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3ceaec79-3712-4f51-88e8-fdf19264f7c1	STATE v COLEMAN	N/A	14448	Montana	Montana Supreme Court	No. 14448 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 - STATE OF MONTANA, Plaintiff and Respondent, DEWEY EUGENE COLEMAN, Defendant and Appellant. Appeal from: District Court of the Sixteenth Judicial District, Honorable A. B. Martin, Judge presiding. Counsel of Record: For Appellant: Moses, Tolliver and Wright, Billings, Montana Charles F. Moses argued, Billings, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Mike McCarter argued, Assistant Attorney General, Helena, Montana John S. Forsythe, County Attorney, Forsyth, Montana Submitted: January 29, 1979 Decided: JUN 2 0 1979 Filed: 3Ulj 2 . ?9E Mr. Justice John C. Sheehy delivered the Opinion of the Court. This matter comes before the Montana Supreme Court from the District Court, Sixteenth Judicial District, Rosebud County, under the automatic review provisions of sections 95-2206.12 through 95-2206.15, R.C.M. 1947, now sections 46- 18-307 through 46-18-310 MCA. In felony convictions not involving the imposition of the death penalty, it is the function of this Court to review the record and determine if any errors have been committed resulting in the imposition of an illegal sentence, while it is the function of the Sentence Review Division to determine if a legal sentence is appropriate in the circumstances. State v . McKenzie (1978), Mont . , 581 P.2d 1205, 1229, 35 St.Rep. 759; State v. Simtob (1969), 154 Mont. 286, 462 P.2d 873, 874; sections 46-18-901 to 905 MCA. However, when the death penalty has been imposed, the Legislature has directed this Court, because of the nature of the penalty involved, to undertake expeditiously both functions. Sections46-18-307, -308 MCA; Minutes of State Senate Judiciary Committee, January 28, 1977. We recognize that in McKenzie the Sentence Review Division was allowed to conduct a review of the death penalty imposed, however, the defendant in McKenzie was sentenced under statutes different from those involved in this appeal. 581 P.2d at 1227. Because the review conducted by this Court statutorily stands in place of any recourse to the Sentence Review Division, the completion of this review will mark the end of state action upon this cause, ~xcepting any action upon a petition for rehearing. Defendant, Dewey Eugene Coleman has been sentenced to death for the crime of aggravated kidnapping under a judgment -2- and order entered by the District Court, July 10, 1978. The facts on which Dewey Eugene Coleman was found guilty by a jury on November 14, 1976, are set out in his earlier appeal to this Court, which we decided April 26, 1978. State v. Coleman (1978), Mont . , 579 P.2d 732, 35 St.Rep. 560. We need not repeat those incidents here. Defendant had been convicted of the crimes of deliberate homicide, aggravated kidnapping, and sexual intercourse without consent, violations of sections 94-5-102, 94-5-303, and 94-5-503, R.C.M. 1947, now sections 45-5-102, 45-5-303, 45-5-503 MCA. By our decision in the Coleman appeal, we remanded the case to the District Court for resentencing on count 11, aggravated kidnapping, and count 111, sexual intercourse without consent. The judgment of conviction on count I, deliberate homicide and the sentence thereupon imposed, were affirmed. The District Court on remand set a sentencing hearing "in accordance with section 95-2206.06 through 95-2206.11, R.C.M., as amended" for June 14, 1978. At that hearing, the court denied a motion of defendant to quash and ordered the presentence report be filed. Neither party presented any witnesses or other evidence. Thereafter the court set July 10, 1978 as the date for sentencing. On that date, the District Court handed counsel for defendant and the State, a copy of its written findings, judgment and order. After argument was presented, the District Court then signed and filed its findings, judgment and order. The District Court found and concluded that the aggravating circumstances set forth in section 93-2206.8(7)1 -3- R.C.M. 1947, existed because the offense of aggravated kidnapping had been committed by defendant and it had resulted in the death of the victim, Miss Peggy Harstad; that none of the mitigating circumstances listed in section 95-2206.9, were sufficiently substantial to call for leniency in this case; and that the only mitigating circumstance technically present was that the defendant had no record history of prior criminal activity. By reason of his findings and conclusions, the District Court ordered that the defendant Dewey Eugene Coleman be hanged between the hours of 6:00 a.m. and 6:00 p.m. on the 31st day following the completion of the automatic review of his case by this Court, said execution to be supervised by the sheriff of Yellowstone County. The District Court further ordered that defendant be sentenced to a term of 20 years for the crime of sexual intercourse without consent, and that such sentence be served consecutively to his sentence of 100 years for deliberate homicide, which had previously been assessed against the defendant and which was not disturbed on his appeal. As a result of his trial in November 1975, defendant was then sentenced by the District Court to 100 years on count I, deliberate homicide; to death by hanging on count 11, aggravated kidnapping; and to 40 years on count 111, sexual intercourse without consent inflicting bodily injury. One of the questions decided by this Court on the first Coleman appeal was that his sentence of death by hanging was invalid under the statutes then in effect. At the time of defendant's trial, the death penalty statute in Montana for aggravated kidnapping was section 94-5-304, R.C.M. 1947. It read: -4- "A court shall impose the sentence of death following conviction of aggravated kidnapping if it finds the victim is dead as the result of the criminal conduct." Defendant was sentenced to death under this statute. Section 94-5-304 which had been enacted in 1973 (Ch. 513, Laws of Montana (1973)) and amended in 1974 (Ch. 126, Laws of Montana (1974)) was repealed by the 1977 session of the State Legislature (Ch. 338, Laws of Montana (1977) 1. In the same enactment new death penalty statutes were codified in sections 95-2206.6 through 95-2206.15, R.C.M. 1947, now sections46-18-301 through 46-18-310 MCA. In the first Coleman appeal, we held that because former section 94-5-304 mandatorily imposed the death penalty, it was constitutionally impermissible under United States Supreme Court decisions in Woodson v. North Carolina (1976), 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982; and Roberts v. Louisiana (1977), 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637. This Court thereupon held that the death penalty assessed against defendant on November 21, 1975, must be set aside and, for reasons not important here, that the 40 year sentence on the count of sexual intercourse without consent must also be set aside. We remanded the case to District Court for resentencing on the counts of aggravated kidnapping and sexual intercourse without consent, without instructions to the District Court as to which law was applicable with respect to the resentencing of the defendant. When the cause was received by the District Court on remand, the District Court determined that it would apply the new sentencing statutes that included the death penalty. The District Court then used the 1977 statute to assess the death penalty against defendant. Defendant raises 19 specifications of error in this appeal. We will discuss these alleged errors within the broader context of the issue to which they relate. We frame the issues presented in this review in the following manner: 1. Did defendant's conviction on the count of deliberate homicide and the count of aggravated kidnapping constitute double jeopardy? 2. Were the present Montana capital punishment provisions, sections 95-2206.6 through 95-2206.15, R.C.M. 1947, now sections 46-18-301 through 46-18-310 I C A applicable in resentencing defendant? 3. Do Montana's capital punishment provisions violate constitutional standards? 4. Was defendant denied a fair opportunity to present argument and evidence with respect to sentencing? 5. Is defendant's sentence of death disproportionate to his crime with respect to sentences imposed in similar cases, or was it the product of passion, prejudice or other arbitrary factors? 6. If the capital punishment provisions are valid and applicable, must this Court, in its review of the sentence, reconsider issues raised and disposed of in defendant's first appeal? We first address the issue raised by defendant that his conviction of aggravated kidnapping, in light of his conviction of deliberate homicide based upon the felony of kidnapping, has placed him twice in jeopardy. Defendant contends the aggravated kidnapping conviction is barred by the Fifth Amendment to the United States Constitution and the 1972 Montana Constitution, Art. 11,- S25. Defendant -6- also argues this conviction is barred statutorily by section 95-1711, R.C.M. 1947, now section 46-11-501, -502 MCA . The Fifth Amendment to the Federal Constitution states no person shall "be subject for the same offense to be twice put in jeopardy . . ." The 1972 Montana Constitution Art. 11, 525, states "no person shall be again put in jeopardy for the same offense." Defendant has been subjected to but one trial, however, these double jeopardy provisions also protect offenders from multiple punishment for the same offense. Ex Parte Lange (1873), 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872; Matter of Ratzlaff (19771, Mont . , 564 P.2d 1312, 1316, 34 St.Rep. 470. Defendant has contended his conviction on the count of deliberate homicide is upon the same set of facts as his conviction on the count of aggravated kidnapping, thus he has been exposed to double jeopardy. We determine the prohibition against double jeopardy has not been violated in this case. Count I of the information charging defendant reads as follows: "Count I: That the defendant purposely and knowingiy caused the death of another human being, to-wit: Peggy Lee Harstad, while engaged in the commission of the following felonies: "Kidnapping and Sexual Intercourse Without Consent, involving the use of physical force and violence against the said Peggy Lee 3arstad." Count I1 of the information reads as follows: "Count 11: That the defendant knowingly and purposely and without lawful authority restrained another person, to-wit: Peggy Lee Harstad, by holding her in a place of isolation and by using physical force to facilitate the Commission of a felony, to-wit: Sexual Intercourse Without Zonsent and for the purpose of inflicting bodily injury on and terrorizing the said victim, Peggy Lee Harstad, resulting in the death of Peggy Lee Harstad. " The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 76 "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, ---- the test to be applied to determine whether there are two ottenses or only one, is whether each provision requires proof of -- an additional --- fact which the other does not . . ." (Emphasis added.) -- As the United States Supreme Court noted in Brown v. Ohio (1977), 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187, this test emphasizes the elements of the two crimes. Rejecting a defendant's claim of double jeopardy, this Court stated in State v. Davis (1978), Mont . , 577 P.2d 375, 35 St.Rep. 381, "'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'" 577 P.2d at 377. (Quoting from Morey v . Commonwealth (1871) , 108 Mass. 433.) Thus, our inquiry in the present appeal is directed to the elements of proof necessary to establish each count of the information. To establish count I of the information the prosecution had to prove the defendant (1) purposely and knowingly (2) caused the death of another human being (3) while committing the felonies of kidnapping and (4) sexual intercourse without consent. To establish count I1 of the information the prosecution had to prove the defendant (1) knowingly and purposely (2) without lawful authority (3) restrained another person by holding her in a place of isolation and by using physical force (4) to facilitate the commission of sexual intercourse without consent and (5) for the purpose of inflicting bodily injury on and terrorizing the victim. Both counts required proof of a "purposely and knowingly" mental state, proof of kidnapping and proof of sexual intercourse without consent. However, count I, in addition, required proof of the death of the victim which count I1 did not; and count I1 required proof of a purpose to inflict bodily injury and terrorize the victim which count I did not. The offenses of deliberate homicide (former section 94-5-102, R.C.M. 1947, now section 45-5-102 MCA) and aggravated kidnapping (former section 94-5-302, R.C.M. 1947, now section 45-5-302 MCA) are separate and distinct offenses in our codes and each requires proof of elements the other does not. Therefore, defendant may be convicted and sentenced for both count I and count I1 of the information without violating the double jeopardy prohibition even though the counts arose from the same conduct or episode. Brown, 432 U.S. at 166; United States v. Eagle (8th Cir. 1978), 586 F.2d 1193, 1196 (defendant's conviction of assault with a deadly weapon and assault resulting in serious bodily injury each arising from same shooting incident affirmed); Kowalski v. Parratt (8th Cir. 1976), 533 F.2d 1071, 1073-74 cert-den. 429 U.S. 844, 50 L.Ed.2d 115, 97 S.Ct. 125, (con- viction of robbery and using a firearm in commission of same robbery affirmed); Smith v. Gaffney (10th Cir. 1972), 462 F.2d 663, 665-666 (conviction of burglary and larceny based upon same transaction affirmed) : Davis, 577 P. 2d at 377. Arguments made by defendant in this appeal were also made by the defendant in Williams v . Oklahoma (1959), 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516. There the defendant had kidnapped and murdered his victim. Me pled guilty to the murder charge and received a life sentence. Defendant was then charged with kidnapping, pled guilty and received the death penalty after the sentencing court considered the homicide as an aggravating circumstance. Defendant challenged the death sentence on the grounds it was disproportionate to the life sentence given him for the homicide and on the grounds it constituted a second punishment for the same crime. The United States Supreme Court rejected defendant's claims stating Oklahoma law clearly made kidnapping and homicide separate and distinct offenses; therefore there was no merit in the argument that the "lesser crime" of kidnapping "merged" into the "greater crime" of murder so as to bar any sentence, or at least a greater sentence than was imposed for the homicide. 358 U.S. at 587. The Court also stated: "[Tlhe Due Process Clause of the Fourteenth Amendment does not, nor does anything in the -- -- Constitution, require a State to fix or impose any particular penalty-for any crime it may define or to impose the same or 'proportionate' sentences E r separateanandependent crimes. Therefore we cannot say that the sentence to death for the kidnapping, which was within the range of punishments authorized for that crime by the law of the State, denied to petitioner due process of law or -- any other constitutional right." 358 U.S. at 586. (Emphasis added.) We conclude defendant's conviction of both count I, deliberate homicide, and count 11, aggravated kidnapping, did not transgress any constitutional inhibitions, federal or state, against double jeopardy. Defendant has also argued his aggravated kidnapping con- viction is barred by the operation of section 95-1711(2), R.C.M. 1947, now section 46-11-502 MCA. Defendant argues the aggravated kidnapping count is an "included offense" in the count of deliberate homicide and he therefore may not be, under section 95-1711 (2) (a) , now section 46-11-502 (1) MCA, convicted of that count. Section 95-1711(1) (b) , R.C.M. 1947, now section 46-11-501(2)(a) MCA, defines "included offense" in pertinent part as an offense "established by proof of the same or less than all the facts required to establish the commission of the offense charged." An accused may not be convicted of more than one offense if one offense is included in the other. Section 95-1711 (2) (a), R.C.M. 1947, now section 46-11-502(1) MCA. However, as the discussion above makes clear, to establish deliberate homicide and to establish aggravated kidnapping require proof of distinct and separate elements. In such a case the statutory provisions recited do not bar the conviction for aggravated kidnapping, State v . Perry (1979), Mont . , 590 P.2d 1129, 1131, 36 St.Rep. 291, and defendant's double jeopardy claim fails on this point as well. The next issue with which we are confronted is whether ex post facto provisions in the federal and state constitutions -- or the statutorily codified rule of construction against retro- activity (section 12-201, R.C.M. 1947, now section 1-2-109 MCA) prevent application of the sentencing statutes enacted in 1977 to this defendant. As was indicated in the recitation of facts, defendant committed the crime with which he was charged in 1974, however, upon resentencing after our remand, the District Court applied the statutes enacted in 1977. Defendant argues this violates the constitutional prohibition against -- ex post facto laws as well as the statutory provision against retro- activity. Defendant further argues he is entitled to be sentenced under the law in effect at the time the crime was committed. Because this Court has declared the provision mandating the death penalty which was effective at that time to be unconstitutional, defendant contends the maximum sentence he may receive is 100 years in prison. In considering this issue, it must be initially deter- mined what would cause the application of the 1977 statutes to an act committed in 1974 to run afoul of the ex post facto -- prohibition and the statutory rule of construction against retroactivity. Therefore what makes a statute ex post facto -- or "retroactive" becomes the keystone consideration. Simply because a statute operates on events antecedent to its effective date does not make the statute ex post facto, -- Calder v. Bull (1798), 1 U.S. (3 Dall.) 269, 273, nor does such operation make a law prohibitively retroactive. Cox v. Hart (1922), 260 U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332. Thus the effect the statute will have must determine its validity with respect to ex post facto or retroactive inhibitions. -- The constitutional prohibition against ex post facto -- laws has its roots in the desire on the part of the framers of the United States Constitution to prevent the sovereign authority from making acts criminal which were innocent when committed as had been done by the British crown. Calder, 1 U.S. at 271-272. The Court in Calder noted the advocates of such laws were stimulated by ambition, or personal resent- ment and vindictive malice and "to prevent such, and similar acts of violence and injustice . . . the federal and state legislatures were prohibited from passing any . . . -- ex post facto law." Calder. The constitutional inhibition of ex - post facto laws was thus intended "to secure substantial -- personal rights against arbitrary and oppressive legislative action." Malloy v. South Carolina (1915), 237 U.S. 180, 183, 35 S.Ct. 507; 59 L.Ed. 905; Beazell v. Ohio (1925), 269 U.S. Summarizing more than a century of definitions Justice Stone writing for a unanimous court in Beazell stated that: "[Alny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was facto. judicial committed, is proh The constitutional interpretation of ibited as ex post prohibition ZKTthe it rest upon the notion that laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act, either by the legal detinition oftheo-nse or by the nature or amount of punishment imposed for its commission, should not- be altered by legislative enactment, after -- thefact, to -- thedisadvantage -- of the accused." 269 U.S. at 169-170. (~mphasis added.) Clearly the important question in determining whether a subsequent statute and its application transgress this inhibition is whether some substantial right of the accused is materially affected. However, the Supreme Court has iterated the proposition that changes in procedure not affecting materially the rights of a defendant do not - come within the constitutional prohibition. For example, the State of Utah altered its rule governing the qualifications of witnesses, allowing felons to testify, after the accused committed the act but before his trial. The Court in Hopt v. Territory of Utah (1884), 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262, dismissed the ex post facto claim -- based on this change even though the change had detrimental effect stating: ' I . . . [A] lterations which do not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt, but--leaving untouched the nature of the crime and the amount or degree of proof essential to conviction--only removes restrictions upon the competency of certain classes of persons as witnesses, relate to modes of Alt u.s - procedures only, in which no one can be said to have a vested r i g h t , n F w m t h e s t a t e , --- -- upon grounds of - public policy, may regulate at lea sure." 110 U.S. at 590. (Emphasis - L - added. ) hough the Court in Thompson v. State of Utah (189 . 343, 18 S.Ct. 620, 42 L.Ed. 1061, found the cha 8), 170 .nge from requiring a panel of 12 jurors to requiring a panel of 8, to have substantially affected the accused's rights and there- fore be --- ex post facto, it stated no one had a vested right in mere modes of procedure. 170 U.S. at 352. Furthermore, "statutes regulating procedure, if they leave untouched all the substantial protections with which existing law surrounds the person accused of crime, are not within the constitutional inhibition of -- ex post facto laws." 170 U.S. at 352. In Dobbert v. Florida (1977), 432 U.S. 282, 92 S.Ct. 2290, 53 L.Ed.2d 344, the Supreme Court held that the trial and sentencing of the accused under statutes not in effect at the time of his crime did not violate -- ex post facto prohibitions. The Court ruled the changes were merely procedural, were less onerous than the law that had been previously declared unconstitutional, and did not change the quantum of punish- ment attached to the crime. 