impaired." 407 U.S. a t 532, 92 S.Ct. a t 2193, 33 L Ed 2d a t 118. w i t h regard t o oppressive p r e t r i a l i n c a r c e r a t i o n , defendant Puzio has been i n c a r c e r a t e d s i n c e t h e day of h i s a r r e s t . Defendant Allen was n o t i n c a r c e r a t e d p r i o r t o t r i a l . Puzio w a s d e t a i n e d i n t h e Yellowstone County j a i l away from h i s family and f r i e n d s during t h e e n t i r e Christmas and New Year's holidays. Then h e was given a p a r o l e revoca- t i o n and was removed from t h e county j a i l t o t h e s t a t e p r i s o n . H e was t h e n r e t u r n e d t o Yellowstone County by t h e s h e r i f f f o r each of h i s c o u r t appearances and r e t u r n e d t o t h e p r i s o n . The second i t e m t o be considered i s t h e a n x i e t y and concern of t h e accused. Here, t h e d e l a y of 317 days, along w i t h P u z i o ' s removal from B i l l i n g s a c r o s s t h e state t o Deer Lodge, and t h e i n a b i l i t y t o communicate by telephone were reasons f o r Puzio t o have a g r e a t d e a l of concern about t h e p r o g r e s s i n h i s c a s e , and a g r e a t d e a l of concern about t h e p r e p a r a t i o n of h i s defense. The l a s t c o n s i d e r a t i o n under p r e j u d i c e t o t h e defen- d a n t s i s t h e p o s s i b i l i t y t h a t t h e defense w i l l be impaired. Barker s t a t e s t h a t t h i s concern i s t h e most s e r i o u s because t h e i n a b i l i t y of a defendant adequately t o p r e p a r e h i s case skews t h e f a i r n e s s of t h e e n t i r e system. The c o u r t i n Barker commented on t h e p o s s i b i l i t y of w i t n e s s e s dying, w i t n e s s e s unable t o recall a c c u r a t e l y e v e n t s of t h e d i s t a n t p a s t , and l o s s of memory. These i t e m s a r e always a problem because t h e r e c o r d does n o t always r e f l e c t what has been f o r g o t t e n . I n t h i s p a r t i c u l a r case, Puzio has been i n c a r c e r a t e d i n t h e s t a t e p r i s o n , a g r e a t d i s t a n c e from h i s d e f e n s e counsel and t h e scene of t h e crime. H e has n o t been a b l e t o a s s i s t i n t h e p r e p a r a t i o n of h i s defense except by letter. F u r t h e r , w i t h r e g a r d t o memory, t h e S t a t e i s t h e only benefactor s i n c e i t s p o l i c y u s u a l l y r e q u i r e s witnesses t o type t h e i r s t a t e m e n t s and s c e n a r i o s of a c t i v i t y which a r e used t o r e f r e s h t h e i r r e c o l l e c t i o n . However, l a y witnesses c a l l e d by t h e defen- d a n t s r a r e l y have t h e i r p a s t r e c o l l e c t i o n s r e f r e s h e d by s t a t e m e n t s and s c e n a r i o s prepared by them a t t h e t i m e t h e e v e n t s occurred, which, i n t h i s c a s e , was November 28, 1977--two days a f t e r Thanksgiving. W e f i n d t h e f a c t t h a t Puzio has been i n c a r c e r a t e d t h e e n t i r e t i m e s i n c e h i s a r r e s t on November 28, 1977, demon- s t r a t e s a f f i r m a t i v e p r e j u d i c e a g a i n s t him. W e reemphasize t h a t w e a r e engaged i n a d e l i c a t e b a l - ancing process. The presence of p r e j u d i c e i n t h i s case should be weighed h e a v i l y i n t h e balancing of a l l f a c t o r s . On balance, w e f i n d t h e r e has been excessive d e l a y i n b r i n g i n g t h i s case t o t r i a l ; t h e S t a t e has f a i l e d t o e x p l a i n s a t i s f a c t o r i l y t h e reasons f o r t h e delay; t h e defendants p r o p e r l y and timely a s s e r t e d t h e i r r i g h t t o a speedy t r i a l ; and, p r e j u d i c e t o defendant Puzio has r e s u l t e d by reason of t h e delay. W e b e l i e v e t h e comments of now Chief J u s t i c e Haswell i n K e l l e r , a s set f o r t h i n Tiedemann a g a i n b e a r r e p e a t i n g : "This Court, as w e l l a s many o t h e r c o u r t s , has o f t e n s t a t e d t h a t s o c i e t y a t l a r g e , as w e l l a s t h e i n d i v i d u a l defendant, has a s t a k e i n t h e speedy d i s p o s i t i o n of c r i m i n a l m a t t e r s . E.g., Barker, 407 U.S. a t 519-21, 92 S.Ct. a t 2186-87, 33 L.Ed.2d a t 110-11. I n view of t h e r e s u l t i n t h i s case, t h e comments of now Chief J u s t i c e Haswell i n K e l l e r bear r e p e a t i n g : 11 1 . . .Delayed c r i m i n a l j u s t i c e proceedings a r e undermining p u b l i c confidence i n t h e system i t s e l f . J u s t i c e delayed may n o t only be j u s t i c e denied b u t j u s t i c e brought s e r i o u s l y under ques- t i o n . The backbone of law enforcement and t h e j u s t i c e system i s p u b l i c support. The c o u r t s must n o t permit t h e e r o s i o n of t h a t support by p e r m i t t i n g unnecessary d e l a y between charge and c o n v i c t i o n o r r e l e a s e . ' . . . " Tiedemann, 584 P. 2d a t 1292-93. W e s t a t e d f u r t h e r i n Tiedemann: "While w e w i l l n o t t o l e r a t e undue d e l a y i n t h e p r o s e c u t i o n of an i n d i v i d u a l defendant, n e i t h e r w i l l s o c i e t y long t o l e r a t e d i s m i s s a l of c r i m i n a l charges f o r l a c k of speedy t r i a l . Prosecutors and c o u r t s must work t o avoid t h e kind of r e s u l t w e reach today." 584 P.2d a t 1293. W e recommend t h a t t h e judges 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 of t h e S t a t e of Montana would do w e l l t o cooperate t o t h e e x t e n t t h a t t h e s i t u a t i o n t h a t occurred i n t h i s c a s e i s n o t repeated. The judgment of t h e D i s t r i c t Court dismissing t h e charges f o r l a c k of a speedy t r i a l i s affirmed. W e concur: %ad??$. p A w d ! Chief r u s t i c e -4- /I J u s t i c e s | May 30, 1979 |
9bbecbe8-1f35-410f-88b3-eeac8d2bd3bd | BEAMER v RICE | N/A | 14406 | Montana | Montana Supreme Court | No. 1 4 4 0 6 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 7 9 DOROTHY BEAMER, ELSOM ELDRIDGE, J R . , ART FORAN, CYNTHIA KLIMAS, LARRY KNUTSON and MARY ROHN, P l a i n t i f f s and A p p e l l a n t s , GEORGIA RUTH R I C E , SUPERINTENDENT OF PUBLIC INSTRUCTION OF THE STATE OF MONTANA, D e f e n d a n t and R e s p o n d e 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 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 G o r d o n R. B e n n e t t , 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 s : J a m e s W. Z i o n argued, H e l e n a , M o n t a n a For R e s p o n d e n t : C a n n o n and G i l l e s p i e , H e l e n a , M o n t a n a R i c h a r d G i l l e s p i e argued, H e l e n a , M o n t a n a S u b m i t t e d : February 8, 1 9 7 9 D e c i d e d : ; R P R 2 7 1979 Filed: @k 2 i 1979 M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. This i s an appeal from t h e order of t h e D i s t r i c t Court, F i r s t J u d i c i a l D i s t r i c t , granting i n p a r t defendant superin- t e n d e n t ' s motion f o r summary judgment. P l a i n t i f f s / a p p e l l a n t s a r e s i x former employees of t h e Office of t h e Superintendent of Public I n s t r u c t i o n (OSPI). After e l e c t i o n t o t h e o f f i c e of superintendent, defendant requested a letter of resignation from a l l members of