432 U.S. at 292, 294. The inhibition upon ex -- post facto laws then, does not give an accused a right to be tried, in all respects, by the law in force when the crime charged was committed providing he has not been deprived of any substantial right or immunity he possessed at the time of the commission of the offense 293-294 charged. Dobbert, 432 U.S. at-?; Malloy, 237 U.S. at 183; Gibson v. Mississippi (1896), 162 U.S. 565, 590, 16 S.Ct. 904, 40 L.Ed. 1075. However, the Court has made clear a change which is labeled procedural will not except it from ex post facto prohibitions if it invades or modifies rights -- of a party charged with a crime. Kring v. Missouri (1883), -14- 107 U.S. 221, 232, 2 S.Ct. 443, 27 L.Ed. 506. (The change in Kring made evidence that was conclusive of innocence not a factor at all, and in effect increased the punishment for the offense.) Just what changes in "procedure" will be held to be of sufficient moment: ". . . to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree. But the constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation . . . and not to limit the legislative control of remedies and modes of procedure which do not effect matters of substance." (Citations omitted.) Beazell, 269 U.S. at 171. The Supreme Court has also stated a statute which, when viewed in the light of reason and common sense, mitigates the rigor of the law in force at the time a crime was committed cannot be regarded as -- ex post facto with reference to that crime. Rooney v. North Dakota (1905), 196 U.S. 319, 325, 25 S.Ct. 264, 49 L.Ed. 494; Calder, 1 U.S. at 273. Section 12-201, R.C.M. 1947, now section 1-2-109 MCA, states that no law is "retroactive" unless expressly so declared. However, this is but a rule of construction and what is "retroactive" so as to warrant application of the rule has been defined judicially by this and other courts. A statute is not - "retroactive" merely because it draws upon antecedent facts for its operation. Cox v. Hart, 260 U.S. at 157. A statute is "retroactive" in a legal sense "which takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty or attaches a new disability in respect to transactions already past. " City of Harlem v. State Highway Commission (1967) , 149 Mont. 281, 425 P.2d 718, 720; Dunham v . Southside National Bank (1976), 169 Mont. 466, 548 P.2d 1383, 1386; Butte & Superior Mining Co., v. McIntyre (1924), 71 Mont. 254, 229 P. 730; Sturges v . Carter (1885), 114 U.S. 511, 5 S.Ct. 1014, 29 L.Ed. 240. In 1973, the legislature enacted section 94-5-303, R.C.M. 1947, now section 45-5-303 MCA, and section 94-5-304, R.C.M. 1947. Ch. 513, Laws of Montana (1973). The former section set forth the elements of the crime of aggravated kidnapping and stated "a person convicted of aggravated kidnapping -- shall be punished death as provided in section 94-5-304 or - [imprisonment] . . ." (Emphasis added.) Section 94-5-304, as it then read, imposed the death penalty if the victim dies as a result of the criminal conduct "unless there are mitigating circumstances." The quoted language was deleted by the 1974 amendment to section 94-5-304, making the death penalty mandatory in those circumstances specified. Ch. 126, Laws of Montana (1974). Section 94-5- 304 was repealed in 1977 by Ch. 338, Laws of Montana (1977) which enacted the current scheme for imposition of the death penalty; that is, providing for a separate sentencing hearing; consideration of mitigating or aggravating circumstances, written findings and conclusions, and expedited review of the sentence. It is important to note that the original enactment of section 94-5-303(2), now section 45-5-303(2) MCA, effective when the crime involved here was committed, was never altered by the amendments and has always provided the crime of aggravated kidnapping shall be punished by death or imprisonment. The amendments have related only to the procedure the court must follow in imposing the sentence. The 1974 amendment, effective when the crime was committed, mandated a death penalty if the victim died as a result of the criminal conduct. The 1977 amendments ameliorated this, allowing an exercise of judicial discretion within certain limits and requiring consideration of mitigating circumstances. Clearly, the latter amendments lessened the rigor of the they, 1974 amendment and are less onerous than the 1974 law. As such/ on their face, cannot be considered ex post facto. Calder --- v. Bull, 1 U.S. at 273; Rooney v. North Dakota, 196 U.S. at 325; Dobbert v. Florida, 432 U.S. at 292-294. Because the accused has no vested right in modes of procedure not mater- ially affecting his rights, and because the changes in the law on their face do not impose new obligations or duties or disabilities in respect to transactions already past, the changes are also not on their face retroactive. -- City of Harlem, 425 P.2d at 720; McIntyre, 229 P. at 733. In fact, had there been no declaration of unconstitutionality in the first Coleman decision, the District Court may well have been obligated to apply the 1977 statutes as their changes benefited the accused. Marks v. United States (1977), 430 U.S. 188, 197, 97 S.Ct. 990, 51 L.Ed.2d 260. Because this Court did - declare the 1974 amendment mandating the death penalty unconstitutional, the -- ex post facto and "retroactive" arguments are raised by defendant. Thus, the crucial question becomes what is the effect of that declaration. It must be emphasized the decision in Coleman, declared unconstitutional only section 94-5-304 as amended in 1974. The preceding section 94-5-303, enumerating the elements of the crime and the potential punishment was not addressed by the decision and has remained viable since its enactment in 1973. There exists a rule of statutory construction that a statute declared unconstitutional is considered void - ab initio and has no effect. This proposition is best typified by the following statement of Justice Field in Norton v. Shelby (1886), 118 U.S. 425, 442, 6 S.Ct. 1121, 30 L.Ed. 178: "an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as in- operative as though it had never been passed." The aim of such a rule of construction is to hold the exercise of legislative power in excess of constitutional limits to be of no effect. Field, The Effect of an Unconstitutional - - Statute (1935), pp. 8-12. The author of the cited treatise, however, indicated the absoluteness of such a doctrine was breaking down and applauded such development. Field, p. 12. Indeed, the United States Supreme Court, which first announced the doctrine, has indicated the rule is not absolute and has - further indicated its recession from that rule. In Chicot County Drainage District v. Baxter State Bank (1940), 308 U.S. 371, 374, 60 S.Ct. 317, 84 L.Ed. 329, where the validity of a judicial decree based upon a statute sub- sequently declared unconstitutional was questioned, the Court indicated the broad statement that appeared in Norton must be taken with qualifications and in a later decision, the Supreme Court stated: ". . . the effect of a given constitutional ruling on prior conduct 'is subject to no set "principle of absolute retroactive in- validity" but depends upon a consideration of "particular relations . . . and particular conduct . . . of rights claimed to have become vested, of status, of prior determinations deemed to have finality" and "of public policy in the light of the nature both of the statute and of its previous application."' . . . However appealing the logic of Norton may have been in the abstract, - its abandonment reflected our recognition that statutory or -- even judge-made rules of law -- are hard facts on which ~ e o ~ l e must relv in A . makiiiljTecisioniFandaPing theirconduc~" Lemon v . Kurtzman (19731, 411 U.S. 192, 198-199, 93 S.Ct. 1463, 36 L.Ed.2d 151. (Emphasis added.) (quotinq from Linkletter v. Walker (1965) , 381 u . - S . 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 and Chicot County Drainage Dist., supra.) Both Chicot County and Lemon are civil cases but the case which announced the rule, Norton Shelby was also a civil action. This Court in Ex Parte Anderson (1951), 1 2 5 Mont. 331, 238 P.2d 910, 913, stated "an unconstitutional law is void, and is as no law. An offense created by it is not a crime." The Court then invalidated an entire criminal statute because it had been preempted by federal action in the same area. In the first Coleman appeal, the statute declared unconstitutional did not define the crime, rather related only tc the procedure of imposing sentence. Our action in declaring the prior statute unconstitutional did not affect the substantial elements of the crime. Moreover, the statement relied upon by the Anderson Court, found in Ex Parte Siebold (1879), 100 U.S. 371, 376, 25 L.Ed. 717, was dicta in Siebold as the Supreme Court did not find the statute there in question to be unconstitutional. There are "hard facts" present in this appeal which this Court must consider in making its determination. A fundamental concept of our constitutional liberty is that the -- ex post facto clause is based upon the principle that persons have the right to fair warning of conduct which will give rise to criminal penalties. Marks v. United States, 430 U.S. at 191. The substantive portion of the aggravated kidnapping statute, enumerating the elements of the crime and declaring the quantum of punishment, has not been altered since its enactment in 1973. The changes made by the 1977 s t a t u t e s from t h e 1 9 7 4 law ameliorated a mandatory death penalty to one imposed only after certain procedural steps were taken. Those procedural steps were followed in the resentencing of Dewey Coleman. At the time the crime was committed the statutes were clear that the penalty of death was a very probable consequence for the commission of the crime . -19- The defendant has cited this Court to cases from this and other jurisdictions and urged us to follow their pre- cedent and hold the statutes in question here may not be applied to defendant. However, those cases can be distinguished. In State v. Rodgers (1978), 270 S.C. 285, 242 S.E.2d 215, the defendants were tried, convicted and sentenced under death penalty statutes enacted in 1974. Those statutes were later ruled unconstitutional. The State then petitioned to have the defendants resentenced under statutes promulgated in 1977 which were very likely constitutional. Those statutes provided for procedural safeguards at all phases of -- the criminal adjudication process from pretrial to sentencing. The South Carolina Supreme Court denied the State's petition because the defendants therein did not receive all the procedural safeguards mandated by the 1977 enactments. 242 S.E.2d at 218. In the present cause the safeguards enacted in 1977 related only to the sentencing phase of the criminal adjudication process and the defendant here did receive those protections. In People v. Teron (1979), 151 Cal.Rptr. 633, 588 P.2d 773, the California Supreme Court refused to apply sentencing provisions enacted in 1977 to a crime committed in 1975. The statutes in effect in 1975 had been declared unconstitutional. 588 P.2d at 780. Factually the Teron case is distinguishable from the one here, because the declaration of unconstitutionality occurred in 1976 while defendant was not charged with the crime until April 1977 and the 1977 statutes did not become effective until August 1977. Therefore, when the defendant was charged with his crime there existed in fact no constitutional death penalty statutes in California. 588 P.2d at 780. Here Coleman committed the crime in 1974, was tried, convicted and sentenced -20- in 1975, the legislature repealed the 1974 act in 1977, and this Court declared the 1974 law unconstitutional in 1978. Unlike Teron, Coleman was tried, and convicted under consti- tutional statutes, but sentenced under a statute later declared unconstitutional. State v . Lindquist (1979), Idaho , 589 P.2d 101, is the strongest authority for Coleman's "retroactive" argument. There the defendant committed his crime in 1975, was tried, convicted and sentenced in 1976. The laws were amended in 1977 and when the Idaho court considered the appeal, after declaring the laws in effect in 1975 and 1976 to be unconstitutional, it was faced with the question whether the 1977 laws could be applied on resentencing. The Court held they could not, on the basis they were retroactive. 589 P.2d at 103. However, the majority opinion devotes no discussion to what constitutes a retroactive law, assuming apparently that because the application of the 1977 laws would relate to events antecedent to their effective date, they are retroactive. 589 P.2d at 103, 104. Clearly such a discussion is necessary for, as the above discourse indicates, not all statutes relating to events antecedent to the effect- ive date of the statutes are retroactive. The dissent of Justice Donaldson in Lindquist discusses this point. 589 P.2d at 112, 113. Thus the Lindquist opinion loses some of its authoritative impact for this lack. Finally, in State v. Gone (1978), Mont . I 587 P.2d 1291, 35 St.Rep. 1540, this Court held that, based upon the facts there present, the application of laws enacted after the crime was committed would violate -- ex post facto prohibitions. 587 P.2d at 1297. In Gone, a later statute permitted the sentencing court to impose a sentence without the possibility of parole, a discretion not granted under laws in effect when the crime was committed. Clearly this later enactment allowed the punishment for the offense to be aggravated beyond that available when the offense was com- mitted and was obviously ex post facto. However, here the -- later enactments -- do not aggravate the punishment for the crime, but only change the procedure for imposing the sentence. The punishment for the crime according to section 94-5- 303(2), R.C.M. 1947, now section 45-5-303(2) MCA, has always been death or imprisonment. The changes made by the 1977 enactments affected only the manner in which the penalty indicated by statute was to be determined and imposed. They did not deprive Coleman of any defense previously available nor affect the criminal quality of the act charged. Nor did they change the legal definition of the offense or the punishment to be meted out. They did not make an act criminal which was innocent when done; they did not increase the penalty for the crime. he quantum and kind of proof required to establish guilt, and all questions which may be considered by the court and jury in determining guilt or innocence, remained the same. No substantial right or immunity pussessed__by.Coleman at the time of the commission of the offense was taken away by the 1977 enactments. Indeed they eased the rigor of the law as it existed at the time the offense was committed. II 1 . . . so far as mere modes of procedure are concerned, a party has no more right, in a criminal than a civil action, to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accord- ance with the rules of practice . . . in existence when its facts arose. The legislature may . . . prescribe altogether different modes of procedure in its discretion, though it cannot lawfully . . . dispense with any of those substantial protections with which the existing law surrounds the person accused of the crime.'" Thompson v . State of Utah, 170 U.S. at 351, 352 (quoting with approval from Cooley on Constitutional Limitations); People v. Ward (1958), 50 Cal.2d 702, 328 P.2d 777, 780. The statutes in question also did not impair vested rights, or create new duties, obligations, or disabilities with respect to transactions already past. Only if we were to adhere rigidly to the rule of construction announced in Norton v. Shelby, supra, that a statute declared unconstitutional is treated as never having had an operational effect, could the 1977 statutes be read to interfere with the substantial rights of Dewey Coleman. Yet the absolute application of this rule has been abandoned by the Court which promulgated it, the United States Supreme Court. To follow the rule here, as this Court must in order to find an ex post facto violation or "retroactive" effect, would be -- impliedly stating Dewey Coleman at the time he committed his crime had the omniscience that four years hence the statute prescribing the procedure for imposing the penalty for the crime would be declared unconstitutional and that at the time the crime was committed no valid procedure existed. Clearly such a conclusion stretches reason to the breaking point. We therefore hold that the District Court properly applied the 1977 statutes relating to the imposition of the death penalty to this defendant. Having decided no -- ex post facto violations nor transgressions of the rule against retroactive statutes have occurred, and the 1977 statutes are applicable here, we reach defendant's arguments that these statutes are unconstitutional. At the outset, we note the Supreme Court has held the punishment of death does not invariably violate the constitutional prohibition against cruel and unusual punishment. Gregg v. Georgia (19761, 428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859. Furthermore, the Gregg court indicated that in the abstract, a penalty is not excessive if it does not involve the wanton and unnecessary infliction of pain and is not grossly out of proportion to the severity of the crime. 428 U.S. at 173. Finally, the court stated it must presume the validity of a punishment selected by a democratically elected legislature. 428 U.S at 175. As we stated in State v . McKenzie (1978), Mont . , 581 P.2d 1205, 1228, 35 St.Rep. 759, the United States Supreme Court in its decisions of Gregg; Proffitt v. Florida (1976), 428 U . S . 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; and Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, seems to have established three general criteria which are requisite to a valid scheme for imposing the death penalty. First, there must be at least one statutory aggravating circumstance before a death sentence may be considered. Second, the defendant must be afforded the opportunity to bring before the sentencing body at a separate sentencing hearing any mitigating circumstances relating to the individual defendant. Third, there must be available prompt judicial review of the sentencing decision by a court of statewide jurisdiction, providing a means to promote the evenhanded, rational and consistent imposition of death sentences under the law. A refinement of the second criterion was added by the decision in Lockett v . Ohio (19781, U.S. , 98 S.Ct. 2954, 57 L.Ed.2d 973, that the sentencing body must not be precluded from considering any aspect of the defendant's record or character as a mitigating factor. 57 L.Ed.2d at 980. The death penalty must also not be imposed mandatorily without only consideration of mitigating factors. jt Coleman, 579 P.2d at 741-742, Sections 95-2206.6 and 95-2206.7, R.C.M. 1947, now sections 46-18-301 and -302 MCA provide for a separate sentencing hearing in death penalty cases at which the sentencing court may con- sider any evidence relevant to the sentence and at which the defense may argue against the penalty. Sections 95-2206.8 through 2206.10, R.C.M. 1947, now sections 46-18-303 through-305 MCA enumerate aggravating and mitigating factors to be considered and direct the sentencing court to consider one against the other. Section 95-2206.11, R.C.M. 1947, now section 46-18-306 MCA provides for written findings supporting the determination of the court in cases where a death penalty is imposed. Sections 95-2206.12 through -2206.15, R.C.M. 1947, now sections 46-18-307 through -310.?ICA provide for an expedited review of the death penalty sentence and set forth standards by which this Court must review the sentence. Defendant argues sections 95-2206.8, -2206.9, -2206.10, R.C.M. 1947, now sections46-18-303, -304, -305 MCA do not allow for the proper consideration of mitigating circumstances and in effect impose a mandatory death penalty should one of the statutory aggravating circumstances be found. Defendant's conception of the operation of these provisions is much too restricted and we do not agree that they in effect mandate a death penalty whenever an aggravating circumstance is found. Section 95-2206.10, R.C.M. 1947, now section 46-18-305 MCA, instructs the sentencing court to take into account the aggravating and mitigating circumstances enumerated in sections 95-2206.8 and -2206.9 and to impose a sentence of death "if it finds one or more of the aggravating circum: stances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency." (~mphasis added.) The United States Supreme Court has held the Eighth and Fourteenth Amendments require consideration of the character -25- and record of the individual offender and the circumstances of the particular offense in a determination whether to impose the death penalty. Woodson v. North Carolina (1976), 428 U.S. at 303-305. In Jurek, the Court had before it a statutory scheme that explicitly mentioned only aggravating circumstances, yet the Court found the scheme constitutional in light of the Texas Appeals Court's construction of the scheme requiring consideration of mitigating factors. 428 U.S. at 272-273. Clearly Montana's statutes go farther than those approved in Jurek by explicitly requiring consideration of mitigating circumstances, thus making subjective the sentencing determination as required by Woodson. We do not read sections 95-2206.8 through 95-2206.10, R.C.M. 1947, now sections 46-18-303 through 46-18-305 MCA as mandating the death penalty upon the finding of an aggravating circumstance, but rather as requiring consideration of whatever mitigating circumstances exist to determine if they outweigh the aggravating circumstances found to be present. Defendant argues that Montana's death penalty statutes would be subject to reversal by the U.S. Supreme Court because of that court's decision in Lockett v. Ohio, supra, and its vacation and remand in light of Lockett in Jordan v. Arizona (1978), U.S. , 98 S.Ct. 3138, 57 L.Ed.2d 1157. An examination of these cases leads us to the opposite conclusion. Basically Lockett held a sentencing entity should not be precluded from considering any aspect of a defendant's character or record as a mitigating factor. The Ohio statutes enumerated three mitigating factors to be considered in imposing the death penalty and the Supreme Court read this as limiting the range of factors considered and to exclude other possibly relevant factors. 57 L.Ed.2d at 991-992. Similarly in Jordan, the Arizona scheme enumerated mitigating -26- factors and required their consideration in language identical to Montana's statute. See Jordan v. Arizona (1976), 114 Ariz. 452, 561 P.2d 1224. However, the Arizona enumeration, like the Ohio enumeration is on its face exclusive, thus warranting the vacation of the death penalty and remand in light of Lockett. Montana's statute does not suffer from this defect. Although it enumerates mitigating factors, section 95-2206.9(1) through ( 7 ) , R.C.M. 1947, now section 46-18-304(1) through (7) MCA, it also clearly indicates the sentencing body should consider any other fact existing in mitigation of the penalty. Section 95-2206.9(8), R.C.M. 1947, now section 46-18-304(8) MCA. This inclusive factor was not present in either the Ohio or Arizona scheme. Defendant also contends because he received the death penalty for aggravated kidnapping but only a life sentence for deliberate homicide, the death penalty imposed constitutes the cruel and unusual punishment prohibited by the Eighth Amendment. We do not agree. As was made clear in Williams there is no constitutional requirement for the same or proportionate sentences when the crimes are separate and independent. 358 U.S. at 586. We have indicated above the crimes of deliberate homicide and aggravated kidnapping are separate and independent crimes and defendant's conviction of each violated no double jeopardy protections. Furthermore, the Supreme Court in Gregg, made clear "when a life has been taken by an offender [it cannot be said] the punishment [of death] is invariably disproportionate to the crime." 428 U.S. at 187. The decision of the Court in Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982, is relevant only to crimes for which the penalty has been imposed which did not - result in the loss of a life. Such is not the case here. We have considered defendant's contentions with respect to jury participation in the sentencing procedure and with -27- respect to statutory requirements of a finding of guilty beyond a reasonable doubt in a case where death is a possible penalty and determine these contentions do not alter our conclusion as to the constitutionality of sections 95-2206.6 through 95-2206.15, R.C.M. 1947, now sections 46-18-301 through -310 MCA. This Court therefore concludes that Montana's statutory scheme for imposing the death penalty meets the standards established by the Gregg, Jurek, Proffitt and Woodson decisions. We further conclude the penalty is not cruel and unusual simply because Montana's criminal statutes allow its imposition in this case for the crime of aggravated kidnapping but not for the crime, as committed here, of deliberate homicide. We turn now to defendant's contention that his counsel was not permitted to present arguments against imposition of the death penalty, contrary to the mandate of section 95- 2206.7 now section 46-18-302 MCA, which states in pertinent part: "The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death." Defendant maintains because it appears from the record that the District Court had already determined the sentence prior to the July 10, 1978 date set for pronouncing sentence, defendant was denied the opportunity to present any arguments against the death penalty. This contention is without merit. The District Court issued an order dated June 2, 1978, clearly indicating a sentencing hearing was to be held on June 14, 1978, in accord- ance with sections 95-2206.6 through 95-2206.11, R.C.M. 1947, now sections 46-18-301 through -306 MCA. Those sections indicate what a sentencing court must consider in imposing the death penalty, including specifically that defendant or his counsel be allowed to present argument against the death penalty. Therefore by the June 2, 1978 order, the defendant and his counsel were on notice of the proposed content of that hearing. However, at the sentencing hearing, defendant did not present any evidence of mitigating circumstances other than the presentence report. No statement against the death penalty was made other than to suggest certain pro- cedures to test its constitutional validity before it was in fact imposed. Defendant had his opportunity to speak and did not avail himself of it. Finally, the District Court order of July 31, 1978, denying defendant's petition for rehearing indicates the defendant also did not take advantage of the District Court's offer to accept proposed findings and conclusions from the parties with respect to the sentence. Thus defendant and his counsel had at least two opportunities to submit argument to the Court regarding the death penalty prior to the July 10, 1978 hearing, but did not do so. We have determined thus far that defendant's conviction for aggravated kidnapping violated no constitutional prohibitions against double jeopardy, that the 1977 provisions for imposition of the death penalty are applicable to this defendant and furthermore are constitutional, and that this defendant was given an opportunity to present arguments against the death penalty. We come now to that part of this appeal which constitutes a review of the sentence received by defendant. In conducting this review, we will consider defendant's arguments regarding the proportionality of the penalty received in relation to other factors. The decision in Greg2 compels this Court to determine "whether the punishment of death is disproportionate in relation to the crime for which it is imposed." Gregg, 428 U.S. at 187. In undertaking such a consideration, we are directed by section 95-2206.15, R.C.M. 1947, now section 46-18-310 MCA to consider whether the sentence was imposed as a result of passion, prejudice or other arbitrary factors; whether evidence supports the sentencing court's findings regarding aggravating and mitigating circumstances; and whether the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and defendant. We make such an assessment based upon our independent review of the trial record and transcript, and of the record and transcript of the sentencing hearing. In so doing, we are not usurping the position of the District Court as the primary sentencing entity in Montana's system of criminal jurisprudence (see section 95-2212, R.C.M. 1947, now section 46-18-103 MCA); rather we mean to insure that a penalty as unique in its severity and as irrevocable as the death penalty is not wantonly and freakishly, or arbitrarily and capriciously imposed. See, Furman v. Georgia (1972), 408 U.S. 238, 309-310, 92 S.Ct. 2726, 33 L.Ed.2d 346 (Stewart, J. concurring); Gregg, 428 U.S. at 188-189. Defendant has argued the sentence imposed here was a result of passion, prejudice or other arbitrary factors. We have considered defendant's arguments in this regard and determined that two warrant discussion. Defendant argues the sentences given to Robert Dennis Nank, defendant's accomplice in this crime, when compared to his own reflect the prejudice inherent in the sentencing. Nank, a white man, pled guilty to the offenses of deliberate homicide and solicitation to commit sexual intercourse without consent and received 100 year and 40 year sentences respectively. Defendant argues because he is black, his sentence of death for crimes -30- arising from the same incident as those of Nank's reflects obvious prejudice. We do not agree. Nank and this defendant received similar sentences for similar crimes namely, 100 years for deliberate homicide and 40 and 20 years respectively for the charges stemming from the act of sexual intercourse without consent. However, defendant was also found guilty of aggravated kidnapping, a charge finally dropped against Nank. It is for this crime the death penalty was imposed. Defendant is correct in his assertion the prosecution refused to accept his guilty plea to the same charges to which Nank had pled guilty. Defendant offered to plead guilty to the same charges to which Nank had pled guilty, however he insisted such plea must indicate he was innocent. The prosecution refused to accept this offer and we have previously held the refusal of a conditional offer not to be erroneous. State v. Coleman, 579 P.2d at 744-745. We do not find prejudice in defendant's sentencing simply because of the sentences his accomplice received. Defendant has also argued his race was a factor operating to his prejudice with respect to the imposition of the death penalty. However defendant points to no evidence of this prejudice other than the fact of the sentence and the fact of his race. Defendant has speculated as to various possible factors evidencing such prejudice, but speculation is not sufficient to establish this claim. We have examined the sentence and determine it was not imposed as a result of passion, prejudice or other arbitrary factors, or because of his race. Defendant contends there was evidence of mitigating factors present and the District Court did not give proper consideration to evidence when making its findings, conclusions, and when rendering judgment. The District Court is required by section 95-2206.10, R.C.M. 1947, now section 46-18-305 MCA to consider and compare aggravating and mitigating circumstances and can impose the death penalty only if there exists at least one aggravating circumstance and no mitigating circumstances of sufficient substantiality to call for leniency. Section 95- 2206.10, R.C.M. 1947, now section 46-18-305 MCA. This Court is required upon review of the sentence to determine whether there is evidence to support the District Court's findings and conclusions regarding aggravating and mitigating circum- stances. Defendant admits the District Court properly found and concluded that the aggravating factor found in section 95-2206.8 (71, R.C.M. 1947, now section 46-18-303 (7) , MCA (death of the victim of aggravated kidnapping) was present. What we now determine is whether the District Court was correct in its conclusion that there was no evidence of mitigating factors sufficiently substantial to call for leniency. Defendant presented no evidence of mitigating circumstances at the sentencing hearing, though his counsel acknowledged the existence of the presentence investigation report. That report indicated the defendant had no record of criminal activity and had been an accepted member of the community where he lived prior to July 4, 1974, the date of the commission of this crime. The evidence in this case supporting the finding of the aggravating circumstance established that the defendant had been a deliberate, voluntary participant in the kidnapping and subsequent rape and murder of the victim. The evidence further established that the death of the victim occurred after a sexual assault, not in a moment of passion, but over a period of time with the defendant first bludgeoning, then attempting to strangle, then finally drowning the victim in an effort to effectuate a deliberate decision to kill Peggy Harstad. Against the record of this brutal crime, we cannot say that the defendant's lack of prior criminal activity of record is a factor sufficiently substantial to call for leniency. Moreover, the District Court did consider the mitigating circumstance of defendant's -32- lack of a criminal record but concluded this circumstance was offset by evidence that defendant had committed a burglary on the same day the kidnap, rape and homicide occurred. Defendant has argued accomplice Nank's testimony, the source of this evidence, was uncorroborated as to this fact. However, Nank was sufficiently corroborated on other aspects of his testimony and we have so held. Coleman, 579 P.2d at 748. Where an accomplice has been corroborated as to part of his testimony and that testimony has been accepted as truthful, it is proper for the court to infer the accomplice spoke the truth as to all his testimony. State v. Phillips (1953), 127 Mont. 381, 264 P.2d 1009, 1016; Territory v. Corbett (1877), 3 Mont. 50; Roberts v. State (0kla.crim. 1977), 571 P.2d 129, cert.den. 434 U.S. 957, 98 S.Ct. 485, 54 L.Ed.2d 316; People v. Blau (1956), 140 Cal.2d 193, 294 P.2d 1047; State v. Gross (1948), 31 Wash.2d 202, 196 P.2d 297; 22 C.J.S. Criminal Law, S812 (2). See also, State v . Jones (1933), 95 Mont. 317, 26 P.2d 341. We therefore determine the District Court was correct in its conclusion. We now must compare this sentence to those imposed in similar cases to determine whether it was excessive or dis- proportionate to those other sentences. Section 95-2206.15, R.C.M. 1947, now section 46-18-310 MCA. As this is the first time this Court has reviewed a sentence of death under the new statutory scheme, we are obligated to define the scope of our review when considering similar cases. It is clear from the decision in Gregg that the purpose of appellate review in a capital-sentencing system is to serve as "a check against the random or arbitrary imposition of the death penalty." 428 U.S. at 206. (Emphasis added.) This review eliminates the possibility a death sentence will be imposed by the action of an "aberrant" sentencing entity. Gregg, supra. The Georgia Supreme Court, construing language identical to that in our own statutes, has stated in considering similar cases: ". . . this court is not required to determine that less than a death sentence was never imposed in a case with some similar characteristics. On the contrary, we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases through- out the state the death penalty has been imposed generally and not 'wantonly and freakishly' imposed as stated by Justice Stewart in his concurring opinion in [Furman, supra] . " Moore v. State (1975), 233 Ga. 861, 213 S.E.2d 829, 832 (cited with approval in Gregg, 428 U.S. at 205). (Emphasis added.) The emphasis in both Gregg and Moore is on the imposition of the penalty, not upon the subsequent outcome of any appeal from that imposition. See also, Jarrell v . State (1975), 234 Ga. 410, 216 S.E.2d 258; Gregg v. State (1974), 233 Ga. 117, 210 S.E.2d 659. Indeed, Georgia has indicated it will consider cases where the penalty has been imposed by the jury but vacated on appeal for reasons not material to the sentence. Stanley v. State (1977), 240 Ga. 341, 241 ~ . ~ , 2 d 173, 180. Therefore, we conclude in fulfilling our duty to compare "similar cases" we may include for comparison similar cases where the sentence has been imposed by the District Court, even though the sentence has been vacated on appeal. Of course, such vacation must not have been predicated upon the sentencing court's acting in a manner contrary to the standards set forth in section 95-2206.15, R.C.M. 1947, now section 46-18-310 MCA, nor have resulted in a complete dismissal of the cause. Furthermore, based upon Gregg, 428 at U.S. at 204-206, and Proffitt, 428 U.S./258-259, we determine we need not examine every similar case whether appealed or not, rather we need only examine those cases where after conviction the death penalty could have been or was imposed that have reached our attention through the appellate process. Because it is extremely rare that a defendant would acquiesce in a death sentence, we believe this procedure will insure we have a more than adequate representation of "similar cases." We will thus consider cases where the defendant has been charged with kidnapping and murder of the victim of the kidnapping and where the defendant has been charged with aggravated kidnapping where the victim has been killed. A complicating factor in our review of similar cases is that the last hanging of a criminal defendant in Montana occurred in 1943. In the following quarter of a century, although several heinous murders occurred, the death penalty was assessed only a few times by District Courts. During that period the sentencing entity had unfettered and unguided discretion with respect to imposition of the death penalty. Judicial and legislative attitudes have changed, however, and in the last six to eight years, death penalty revisions have been enacted and such penalties imposed, spurred perhaps by the growing incidence of such serious crimes. Moreover, the crime of aggravated kidnapping has been a part of our statutory law only since 1973. Any review of cases earlier than this decade is virtually meaningless because the death penalty was not involved unless one goes far back into our state history. There are cases, however, though not large in number, to which we can look for a meaningful comparison. The defendants in State v. Rhodes (1974), 164 Mont. 455, 524 P.2d 1095, were charged with and convicted of first-degree murder, kidnapping, and robbery. The defendants had escaped from jail in Idaho, kidnapped Donald Kalberg in Montana, who was later found shot to death near Forsyth, Montana, and were later apprehended in Tennessee after kidnapping one other person. The evidence was clear that the defendants -35- had committed the kidnapping and the "vicious, wanton, cold- blooded murder of Donald Kalberg." 524 P.2d at 1097. The District Court sentenced the defendants to death for the murder charge, and to the maximum penalty allowable for kidnapping, 10 years imprisonment. The sentence of the court for the murder charge was vacated by this Court as a result of the decision in Furman. It was not vacated for - actions by the District Court contrary to the standards contained in section 95-2206.15, R.C.M. 1947, now section 46-18-310 MCA, nor were the charges dismissed by this Court. 524 P.2d at 1098. The defendant in State v . McKenzie (1978), Mont . , 581 P.2d 1205, 35 St.Rep. 759, was charged with deliberate homicide and aggravated kidnapping as a result of the bludgeoning death of Lana Harding. The District Court imposed the death penalty for both offenses and this Court affirmed following remand from the United States Supreme Court. 581 P.2d at 1235. The victim was found draped over a grain drill, partially nude, with a rope tied around her neck, and severely beaten about the head and body. 581 P.2d at 1210. Death had been caused by the severe blows. These are the convictions that we can construe as "similar cases". We note that it is only since 1973 that the death penalty could be imposed for aggravated kidnapping where the victim has been killed. In the case of McKenzie, where that circumstance has occurred, the penalty has been invoked. We also note Montana is a sparsely populated state and crimes of such violent nature do not occur as frequently here as they do in more densely populated states. We conclude the penalty of death imposed against this defendant for the aggravated kidnapping of Peggy Harstad which resulted in her death, was not excessive or disproportionate to the -36- penalty imposed in similar cases in this state. Defendant has argued that his sentence is dispro- - portionate and excessive when compared to the sentences received by his accomplice, Robert Dennis Nank. We have already distinguished the situations of these two persons above. Nank was sentenced only for deliberate homicide and solicitation to commit sexual intercourse without consent, the charge of aggravating kidnapping having been dismissed in return for his guilty plea and testimony at defendant's trial. Therefore, defendant's sentence of death for aggravated kidnapping is not excessive or disproportionate when compared to the sentences received by Robert Dennis Nank. Leniency in one case does not invalidate the death penalty in others. Gregg, 428 U.S. at 199, 224-226. We come to the final issue in this appeal: whether upon review of the sentence imposed, this Court must reconsider issues regarding the merits of the cause raised and disposed of in the first Coleman appeal. We conclude we do not. Our examination of the record to review the imposition of the death penalty under the provisions of sections 95-2206.12 to 95-2206.15, R.C.M. 1947, now sections 46-18-307 to -310 MCA, is not to reconsider determinations of merits already made, but to determine whether in light of such determinations the sentence has been equitably imposed. Our prior determination of an issue constitutes a final adjudication of that issue. Belgrade State Bank v . Swainson (1978) , Mont . I 578 P.2d 1166, 35 St.Rep. 113 (per curiam). Defendant has argued the first Coleman decision as to certain issues was conditioned upon finding the death penalty invalid, thus a finding now that the penalty was validly imposed necessitates a reconsideration of those issues. An or disproportionate to the penalty imposed in similar cases in this state. Defendant has argued that his sentence is disproportionate - and excessive when compared to the sentences received by his accomplice, Robert Dennis Nank. We have already distinguished the situations of these two persons above. Nank was sentenced only for deliberate homicide and solicitation to commit sexual intercourse without consent, the charge of aggravating kidnapping having been dismissed in return for his guilty plea and testimony at defendant's trial. Therefore, defendant's sentence of death for aggravated kidnapping is not excessive or disproportionate when compared to the sentences received by Robert Dennis Nank. Leniency in one case does not invalidate the death penalty in others. Gregg, 428 U.S. at 199, 224- 226. We come to the final issue in this appeal: whether upon review of the sentence imposed, this Court must reconsider issues regarding the merits of the cause raised and disposed of in the first Coleman appeal. We conclude we do not. Our examination of the record to review the imposition of the death penalty under the provisions of sections 95-2206.12 to 95-2206.15, R.C.M. 1947, now sections 46-18-307 to-310 MCA, is not to reconsider determinations of merits already made, but to determine whether in light of such determinations the sentence has been equitably imposed. Our prior determination of an issue constitutes a final adjudication of that issue. Belgrade State Bank v. Swainson (1978), Mont . I 578 P.2d 1166, 35 St.Rep. 113 (per curiam) . Defendant has argued the first Coleman decision as to certain issues was conditioned upon finding the death penalty invalid, thus a finding now that the penalty was validly imposed necessitates a reconsideration of those issues. An examination of the first Coleman opinion reveals the holdings of this Court which defendant alleges were dependent upon finding the death penalty constitutionally invalid, were made clearly without such dependency. Coleman, 579 P.2d at 745, 749, 752. Judgment of the District Court is affirmed, except that the cause is remanded to the District Court for the purpose of resetting the execution date of the defendant, Dewey Eugene Coleman; said execution to be supervised by the sheriff of the county where he was tried. Section 46-19- 103(3) MCA. If defendant or defendant's counsel should wish, he may submit a list of any other similar Montana cases that he may request us to review for comparative purposes, within the time provided for and as a part of any petition for rehearing in this cause. We Concur: . Chief Justice / Justices / Mr. Justice Daniel J. Shea will file his dissent later. No. 14448 ______ .............................................. STATE OF MONTANA, Plaintiff and respondent, VS. DEWEY EUGENE COLEMAN, Defendant and appellant. DISSENT OF MR. JUSTICE DANIEL J. SHEA ELERK OF SUTREFAE C O U m =ATE OF MONTANA Mr. Justice Daniel J. Shea dissenting: I would refuse to allow the death penalty to be imposed. In its first decision, this Court clearly indicated that the death penalty was not to be considered at the resentencing. This Court, moreover, has reached unfairly into application of retroactive statutes to permit the death penalty to again be imposed. Finally, assuming arguendo that the sentencing court could properly apply the 1977 death penalty statutes to the 1974 crimes, it did not properly apply the law, nor did this Court properly perform its mandatory review duties under the 1977 statutes. After defendant had entered his pleas of not guilty to count I (deliberate homicide), count I1 (aggravated kidnapping), and count I11 (sexual intercourse without consent), the court, of its own motion amended the aggravated kidnapping charge by adding the following language: "the alleged actions of - the defendant resulted in the death of Peggy Lee Earstad." ----- - Defendant objected to such amendment, but to no avail. The case was then tried and submitted to the jury on all three counts, and the jury was given general verdict forms on each count. But the trial court, because of its own amend- ment of count 11, also submitted a special verdict or special interrogatory to the jury asking it if the aggravated kidnapping "resulted in the death of Peggy Lee Harstad." The jury, in addition to returning guilty verdicts on all three counts, answered the special interrogatory in the affirmative that the aggravated kidnapping "resulted in the death of Peggy Lee Harstad." Defendant also had objected to the submission of the special interrogatory to the jury. In the first Coleman appeal, this Court ruled against the defendant on both issues. As to the trial court's amendment of count 11, after defendant's plea, and over defendant's objection, this Court held that the amendment was one of form rather than substance because defendant was at all times aware that the State was seeking the death penalty. (Coleman, 579 P.2d at 732) However, this Court then stated the crux of its holding in relation to the amended information: "In any event, no legal prejudice resulted from the amendment of count I1 in the light of our holding that Montana's death penalty statute as it existed in 1975 is unconstitutional." 579 P.2d at 746. This language clearly indicates that this Court did not believe that upon the case being remanded to the District Court for resentencing that the death penalty would be reimposed by applying the 1977 statutes to the 1974 crimes. Moreover, the language of this Court's opinion in the first Coleman appeal concerning the submission of the special interrogatory to the jury leads to the same conclusion. This Court ruled that the submission of the special interrogatory to the jury did not undermine the general verdicts also submitted to the jury. 579 P.2d at 751. But again, the crux of this Court's holding on this issue, is stated as follows: "In any event, our holding on Montana's death penalty statutes renders this specification of error nonprejudicial." 