t h e OSPI professional s t a f f . She indicated t h a t , upon r e c e i p t of these l e t t e r s , she would meet with each of t h e members individually t o "evaluate" t h e i r p o s i t i o n on t h e s t a f f . I n t h e i r complaint, p l a i n t i f f s alleged t h a t they w e r e each dismissed without cause following t h e presentation of t h e i r requested resignations. They f u r t h e r alleged t h a t they requested from defendant reasons f o r t h e i r dismissal, b u t t h a t t h e i r request was refused. Defendant's predecessor i n o f f i c e adopted an Affirma- t i v e Action program f o r t h e OSPI on March 26, 1976. That program included a plan f o r termination of employment proce- dures i n s e c t i o n 904: "Section 904 Termination "Goal : Terminations w i l l be made f o r job r e l a t e d rea- sons only. "Action I t e m s 1. Termination f o r cause w i l l be made only a f t e r a t l e a s t one evaluation session has been held t o discuss t h e problem, remedial a c t i o n has been requested, and reasonable t i m e has been allowed f o r improvement unless t h e person's presence i s a d i r e c t t h r e a t t o t h e s a f e t y and continuation of t h e agency's function. "2. The EEO coordinator o r a designee w i l l con- d u c t e x i t interviews and w i l l provide documen- t a t i o n t o t h e Personnel Services Manager who w i l l keep a running log of t h e employees' rea- sons f o r termination. I f t h e r e i s any sugges- t i o n t h a t discrimination i s involved, t h e EEO coordinator o r a designee w i l l be asked t o par- t i c i p a t e i n t h e interviews. Apparent discrim- a t o r y a c t i o n s w i l l be investigated and corrected." P l a i n t i f f s a l l e g e d i n t h e i r f i r s t claim f o r r e l i e f t h a t s e c t i o n 904 c o n s t i t u t e d a c o n t r a c t u a l term of t h e i r employ- ment and t h a t defendant f a i l e d t o l i v e up t o t h a t c o n t r a c t i n s e v e r a l p a r t i c u l a r s . Second, they a l l e g e d a t o r t , i n t h a t defendant acted maliciously toward them by disregarding t h e termination f o r cause plan. Third, p l a i n t i f f s a l l e g e d t h e t o r t of "outrage," i n t h a t defendant's w i l l f u l d i s r e g a r d of s e c t i o n 904 caused them emotional d i s t r e s s . A f o u r t h claim, a claim f o r l o s t wages, w a s dismissed by t h e D i s t r i c t Court a s being redundant. P l a i n t i f f s ' f i f t h claim a l l e g e d a v i o l a t i o n of s e c t i o n 64-317(1), R.C.M. 1947, now s e c t i o n 49-3-201 MCA, i n t h a t defendant f a i l e d t o make a merit-based evaluation of t h e OSPI personnel before dismissing them. The s i x t h claim a l l e g e s t h a t t h e d i s m i s s a l s were motivated by p o l i t i c a l f a v o r i t i s m , and w e r e t h e r e f o r e a r b i t r a r y and capricious, and v i o l a t e d p l a i n t i f f s ' s t a t e and f e d e r a l c o n s t i t u t i o n a l r i g h t s . P l a i n t i f f s ' seventh claim alleged a v i o l a t i o n of s e c t i o n 41- 1311, R.C.M. 1947, now s e c t i o n 39-2-801 MCA, i n t h a t defen- dant f a i l e d t o provide a " f u l l , s u c c i n c t , and complete statement of t h e reason of [ t h e i r ] discharge" when requested t o do so. I n t h e i r prayer f o r judgment, p l a i n t i f f s sought, i n t e r a l i a , a t t o r n e y f e e s under provisions of 4 2 U.S.C. §I988 (1976). Defendant superintendent moved f o r summary judgment on p l a i n t i f f s ' f i r s t , second, t h i r d and f i f t h claims. The D i s t r i c t Court, i n an o r d e r dated A p r i l 27, 1978, granted summary judgment t o defendant on t h e f i r s t , second and t h i r d claims, set t h e f i f t h , s i x t h , and seventh claims f o r t r i a l and denied p l a i n t i f f s ' claim f o r a t t o r n e y f e e s under 4 2 U.S.C. S1988. The D i s t r i c t C o u r t ' s reason f o r g r a n t i n g summary judgment a s t o t h e f i r s t t h r e e claims was t h a t t h o s e claims w e r e a l l based upon s e c t i o n 904 o f t h e OSPI Affirma- t i v e Action p l a n and t h a t t h e s u p e r i n t e n d e n t lacked s t a t u - t o r y a u t h o r i t y t o adopt such a plan. I t denied p l a i n t i f f s ' claim f o r a t t o r n e y f e e s under 42 U.S.C. 81988 on t h e r a t i o - n a l e t h a t t h e a t t o r n e y f e e s p r o v i s i o n of t h a t s e c t i o n i s intended t o apply only t o f e d e r a l c o u r t s and t h a t a b s e n t a s t a t u t e , s t i p u l a t i o n by p a r t i e s , o r r u l e of c o u r t , a t t o r n e y f e e s a r e n o t recoverable by t h e p r e v a i l i n g p a r t y . P l a i n t i f f s r a i s e s e v e r a l s p e c i f i c a t i o n s of e r r o r on t h e merits of t h e D i s t r i c t C o u r t ' s r u l i n g b u t because w e have determined t h a t t h e o r d e r g r a n t i n g summary judgment a s t o some, b u t n o t a l l of t h e i r claims, i s i n t e r l o c u t o r y and n o t appealable, w e w i l l n o t d i s c u s s t h o s e i s s u e s . P l a i n t i f f s presented seven s e p a r a t e claims f o r r e l i e f , t h r e e of which remain t o be a d j u d i c a t e d a t t r i a l . This s i t u a t i o n i s n o t e x p r e s s l y contemplated i n Rule 56, M.R.Civ.P., b u t r e q u i r e s r e f e r e n c e t o Rule 5 4 ( b ) , M.R.Civ.P. Rule 54(b) provides t h a t a District Court may g r a n t a f i n a l , appealable judgment as t o some b u t n o t a l l of t h e claims involved i n a n a c t i o n only i f it makes a n express determination t h a t t h e r e i s no j u s t reason t o d e l a y an appeal on t h o s e claims and e x p r e s s l y d i r e c t s e n t r y of judgment: "When m u l t i p l e claims f o r r e l i e f o r m u l t i p l e p a r t i e s a r e involved i n an a c t i o n , t h e c o u r t may d i r e c t t h e e n t r y of a f i n a l judgment a s t o one o r more b u t fewer than a l l of t h e claims o r p a r t i e s o n l y -- upon an express determination t h a t t h e r e i s no j u s t reason for d e l a y and --- upon a n express d i r e c t i o n f o r t h e e n t r y of -- -- - judgment. . ." (Emphasis added.) Rule 54 (b) goes on t o provide t h a t i f t h e D i s t r i c t Court f a i l s t o make t h e r e q u i r e d "determination" and " d i r e c - t i o n , " any o r d e r which a d j u d i c a t e s less than a l l of t h e c l a i m s does " n o t t e r m i n a t e t h e a c t i o n a s t o - any of t h e claims" and t h e o r d e r remains " s u b j e c t t o r e v i s i o n " u n t i l t h e f i n a l e n t r y of judgment a d j u d i c a t i n g a l l t h e claims. (Emphasis added.) Thus, when Rule 54 (b) i s construed to- g e t h e r with Rule 5 6 ( c ) , t h e r e s u l t i s t h a t a District Court may e n t e r a f i n a l appealable summary judgment i f it r u l e s on one o r more b u t n o t a l l of a p a r t y ' s claims and makes t h e r e q u i s i t e "determination" and " d i r e c t i o n " i n its o r d e r . A s P r o f e s s o r Moore comments on t h e i d e n t i c a l Federal Rules: ". . . Neither Rule 56 nor any o t h e r Rule a u t h o r i z e s t h e t r i a l c o u r t t o t r a n s l a t e an i n t e r l o c u t o r y a d j u d i c a t i o n of a p a r t of a s i n g l e c l a i m i n t o a f i n a l judgment. I f , how- e v e r , i n a n a c t i o n involving m u l t i p l e claims o r p a r t i e s , t h e t r i a l c o u r t f u l l y a d j u d i c a t e s one o r more b u t fewer than a l l t h e claims, it can make t h a t a d j u d i c a t i o n f i n a l by making t h e 'express determination' and t h e 'express d i r e c t i o n ' c a l l e d f o r by Rule 5 4 ( b ) . F a i l i n g t o do t h a t t h e a d j u d i c a t i o n remains i n t e r - locutory." 