759 P.2d at 751. These holdings on the questions of the amended information and submission of the special interrogatory to the jury, are a clear indication that this Court did not believe that defendant would be subject to the death penalty upon his resentencing. These holdings, moreover, are a clear directive to the District Court that capital punishment was to be eliminated from its consideration. But, of course, it was the desire of the District Court to inflict the death penalty if there was any way possible, and therefore it chose to interpret this decision otherwise. In its findings, conclusions, judgment, and order of death, dated July 14, 1978, the District Court summarized what it considered to be the essence of this Court's holding in overturning the first death sentence. (I note parenthetically, that its summary was a foregone conclusion, for on June 2, 1978, the same day as the remittitur of this Court arrived at the District Court, it sent out an order to counsel for both sides that sentencing could be carried out pursuant to the 1977 death penalty statutes.) In any event its legal position is revealing: ". . . The Court limited its decision on overturning the death penalty to the absence of procedural requirements allowing the trial court to consider any mitigating circumstances in its imposition of a penalty under the un- constitutional death penalty statute.. . . ". . . The statute as amended was declared unconstitutional in this case, -- but the Supreme Court in remandin for resentencing did not s p e c i f = a d r = f - - the -- trial c o E e l d or could not impose the death penalty. Coleman - - -- argues that since the mandatory statute was declared unconstitutional, Coleman cannot be sentenced to death under laws enacted after his conviction. (Emphasis added.) "The Supreme Court at page 11 of its opinion indicates that if the death penalty had been imposed under proper procedural safeguards, the sentence would have been upheld. The Court states: "'To have a constitutionally valid death penalty, the United States Supreme Court has established certain necessary procedures. (Citations.) None of these required procedures are present in Montana's death penalty statute as it existed in 1975, nor were they provided otherwise --- in this case. (Emphasis added.) Thus defendant's death sentence cannot stand.' (Emphasis is the trial court's.) "The emphasized language strongly suggests -- that if the sentencing court had observed procedural reauirements declared bv recent U.S. Supreme Court degisions, the death pzalty would -- haveL been upheld notwithstanding -- that Montana's mandatory -- law was unconstitutional. (Emphasis added.) "The later enactment of sections 95-2206.6, et seq., spelling out the procedure, should not operate to take away the court's power to impose the death penalty under proper procedural safeguards. The death penalty is an operative fact under the B"lntana Constitution and section 95-5-303, R.C.M. 1947, and are not to be ignored because a procedurally effective statute is abrogated and other statutes are substituted therefor. As argued by the State from the Dobbert case, the circumstance that the defendant is atforded greater procedural protection by the trial court's utilization of sections 95- 2206.6, et seq., does not fall within the prohibition of ex post facto laws. "In summary, the trial court in now pronouncing sentence is in a position to utilize the interim developments in sentencing procedure as reflected in recent U.S. Supreme Court decisions and the Montana statutes enacted in response thereto." The court then listed its findings and conclusions and entered its order sentencing defendant to death for the second time . The sentencing court obviously milked the majority decision as much as it could in order to arrive at a decision that would allow a reconsideration of the death penalty. True, this Court did not explicitly direct the District Court to eliminate the death penalty from its consideration. But a fair reading of our decision on the questions of the amended information and the special jury interrogatory leads to that conclusion. The sentencing court concludes its original death penalty would have been approved if only it had the foresight to allow the defendant to present mitigating circumstances at a presentence hearing. Not only is this a misreading of the opinion by the ~istrict Court, but it is clear that such procedure would not have been approved. For the statutes themselves must provide for the presentencing hearing permitting evidence of aggravation and mitigation. As I covered the statutory requirements in my dissent in State v. ~cKenzie (1978), Mont . , 587 P.2d 1205, 1266-1277, 35 St.Rep. 759, it would serve no useful purpose to again set forth these requirements as mandated by the United States Supreme Court. It is sufficient to say that the District Court is sadly mistaken. It is equally clear that the trial court was interested only in applying Dobbert to the facts of this case and that it did not consider either the ex post facto provision in the Montana Constitution, or the statutory directive of section 12-201, R.C.M. 1947, which prohibits any retroactive application of a statute unless it is specifically provided for in the statute. I must admit, however, that I am even more amazed by the majority's application of these laws to the facts of this case. It is a clear demonstration of what can happen when the law is not allowed to get in the way of the result. It is unfortunate indeed that the majority has chosen to join lock step with the United States Supreme Court, and not only in interpreting the United States Constitution. The only reference the majority makes to the ex post facto provision of our own Constitution is where it sets forth the issue raised by the defendant: "The next issue with which we are confronted is whether -- ex post facto provisions in the federal and state constitutions or the statutorily codified rule of construction against retroactivity (section 12-201, R.C.M. 1947, now section 1-2-109 IICA) prevent application of the sentencing statutes enacted in 1977 to this defendant. . . " (No. 14448, State v. Coleman, decided 6/20/1979.) The statement of the issue in this way constitutes a fore- warning that all issues are going to be decided by one standard --the standard set forth by the United States Supreme Court in Dobbert v. Florida (1977), 422 U.S. 282, 92 S.Ct. 2290, 53 L.Ed.2d 344. Why this Court consistently refuses to give more substantive meaning and protection to our own constitutional provisions as opposed to that given by the United States Con- stitution, I cannot understand. The United States Supreme Court is not the sole repository of all wisdom. Nor can it be the final authority on the interpretation of the Montana Constitution. -43- Though we must accord all people every right to which they are entitled under the United States Constitution, there is nothing which prevents us from according them even more fundamental protection under our own Constitution. Article 11, Section 21, 1972 Montana Constitution provides: "No ex post facto law nor any law impairing the =ligations ofcontracts, or making any irrevocable grant of special privileges, franchises, or immunities, -- shall be - passed by the legislature." (Emphasis added.) -- Under this provision, I would hold that no law passed by the legislature after the commission of the crime, whether denominated substantive or merely procedural or ameliorative can be applied to permit a sentence of death, if the statutes applicable at the time of the commission of the crimes, were constitutionally deficient, and hence would not permit the imposition of the death penalty. The frailties of mankind (and judges must be included in this reference) are such that a man's life should not be subject to the hair-splitting mischief inherent in interpreting a retroactive application of the law. In the first Coleman decision, we declared the provision calling for mandatory execution in the event of a conviction of the crime of aggravated kidnapping leading to the victim's death, to be unconstitutional. 579 P.2d at 741-742. Under the statutes then existing, defendant could not constitutionally be sentenced to death. For this reason, I would declare that the 1977 death penalty statutes (however they be denominated-- substantive, procedural, ameliorative, or whatever) could not constitutionally be applied to defendant. Accordingly, the trial court had no authority to again sentence defendant to death. Nor do I believe that there is any excuse of the majority's failure to give the defendant the benefit of a doubt in inter- preting section 12-201, R.C.M. 1947 (now section 1-2-109 MCA). That section falls within the chapter containing the rules of construction which are to apply to all statutes - in the State of Montana. Section 12-201 provides: "No law contained in any of the codes or omertatutes in ~ o n E a is retroactive unless expressly so declared." (Emphasis - added. ) The only reasonable interpretation of this statute is that the 1977 death penalty statutes can apply to the defendant only if the legislature expressly declared that these statutes were to have retroactive effect. Not only is there a total lack of express declaration that the 1977 death penalty statutes are to be retroactively applied, but there is no room even to imply that the legislature intended them to have a retroactive effect. (See sections 95-2206.6 through 95-2206.15, R.C.M. 1947, now sections 46-18-301 through 46-18-310 MCA). The statutes contain no directive for retroactive application. This statute prohibiting retroactive application of legislative acts does not distinguish between retroactive application of a procedural statute or retroactive application of a statute that is considered substantive. It prohibits retroactive application of - any statute--period--unless it is "expressly declared" to have retroactive application. This hair-splitting business of distinguishing between a substantive law and a procedural law must stop when a man's life literally hangs in the balance. This Court has also ignored fundamental case law previously adopted by this Court in interpreting section 12-201. Because it is a rule of construction which applies to all statutes enacted by the legislature, it will not be given retroactive effect unless expressly so declared. State ex rel. Whitlock v. State Board of Equalization (1935), 100 Mont. 72, 84, 45 -45- P.2d 684. This holding does nothing more than to give full meaning to the express language of section 12-201. This Court also held that statutes are intended to operate prospectively only, in the absence of a contrary intention clearly expressed in the statutes, and that every reasonable doubt is resolved against a retroactive application of a statute. State ex rel. Mills v. Dixon (1923), 68 Mont. 526, 528, 219 P. 637. The death penalty statutes enacted in 1977 were not expressly declared by the legislature to be retroactive in application. The statutes are silent. It is presumed therefore, that they were intended to operate only prospectively. Other than an emasculation of the law there is no way that this Court should have declared them, in essence by judicial fiat, to operate retroactively. Section 12-201 prohibits such inter- pretation; Whitlock, supra, solidifies this statute; and Dixon, supra, clearly establishes that every reasonable doubt should be resolved against retroactive application of a statute. If there are not legitimate policy reasons in a death penalty case to resolve a reasonable doubt against retroactive application in order to save a man's life, I cannot conceive of another instance where such policy reasons would exist. By suspending the operation and effect of section 12-201, this Court has inflicted a grave injustice upon the defendant--one that can never be rectified. There is, moreover, another statute which this Court, as well as the trial court, totally ignored in reaching its decision. Section 43-507, R.C.M. 1947 (now section 1-2-201(1) MCA) provides : "Every statute, unless a different time is prescribed therein, takes effect on the first day of July of the year of its passage and approval." The death penalty statutes (sections 95-2206.6 through 95-2206.15) provide no time as an effective date. Accordingly, they were effective as of July 1, 1977. Though the majority ignored this statute, it does appear that somehow they would have avoided its application to the defendant's case. But, at least they owed the defendant an explanation. Conceding arguendo that it was proper to apply the 1977 death penalty statutes to the 1974 crimes, it is still abundantly clear that the trial court failed to follow the statutes, and that this Court failed to fulfill its statutory functions under the mandatory review provisions of the statutes. For these reasons also, the death penalty should not be allowed to stand. To place this second sentencing in proper perspective with the first sentencing, I digress to the circumstances surrounding the first trial insofar as they are pertinent to the imposition of the first death sentence. The aggravated kidnapping statutes called for the mandatory infliction of the death penalty if the victim died as a result of the kidnapping. (Sections 94-5-303, and 94-5-304, R. C .!I. 1947.) Originally the State did not allege in Count I1 of the information (the aggravated kidnapping charge) that the victim died as a result of the kidnapping. But after the defendant had entered his plea, and over defendant's objection, the trial court, on its own motion, amended count I1 to allege also that the victim died as a result of the kidnapping. As so often is the case, this Court does not know why the trial court did this, but it appears that it believed that the lack of this allegation would be fatal to the imposition of 3 death penalty if defendant was convicted of aggravated kidnapping. The trial court followed up this allegation by submitting a special interrogatory to the jury, asking it to determine whether -47- or not the victim died as a result of the kidnapping. In addition to returning a general verdict of guilty to the charge of aggravated kidnapping, the jury answered the special interrogatory in the affirmative--that is, that the victim did die as a result of the kidnapping. The stage was then set for the imposition of the mandatory death penalty. Based on the amended information and the jury's answer to the special interrogatory, the trial court, without ordering a presentence investigation, and without holding a presentence hearing to permit presentation of evidence as to aggravation and mitigation, sentenced the defendant to death. I add here that the then existing statutes did not require a presentence investigation or a presentence hearing. Indeed, it would have been useless to do so, because the statutes required the im- position of the death penalty, and pursuant to the amended information and the jury's answer to the special interrogatory, all that remained was for the court to impose the required death penalty. It was this imposition of the mandatory death sentence that this Court declared unconstitutional in the first Coleman appeal. 579 P.2d at 741-742. It is fair to say that the extraordinary activities of the trial court in amending the information and in submitting the special interrogatory to the jury, suggest at a minimum that he had more than an ordinary interest in setting the stage for the eventual imposition of the death penalty in the event of a conviction on the count of aggravated kidnapping. This then, was the state of mind of the sentencing judge as he again prepared to sentence the defendant after the first Coleman appeal. It is revealing to set forth the background of how the sentencing judge set up the second imposition of the death penalty for the defendant. This Court decided the first -48- Coleman case on April 26, 1978, and the petition for rehearing was not turned down until May 30, 1978. But in the meantime, the sentencing court was active. On May 2, 1978, he entered an order (with copies sent to all counsel of record) that defendant was to be immediately returned to the Custer County jail and held there pending presentencing investigation and judge sentencing. The sentencing/simply did not bother to wait until the case had been returned to him after the denial of defendant's petition for rehearing. On June 2, 1978, the presentence investigation report was submitted to the court with the notation in the report that the sentencing judge "is still awaiting some type of legal papers from the Supreme Court and that sentencing will not be set until such papers arrive." Apparently the papers arrived that same day, for on June 2, 1978, the sentencing court sent out an order to all counsel of record that the sentencing hearing would take place on June 14, 1978 in the Custer County Courthouse, and that the hearing would be conducted "in - accordance with -- Sec. 95-2066.6 through 95-2206.11 R.C.M. - - 1947, as amended" (the 1977 death penalty statutes). It appears from this that the prosecution had kept the sentencing judge well abreast of the developing law from the United States Supreme Court, namely, Dobbert v. Florida (1977), 432 U.S. 282, 92 S.Ct. 2290, 53 L.Ed.2d 344. I have previously discussed in this dissent the point that the trial court ignored the ex post facto provision in the Montana Constitution, and section 12-201 of our statutes. With the decision of the sentencing court from the inception that it would apply the 1977 death penalty statutes, we are now in a position to examine those statutes, sections 95-2206.6 through 95-2206.15, R.C.M. 1947, now sections 46-18- 301 through 46-18-310 MCA) and sections 94-5-102 and 94-5-303 (now sections 45-5-102 and 45-5-303 b I C A ) . Under the 1977 statutes, sections 95-2206.6, provides that if there is a conviction in which the death penalty may potentially be imposed, the sentencing judge must conduct a mandatory presentence hearing to determine if any statutory aggravating circumstances exist under section 95-2206.8 and if any statutory mitigating circumstances exist under section 95-2206.9. The scope of the hearing is set forth in section "Sentencing hearing--evidence --- that may be received. In the sentencing hearing, evidence may be presented as to any matter the court considers relevant to the sentence, including but not limited to the nature and circumstances of the crime, the defendant's character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court considers to have probative force may be received regardless of its admissibility under the rules governing admission of evidence at criminal trials. Evidence admitted at the trial relating to such aggravating or mitigating circumstances shall be considered without reintroducing it at the sentencing proceeding. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death." I note in this respect, and I will develop this point later, that an evidentiary hearing did not in fact take place. The State presented no evidence in aggravation, apparently content that the sentencing court would later find that the victim died as a result of the kidnapping. But neither did the defendant present any evidence. He did not take the witness stand, nor did anyone else in his behalf, nor was any documentary evidence presented in his behalf. Other than the trial transcript, the only sentencing background the court had was contained in the presentence investigation report. The statutory aggravating circumstances are set forth in section 95-2206.8: "Aggravating circumstances. Aggravating cir- cumstances are any of the following: "(1) The offense was deliberate homicide and was committed by a person serving a sentence of imprisonment in the state prison. "(2) The offense was deliberate homicide and was committed by a defendant who had been previously convicted of another deliberate homicide. "(3) The offense was deliberate homicide and was committed by means of torture. "(4) The offense was deliberate homicide and was committed by a person lying in wait or ambush. "(5) The offense was deliberate homicide and was committed as a part of a scheme or operation which, if completed, would result in the death of more than one person. "(6) The offense was deliberate as defined in subsection (1) (a) of 94-5-102 and the victim was a peace officer killed while performing his duty. " (7) The offense was aggravated kidnapping which resulted -- in the death of the victim." (Emphasis -- added. ) For purposes of this case only, subsection (7) (which is emphasized) is important. In specific written findings of fact as to subsections (1) through (6) the sentencing court properly found that the aggravating circumstance did not apply to the facts of this case. The statutory mitigating circumstances are set forth in section 95-2206.9: "Mitigating circumstances. Mitigating circum- stances are any of the following: "(1) The defendant has no significant history ofrior criminal activity. "(2) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. " ( 3 ) The defendant acted under extreme duress or under the substantial domination of another person. "(4) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. "(5) The victim was a participant in the defendant's conduct or consented to the act. "(6) The defendant was an accomplice in an offense committed by another person, and his participation was relatively minor. " (7) The defendant, at the time of the commission of the crime, was less than 18 years of age. "(8) Any - other fact exists in mitigation -- of the penalty." (Emphasis added.)