6 Moore' s Federal Practice 1156.20 [ l ] a t 56-1204. See a l s o , I n re Marriage of Adams (1979), Mont. I P.2d , 36 St.Rep. 565, 566; S t a t e ex rel. Marlenee v . D i s t r i c t Court (1979), Mont . I P.2d , 36 St.Rep. 457, 459-60; 6 Moore's Federal P r a c t i c e 1156.21[1.-21 a t 56-1271 t o 1 2 7 2 ; c f . Krusemark v. Hanson (1979) r - Mont. - I - P.2d , 36 St.Rep. 159 (involving m u l t i p l e p a r t i e s ) . The "determination" and " d i r e c t i o n " requirements of Rule 54(b) a r e intended t o permit t h e D i s t r i c t Court, i n t h e f i r s t i n s t a n c e , t o consider whether t h e judgment upon some, b u t n o t a l l , of a l i t i g a n t ' s claims can properly be appealed. A s described by t h e United S t a t e s Supreme Court, t h e d i s - t r i c t c o u r t , i n e f f e c t , " i s used as a ' d i s p a t c h e r ' . " " I t i s permitted t o determine, i n t h e f i r s t i n s t a n c e , t h e appropri- a t e t i m e when each ' f i n a l d e c i s i o n ' upon 'one o r more but less than a l l ' of t h e claims i n a m u l t i p l e claims a c t i o n i s ready f o r appeal." S e a r s , Roebuck & Co. v. Mackey (1956), 351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.ed 1297. I n t h i s way t h e D i s t r i c t Court n o t o n l y a s s i s t s t h i s Court by preventing "piecemeal a p p e l l a t e d i s p o s i t i o n " of what i s more properly considered a s i n g l e controversy, see, Eisen v . C a r l i s l e & J a c q u e l i n (1974), 417 U.S. 156, 170, 40 L Ed 2d 732, 744, 94 S.Ct. 2140, 2149, quoted i n Ryan v. Occidental Petroleum ( 5 t h C i r . 1978), 577 F.2d 298, 301, b u t a l s o permits t h e D i s t r i c t Court t o determine whether s p e c i a l circumstances r e q u i r e an immediate appeal: "'The i n q u i r y r e q u i r e s some e v a l u a t i o n of t h e competing c o n s i d e r a t i o n s underlying a l l ques- t i o n s of f i n a l i t y - - " t h e inconvenience and c o s t s of piecemeal review on t h e one hand and t h e dan- g e r of denying j u s t i c e by d e l a y on t h e o t h e r . " Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950). ' " Occidental ~ e t r o l e u m , 577 P.2d a t 301, quoting Eisen v. C a r l i s l e & J a c q u e l i n , 417 U.S. a t 171, 40 L Ed 2d a t 745, 94 S.Ct. a t 2149. I n l i g h t of t h e "competing c o n s i d e r a t i o n s , " t h e review- i n g c o u r t may, under l i m i t e d circumstances, consider t h e appeal d e s p i t e t h e l a c k of t h e express "determination" and " d i r e c t i o n " required by Rule 5 4 ( b ) . Riggle v . S t a t e of C a l i f o r n i a ( 9 t h C i r . 1978), 577 F.2d 579, 581 n. A; Huckeby v . Frozen Food Express ( 5 t h C i r . 1977), 555 F.2d 542, 546- 47. I n Huckeby, t h e Court of Appeals l i s t e d t h r e e circum- s t a n c e s which would permit an a p p e l l a n t t o proceed i n t h e absence of a Rule 45(b) determination and d i r e c t i o n , none of which a r e a p p l i c a b l e t o o u r c a s e here. P l a i n t i f f s argue t h a t an a l t e r n a t i v e d i s p o s i t i o n i s a v a i l a b l e , t h a t t h i s Court may i s s u e a w r i t of supervisory c o n t r o l t o t h e D i s t r i c t Court r e i n s t a t i n g t h e i r f i r s t t h r e e claims. However, such a w r i t would n o t s u r e l y terminate "needless l i t i g a t i o n " as was t h e c a s e i n S t a t e ex rel. Buttrey Foods v . D i s t r i c t Court (1966), 148 14ont. 350, 354, 420 P.2d 845, 847, and w e d e c l i n e t o i s s u e a w r i t . The summary judgments appealed from a r e interlocutory and not appealable. The appeal i s dismissed without preju- dice. J u s t i c e W e concur: % 4 s , g , Chief J u s t i c e | April 26, 1979 |
5ff26a8a-7eb8-49a6-a8b8-d166b5001da8 | MCNULTY v BEWLEY CORP | N/A | 14354 | Montana | Montana Supreme Court | June 18, 1979 | |
d7f44982-98b7-4782-acd0-5f013c84eb77 | FIRST SECURITY BANK v GODDARD | N/A | 14279 | Montana | Montana Supreme Court | No. 14279 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 FIRST SECURITY BANK OF BOZEMAN, a Montana Banking Corporation, Plaintiff and Respondent, -vs- JOHN M. GODDARD and CLEO C. GODDARD, Defendants and Third Party Plaintiffs, -vs- BANKERS UNION LIFE INSURANCE COMPANY, Third Party Defendant and Appellant. Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellant: Bolinger and Wellcome, Bozeman, Montana Roy Andes argued, Bozeman, Montana For Respondents: William Douglas argued, Libby, Montana Landoe, Brown, Planalp, Kommers & Lineberger, Bozeman, Montana James M . Kommers argued, Bozeman, Montana Submitted: February 2, 1979 Decided : APR 2 5 1979 App 1 (-- i ; Filed: Mr. Justice John C. Sheehy delivered the Opinion of the Court. This is an appeal by third party defendant, Bankers Union Life Insurance Co. (BULIC) from a judgment in the District Court, Eighteenth Judicial District, Gallatin County, finding BULIC liable on a policy of credit disability insurance issued by it to John M. and Cleo C. Goddard, third party respondents. The District Court sitting without a jury found BULIC liable to Goddard for disability benefits in the amount of $4,227.95, and further liable to Goddard for exemplary damages in the sum of $5,000.00. We affirm the District Court for the reasons following. First Security Bank of Bozeman is a Montana banking corpora- tion operating in Bozeman, Montana. In the conduct of its ordinary business, the bank acted as an agent for BULIC, whereby the bank issued credit life and disability insurance policies for BULIC to insure payment of monies owing to the bank in case of the untimely demise or disability of the borrower. On October 2, 1975, an officer of the bank prepared a note and security agreement for execution by the Goddards and on that same date mailed the instruments to the Goddards in Libby, Montana. The face amount of the note was $5,529.96, which sum included a premium of $248.84, financed by the bank and payable to BULIC, for credit life and credit disa- bility insurance for the Goddards. The Goddards received the instruments by mail on either October 4 or 5, 1975, and upon receipt of them, the Goddards executed the instruments, and placed them in the mail, with postage prepaid, addressed to the bank. The bank physically received the instruments on October 7, 1975. A written application by the Goddards for disability insurance is not a part of the appellate record, but in the District Court, the parties stipulated that an application for disability insurance was made by the Goddards to BULIC contemporaneously with the execution of the note and security instrument. Thereafter, it is stipulated, the insurance company accepted the application for disability insurance on October 7, 