- For purposes of this case only subsections (1) and (8) (both emphasized) are important. The trial court properly found an absence of mitigating circumstances listed in subsections (2) through (7) and entered specific findings as to each negating the existence of the mitigating circumstance. But as I will later develop, the sentencing court totally misapplied the law in relation to subsection (I), and failed to negate the existence of "any other fact exists in mitigation of the penalty" as provided for in subsection (8). Explicit findings as to the existence or nonexistence of aggravating circumstances or mitigating circumstances, are mandated by section 95-2206.11: "Specific written _ _ _ _ _ _ - - findings of fact. In each case in which the court imposes the death sentence, the determination of the court shall be supported bv specific written findings of-fact as to the A - existence or nonexistence of each of the circum- stances setforth in 95-2206.8 and 95-2206.9. The written findings of fact shall be substantiated by -- the records of the trial andthe sentencing proceeding." (Emphasis added.) The statute supposedly enacted to guide the sentencing court in its decision as to whether or not to impose the death penalty, section 95-2206.10 provides: "Consideration of -. aggravating and mitigating factors - in deEermlning sentence. I n determining whether to impose a sentence of death or imprison- ment, the court shall take into account the aggravating and mitigating circumstances enumerated in 95-2206.8 and 95-2206.9 and shall impose a sentence of death if it finds one or more of the aggravatingcircum- - - --- stances and finds that there are no mitigating c i r c u m s t ~ e ~ f i c i e n i e n t l y u b s t a n t i a l -- to call for leniency. If the court does not impose a sentence of death and one of the aggravating circum- stances listed in 95-2206.8 exists, the court may impose a sentence of imprisonment for life or for any term authoried by the statute defining the offense." (Emphasis added.) Under this statute, a death penalty cannot be imposed unless there is at least one aggravating factor. But if there is at least one such aggravating factor, it does not require the sentencing court to give any weight at all to mitigating factors. Rather, the sentencing court, in its infinite wisdom, and untrammeled discretion, is permitted to sentence to death if he finds at least one aggravating factor and a thousand mitigating factors. All he must state is that the mitigating factors are "not sufficiently substantial to call for leniency." Under this statute, a defendant is totally at the mercy of the sentencing court as to what weight, if any, it chooses to give to mitigating factors. The only factors which may save a defendant from the death penalty are the identity of the sentencing judge and his personal attitude about whether or not he should impose the death penalty. This is worse than a game of Russion roulette for the defendant does not even get a chance to turn the cylinder to see which judge he draws. In any event, the above is the statutory scheme under which the judge entered his findings, conclusions, order and judgment, on July 10, 1978. But before discussing his findings, conclusions, order and judgment, the facts surrounding the commission of the crimes are important for several reasons, but primarily for the reason that they show the deep involvement of defendant's accomplice, Robert Dennis Nank, in every facet of the crimes, and yet Nank has avoided the death penalty. The facts I state here are taken from the presentence report filed on June 2, 1978, which were in turn taken from the State's brief on appeal, filed November 17, 1977, with this Court. I quote verbatim from the presentence investigation report: "On July 4, 1974 he and Dewey Coleman were sitting in a park in Roundup, Montana. They were destitute financially and made - - a decision to burglarize a home in Roundup where they sold several rifles; -- - - - and, at the Roundup airport buried the same. - -- -- [As I will later demonstrate, the trial court improperly relied on this in sentencing Coleman to death.] They decided that, because they were destitute financially and low on gas for the motorcycle on which they were traveling, it would be necessary for them to burglarize someone else and to kill them to destroy the evidence. As they proceeded east from Roundup to Forsyth, Nank's motorcycle ran out of gas approximately five miles west of Vananda, Montana. They attempted hitchhiking, but were refused by an elderly couple who stopped to determine what was the matter. This occurred about 10:OO o'clock P.M. Shortly thereafter, Miss Harstad offered the pair a ride and continued easterly down U.S. 12. At a location about nine miles west of Forsyth where Nank, sitting next to Miss Harstad, turned off the key for the ignition and steered the car to a stop. Nank held the girl while Dewey Coleman drove the vehicle back to their motorcycle which was out of gas. They picked up their motor- cycle helmets and a rope used to tie luggage to the motorcycle and again proceeded east down U.S. 12. North of Vananda, about a half mile from the highway, the two attempted sexual intercourse with Miss Harstad. Despite her pleas Coleman had inter- course with her. She was in menstruation at the time. Nank also attempted intercourse, but failed because of a lack of penal erection. Nank did assist in holding Miss Harstad while Coleman had intercourse and also gratified his desire to stroke Miss Harstad's feet. Following sexual intercourse they tied Miss Harstad with a rope and traveled in her vehicle with her through Forsyth to Rosebud, Montana and returned west from Rosebud to Forsyth. West of Forsyth they crossed a bridge over the Yellowstone River and proceeded again east down a dead end road on the north side of the river. Nank carried the girl, now clothed, from the car towards an abandoned Milwaukee Railroad Depot and across the railroad tracks. While Nank held the girl over his shoulder, Coleman came from behind swinging his silver motorcycle helmet by the chin strap and crashed it against Miss Harstad's skull. Nank dropped her to the ground and Coleman proceeded to hit Miss Harstad several more times with the helmet. Since she was not dead, the two attempted to strangle her with a rope. Then Coleman alone attempted strangulation. Thinking she was dead, the two carried her down the embankment in a seclusion of trees and heavy brush and threw her into a puddle of water which was caused by the overflowing Yellowsthne River. However, the young lady had not expired and she stood up in the water. At this point, both Nank and Coleman went into the water. Coleman -- held her lower --- body and Nank held her head under water until she was drowned." --- -- (Emphasis added.) So far as the record is concerned, it is from these facts only that the sentencing court again imposed the death sentence. The findings and conclusions are devoid of any other factors which entered into the decision of the sentencing court . What did happen at the June 14, 1978 sentencing hearing? The State presented no evidence in aggravation; and the defendant did not testify himself or present other testimony, or present documentary evidence. The prosecution tried un- successfully to call the defendant to the witness stand. Before the conclusion of the proceedings on that day, however, the presentence investigation report was formally filed by the sentencing court and made an official part of the record. Each party was given an opportunity to examine the parole and probation officer who prepared the report, but each declined. The prosecuting attorney formally declared that,"I have read the report and I don't have any objection to any of the material in the report." During this hearing, the court commented on one portion of the presentence investigation report in relation to defendant's criminal background, and I will later develop the importance of this comment in relation to the eventual findings of the sentencing court: ". . . The significant part of it [the presentence investigation report] relative to mitigating circumstances, is that the defendant has never been convicted -- of any felony prior to this -- charge." (Emphasis added.) Being that neither party presented any formal evidence, it was also agreed that the parties would present to the court through their briefs what they considered to be aggravating and mitigating circumstances, respectively. It appeared that the prosecutor would also present proposed findings and conclusions, -55- but that the defendant did not indicate whether or not he would present proposed findings and conclusions. There is no question, however, that he knew he was given the right to do so. The June 14, 1978 presentencing hearing was then adjourned. The next time the parties would again meet in court was July 10, 1978 when the sentencing judge came to court with his sentence of death in hand. This Court does not have the briefs that were exchanged between the parties and the court from the time of the June 14, 1978 presentence hearing and the date set for the sentencing. Nor do we have the proposed findings and conclusions submitted to the court by the prosecutor. On July 10, 1978, the judge came to court with findings, conclusions, judgment, and order of execution, already prepared. As a formality, however, the sentencing court permitted defense counsel (and the prosecutor) to make final arguments against and for the death penalty. Insofar as the defendant is concerned, this situation can be likened to permitting final arguments to a jury only after the jury has returned with its verdict. Defense counsel did ask the sentencing court to consider matters contained in the presentence investigation report, including the fact that defendant did not have a previous criminal record before the particular crimes here, and that the crimes committed were totally inconsistent with his previous behavior as established by residents in Great Falls, Montana, who had known defendant for some time. He also asked the court for leniency because Nank, who was an admitted accomplice of the defendant, had committed exactly the same crimes as defendant, but through plea bargaining and turning state's evidence, was not given the death penalty. He also argued that defendant was not being treated equally by either the prosecutor or the court because he was black, and argued that the judge's orchestration of certain matters during the first trial showed his prejudice. Moreover, defendant again maintained his innocence of the crimes. It was clear that the clean record of the defendant before the crimes involved here, bothered the sentencing court. Not that the court wanted to show leniency because of the clean record, but that the court did not know how to handle the matter. Eventually, the court rationalized defendant's situation to the fact that he had just never been convicted of any previous felony: ". . . -- The one mitigating circumstance is that the defendant has not prior to thistime -- ------ been convicted of a felony, but in view of the - - ------ enormity of the crime committed, and the Court's teeling thatthis one c i r c u m s t a n c ~ o ~ n o t --- -- overcome the aggravated circumstances, I have made findings to this effect, written findings as required by law. Also I have made conclusions and judgment which have been furnished to the defendant and the state at this time. and I will only at this time read the Court's conclusions and judgment . . ." (Emphasis added.) After the sentencing court made this statement, it stated for the record that it would not read its written findings into the record, but would simply read its conclusions and judgment into the record--whereupon defendant was sentenced to death. Before appealing to this Court, defendant petitioned the sentencing court for a reconsideration of the sentence, but was turned down. Automatic appeal to this Court followed, pursuant to the provisions of sections 95-2206.12 through 95-2206.15 (now sections 46-18- 307 through 46-18-310 MCA) . Before discussing some of the crucial issues relating to the sentencing itself, the trial court's memorandum in justification of turning down defendant's petition for reconsideration, is revealing. In this petition, defendant contended, among other things that: defendant had a right to present argument to the sentencing c o u r t before t h e sentence of death, and t h a t t h i s r i g h t was denied because t h e c o u r t already had i t s order of execution prepared when t h e c o u r t f o r m a l i s t i c a l l y allowed defendant's counsel t o make h i s arguments; t h e sentencing c o u r t had f a i l e d t o t a k e t h e presentence i n v e s t i g a t i o n r e p o r t i n t o account; t h e sentencing c o u r t had i n essence found defendant g u i l t y of previous criminal conduct by r e l y i n g on t h e uncorroborated testimony of Nank t h a t he and defendant had burglarized a home i n Roundup, Montana, and s t o l e some r i f l e s , on t h e same day a s t h e crimes involved here; and t h a t t h e sentencing c o u r t t o t a l l y f a i l e d t o consider t h e favorable treatment given t o Nank who had admitted t h e same crimes f o r which defendant stood convicted. I n i t s J u l y 31, 1978 order denying t h e p e t i t i o n f o r r e - consideration of t h e sentence, t h e t r i a l c o u r t f a i l e d t o mention any of t h e s e arguments, and seemed t o ground i t s order on i t s conclusion t h a t defendant was merely rehashing o l d arguments already presented. But t h e order i s revealing f o r what it says about m i t i g a t i n g circumstances: "A pre-sentence hearing was conducted on June 1 4 , 1978, a t which time defendant and h i s counsel were given an opportunity t o present any matter i n m i t i g a t i o n , but defendant declined t o t a k e t h e witness stand and f a i l e d t o otherwise --- - present any evidence i n mitigation. - "The c o u r t then prepared its f i n d i n q s and conclusions based -- upon t h e aggravating and m i t i g a t i n g c i r - cumstances known t o t h e court. A day f o r sentencing was then s e t , w w h i c h t i m e o u n s e l f o r defendant gave a discourse on m a t t e r s previously presented by b r i e f t o t h e t r i a l c o u r t on t h e motion t o quash, and t o t h e Supreme Court on t h e appeal. "Coleman a t t h e sentencing hearing was given t h e opportunity t o p r e s e n t any m i t i g a t i n g circumstances he might choose, but declined t o do so, which d i s t i n g u i s h e s Lockett from t h e i n s t a n t case. Other than the mention of the Lockett case, the final oral argument of defendant's counsel and the -- petitionrreharing raise no new matter not - previously considered b y theucat the time -- --- of the preparation of the trial's court's findings -- -- and conclusions. "Now, Therefore, It Is Ordered that the petition for rehearing be denied." (Emphasis added.) The undeniable fact is that other than the circumstances of the crimes as divulged by the trial itself, the only informa- tion of record that the sentencing court had before it sentenced defendant to death, was the presentence investigation report. But, the sentencing court totally ignored this report, with the exception of the defendant's criminal background. The presentence investigation report contained the following subject headings: (a) Criminal History; (b) Official Version of Crime and Defendant's Version of Crime; (c) Physical Description and Condition (of the defendant--this section includes references to several psychological tests and profiles of the defendant; (d) Family and Social Background; (e) Educational and Vocational History; (f) Marital History; (g) Military History; (h) Summary and Conclusion. A sentence of death is immediately suspect. when the findings in support of that sentence are entirely devoid of any considerations other than the circumstances of the commission of the crime itself. Not once did the sentencing court refer to the defendant's history or background. It is almost like the sentencing court entered an order for the extermination of an inanimate object, certainly not a living, breathing human being. Since the sentencing court and the majority opinion provide no facts as to defendant's background, I believe it is imperative to do so. I take this background from the only source there is of record, the presentence investigation report. Dewey Coleman is a black man, born October 26, 1946, in Missouri, the son of a boilermaker and a housewife. There were nine brothers and sisters in his family. At the age of fourteen, he ran away from home, but some time later he returned to Missouri. He graduated from high school in 1964. His father died in 1964 and his mother died in 1972. As of January 20, 1975, only four brothers and sisters were known by him to be alive. He apparently has had no contact with his family since that time. From 1965 to 1972, he was in the United States Navy. He was discharged in 1969 but was recalled to active duty very shortly thereafter. Be attained the rank of E-5 and was primarily involved in doing clerical work. During this time he also received approximately two years of education at a junior college and through correspondence courses. He received his discharge from the Navy in 1973 and apparently is on disabled classification as a result of a service-connected activity. In 1973, he came to Great Falls, Montana, in part because he wanted to remove himself from the drug scene. He had used drugs on and off since the young age of 12 or 13 when he and his friends smoked marijuana that was growing wild near his home in Missouri. He later became involved with using cocaine, amphetamines and heroine. Upon his arrival in Great Falls, Montana, he became actively involved with Opportunity Incorporated, a community action low income coalition of individuals who worked for welfare rights and the betterment of low income people. While associated with Opportunity Incorporated he became founder and president of L.I.N.C. (Low Income Neighbors Coalition). He helped organize a Christmas program for low income youngsters in the -60- Great Falls area, and provided the time and initiative to get several projects developed before he left in May 1974 for the Veteran's Hospital in Sheridan, Wyoming. Insofar as can be determined, defendant had never been convicted of even a misdemeanor charge. Indeed, he had not even been arrested for any offense. The parole and probation officer spoke with several individuals in Great Falls concerning Coleman, and he stated in his report: "This writer spoke with several individuals associated with the subject and familiar with his work in the Great Falls area and everyone that I talked with was complimentary of this individual's work and viewed with some disbelief the crime this individual has committed." After his arrest, several persons performed psychological testing of defendant, and their diagnoses ranged from such determinations as paranoid schizophrenia; schizodal personality; organic brain syndrome; depressive reaction; a patient with passive-aggressive personality; aggressive personality disorders; and depressive reaction with anxiety (Depressive Neurosis). Although the above is not a complete profile of the defendant, I have provided some background so that it can be shown that the findings of the sentencing court are barren of any considerations of defendant's personal circumstances. The findings which were made are meaningless to a reviewing court. We cannot guess at how the sentencing court evaluated defendant's individual circumstances. The United States Constitution will not permit us to guess. After Furman v. Georgia (1972), 96 S.Ct. 2726, 408 U.S. 184, 33 L.Ed.2d 346 was decided, a great many states responded to this decision by enacting mandatory death penalty statutes. statutes %e.1973 ~ontana/allowed a consideration of mitigating circum- statutes stances, but the 1974/elirninated a consideration of mitigating circumstances, thereby making the death penalty mandatory in certain situations specified in the statutes. However, the United States Supreme later decided in a series of cases that mandatory death penalties are unconstitutional. Woodson v. North Carolina (1976), 428 U.S. 280, 96 S.Ct. 2978, 49 L.E~. 2d 944; Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982; and Roberts v. Louisiana (1977), 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637. It was on the basis of these cases that this Court in the first Coleman case declared Montana's mandatory death penalty statute to be unconstitutional. State v. Coleman (1978), Mont . , 579 P.2d 732, 741- 742. What the Court stated in Woodson, applies, of course, to this case: ". . . respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender . . . as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. at 304. By the time this Court had declared the 1974 death penalty statutes unconstitutional (1978), the legislature in 1977 had already enacted new death penalty statutes in response to Woodson, Coker and Roberts, and in res onse to Gregg v. d o 9 Georgia (1976), 428 U.S. 153, 96 S . C t . - . 2 & 49 L.Ed.2d 859; Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, and Proffitt v. Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913. In Gregg, the court held that the decision to impose the death penalty must be: "guided by standards so that the sentencing authority would focus -- on the particularized circumstances of the crime and the defendant." ----- (Emphasis added.) Gregg v. Georgia, 428 U.S. at 199. Any statutory scheme therefore, to meet due process requirements must consider not only the circumstances of the commission of the crime, but also the particular circumstances of the individual defendant. -62- Though it appears that the 1977 death penalty statutes allow a consideration of the particularized circumstances of the crime as well as the individual circumstances of the defendant, I shall demonstrate from the record that the sentencing court failed to consider and evaluate the individual circumstances of the defendant. Accordingly, the death sentence cannot pass the minimum standards established by the United States Supreme Court. The statutory scheme enacted by the 1977 legislature is an attempt to comply with the demands of Greqq. It attempts to consider both the "particularized circumstances of the crime and the defendant." Section 95-2206.8 relates only to the circumstances of the crime--that is, the aggravating circumstances under which the legislature has deemed should merit a con- sideration of whether or not to impose the death penalty. As far as the facts are concerned in this case, we are concerned only with one aggravating circumstance set forth in subsection (7), as the sentencing court determined specifically that aggravating circumstances did not exist under remaining sub- sections (1) through (6) . Subsection (7) provides : Section 95-2206.8. Aggravating circumstances are any of the following: " (7) The offense was aggravated kidnapping which resulted in the death of the victim." To impose the death penalty at least one aggravating circumstance must be found to exist under the statutory scheme. It was found to exist in this case, and therefore the sentencing court crossed the first hurdle allowing the imposition of the death penalty. Mitigating circumstances required to be considered are set forth in section 95-2206.9, which contains eight subsections. -63- (I have previously set forth this statute in its entirety.) Subsections (2) through (7) are concerned only with mitigating circumstances surrounding the commission of the crime itself. That is, they do not involve a consideration of the particularized circumstances of the defendant as opposed to the crime itself. The sentencing court entered specific findings negating .the existence of any mitigating circumstances under subsections (2) through (7). The sentencing court, however, failed to comply with either subsection (1) or (8). Subsections (1) and (8) involve a consideration of the individual defendant himself. Because the individual defendant was not considered, the minimum requirements of Gregg have not been met and the sentence must be vacated. Subsection (1) requires the court to consider the defendant's past history as far as his involvement in crime. Subsection (8) requires the court to consider any other factor concerning the defendant that may be relevant in the decision-making process as to whether or not to impose the death penalty. I quote again from the statute: "Mitigating circumstances. Mitigating cir- cumstances -- are any of the following: "(1) The defendant has no significant history of prior criminalactivity. " (8) A x other fact exists in mitigation of the penalty." (~m~hasisadded.) Section 95-2206; 9, R.C.M. 1947. As I have previously explained, it is the mandatory duty of the sentencing judge to make specific findings of both statutory aggravating circumstances and statutory mitigating circumstances. Moreover, section 95-2206.11, R.C.M. 1947, requires that findings be made as to either the existence or - absence of each aggravating or mitigating circumstance. This duty is imposed on the sentencing court regardless of what evidence may have been introduced by the parties at the -64- presentence hearing. In the case of subsection (I), the sentencing court emasculated the record and the law. In the case of subsection ( 8 ) , there is an utter failure to show affirmatively that the individual circumstances of the defendant were considered. How did the sentencing