1975 and issued its policy no. 848208, providing such insurance to the Goddards. The Goddard note of October 2, 1975 to the bank was a renewal note covering a prior existing note indebtedness from Goddard. All interest on the preexisting note was computed up to and including October 1, 1975 and stopped on that date. The interest on the renewal note commenced on October 2, 1975. On October 5, 1975, John M. Goddard experienced some physical discomfort, which he initially attributed to some minor flu or other minor malady, for which he felt rest and aspirin would provide a cure. The discomfort however grew in intensity so that on October 7, 1975, Goddard went to Dr. William T. Matthews of Libby for examination. Dr. Matthews diagnosed the condition of Goddard at that time to be one of "coronary disease" which totally disabled Goddard until June 1, 1976. The credit insurance policy contained,under the heading "Exceptions," the following language: ". . . No benefits shall be payable under the Disability portion of this policy, listed in section E if Total Disability is caused by, or results from: . . . (3) A pre- existing illness, disease or physical condition which manifested themselves to the insured debtor by requiring medical diagnosis or treatment, or would have caused a reasonably prudent person to have sought medical diagnosis or treatment within six months preceding the taking of the application for insurance and which caused loss within the six months following effective date of the insurance policy, provided, however, that disability commencing thereafter resulting from such conditions shall be covered, . . ." Policy no. 848208, issued by EULIC had an effective date of October 7, 1975, a termination date of October 7, 1978, and provided a monthly indemnity for disability in the sum of $153.61 with benefits payable from the 31st day of total disability to the beneficiary, First Security Bank of Bozeman. Goddard made written claim to BULIC for disability benefits on November 5, 1975. In his statement of claim, he indicated he had last worked on October 5, 1975, and that he had been continuously disabled from that date. Dr. Matthews' written report to the insurance company states that Goddard ceased work because of disability on October 5, 1975. Goddards made no payments on the note indebtedness to the bank after October 2, 1975. They repeatedly demanded BULIC make such payments out of the credit disability insurance policy, but BULIC refused. The court found that as a direct result thereof the bank declared a default by the Goddards in the payment of the note indebtedness. In January 1976, the bank accelerated the payments due under the note, repossessed the Goddards vehicle and sold it at a distress sale. On February 2, 1976, the bank filed this action in the District Court against the Goddards to collect a deficiency from the Goddards in the amount of $2,452.95, plus interest, attorney fees and costs. Goddards appeared in the action, and brought a third party complaint against BULIC for the insurance coverage, and for punitive damages for refusing to pay the Goddard claim. As we indicated, the District Court entered judgment in favor of Goddards against BULIC, and separately entered judgment in favor of the bank against Goddards for the deficiency amount due on the note, plus attorney fees. No appeal is taken from the bank judgment against Goddards. The several issues presented by appellant can be resolved by the answers to the following questions: (1) What is the effective date of the disability insurance provided by BULIC? (2) What is the date of onset of Goddards' disability? (3) Is Goddard estopped to deny disability beginning at an earlier date, based on a misrepresentation? (4) Should the court have limited Goddards damages to the amount due on the obligation? (5) Should consequential damages have been awarded in this case? (6) Are exemplary damages in this case proper and if so, are they supported in the evidence? EFFECTIVE DATE OF DISABILITY INSURANCE -- BULIC's contention on this point is that since the insurance policy was issued effective October 7, 1975, and since it is clear that Goddards' disability began on October 5, 1975, his disability preexisted the insurance date on the policy and the claim for disability is thereby excluded. This contention requires consideration of the provisions of section 40-4207, R.C.M. 1947, now section 33-21-203 MCA, which provides in part: -5- "The term of any credit life insurance or credit disability insurance shall, subject to acceptance by the insurer, commence on the date when the debtor ----- becomes obligated to the creditor . . ." -- (Emphasis added.) There is no question that the insurance company accepted the risk on October 7, 1975. BULIC contends however that Goddard could not have become obligated to the bank until October 7, 1975, because the note and security agreement from Goddard was not received by the bank until October 7, 1975; and because on that date, the bank, having received the note, cancelled the previous note and its indebtedness, and then in fact accepted the new obligation. BULIC further contends that on October 4 or 5, when Goddard signed and mailed the note, he was not "obligated" upon the note. BULIC bottoms this contention upon an examination of the Uniform Commercial Code provisions, relating to the rights of the bank. BULIC contends that the bank as a holder under section 87A-3-301, R.C.M. 1947, now section 30- 3-301 MCA, or as a holder in due course under section 87A- 3-305, R.C.M. 1947, now section 30-3-305 MCA, could not enforce the note because a "holder" is defined in section 87A-1-201(20) , R.C.M. 1947, now section 30-1-201 (20) MCA, as one in possession of the note. Section 87A-1-201(20) , R.C.M. 1947, now section 30-1-201(20) MCA, identifies a holder as: ". . . a person who is in possession of . . . an instrument . . . drawn, issued or endorsed to him or to his order or to bearer or in blank." It is BULIC's contention that since the bank was not in possession of the note until October 7, 1975, it could not enforce the note before that date under section 87A-3-301, R.C.M. 1947. or section 87A-3-305k and BULIC claims that Goddard cannot be said to have become "obligated" on the note until October This contention of BULIC goes against the grain of the legislative intent that is evidenced in the statutes relating to credit life and disability insurance. We have quoted previously the provisions of section 40-4207, which fixes the beginning term of credit disability insurance. In addition, section 40-4209, R.C.M. 1947, now section 33-21- 204(2) MCA, relating to the delivery of the policy provides that if the policy is not delivered at the time the indebted- ness is incurred, an application shall be taken from the debtor. The provisions of section 40-4209, with respect to the application require that: ". . . The application or notice of proposed insurance shall state that, upon acceptance by the insurer, the insurance shall become effective as of the date the indebtedness --- is incurred."(~m~hasis added. Such statutory provisions are as much a part of the credit disability insurance policy as though they were written therein. McIntosh et al. v. Hartford Fire Insurance Company (1938), 106 Mont. 434, 78 P.2d 82; Lee v. Providence Washington Insurance Company (1928), 82 Mont. 264, 266 P. The District Court took the position that the Goddards became obligated to the bank on the date that they signed the note in Libby and mailed it to the bank. We hold this position to be correct. Under section 55-216, R.C.M. 1947, (since repealed) every contract on a negotiable instrument was deemed incomplete and revocable until delivery of the instrument had been accomplished, especially as regards a remote party. Under the Uniform Commercial Code appears that nondelivery is no defense as to a holder in due course (section 87A-3- 305, R.C.M. 1947), but is a defense as to one not a holder -7- in due course. (Section 87A-3-306, R.C.M. 1947.) With respect to the liability of a maker of a negotiable instrument, section 87A-3-413, R.C.M. 1947, now section 30-3-413 MCA provides in part: " (1) The maker or acceptor engages that he will pay the instrument according to . . . its tenor at the time of his engagement." ----- (Emphasis added.) When is the "time of his engagement" at which a maker of a promissory note becomes liable? Surely it is when he issues and delivers the promissory note. Under section 87A- 3-102(1) (a), R.C.M. 1947, now section 30-3-102(1) (a) MCA, he issues the instrument upon the first delivery thereof to a holder. Under section 87A-1-201(14), now section 30-1- 201(14) MCA, the maker accomplishes delivery of the instrument when he voluntarily transfers its possession. Negotiable instruments have no validity until delivered. This is still true under the UCC. Rex Smith Propane, Inc. v. National Bank of Commerce (U.S.D.C. Texas 1974), 372 F.Supp. 499. "A note takes effect from the time of its delivery and not from its date. Until the maker of the note parts with the possession and control of the instrument, he may cancel it or dispose of it as he pleases and a note is not executed until it is delivered . . ." "When the note and trust deed were so deposited [in the mail] . . . the maker, parted with the possession of and lost control over the papers and all right to retake or reclaim them. Under such circumstances, the delivery was complete . . ." Birrer v. Beckler (Ill. 1914), 106 N.E. 206. See also: Investors Commercial Corporated v. Metcalf (Ill. 1957), 140 N.E.2d 924. Thus, the promissory note was deemed delivered at the time it was mailed to the bank. The note thereupon became the property of the payee when it was posted to the bank. It was beyond the control of the makers at that time. The time of mailing therefore became the "time of his engagement" under section 87A-3-413, now section 30-3-413 MCA fixing the liability of the maker. It was at that time that Goddard became obligated to the creditor under the terms of section 40-4209, R.C.M. 1947, now section 33-21-204(2) MCA. DATE OF ONSET OF GODDARDS DISABILITY ---- The District Court found that at the time Goddard mailed the promissory note to the bank there was not existing such illness, disease or physical condition for which he had a medical diagnosis of a totally and permanently disabling nature, or which would have caused a reasonably prudent person to have sought diagnosis or treatment. That finding is a negation of the conditions which would exclude coverage under the BULIC policy. Under Rule 52(a), Mont.R.Civ.P., findings of fact made by the District Court shall not be set aside unless clearly erroneous, and due regard is to be given to the opportunity of the trial court to judge the credibility of the witnesses. Here the evidence is that the date of mailing of the promissory note was on October 4 or 5, 1975; that the onset of Goddards discomfort did not occur until October 5; and:that he did not go to a medical doctor until October 7, 1975. In fact the evidence is uncontroverted. Since the District Court accepted the credibility of the Goddards with respect to these matters, and nothing in the record makes such evidence inherently incredible,there is substantial evidence to support the findings of the court. See Arrowhead, Inc. v. Safeway Stores, Inc. (1978), Mont . , 587 P.2d 411, 35 St-Rep. 1830, and cases cited therein. ESTOPPEL BY - VIRTUE OF MISREPRESENTATION - Under this contention, BULIC argues that Goddard misinformed the insurance company as to the date of the beginning of his disability and is therefore estopped to claim any other date of onset. Goddards statement of claim to BULIC indicated that he was totally disabled on October 5, 1975 and was his last day of work. He was examined by Dr. Matthews on October 7, and in Dr. Matthews' report, it is stated that Goddard was totally disabled from October 5. Goddard testified that he asked Dr. Matthews to "backdate" the onset of his disability. When he was testifying however, he stated that he worked until October 7, 1975. BULIC claims that the initial statement that his disability began on October 5, 1975 is fraudulent and by virtue thereof Goddard is estopped from claiming any other time of disability. The District Court found that Goddard's coronary disease was diagnosed on October 7, 1975. The elements of equitable estoppel (section 93-1301-6, R.C.M. 1947, now section 26-1-601 MCA) which BULIC claims apply here include the contention that BULIC denied Goddard's claims because of his representation that the disability began on October 5, 1975, and that BULIC returned his premium based upon such representation. What this argument of BULIC disregards is that it denied the claim because of its mistaken impression that the effective date of the insurance was October 7, 1975. BULIC had mistakenly concluded that the obligation was not incurred as far as Goddard was concerned until the bank had actual physical possession of the note and security instrument and issued the insurance policy. As we have demonstrated above under the first issue, this is not the law. Therefore the representation by Goddard, if false, was not material to the risk assumed by BULIC under its insurance policy. It requires a material misrepresentation by an applicant relied on by the insurer to avoid coverage under an insurance policy. See section 40-3713, R.C.M. 1947, now section 33-15-403 MCA. It was not the representation by Goddard that his disability commenced on October 5, 1975 that caused BULIC to change his position for the worse; rather, it was BULIC's mistaken position that October 7 was the date when Goddard became obligated to the bank that caused it to deny coverage. Estoppel has reference to the conduct of the person estopped.Bagley v. Hotel Florence Company (1974), 165 Mont. 145, 526 P.2d 1372. Estoppel has no application where the omissions of the party claiming estoppel brought about the problem. THE PROPER MEASURE OF - DAMAGES AND - CONSEQUENTIAL DAMAGES Under these issues, BULIC claims that the amount of damages awarded by the District Court, $4,227.95, was excessive. BULIC contends that the insurance contract was an agreement for payment of money only and therefore the proper measure for damages for a breach of the agreement is section 17-303 R.C.M. 1947, now section 27-1-312 MCA, which provides: "The detriment caused by the breach of an obligation to pay money only is deemed to be the amount due by the terms of the obligation with interest thereon." BULIC further contends that under the Insurance Code, section 40-4206(2), R.C.M. 1947, now section 33-21-202 MCA, states that