court handle the factual deter- mination of whether defendant had a "significant history of prior criminal activity?" I have previously quoted the sentencing court wherein he acknowledged that he was perplexed or annoyed shall we say, that defendant had no previous record. But one clue is provided by the statements of the sentencing court that he simply only acknowledged that defendant had - no record -- of - a previous felony conviction. Somehow the sentencing court had to establish that the defendant was a bad person before he committed the aggravated kidnapping, and therefore was beyond redemption. We thus arrive at the findings on this vital issue. During the trial defendant's accomplice, Robert Dennis Nank, testified that on the same day of the crimes involved here, both individuals burglarized a home in Roundup, Montana, stole some rifles, and later buried them near the Roundup airport. No one else testified to these facts and neither was there corroboration evidence of this testimony--for example, the recovery of the rifles, etc. But this testimony by Nank was the key to the sentencing court's approach to subsection (1) of section 95-2206.9. Though the findings are convoluted, the effect of the findings is that the defendant - did have a "significant history of prior criminal activity." We go first to the presentence investigation report as to defendant's criminal background: "FBI records indicate the subject has been found guilty of Deliberate Homicide, Aggravated Kidnapping, Sexual Intercourse Without Consent. Date of arrest: October 24, 1974 in Forsyth, Montana. "The current offenses are the only criminal activities this individual has ever been arrested for according to the FBI sheet submitted to this office. No other criminal records could be found. (~mphasis added. ) - In setting forth the facts of the crime, the presentence investigation report did refer to the burglary and theft of rifles from the Roundup house, which information was of course, taken from the State's brief relating to the first Coleman appeal. In entering its findings on the day of sentencing, the sentencing court stated that it was doing so based on the testimony and evidence presented at defendant's trial, and based on the presentence hearing. There is no reference at all to any reliance on the presentence investigation report. Because there was no evidence presented at the presentence - hearing, it is fair to conclude that the sentencing court relied entirely on the trial testimony in determining whether or not to impose the death penalty. Accordingly, based entirely on Nank's uncorroborated testimony as to the house burglary and theft of rifles, the sentencing court entered the following finding: "1. That on July 4, 1974, the defendant had Robert Dennis Nank were on the road on Nank's motorcycle on a journey which began at the Sheridan Veterans Administration Hospital in Sheridan, Wyoming, and continued through various towns in Montana, to Roundup, Montana. The two -- men - - burglarized a home in Roundup, Montana, on July 4, 1974, and stole several rifles whichwere subsequently- buriei37iEZr -- the Roundup A i - -. " (Emphasis added.) From this initial finding the court then proceeded to tie it into subsection (1) which requires the sentencing court to determine whether the defendant has a "significant history of prior criminal activity." Accordingly, in his second finding he concluded: "That the State has been unable to prove by means of record checks that the defendant has anv other history of criminal activity. * A - The only other criminal - act which appears in the trial record in this case is the aggravated -- - burglary of - - - - a home in Roundup, Montana, where certain suns were stolen by the defendant and Robert ~ a n k on July 4, 1974. B reason of the foregoing, - the credit in ml 3 igation allowed by Section 95-2206.9(1) isnot appropriate - to this defendant." (Emphasis added.) Without expressly stating, in legal effect the sentencing court determined that on the basis of Nank's uncorroborated testimony, the defendant did - have a "prior history of criminal activity." This conclusion is clearly erroneous. First, the sentencing court had no right to establish a "prior history of criminal activity" based entirely on the uncorroborated testimony of Nank, who, by his own testimony, was defendant's accomplice throughout the entire tragic events of July 4, 1974. Second, the effect of the finding, although not expressly stated, is that defendant - did have a "prior history of criminal activity." The acts used to place a blemish on the criminal history of the defendant occurred the same day as the aggravated kidnapping, and even according to Nank, were part of a con- tinuous course of criminal conduct. This was not the legislative intent when it directed the sentencing court to determine under section 95-2206.9(1) if the defendant had a "prior history of criminal activity." Events occurring on the same day as the crime in question hardly establish a "prior history of criminal activity." Indeed, the conclusion reached here is more revealing as to the predisposition of the sentencing court than it is revealing of the previous life patterns of the defendant in relation to his propensity to commit crimes. The findings are totally unsupported by a reasonable construction of the record and interpretation of the law. -67- Having effectively consigned defendant to the ranks of a previous offender insofar as section 95-2206(9)(1) is concerned, the court then entered the following conclusions with relation to aggravation and mitigation: "The Court concludes as follows: "1. That the aggravating circumstances set forth in Section 95-2206.8, paragraph ( 7 ) exists for the reason following: "That the offense of aggravated kidnapping was committed by the defendant and it resulted in the death of the victim, Miss Peggy Harstad. "2. That none of the mitigating circumstances listed in Zection 95-2206.9, R.C.M. are sufficiently substantial to call for leniency. That the only mitigating circumstance technically present in this cause is that the defendant has no record history of prior criminal activity." - (Emphasis added.) This determination, when coupled with the findings, leads inescapably to the conclusion that the sentencing court established a "prior history of criminal activity" of the defendant by convicting him of a house burglary and theft which occurred on the same day as the aggravated kidnapping. Moreover, it is the findings (as opposed to the conclusions) which are controlling for purposes of satisfying sections 95-2206.9(1) and 95-2206.11. The finding was that by virtue of the Roundup burglary and theft ". . . the credit - in mitigation & section - 95-2206.9(1) -- is not appropriate - to this defendant." This is merely another way of saying that defendant did - have a "prior history of criminal activity." Because of this clearly erroneous finding, the death sentence cannot stand. There is, moreover, an even more glaring reason why the death sentence cannot stand--the total failure to adhere to the minimum standards of Gregg, that the record affirmatively establish that the sentencing court considered not only the circumstances of the crime itself, but also the "particularized circumstances of . . . the defendant." In this respect, the record is utterly barren, and the death sentence must be vacated. Since subsection (1) of section 95-2206.9 relates only to the individual's "prior history of criminal activity" the only remaining section which can possibly apply to the "parti- cularized circumstances of . . . the defendant" is subsection (8) of the same statute. It provides: "Mitigating circumstances. Mitigating circumstances are any of the followins: " (8) Any other fact exists in mitigation of the penalty." (Emphasis added.) Clearly, if the demands of Gregg are to be met, they must be met under this subsection. Otherwise, the statute itself would be unconstitutional because it did not allow a consideration of the "particularized circumstances of . . . the defendant." The question we must ask is a simple one: Did the sentencing court consider the "particularized circumstances of . . . the defendant" before reaching the decision to impose the death sentence, and if so, what findings or determinations did it make concerning defendant as an individual? The only way a reviewing court can tell if the defendant as an individual entered into the decision-making process of the sentencing court, is if the record and findings indicate that has in fact been done. We cannot, in a case involving a sentence of death, assume or presume that it was done. A reviewing court cannot guess as to whether the sentencing court considered and amply weighed the "particularized circumstances of . . . the defendant." The reason is a simple one: We might make a wrong guess. Indeed, it would appear that section 95-2206.11 was enacted to eliminate that -69- possibility and to provide a reviewing court with the requisite record to review the death sentence imposed. This statute provides in pertinent part: ". . . the determination of the court shall be supported by specific written findings of fact as to the existence or nonexistence -- of each of the c i r c u m s t a n c e s . . . set forth in 95-2206.9 [Mitigating Circumstances]. The written findings shall be substantiated 9 the records ot the triarand the sentenclna a -- - -- proceedings." (Emphasis added.) If this statute, when construed along with section 95-2206.9 is to pass constitutional muster under the minimum standards established in Gregg, then it is clear that the record must affirmatively establish that the "particularized circumstances of . . . the defendant" have been considered. If the sentencing court did not do this, then the death sentence cannot be permitted to stand. The sentencing court therefore is required to make findings concerning the "parti- cularized circumstances of . . . the defendant", and since written findings are required only when a death penalty is imposed, it must explain why it chose to disregard defendant's individual circumstances in determining to impose the death penalty. The findings of the sentencing court must be examined in light of these requirements. In findings - a through - e of the death penalty judgment, the sentencing court specifically found the absence of mitigating factors ( 2 ) through (7) of section 9 5 - 2 2 0 6 . 9 . Subsections ( 2 ) through (7) relate only to facts surrounding the commission of the crime itself. On the other hand, subsection (8) is ignored altogether. A reviewing court is left entirely in the dark as to whether the sentencing court even considered the "particularized circumstances of . . . the defendant." In the judgment there is only one reference to subsection ( 8 ) , and that is included in a general, virtually all-inclusive umbrella finding: -70- "That there is no evidence appearing, either in the record of the trial held in this cause or the special sentencing hearing accorded, supporting a finding of any of the circumstances in mitigation under the other number paragraphs of Section 95-2206.9, namely paragraphs - - (2) through (8) . There is, likewise, no evidence of anv facts which are Gerative 7 - A In this case to mltigate - p e n a l t y L in this ---- -- cause. . ." (Emphasis added.) This finding hardly complies with the requirements of section 95-2206.11, let alone the demands of Gregg. We certainly learn nothing about the defendant from that finding. The sentencing court stated in this finding that the absence of mitigating factors was gleaned from the trial itself and from the sentence hearing. This finding as to subsection (8) of section 95-2206.9 suggests two conclusions, neither of which satisfies the demands of Gregg. The first conclusion is that because no evidence was introduced at the sentencing hearing the sentencing court relied entirely on the record of the trial in reaching the decision to impose the death penalty. But there is no evidence in the trial record as to the individual circumstances of the defendant, and even more importantly, if anything concerning the defendant's individual situation was considered as a result of the trial record, we have no idea what it was. For the record is silent as to what, if anything, concerning the defendant, was considered and evaluated. Surely therefore, the sentencing court did not fulfill the demands of section 95-2306.11 or the minimum constitutional requirements of Gregg. A second alternative is that one can be charitable to the sentencing court and conclude that because the presentence investigation report was officially made part of the record at the presentence hearing, the sentencing court would be presumed to have made use of it in determining whether or not to impose the death penalty. But in the record of the sentencing itself there is not one reference to the presentence investigation report, and neither is there a direct reference to it in the written findings and judgment. Again, on such an imporant matter this Court cannot assume or presume that the sentencing court considered and evaluated the "particularized circumstances of . . . the defendant." It is either in the record and findings or it isn't. It isn't. The result is that one cannot conclude from either situation that the sentencing court considered and evaluated the "particularized circumstances of . . . the defendant" before reaching its decision to impose the death penalty. This being so, the death sentence does not meet the minimum standards imposed by Gregg, and it must therefore be vacated. There is no question that the sentencing court failed to comply with sections 95-2206.9, subsections (1) and (7) . Its handling of the issue relating to defendant's "prior history of criminal activity" is a mockery. The majority did not reach the issue of whether a "history - of prior criminal activity" was established by acts committed on the same day as the aggravated kidnapping. It is true that the defendant did not raise this issue, or if he did, it was inartfully obscured in the broadside attack launched against the second imposition of the death penalty; but nonetheless, it was the duty of this Court under automatic mandatory review, to determine this issue. The same is true of the failure of the sentencing court to comply with the constitutional mandate of Gregg to consider the "particularized circumstances . . . of the defendant." Other than a consideration of a "history of prior criminal activity" as mandated under section 95-2206.9 (1) , R.C.M. 1947, the only section that can possibly allow for a consideration of the "individualized circumstances . . . of the defendant" -72- is subsection (8) of section 95-2206.9. Here, there is a total failure of the sentencing court to show this Court what factors it considered and evaluated concerning the defendant as a person. Again, I must state that this issue was only tangentially raised by the defendant, and again it was undoubtedly inartfully obscured in the broadside attack which defendant launched against the second imposition of the death penalty. But again, the statutes mandated that we review the sentence imposed to determine its compliance with the law. Furthermore, the demands of Woodson and Gregg, leave no alternative for this Court but to determine if the record affirmatively shows -a consideration of the "particularized circumstances . . . of the defendant." Since it does not, it is our duty to vacate the death penalty. The automatic review provisions for death sentences are set forth in sections 95-2206.12 through 95-2206.15, R.C.M. 1947 (now sections 46-18-307 through 46-13-310 MCA). Under section 95-2206.13, the imposition of all death sentences in this State requires this Court to review its legality and sufficiency. Section 95-2206.13 sets forth the priority of review accorded to death sentence cases, and in essence states that it shall take precedence over all other cases. Section 95-2206.14 requires that the entire record of the proceedings be forwarded to this Court. The extent of review required is set forth in section "Supreme court -- to make determination as to sentence. The supreme court shallconsider m e punishment as well as any errors enumerated by way of appeal. With regard to the sentence, the court shall determine: "(1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. " (2) whether the evidence supports the judge's finding of the existence or nonexistence of the aggravating or mitigating circumstances enumeraged in 95-2206.8 and 95-2206.9; and "(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration." I cannot accept the majority's conclusions that after an examination of subsections (1) , (2) , and (3) of section 95-2206.15, that the death sentence was properly and justifiably imposed. The majority simply failed in its duties of review. Conceding arguendo that Nank's uncorroborated testimony was sufficient to establish that defendant committed the house burglary and theft of rifles, the opinion is silent on the question of whether these acts, committed on the same day a the aggravated kidnapping, were sufficient to establish a "history of prior criminal activity." This is not a question of fact. It is a legal question which this Court must answer, and has failed to do so. For this reason, the majority has not complied with section 95-2206.15(2). Neither has the majority explained whether the record affirmatively establishes that the sentencing court considered and evaluated the "particularized circumstances of . . . the defendant" in order to be in compliance with section 95-2206(8), and the demands of Woodson and Gregg. Not having done so, it is clear that the majority has not complied with its review duties under section 95-2206.15(2). Under this section the record of the sentencing hearings and judgment must clearly establish the "existence or - nonexistence of the aggravating or mitigating circumstances . . . I' (Emphasis added. ) I note that the only reference in the majority opinion to any of the "particularized circumstances of . . . the defendant" is in relation to the handling of the "prior history of criminal activity." Nor can I accept t h e conclusions of t h e majority t h a t t h e death sentence was n o t , pursuant t o s e c t i o n 95-2206.15(1), "imposed under t h e influence of passion, prejudice, o r any o t h e r a r b i t r a r y f a c t o r . " The t o t a l circumstances do not support t h i s conclusion. Circumstantially, t h e conclusion is inescapable t h a t t h e sentencing c o u r t o r c h e s t r a t e d t h e proceedings from t h e very beginning s o t h a t i n t h e event of a conviction of aggravated kidnapping, t h e death penalty would be imposed. Before t r i a l on t h e m e r i t s , and a f t e r defendant had entered h i s p l e a of not g u i l t y , and over defendant's o b j e c t i o n , t h e sentencing court on i t s own motion, amended t h e charge of aggravated kidnapping t o a l l e g e t h a t t h e crime r e s u l t e d i n t h e death of t h e victim. A t t h e conclusion of t h e t r i a l , he submitted a s p e c i a l i n t e r r o g a t o r y t o t h e jury t o ask it t o determine whether t h e aggravated kidnapping r e s u l t e d i n t h e death of t h e victim. A s a r e s u l t of t h i s amended information and s p e c i a l f i n d i n g of t h e jury, t h e sentencing c o u r t placed himself i n a p o s i t i o n t o impose t h e mandatory death penalty which was then required by s t a t u t e . I t matters n o t t h a t t h i s Court determined t h e amended information and submission of t h e s p e c i a l i n t e r r o g a t o r y t o t h e jury, t o be matters of form, and t o be u l t i m a t e l y inconsequential because t h e death sentence was vacated. It c e r t a i n l y demonstrates t h e s t a t e of mind of t h e sentencing judge. The same kind of a c t i v e involvement i s evident a f t e r t h i s Court declared t h e mandatory death penalty under t h e then e x i s t i n g s t a t u t e s under which defendant was sentenced, t o be unconstitutional. Before t h e sentencing c o u r t received t h e r e m i t t i t u r from t h i s Court, indeed, before t h i s Court had r u l e d on defendant's p e t i t i o n f o r rehearing, t h e sentencing c o u r t had ordered a presentence i n v e s t i g a t i o n r e p o r t and ordered the defendant immediately returned from the state prison to be placed in the Custer County jail. Apparently on the same day as the remittitur was received by the sentencing court, it sent out an order setting a presentence hearing and stated that it would be conducted under the 1977 death penalty statutes. The sentencing judge ignored our decisions on issues three and eleven which clearly indicated that this Court did not contemplate that the death penalty would be a reconsideration upon resentencing. He read in everything he possibly could to construe the first Coleman opinion to mean he could apply the 1977 death penalty statutes retroactively. At the sentencing hearing itself, he accepted and filed the presentence investigation report, but at least as far as the record is concerned, the sentencing court iqnored it, and did not consider the "particularized circumstances . . . of the defendant." He stretched the law to the breaking point to saddle the defendant with a "history of prior criminal activity", a clear misreading and misapplication of section 95-2206.9(1). He allowed final argument on the penalty to be imposed, only after he had predetermined the issue by coming to court armed with his written death sentence. He totally failed to consider the lenient treatment given to Nank who was by his own admissions, an equal participant in the crimes for which defendant was ordered to be hanged. Moreover, Nank had a previous felony record. If these factors, individually, or at least collectively, do not demonstrate that the sentencing authority was "under the influence of passion, prejudice, --- or any other arbitrary factor" (emphasis added), I do not know what would. It is an easy matter for a reviewing court to find an absence of "passion, prejudice, or any other arbitrary factor" if it -76- views the various factors in isolation, and does not consider them together. But, they must be considered together if meaningful review is to be provided under section 95-2206.15(1). Unfortunately, in this case, these factors were not considered in isolation, let alone collectively. The only factor considered by the majority is the failure of the prosecution to give the same plea and sentencing considerations to defendant as he had given to Nank. But the majority has entirely missed the point--for two reasons. First, the sentencing court should have made some mention of the distinctions in the penalties handed out to Nank as opposed to the defendant, but failed to do so. If the sentencing court thought there were legitimate reasons for treating the defendant differently, it was obligated to set forth those facts and reasons justifying the different treatment. This was not done, of course. Second, the majority misreads Gregg when it cites this case as justifying the different treatments. The failure to properly apply Gregg results from the majority's reliance on the prosecution's brief in relation to Gregg. In its brief, the prosecution stated in response to defendant's argument that defendant was the victim of arbitrary and capricious treatment being that Nank was shown leniency: "Furthermore, leniency in one case does not invalidate the death penalty in others." Gregg, 428 U.S. at 199, 224-226. In its opinion, the majority stated: "Leniency in one case does not invalidate the death penalty in others." Gregg, 428 U.S. at 199, 224-226. The State made