the amount payable under a credit disability insurance plan shall equal the aggregate of the periodic unpaid scheduled installments "in the event of disability". Since Goddard was disabled for seven months, BULIC contends the maximum statutory benefit payable will be seven times $153.61, which equals $1,075.27. Any amount in excess of that for direct damages BULIC contends is improper. -11- Moreover, BULIC also contends that Goddard is not entitled to consequential damages and that the only amounts which the court may properly award over the seven unpaid installments is such interest as may be found due. Goddard answers this issue claiming that section 17-301, R.C.M. 1947, now section 27-1-311 MCA is applicable and that Goddard is entitled to receive "the amount which will compensate the party aggrieved for all the detriment proximately caused thereby." Goddard further contends that section 17-303 is intended only as a guide to the estimation of damages under the cases of Zook Brothers Construction Company v. State of Montana (1976), Mont. , 556 P.2d 911, 33 St-Rep. 809; Wyatt v. School District No. 104 (1966), 148 Mont. 83, 417 P.2d 221; and Orford v. Topp (1959), 136 Mont. 227, 346 P.2d 566. Goddard also relies on Wiseman v. Holt (1973), 163 Mont. 387, 517 P.2d 711, but this case was overruled in Whitney v. Bails (1977), Mont . I 560 P.2d 1344, 34 St.Rep. 134. Neither of the positions taken by the opposing parties here quite hits the mark as to the proper measure of damages recoverable in such a case as the one at bar. Under the pleadings of the parties, and the findings of the court, the claim of Goddard is one sounding in tort involving a breach of contract. In their third party complaint, Goddards allege that BULIC "wrongfully refused to make payment of the insurance benefits to which [Goddard] were entitled, with the result that [Goddard's] automobile was repossessed" by BULIC. No breach of contract as such is alleged in the third party complaint. The District Court did not make a finding that a breach of contract, as such, existed here. Rather it found that BULIC had "failed and refused" to make the payments under the disability insurance policy to Goddard and as a direct consequence, the bank declared his default, accelerated the payments due under the note, and thereafter repossessed Goddards vehicle and sold it at a distress sale. Thereafter, the court found, the bank commenced the instant case to collect a deficiency sum from Goddard. In its conclusions, the District Court found that BULIC had violated the provisions of Chapter 42, Title 40, R.C.M. 1947. It is on this basis that the court founded its award of damages and punitive damages. A cause of action may sound in tort although it arises out of a breach of contract, if a defaulting party, by breaching the contract, also breaches a duty which he owes to the other party independently of the contract. This distinction was carefully noted in Battista v. Lebanon Trotting Association (U.S.C.A. 6th 1976), 538 F.2d 111, where the Sixth Circuit Court applied Ohio law. There the court noted that under Ohio law a tort arises out of a breach of contract if the party also breaches a duty which he owes to another independently of the contract, and which duty would exist even if no contract existed. It is this factor that determines whether an action of this kind is one of contract or of tort. The federal court noted that two cases in Ohio had recently allowed tort damages in breach of contract cases and said: "These cases are the first in Ohio to recognize the legal trend toward punishing an insurance company for willful refusal to pay a valid claim. Such a tort claim, however, is founded upon a legal duty rather than a contractual duty. "'An insurer owes its insured an implied- in-law duty of good faith and fair dealing that it will do nothing to deprive the insured of the benefits of the policy. (Fletcher v. Western National Life Insurance Company, 10 Cal.App.3d 376, 89 Cal.Rptr. 78, 47 A.L.R.3d 286, 305 (1970).) ' ". . . This special duty, enforced through tort liability, is necessary because of the relationship between the parties and the fact that in the insurance field the insured usually has no voice in the preparation of the insurance policy and because of the great disparity between the economic positions of the parties to a contract of insurance; and furthermore, at the time an insured party makes a claim he may be in dire financial straits and therefore may be especially vulnerable to oppressive tactics by an insurer seeking a settlement or a release. "The special considerations existent in a consumer-held insurance contract do not apply to an ordinary contract between businessmen . . ." 538 F.2d at 117, 118. In Montana, insurance companies insuring credit disability risks have a statutory duty that exists beyond the insurance contract itself. Their statutory duty under section 40- 4213, R.C.M. 1947, now section 33-21-105 MCA, is that all claims shall be settled as soon as possible and in accord- ance with the terms of the insurance contract. Thus, BULIC not only had a contractual duty to make payment of a valid claim to Goddard, but it had the statutory duty to do so as soon as possible. It is the breach of that statutory require- ment, a duty independent of the insurance contract, that gives rise to tort liability in the case at bar. Thus, the insurer's duty of good faith and fair dealing with its insureds in the payment of claims has statutory blessing and authority. Accordingly, the measure of damages in such a case as the one at bar is provided in section 17- 401, R.C.M. 1947, now section 27-1-317 MCA which allows compensation "for all the detriment proximately caused thereby whether it could be anticipated or not." This Court recognized that a breach of contract might also give rise to an action in tort in State ex rel. Larson v. District Court (1967), 149 Mont. 131, 136, 423 ~ . 2 d 598, 600, when it said: "Thus, in the insurance contract we have a unique situation; that is, some acts may be both breaches of contract and violations of the laws of Montana." THE ISSUE OF PUNITIVE DAMAGES - - BULIC makes a two-pronged attack on the $5,000.00 punitive damages awarded by the District Court. BULIC contends that there is no authority for punitive darriages in this case because of breach of contract and that in any event the evidence is insufficient to support an award of punitive damages. The propriety of recovery of punitive damages for breaches of insurance contracts where a statutory duty is also violated was settled in this state in State ex rel. Larson. Here BULIC distinguishes Larson saying a violation of section 40-4213, that "all claims shall be settled as soon as possible" is not a statute for which a penalty is assessed. Therefore, even under Larson, BULIC contends that punitive damages may not be awarded in this case. BULIC contends that section 40-4213, R.C.M. 1947, now section 33-21-105 MCA has no self-executing criminal sanction. To enforce it, BULIC argues that one must first get an order from the Commissioner of Insurance, section 40-4215, R.C.M. 1947, now section 33-21-111 MCA. Thereafter, there should be a judicial review, section 40-4216, R.C.M. 1947, now section 33-21-112 MCA, after which penalties for violations of the orders of -- the Commissioner - of Insurance are set forth as criminal penalties. Section 40-4217, R.C.M. 1947, now section 33-21-113 MCA. BULIC points out there is no specific statute assessing a criminal penalty directly for a violation of section 40-4213. BULIC1s contentions on this point cannot be sustained, because a violation of section 40-4213, with respect to failure of prompt payment of claims in credit disability cases, is subject to the general penalty provided by section 40-2617, R.C.M. 1947, now section 33-1-104 MCA. That section provides : "Each violation of any provision of this code, with respect to which violation a greater penalty is not provided by other applicable laws of this state, shall, in addition to any administrative penalty - -- otherwise applicable thereto, upon conviction in a court of competent jurisdiction of this state be punishable by a fine of not less than $50 or more than $1,000 or by imprisonment in the county jail for not less than 30 days or more than 90 days or by both such fine and imprisonment." There being a criminal penalty available for a violation of section 40-4213, this case is within the rule set forth in Larson, and in Paulson v. Kustom Enterprises, Inc. (1971), 157 Mont. 188, 483 P.2d 708. We distinguish State ex rel. Cashen v. District Court (1971), 157 Mont. 40, 482 P.2d 567 because in Cashen no criminal penalty was involved. BULIC next contends that even if punitive damages could be awarded here, there is no evidence that BULIC acted wantonly, maliciously or oppressively so as to entitle Goddard to such punitive damages. The findings of the District Court noted the failure of BULIC to make the payments, the direct consequence of the acceleration of Goddards' note, the subsequent repossession of Goddards' vehicle to be sold at a distress sale and finally, the filing of the deficiency action against Goddards. The District Court also noted that BULIC was repeatedly requested by counsel for Goddard "and implored to make payment of the disability benefits" and that the failure and refusal of BULIC to make payment of the disability benefits was an oppressive act or omission on the part of BULIC. The court'concluded that by virtue of the violation of section 40-4213, and the distress which resulted therefrom to Goddard, that Goddards were entitled to exemplary damages. It is not necessary to show actual malice to recover punitive damages. Harrington v. Holiday Rambler Corporation (19781, Mont. , 575 P.2d 578, 35 St.Rep. 46. Fraud or malice may be actual or presumed. Section 17-208, R.C.M. 1947, now section 27-1-221 MCA. Inplied malice may be shown by proof that defendant engaged in a course of conduct knowing it to be harmful and unlawful. Ferguson v. Town Pump, Inc. v. Wallace Diteman (1978), Mont . I 580 P.2d 915, 921, 35 St.Rep. 824, 831; Miller v. Fox (1977), Mont. , 571 P.2d 804, 34 St.Rep. 1367; Cashin v. Northern Pacific Railway Company (1934), 96 Mont. 92, 28 "Malice-in-law" is implied where the defendant's conduct is unjustifiable. Cherry-Burrell Company v. Thatcher (U.S.C.A. 9th 1939), 107 F.2d 65, 69 (applying Montana law). Here, BULIC's conduct was both harmful to Goddard and unlawful because it violated a statute. Its malice will therefore be implied because its actions were unjustifiable. BULIC claims it was acting in good faith in denying the disability benefits because Goddard and his doctor had reported Goddard to be continuously disabled from October 5, two days before BULIC claims insurance coverage commenced. Again, it is not the claim of Goddard or his doctor as to the commencement of the disability, but BULIC's incorrect position that the coverage commenced on October 7, that brought about the denial. BULIC has persisted in insisting that the coverage began on October 7 even through this appeal, in the face of sections 40-4207 and 40-4209 which provide that the term of credit disability insurance shall become effective when the indebtedness is incurred. No issue is raised by BULIC as to the amount of exemplary to damagedhe awarded. The office of an award of exemplary damages is to punish the defendant for malicious and wrongful acts, be the malice actual or presumed, where the defendant should suffer some additional penalty for the wrongful conduct and where the exemplary damages will serve as a warning to others and as a deterrent and punishment to the defendant. See Kesler v. Rodgers (Utah 1975), 542 P.2d 354. The judgment of the District Court is affirmed. C&k-.-.-&bq- Justice We Concur: Chief Justice / Justices / | April 24, 1979 |
eaadd11b-a306-4475-ac08-29b15c95b4bc | COUNTY OF CHOUTEAU v CITY OF FORT | N/A | 14559 | Montana | Montana Supreme Court | No. 14559 I N THE S U P = C O W O F THE STATE O F & D I W A N A 19 7 9 THE COUMIY O F CHOIITEAU, STATE OF and the STATE O F m A N A ex rel. GEORGE W. - I Plaintiffs and Appellants, THE CITY O F FORT EENKN, M3NTANA, a municipal corporation, Defendant and Respondent. Appeal from: D i s t r i c t Court of the Eighth Judicial District, Homrable Joel G. Roth, Judge presiding. Co-me1 of Record: For Appellants: A. Evon Merson argued, Fort Benton, bntana For Respondent: Schmidt, G i l b e r t & Jungers, Fort Benton, & x - k a n a Grover C. Schmidt, Jr. argued, Fort Benton, bntana Suhnitted: March 16, 1979 M A G 1 1C.74 Decided: Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Plaintiffs appeal from an order of the District Court of Chouteau County quashing a temporary restraining order and denying a permanent injunction. On July 18, 1977, the city council of Fort Benton, Montana, passed a resolution of intent to create an extended Special Water Line District. The purpose of the District was to install water lines along the streets included within its boundaries and to connect those lines to the existing city water system. Pursuant to that resolution, on September 19, 1977, the city council created the proposed Special Improveinent Dis- trict, set forth the method of assessing costs and the manner of payment, and instructed the city clerk to publish notice invit- ing bids on the project. In pertinent part, the resolution reads: " . . . the entire cost and expense of said improvements shall be paid by the owners of the property within said Special Water Line District . . .each lot or parcel of land within said district to be assessed for that part of the cost to be paid by said district which its area bears to the total area of said special improvement water line district exclusive of streets, avenues, alleys and public places." (Emphasis supplied.) Included in the area within the District's boundaries are the Cbkeau County Fairgrounds and the property of George Harvey. As plaintiffs in this action, Harvey and the County sought, and the District Court issued, an order temporarily res- training the City from taking further action on the Special Im- provement District. Defendant City was also ordered to show cause why a permanent injunction should not be issued. Subse- quently, defendant filed a motion to quash the temporary restrain- ing order and the order to show cause and later moved to dismiss the complaint. The action was submitted on briefs and pursuant to its conclusions of law, the District Court concluded: "The method of assessment adopted by the City Council . . . to pay for the improvements con- forms to the requirements of Section 