no effort in its brief to explain or expand upon this interpretation of Gregg, and neither did the majority opinion. Suffice to say that Gregg does not apply to the facts of this case. It was hardly appropriate for -77- t h e m a j o r i t y t o r e l y on t h i s statement of t h e S t a t e i n i t s b r i e f as it is nothing more than a continuing and u n r e l e n t i n g e f f o r t t o salvage t h e d e a t h sentence imposed i n t h i s c a s e , without regard t o a f a i r and d i s p a s s i o n a t e i n t e r p r e t a t i o n of t h e law o r f a c t s . The b a s i c t h r u s t of t h e statement i n Gregg w a s t h a t a defendant handed t h e death sentence cannot complain t h a t he has been t h e v i c t i m of a r b i t r a r y and c a p r i c i o u s conduct simply because another defendant, - i n another c a s e , has f o r some reason been t h e b e n e f i c i a r y of a p r o s e c u t o r ' s mercy. That is a f a r c r y from t h e s i t u a t i o n h e r e where Nank admitted committing p r e c i s e l y -- t h e same crimes of which t h e defendant was convicted by a jury. But, Nank was shown mercy: t h e defendant was sentenced t o hang. This can hardly be i n t e r p r e t e d a s a j u s t and evenhanded a p p l i c a t i o n of t h e law. O n May 7 , 1975, Robert Nank agreed t o cooperate w i t h t h e S t a t e i n its prosecution of t h e defendant. I n exchange f o r t h i s cooperation, he received c e r t a i n benefits--primarily a d i s m i s s a l of t h e charge of aggravated kidnapping charge which e l i m i n a t e d t h e p o s s i b i l i t y t h a t t h e d e a t h p e n a l t y would be imposed. S i x t e e n days l a t e r , defendant Coleman, though s t i l l maintaining h i s innocence, o f f e r e d t o plead g u i l t y t o t h e same charges t o which Nank had pleaded g u i l t y , b u t i n s i s t e d on maintaining h i s innocence. The S t a t e r e f u s e d h i s o f f e r . The c a s e a g a i n s t defendant went t o t r i a l i n essence because defendant r e f u s e d t o admit h i s g u i l t . P r i m a r i l y on t h e b a s i s of Nank's testimony, he was convicted of all charges, including t h e c r i m e of aggravated kidnapping. The m a j o r i t y has grounded p a r t of i t s opinion on t h e f i r s t Coleman c a s e wherein t h e m a j o r i t y h e l d t h a t it was n o t r e f u s e t o improper f o r t h e prosecution to/accept defendant Coleman's c o n d i t i o n a l o f f e r t o plead g u i l t y . Although t h e prosecutor did have the discretion to refuse this conditional plea offer, the consequences which followed are not fair in the slightest degree. Nor should they be tolerated. Conceding that the prosecutor had the right to refuse the conditional plea offer, it does not establish that the conditional plea offer was constitutionally infirm. At least, that is the law of the United States Constitution. In North Carolina v. Alford (1970), 400 U.S. 25, 97 S.Ct. 160, 27 L.Ed.2d it was held that there is no constitutional error accepting a guilty plea which contains a protestation of innocence. Accordingly, at least, under the United States Constitution the prosecutor and sentencing court could have accepted the conditional plea of guilty. If they had, the defendant could not later withdraw his plea. It is important to note however, that the record does not affirmatively establish why the conditional plea was not accepted. That is, it does not establish that the prosecutor would have treated defendant just like Nank if he would unconditionally plead guilty to the charges. We cannot conclude therefore, that the prosecutor ever promised defendant the same treatment as Nank. In terms of plea bargaining the American Bar Association has established its position relating to similarly situated defendants: "Similarly situated defendants should be afforded equal plea agreement opportunities." (American Bar Association on Standards for Criminal Justice, Standards Relating to The - Prosecution Function -- and the Defense Function, approved draft (1971) , at 102. ) There is no showing in the record that the prosecutor ever offered the same terms to defendant as he did to Nank, and yet there is not a better illustration of similarly situated defendants. Under the circumstances of this case, there was a clear affirmative duty for the prosecutor to establish that he offered the same plea bargain to defendant as he did to Nank. The prosecutor did not and cannot meet that burden. There is no question that absent Nank's accomplice testimony, the State would have insufficient evidence to convict defendant. But once it struck the plea bargain with Nank it had the evidence to convict defendant of the charges if the jury believed Nank's testimony. The record establishes, that is, Nank's confession and Nank's testimony at trial, establishes that Nank and defendant committed the same acts against the victim. The effect in terms of sentencing, however, is that because the State could not convict defendant without Nank's testimony, it struck a bargain to keep one man alive in exchange for the possibility of ultimately putting one man to death--the defendant. The jury verdict against the defendant, based on Nank's testimony, set in motion the ultimate imposition of the death penalty. Such disparate results from such similar criminal acts, cannot be countenanced by society, and certainly should never be countenanced by the courts. The majority has performed a great injustice by ratification of this unequal treatment. There are two procedural matters concerning the sentencing proceedings that need some clarification. The majority has concluded that defendant was not deprived of an opportunity to present oral arguments at the presentence hearing, and moreover, that in essence, defendant waived further rights to present meaningful arguments by not presenting proposed findings of fact to the sentencing court after having been invited to do so. On this basis, the majority concludes: "Thus, defendant and his counsel had at least two opportunities to submit argument to the Court regarding the death penalty prior to July 10, 1978 hearing, but did not do so." This conclusion has greatly distorted the realities of the situation. I have already discussed the proceedings which took place during the so-called sentencing hearing. As neither party submitted any evidence at the presentence hearing, and the only document filed at the presentence hearing was the presentence investigation report, it was agreed that both parties would submit briefs to the sentencing court with regard to their respective positions. This apparently was done, although this Court does not have the benefit of those briefs. In addition, the sentencing court invited both sides to submit proposed findings and conclusions, but only the prosecutor indicated positively that he would do so. The sentencing court did not tell the parties that submission of briefs would constitute a waiver of oral argument concerning the penalty to be imposed. It is logical to assume that before sentencing, defense counsel believed that he would have an opportunity to make a meaningful and effective oral argument against imposition of the death penalty. Clearly, the sentencing court did not comply with the spirit of section 95-2206.7, which provides in pertinent part: ". . . The state and the defendant or his counsel - - shall be permitted to present argument for or against sentence of death." (Emphasis added. ) The word "shall" is mandatory. For it to be meaningful, the implication is that argument shall be presented before the sentencing court makes its decision. But such is not the case here. True, the sentencing court, on July 10, 1978, allowed defense counsel to argue against imposition of the death penalty, and the state to argue for imposition of the death penalty. But by this time the court had already decided to impose the death penalty. The sentencing court had come to court with its written death sentence already prepared. As I -81- have previously mentioned, insofar as the defendant is concerned, this is akin to allowing defense counsel in a criminal case to make final arguments to the jury only after the jury has returned with its guilty verdict. Under these circumstances, it cannot be reasonably argued that defendant was given a meaningful opportunity to argue against the death penalty when the decision to hang had already been made. This not only violated the spirit of section 95-2206.7, it also constitutes a denial of the effective assistance of counsel. Nor is it reasonable to conclude as did the sentencing court, and the majority here, that defendant effectively waived another opportunity to argue against the imposition of the death sentence by failing to submit proposed findings of fact and conclusions of law. It is true that the sentencing court invited defense counsel and the prosecutor to submit proposed written findings and conclusions; but only the prosecutor responded that he would do so. The prosecutor did present proposed findings and conclusions. But does the sentencing court truly believe, does the majority truly believe, that the tide could well have been turned for the defendant if only his lawyer had presented proposed findings of fact? How far must we bury our head in the sand? Indeed, the statute calling for "specific written findings of fact" clearly operates only when a decision is made to take a defendant's life. Section 95-2206.11, provides in relevant part: "In each case in which the court imposes -- the death sentence, the determination of the court shall be supported by specific written findings of fact . . ." (Emphasis added. This statute leaves no doubt that findings are required only in the event of a decision to impose the death penalty; and the statute certainly places no duty upon the defendant to -82- make those proposals. The duty is that of the court and the court alone to support its death sentence with the required "specific written findings of fact." To impose a duty and burden of persuasion upon the defendant to present his own proposed findings of fact is clearly beyond the contemplation of the statute, and beyond any duty that this Court should gratuitously impose on the defendant. What if the defendant's counsel did submit proposed findings of fact? We may safely assume they would have led to the inexorable conclusion that defendant's life should be spared. But, if the sentencing court spared defendant's life, the proposed findings would not serve any function what- soever. Since the decision to grant mercy is one in which no findings of fact are required, and it also being obvious that the State has no appeal from such a decision, the proposed Gndings most likely would have found their way to the trash can. Furthermore, the majority ignores the primary function of findings of fact in terms of the decision-making process at the trial level. If trial judges and trial lawyers are candid, they will admit that proposed findings are prepared and submitted by counsel to assure that in the event the trial court finds in their favor that all the bases are covered in the event of an appeal. They are submitted possibly with the hope, but rarely if ever, with the expectation that the proposed findings will actually be a decisive factor in influencing the trial court to rule in favor of one's client. Indeed, it has been my experience, and an unfortunate one from the standpoint of appellate review, that most often the trial court simply rubber stamps the proposed findings of the winning side. Rarely do we get any insight as to what the decision-making process was, or how the trial court in fact viewed the evidence at trial. -83- In the instant case, I do not know how closely the findings of fact parroted the proposed findings submitted by the prosecutor, as the proposed findings are not a part of the record on appeal. An examination of the findings entered in this case does not give a reviewing court any insight as to what the fact finder was thinking; that is, what factors were actually involved in motivating and impelling his decision to impose the death penalty. The findings are cold and calculated and set out with staccato precision--but hardly a revelation as to the reasons for concluding the defendant must die. In con- sidering and weighing the totality of circumstances surrounding the commission of the crimes by defendant, and by Nank, and in considering and weighing the totality of circumstances surrounding the "particularized circumstances of . . . the defendant", what actually impelled the sentencing court to sentence defendant to hang while at the same time he knew that an equally guilty accomplice would not hang? The record is silent as to these factors--the real reasons hidden forever in the bosom of the court. The findings are more revealing for what they don't say than for what they do say. It is clear beyond question that defendant's presentation of proposed findings, in addition to not being required, would have been a manifest exercise of futility. Findings of fact collaborated in by a thousand William Shakespeares could not have deterred the sentencing court from its chartered course. Does any member of the majority truly believe otherwise? Under these circumstances to conclude that proposed findings of fact are a form of argument calculated to have and with a reasonable possibility of having a certain persuasive effect on the sentencing court, is utter nonsense. Before discussing the majority position that only cases involving imposition of the death penalty must be reviewed by this Court, I emphasize that I do not contend defendant would have to be treated exactly like Nank in terms of the sentencing imposed. In the case of Nank, the charge of aggravated kidnapping was dropped as part of a plea bargain agreement and obviously he could not be sentenced at all for that crime. But since defendant was convicted by a jury of three crimes (including, of course, that of aggravated kid- napping), he could have been sentenced for all three crimes. The sentencing court went one step too far when it sentenced the defendant to hang. One of the purposes of appellate review is as the majority states, "to serve as 'a check against the random or arbitrary imposition of the death penalty'", citing Gregg, 428 U.S. at 206. But Gregg did not hold that only other death penalty sentences need be compared. Nor do I believe the Georgia case relied on by the majority (Moore v. State (1975) , 233 Ga. 861, 213 S.E.2d 829) is authority for the majority position in light of the wording of the statutory review scheme in this state. Section 95-2206.15 does not so limit our review. It provides in relevant part: "Supreme Court to make determination as to sentence. "The supreme court shall consider the punishment as well as any errors enumerated by way of appeal. With regard to the sentence, the court shall determine: "(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration." If only a comparison with other death sentences was intended, the legislature would have inserted the word "death" before the word "penalty". If the actual purpose of mandatory review (mandated by the United States Constitution) is to check against "the random or arbitrary imposition of the death penalty", I fail to see how such review can be fairly and effectively fulfilled without a comparison with those cases wherein the death penalty could have been imposed, but for some reason was not. Factors which may lead a sentencing court to not impose the death penalty may well be worthy of consideration by a reviewing court in determining whether a particular case under review merits the same considerations. A sentencing judge may have sound and persuasive reasons why he did not impose a death penalty in a particular case. This court should not deny access to this decision in determining whether or not a case we are reviewing may merit the same outcome. I am not unaware, however, of the practical problems involved in getting access to such cases. For example, section 95-2206.11, which I have previously discussed in relation to another point, clearly requires "specific written findings of fact" only when the death penalty - is imposed. If such findings are not entered, and if a decision of a sentencing court is not filed explaining its reasons for not imposing a death sentence in a particular case, for all practical purposes this Court would be deprived of the benefit of this decision for review purposes. But, I believe that a failure to use such cases for comparison is a denial of effective review, particularly since mandatory review is required by decisions of the United States Supreme Court. There are additional practical problems in seeking to fairly apply a statutory scheme of capital punishment. The vagaries of the components entering into the decision-making process of the prosecutor and the sentencing judge are too many and mostly never become a matter of record so that a reviewing court can consider them. Whether the death penalty -86- will be imposed in a particular case will depend almost entirely on the personal beliefs and attitudes of the prosecuting attorney and the judge who is on the case. Many prosecutors would be loathe to seek the death penalty. On the other hand there are those who would not hesitate in determining that the death penalty is the appropriate and only punishment. The same is true of the judge who is on the case. Many judges would be loathe to impose the death penalty. On the other hand, there are those who are known as "hanging judges". To them, the death penalty should be imposed more often and in a wider variety of cases. Furthermore, there are many political considerations which operate upon pro- secutors and judges in determining whether the death penalty will be imposed. A defendant may be sentenced to death solely because the right combination of prosecutor and sentencing judge operated in tandem in reaching the decision to impose the death penalty. Of course, many decisions are made disposing of the death penalty aspects of a case long before a defendant either pleads guilty to a capital crime or is found guilty by a jury. In many cases, a threat of the death penalty hanging over a defendant may induce him to plead guilty to a crime in exchange for the promise of a prosecutor to eliminate the death penalty aspects of the charge involved, or a promise not to seek the death penalty. It would be extremely difficulbto say the least, for a reviewing court to obtain sufficient information concerning these cases so as to compare them with a death sentence currently under review. I point out these factors only to stress my belief that it is virtually impossible to rationally and fairly administer and enforce a statutory scheme of capital punishment. But -87- since capital punishment as a permissible means of punishment seems now to be an accomplished fact, this Court should spare no efforts in seeing that it is administered as fairly as we are capable of doing it. To use only cases imposing the death penalty as a comparison with a case under review, fails miserably in this objective. Somehow the whole process of meaningful appellate review is diminished. The majority has dismissed with no meaningful discussion the defendant's contention that a jury should have been allowed to determine whether or not the death penalty should be imposed. Perhaps it is not a constitutional requirement under the United States Constitution, but I am convinced that in the long run, with all the inherent frailties which a scheme of capital punishment entails, a jury will arrive at a more even- handed application of the law to the facts than will a judge. There are no sound policy reasons why, with appropriate guidelines and instructions, a jury should not be allowed to make that fateful and final decision as to whether a person will live or die. We entrust juries with very important decisions in our legal system; there is no reason why we should not entrust them with this ultimate decision. The ultimate power of life or death should never be reposed in a single person as it is under our present statutes. If a jury had decided this case, I am convinced that it would immediately have recognized the fundamental unfairness of allowing Nank to live but ordering Coleman to die. A jury would have established its own fundamental fairness and sense of justice by deciding that neither should Coleman be compelled to pay with his life. If a jury is the "conscience of the community", there is every reason for allowing this collective conscience to render a final verdict as to life or death. -88- I arrive now at the final matter for discussion, and that is whether the judge who imposed the initial death penalty should have been permitted to again preside at the second sentencing. This question was not directly raised by defendant, but it was impliedly raised by his contention that he was denied opportunities for effective argument during the proceedings relating to the second sentencing. Clearly, the sentencing judge should not have presided over the second sentencing. But the problem arises as to the steps to be taken to obtain a new judge for the second resentencing. Plainly stated, there is no procedure other than the sentencing judge voluntarily stepping aside for the second sentencing. It is clear from the beginning of this case that the sentencing court had an inordinate amount of involvement directed to the ultimate end of imposing the death penalty. By amending the information after defendant had entered his plea of not guilty and over the objection of defendant, and by submitting the special interrogatory to the jury, the sentencing court expressed an undeniable interest in the crime of aggravated kidnapping. A conviction of that crime mandated the imposition of the death penalty. By virtue of the amended information and the jury's answer to the special interrogatory, the defendant was then in a position where the mandatory death penalty could be imposed. This involvement continued immediately after this Court declared the 1974 death penalty statutes to be unconstitutional when the sentencing court immediately sent a letter to counsel that he would conduct a sentencing hearing under the 1977 death penalty statutes. I have elsewhere related the additional activities of the sentencing court in ultimately deciding to impose the death penalty. Unfortunately, our present court rules on disqualification do not provide for the disqualification of a judge in a situation where a case has been remanded only for resentencing as opposed to a reversal for a new trial. This rule is set forth in 34 St-Rep. 26. In the context of this case, this rule provides only that a party can file a peremptory motion to substitute a judge if this Court has ordered a new trial. There is also a provision for disqualification for cause, but it is extremely difficult to invoke, and rarely is a success- ful instrument of obtaining a change of judge. There is an argument that the peremptory disqualification rule could be interpreted to apply also to a remand for resentencing, but in any event, defendant did not move to peremptorily disqualify the sentencing judge. Accordingly, that issue is not directly before this Court. Nonetheless, this case raises some fundamental problems concerning the right to a new judge for resentencing, parti- cularly when the death penalty has already been imposed the first time and there is even the slightest possibility that it will again be imposed. The policy behind the right to a new judge after a reversal was stated in King v. Superior Court, In and For County of Maricopa (1972), 108 Ariz. 492, 502 P.2d 529, where the Arizona Supreme Court stated: "In the case of an appeal, reversal and a remand for a new trial, it is always possible that the trial judge may subconsciously resent the lawyer or defendant who got the judgment reversed. The mere possibility of such a thoughtin the back of a trial judge's mind means that a new judge should be found." (Emphasis added). 