11-2214(a), R.C.M. 1947 as amended and the terminology therein 'exclusive of streets, avenues, alleys and public places' satisfies the statutory requirement of describing the method of assessment adopted by the City Council." The temporary restraining order and the order to show cause were quashed and vacated and the complaint seeking an injunction was dismissed. From that judgment plaintiffs appeal and raise two issues for our consideration: (1) Whether the Chouteau County Fairgrounds, as property of the County, is properly includable in the Special Improvement District. (2) Whether assessment of all the area within the Special Improvement District on a proportionate basis is proper. Because the city council made a finding in its July 19 resolution that "all real estate situated in said district will be especially benefitted and affected by such improvements" the District became an extended Special Improvement District under section 11-2205, R.C.M. 1947, now section 7-12-4103 MCA. As such, the property within the District is assessable as provided in section 11-2214(1)(a), R.C.M. 1947, now section 7-12-4162 MCA: "(1) The city council or commission shall assess the entire cost of such improvements against the entire district, each lot or parcel of land within such district to be assessed for that part of the whole cost which its area bears to the area of the entire district, exclusive of streets, avenues, alleys and public places; "(3) In order to equitably apportion the cost of any of the improvements herein provided for be- tween that land within the district which lies within 25 feet of the line of the street on which the improvement is to be made and all other land within the district, the council or commission may, in the resolution creating any improvement district, provide that the amount of the assess- ment against the property in such district to defray the cost of such improvements shall be so assessed that each square foot of land with- in the district lying within 25 feet of the line of the street on which the improvements therein provided for are made shall bear double the amount of cost of such improvement per square foot of such land that each square foot of any other land within the district shall bear." Over 65 years ago this Court noted a dramatic split of authority on the question of whether places like schools or fairgrounds were to be included in special improvement districts and assessed for their share of improvement costs. City of Kalispell v. School District No. 5 (1912), 45 Font. 221, 226, 122 P. 742. The states which have ruled on the question are still not in accord and the conflict continues. See 70 Am Jur 2d Special or Local Assessments 552. Despite the continuing controversy, this Court held in City of Kalispell v. School District No. 5 and in an unbroken line of cases thereafter that such places are subject to assess- ments. This Court interpreted the statute in issue here as follows : "Our statute authorizing these special assessments provides in general terms that they shall be paid by the entire improvement district; each lot or parcel of land within the district to be assessed for that part of the whole cost which its area bears to the area of the entire improvement district, ex- clusive of streets, alleys, and public places. This language is general. It includes all the property within the improvement district; and we are not at liberty to ingraft upon the statute exceptions which are not there. But it is suggested that the concluding clause . . . 'exclusive of streets, alleys and public places,' is broad enough to include prop- erty devoted exclusively to public use, such as school property. But that construction violates the elementary rules of statutory construction; and certainly, if the legislature intended to exempt property devoted to public purposes, it could have found apt terms by which to express its meaning. The - rule exemplified by the expression 'ejusdem generis' requires that the words 'public places' be read to mean public places, such as streets or alleys. After all, the question before us is largely one of public policy." City of Kalispell v. School District No. 5, supra, at 230; Toole County Irrigation District v . State (1937), 104 Mont. 420, 434, 67 P.2d 989; School District No. 1 v. City of Helena (1930), 87 Mont. 300, 306, 287 P. 164; State ex rel. City of Great Falls v. Jeffries (1928), 83 Mont. 111, 116, 270 P. 638; Swords v. Simineo (1923), 68 Mont. 164, 175, 216 P. 806. (Emphasis supplied.) Ejusdem generis is a commonly accepted rule of statutory construction which "requires that general terms appearing in a statute in connection with specific terns are to be given mean- ing and effect only to the extent that the general terms suggest items similar to those designated by specific terms." Dean v . McFarland (1972), 81 Wash.2d 215, 500 P.2d 1244, 1248, 74 ALR3d 378. Like the schools in City of Kalispell v. School District No. 5, the fairgrounds here are not similar to "streets and alleys" and cannot be excluded from the Special Improvement District. The plaintiffs also contend the city council must assess the property within 25 feet of the waterline twice as much as the property further from the line. We disagree. The statute in question reads "the council . . . may, in the resolution creating any improvement district, provide" that property within 25 feet of the line is to be assessed twice as much as other property in the district. Section 11-2214(1)(a), R.C.M. 1947, now section 7-12-4162 (3) MCA. (Emphasis supplied. ) The word "may", unless it has acquired a special meaning in law, is to be given its ordinary meaning. Lewis v . Petroleum County (1932), 92 Mont. 563, 567, 17 P.2d 60, 86 A.L.R. 575. The plaintiffs argue such a special meaning has attached. They have cited numerous cases to the effect that when a right is created in an individual by a statute, a governmental entity must exercise its discretion to the end that the right be given effect. That is not the situation here. The statute does not operate to create a right in an individual; rather, it clearly bestows discretion on the city council to use an alternate plan of assessment to achieve an equitable result. In other cases where the exercise of a discretionary power by a city council has been questioned, this Court has said: The action is usually conclusive "unless palpably unjust . . . ex- cept in cases of fraud or manifest mistake." Northern Pacific Railway Co. v. Lutey (1937), 104 Mont. 321, 324, 66 P.2d 785. The discretion will not be controlled "in the absence of a clearly arbitrary abuse." State v . City Council et a1 (1939), 108 Mont. 347, 356, 90 P.2d 514. A determination of the coun- cil will not be set aside unless "arbitrary, oppressive or fraud- ulent." Koich v. Cvar et al. (1941), 111 Mont. 463, 466, 110 P.2d 964. From the quoted specific applications of the principle, we derive a general rule as follows: When a city council exer- cises discretionary power, its action will not be disturbed un- less there is a showing of manifest abuse of discretion. In the instant case no abuse has been shown and the council's action cannot be enjoined. Finding no error, the judgment of the District Court is affirmed. Chief Justice 0 ' Justices | March 22, 1979 |
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