502 P.2d at 530. In that case the Arizona Supreme Court was construing a rule of procedure similar to the rule of this state. There is no reason, of course, why this same "mere possibility would not exist in the case of a remand for resentencing. Without question the "mere possibility" would exist in a case where there was even the slightest possibility that the death penalty could again be imposed upon the resentencing. Under these circumstances, there is absolutely no reason why the defendant should have to face the same judge twice. The problem however is that Montana's rule, like Arizona's, is not self-executing. Unless a trial judge or sentencing judge has a twinge of conscience and voluntarily steps aside, there is no way presently to make him do so. The problem is more complicated here because the defendant did not ask the sentencing judge to step aside. Nonetheless, where such an extreme penalty such as the death penalty is involved, I think it incumbent upon this Court to make our own determination as to whether, under the objective reasonable man test, the defendant was deprived of a fair and impartial judge to preside over the sentencing hearing and to ultimately impose sentence. There is no question that the sentencing court should have known that a reasonable man would look askance at his again presiding over the resentencing. Be should have dis- qualified himself; but being that he did not do so, this Court should not allow the death sentence to stand based on an application of the reasonable man test. In criminal trials (which obviously must include criminal sentencings) the American Bar Association has adopted standards that provide: "The trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can reasonably be questioned." American Bar Association on Standards for Criminal Justice The Function of the Trial Judge, --- (1972), p. 8. The test for determining when a trial judge should step aside is an objective one, not a subjective one. It has been stated as follows: -91- "Would a person of ordinary prudence knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge's impartiality?" Thode The Code -- of Judicial Conduct--The First Five Years - (1977), Utah L.Rev. at 402. Although this Court has not adopted this Code of Judicial Conduct, the rule is but a rule of common sense and has existed long before the adoption of the canons discussed in the law review article. In the case of In Re Hupp's Fstate (1955), 178 Kan. 432, 672, 291 P.2d 428,/the Kansas Supreme Court reiterated the rule declared in Tootle v. Berkley (1899), 60 Kan. 446, 56 P. 755, where it stated: ". . . when circumstances and conditions surrounding litigation are of such nature they might cast doubt and question as to the fairness or impartiality of any judgment the trial judge may pronounce, such judge, even though he is not conscious of any bias or prejudice, should disqualify himself and permit the case in question to be tried before a judge pro tem. " It is true that these cases were decided under circumstances where a party moved at the lower court to remove a judge from a case, but where he refused; or where a party was successful in removing a judge from the bench, but where the other party contended upon appeal that the judge should not have removed himself. But if these rules are to have any substantive meaning, particularly in a death penalty case, it should not be necessary that the defendant have moved to have the judge step aside in favor of another judge. The sentencing court should be ever mindful that this Court will, under the reasonable man test, scrutinize the proceedings, and if we determine that the sentencing judge has failed the reasonable man test, we will remand the case for resentencing and order a new judge to preside. I n a death penalty case, t h i s Court has an overriding duty, r e g a r d l e s s of t h e e x i s t i n g r u l e s of procedure governing t h e d i s q u a l i f i c a t i o n of judges, t o determine i f from t h e e n t i r e record and t h e t o t a l i t y of circumstances~ t h e defendant has had a f a i r hearing. Here, he c l e a r l y d i d not. I would vacate t h e death penalty and order t h a t a new judge be c a l l e d i n t o preside over t h e sentencing hearings. To set f o r t h m y p o s i t i o n s concerninq t h e sentencing hearing, and more p a r t i c u l a r l y , t h e w r i t t e n f i n d i n g s of f a c t entered by the sentencing c o u r t , I have of n e c e s s i t y had t o quote from many of t h e w r i t t e n findings. There is always t h e danger t h a t t h e reader may conclude t h a t i f t h e w r i t t e n findings were reviewed i n t h e i r e n t i r e t y perhaps they would n o t support m y p o s i t i o n . For t h i s reason, I have appended t o t h i s d i s s e n t a s Exhibit A , an exact copy of t h e Findings, Conclusions, Judgment and Order entered by t h e sentencing c o u r t on J u l y 1 0 , 1978, whereby t h e defendant was sentenced t o hang. For a l l of t h e foregoing reasons I would vacate t h e death sentence imposed i n t h i s case, order t h a t a d i f f e r e n t d i s t r i c t judge be c a l l e d i n t o p r e s i d e again a t t h e sentencing of defendant, and f u r t h e r order t h a t t h e death penalty i s not t o be considered. I N T H E DISTRICT C O U R T OF T H E SIXTEENTH JUDICIAL DISTRICT O F T H E STATE O F C A S z m. -..LC-.r73 =itu€ NC, ------------- STATE O F M O N T A N A P l a i n t i f f DEWEY E U G E N E C O L E M A N Defendant M O N T A N A , I N AND F O R T H E COUNTY O F ROSEBUD * * * * k t * * 1 1 No. 1083 ' 1 ) FINDINGS, CONCLUSIONS, J U D G M E N T k.? O R D E R 1 Pursuant t o a n Information f i l e d on t h e 24th day of October, 1974, Dewey Eugene Coleman, defendant herein, was charged with t h e crimes of Deliberate Homicide, Aggravated Kidnapping and Sexual Intercourse With- out Consent. A jury trial commenced October 23, 1975, and continued through November 14, 1975, a t which t i m e t h e Jury returned v e r d i c t s of "guilty" on the three counts. O n November 21, 1975, t h i s Court sentenced Coleman t o t h e maximum punishment on each charge, t h a t is: The defendant was sentenced t o death f o r Aggravated Kidnapping; he was sentenced t o 100 years f o r Deliberate Homicide; and he was sentenced t o 40 years f o r Sexual Intercourse Without Consent. These senteaces were ordered t o be served consecutively. This matter was appealed t o the Montana Supreme Court, which i n its decision of April 26, 1978, upheld each of t h e three convictions, but remanded t h i s matter f o r re-sentencing. The Supreme Court held t h a t t h e r e was no showing of t h e i n f l i c t i o n of bodily injury during the course of t h e rape of t h e victim, and t h a t , therefore, i n t h e absence of t h a t aggravating circumstance the maximum penalty f o r t h e crime is 20 years. The Supreme Court a l s o held t h a t Section 94-5-304, R.C.M. 1947, i s unconstitutional because it proscribes a mandatory imposition of t h e death penalty. The Court rejected the defendant's claim t h a t two jurors were excused f o r cause i n v i o l a t i o n of the Witherspoon Rule because of t h e i r views on c a p i t a l punishment. The Court limited its decision on over turning the death penalty t o the absence of procedural requirements allowing the t r i a l Court t o consider any mitigating circumstances i n its imposition of a penalty under the unconstitutional death penalty statute. The II Court stated, as follows: I "Under t h i s statute, i f the court finds, as it did i n t h i s case, that the victim of an aggravated Ridnapping died as a result of the crime, the convicted defendant must be sentenced t o die. There i s no provision for the t r i a l court t o consider any mitigating circumstances, It only allows the court t o determine the aggravating circumstances of death. This is not constitutionally permissible, To have a constitutionally valid death penalty, the United States Supreme Court has established certain necessary procedures, See: Greqg v., Georgia, (1976), 428 U . S . 153, 96 S.Ct, 2909, 49 L0Ed.2d 859; Proffitt v, Florida, (1976), 428 U . S , 242, 94 S.Ct. 2960, 49 L.Ed.2d 913; (1976). 428 U.S, 262, 96 S.Ct, 2950, 49 LoEd,2d 929, None of those required procedures are present i n Montana's death penalty statute as it existed i n 1974, nor were they pro- vided otherwise i n t h i s case, Thus, defendant's death sentence cannot stand." l4 II On the 14th day of June, 1978, a separate sentencing hearing I 15 () was held t o determine the existence or non-existence of aggravat- I l6 11 ing circumstances o r mitigating circumstanc&s i n l i n e with the I l7 (1 provisions of Sec 95-2206.6, 95-2206.7, 95-2206.8 and 95-2206.9, I II evidence or any matter i n mitigation, declined t o do so, FO1l 18 19 20 22 11 the hearing the court granted the s t a t e and the defendant time t o 1 R.C.M., 1947, A t time of the sentencing hearing the defendant f i l e d a Motion t o Quash, and when offered an opportunity t o presen I 24 (1 Quash. Briefs and the law having been considered, the t r i a l court I 23 addresses the principal legal issues raised, I I f i l e b r i e f s particularly with reference t o defendant's Motion t o I A s noted by Coleman i n h i s appellate brief (pp 178, 179) Sec. I II 95-5-304, R.C.M,, 1947, originally provided that "A court s h a l l 28 2g 11 impose the sentence of death following conviction of aggravated 30 0 kidnapping i f it finds the victim is dead as a result of the I 11 criminal conduct unless there are mitiqatinq circumstances," m e I 32 li legislature amended t h i s section by striking the portion of the Star M!ler City, that the sentencing court need not consider mitigating circum- I stances upon conviction of aggravated kidnapping, AS pointed out I above the statute as amended was declared unconstitutional i n I this case, but the Supreme Court i n remanding for resentencing did not specifically declare i f the t r i a l court could or could not impose the death penalty. Coleman argues that since the mandatory statute was declared unconstitutional, Coleman cannot be sentenced t o death under laws enacted after h i s conviction, The Supreme Court a t page 1 1 of its opinion indicates that i f the death penalty had been imposed under proper procedural safeguards, the sentence would have been upheld, The Court s t a t e s : "To have a constitutionally valid death penalty, the United States Supreme Court has established certaip necessary procedures. I (citations) None of these required procedures are present i n I Montana's death penalty statute as it existed i n 1975, nor were they provided otherwise i n this case, (emphasis supplied) Thus defendant's death sentence cannot stand." The emphasized language strongly suggests that i f the sentenc 1 23 II ing court had observed procedural requirements declared by recent I 24 11 U . S . Supreme Court decisions, the death penalty would have been I 25 11 upheld notwithstanding that Montana's mandatory law was uncon- I stitutional, I " II The later enactment of Sections 95-2206-6, e t seq, spelling I Star Printing CO. LlUoa Cify. hfor.:. out the procedure, should not operate t o take away the court's power t o impose the death penalty under proper procedural safe- guards, The death penalty i s an operative fact under the Montana constitution and Section 95-5-303, R.C,M, 1947, and are not t o be -2A- and other statutes are substituted therefor, A s argued by the I ' )I State from the Dobbert case, the circumstance that the defendant I 1 i s afforded greater procedural protection by the t r i a l court's I 11 the prohibition of ex post facto laws. 7 I 5 6 utilization of sections 95-2206-6, e t seq,, does not f a l l within I procedure as reflected i n recent U. S. Supreme Court decisions I 8 9 1) and the Montana statutes enacted i n response thereto. I I n summary, the t r i a l court i n n o w pronouncing sentence is i n a position t o u t i l i z e the interim developments i n sentencing 12 13 1 4 1 s a t t r i a l , and a f t e r observing the defendant's demeanor during the t r i a l and while testifying on h i s own behalf, the Court now makes the following Findings, Conclusions, Judgment and Order. FINDINGS 1, That on July 4, 1974, the defendant and Robert Dennis Nan3 were on the road on Nank's motorcycle on a journey which began a t Both parties having been given the opportunity t o place befor the Court a l l matters each deemed relevant and competent bearing upon a determination of appropriate sentences t o be imposed upon 1 6 17 the Sheridan Veterans Administration Hospital i n Sheridan, Wyoming, I the three guilty jury verdicts rendered, and the Court having re- viewed a l l matters submitted, together with the evidence produced 16 11 and continued through various towns i n Montana t o Roundup, Montana. 1 The two men burglarized a home i n Roundup, Montana, on July 4, I 1974, and stole several r i f l e s which 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 2 1 22 23 24 2 5 26 27 28 29 30 3 1 32 STATE ' I B L I S H I N C C< -5LFNA. YON7 3 were subsequently buried near t h e Roundup Airport. Later i n t h e day t h e two men decided t h a t they would rob someone along U.S. Highway No. 12 between Roundup, Montana, and Forsyth, Montana, and t h a t they would k i l l t h e witnesses t o destroy t h e evidence. With t h e motorcycle alongside t h e road, they began hitchhiking. A car occupied by a M r . and M r s . Paul Koester of Forsyth, Montana, stopped, but were frightened and l e f t hurriedly as t h e defendant moved t o obtain entry i n t o the vehicle. A t about 10:OO P.M. Miss Peggy Harstad of Rosebud, Montana, stopped and offered t h e two men a ride. They took control of her and her automobile, t i e d her with a rope, and took her t o a remote location north of Vananda, Montana, where both men attempted t o engage sexual intercourse without consent with her. The victim was i n mensturation a t t h e t i m e . Holding her upon her back i n t h e r e a r of t h e automobile, t h e defendant engaged i n t h e a c t of sexual i n t e r - course without consent, while t h e victim pleaded with him not to. They drove through Forsyth t o a secluded spot adjacent t o the frontage road j u s t e a s t of Forsyth, Montana, where Coleman announced h i s decision t o k i l l M i s s Harstad. They then drove back through Forsyth t o t h e bridge on U.S. Highway No. 12 over t h e Yellowstone River t o a n i s o l a t e d area across t h e Yellowstone River from Forsyth near a n abandoned Milwaukee Railroad depot. I n t h i s a r e a Coleman i n i t i a t e d t h e a s s a u l t upon t h e victim by swinging h i s motorcycle helmet by the chin s t r a p and crashing i t against the victim's head. Then the defendant placed the yellow nylon rope around t h e victim's neck and attempted t o s t r a n g l e her. Then both the defendant and Robert Nank c a r r i e d the victim down t o a slough and, the defendant held her under t h e water. The victim rose out of the water b r i e f l y and then both men went i n t o t h e water and held her under u n t i l she expired. 2. That the S t a t e has been unable t o prove by means of record checks t h a t the defendant has any other h i s t o r y of criminal a c t i v i t y . The only other criminal a c t which appears i n the t r i a l record i n t h i s cause is the ' aggravated burglary of a home i n Roundup, Montana, where c e r t a i n guns were s t o l e n by t h e defendant and Robert Nank on July 4, 1974. By reason of t h e foregoing, the c r e d i t i n mitigation allowed by Section 95-2206.9(1) is not appropriate t o t h i s defendant. 3. That there is no evidence appearing, e i t h e r i n the record of t h e t r i a l held i n t h i s cause o r the s p e c i a l sentencing hearing accorded, supporting a finding of any of t h e circumstances i n mitigation under the other numbered paragraphs of Section 95-2206.9, namely paragraphs (2) through (8). There is, likewise, no evidence of any f a c t s which a r e operative i n t h i s case t o mitigate the penalty i n t h i s cause. The Court therefore finds, as follows: a. That the offenses charged and proven i n t h i s cause were not committed while the defendant w a s under the influence of any mental o r emotional disturbance; and b. That i n committing the a c t s charged and proved t h e defendant did not a c t under extreme duress o r under the s u b s t a n t i a l domination of another person, r a t h e r the defendant's decisions t o kidnap, rape and murder were the r e s u l t of conscious deliberation and were h i s independent decisions arrived at despite contrary arguments advanced by Robert Nank against the murder of the victim; and c. That the capacity of the defendant t o appreciate the criminality of h i s conduct o r t o conform h i s conduct t o the requirements of l a w w a s not s u b s t a n t i a l l y impaired; and d. That t h e victim was not a participant i n the defendant's conduct and did not consent t o any of the a c t s , r a t h e r t h a t she r e s i s t e d , and pleaded with the defendant a t various times throughout the course of events which resulted i n her death; and e. That the defendant was not a r e l a t i v e l y minor accomplice, nor was h i s p a r t i c i p a t i o n i n the offenses r e l a t i v e l y minor, r a t h e r t h a t the defendant was the decisionmaker and the dominating influence i n the criminal a c t s committed against the victim; and f . That the defendant a t t h e time of the commission of the offenses was 27 years of age. -4- 1 2 3 4 5 6 7 8 9 10 I I 12 13 14 15 16 17 18 19 20 2 1 22 23 24 2 5 26 27 28 29 30 3 1 32 S T A T E OLISHING CO --EsJA. MONT . . - 3 4. That a t t h e p r i o r sentencing hearing, t h i s Court imposed t h e sentence of 100 years f o r t h e crime of d e l i b e r a t e homicide. That a t t h e p r i o r sentencing hearing the Court imposed the sentence of 40 years f o r sexual intercourse without consent; t h a t these sentences w e r e ordered t o run consecutively. CONCLUSIONS The Court concludes a s follows: 1. That the aggravating circumstances s e t f o r t h i n Section 95-2206.8, paragraph (7) e x i s t s f o r the reason following: That t h e offense of aggravated kidnapping was committed by the defendant and it resulted i n the death of t h e victim, Miss Peggy Harstad. 2. That none of t h e mitigating circumstances l i s t e d i n Section 95-2206.9 R.C.M. a r e s u f f i c i e n t l y s u b s t a n t i a l t o c a l l f o r leniency. That t h e only mitigating circumstance technically present i n t h i s cause is t h a t t h e defendant has no record history of p r i o r criminal a c t i v i t y . From the foregoing Findings and Conclusions, t h e Court now renders i t s J U D G M E N T and O R D E R a s follows: 1. The defendant, Dewey Eugene Coleman, having been found g u i l t y of t h e crime of Aggravated Kidnapping by a jury on November 14, 1975, and t h e Court having s p e c i f i c a l l y found beyond a reasonable doubt that t h e aggravating circumstances s e t f o r t h i n Section 95-2206.8(7) e x i s t i n r e l a t i o n t o t h i s offense, and t h a t no circumstances e x i s t i n mitigation of t h e penalty, t h e defendant, Dewey Eugene Coleman, is hereby sentenced t o death f o r the crime of Aggravated Kidnapping. Said punishment is t o be i n f l i c t e d by hanging Dewey Eugene Coleman by the neck u n t i l he is dead between t h e hours of s i x o'clock A.M. and s i x o'clock P.M. on the 31st day following the completion of the automatic review of t h i s case by the Montana Supreme Court. The execution of s a i d sentence s h a l l be supervised by the Sheriff of Yellowstone County pursuant t o Section 95-2303 R.C.M. 1947. 2. The defendant, Dewey Eugene Coleman, having been found g u i l t y of t h e crime of Sexual Intercourse Without Consent by a jury on November 14, 1975, t h e defendant, Dewey Eugene Coleman, is hereby sentenced t o be imprisoned i n t h e Montana S t a t e Penitentiary f o r a term of 20 years f o r t h e crime of Sexual Intercourse Without Consent. 3. The sentences hereby imposed a r e t o be served consecutively with t h e sentence of 100 years f o r Deliberate Homicide which is not disturbed hereby. The defendant is hereby remanded t o the custody of the Rosebud County Sheriff t o be transported by him t o the Montana S t a t e Penitentiary t o await t h e f i n a l order of t h i s Court pertaining t o the execution of t h e remainder of t h e sentence herewith imposed. The defendant is t o receive c r e d i t f o r time served, from the d a t e of h i s i n i t i a l incarceration on these charges on October 17, 1974, t o t h e date of t h i s judgment. Dated t h i s I , : day of D i s t r i c t Judge cc: John S. Forsythe Charles F. Moses	June 20, 1979
70572748-f7d8-4f98-b65c-1b54b0284945	MARRIAGE OF HARRINGTON v HARRINGTO	N/A	14281	Montana	Montana Supreme Court	N o . 14281 I N THE S U P F S ! D E COURT O F THE STATE O F BOISJTANA 1979 IN RE THE MARRlXE O F JOHN W. I - m a m m m , Petitioner and Appellant, -VS- S A L I ; Y JQAN Jmmmm, F&spondent and Respondent. Appeal frcun: D i s t r i c t Court of the Second Judicial D i s t r i c t , Honorable James D. Freebourn, Judge presiding. Counsel of m r d : For Appllant: Leonard J. Haxby, Butte, Fbntana For Respondent: Neil Lynch, Butte, Montana Suhitted on briefs: Septaber 12, 1978 Decided:2 - -- -. 5 9 x Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Husband in a dissolution of marriage proceeding appeals from a judgment of the Silver Bow County District Court and seeks review of the court award of $300 per month in child support. He contends the amount of the court ordered child support was not supported by the evidence and constituted an abuse of discretion. We dismiss the appeal for counsel's failure to provide this Court with an adequate record upon which to decide the issue. On June 22, 1977, the husband filed his petition for dissolution of marriage which asserted, among other things, that the wife should receive custody of the parties' three minor children and that he would pay $200 per month for child support. The wife responded by filing an answer and counterclaim which, among other things, agreed that she should have custody of the children, but claimed $300 per month was necessary for their support. The matter was tried on November 3, 1977. Apparently, no court reporter was present to record the testimony of witnesses. Thereafter, the court dissolved the marriage, awarded custody to the wife and ordered the husband to pay $300 per month for child support. Following denial of his motion for rehearing, husband filed notice of appeal to this Court on January 19, 1978. On March 22, 1978, the husband filed an "agreed statement of facts" in the District Court. This document merely recites the undisputed facts of the marriage including the parties' monthly income, living expenses and the marital debts which the husband assumed upon dissolution of marriage. The issue presented for our consideration is whether the evidence was sufficient to support the court's judgment that the husband is able to pay $300 per month in support of the parties' minor children. We do not have a satisfactory record of the evidence presented at trial and consequently cannot consider the merits of this issue. It is the duty of a party seeking review of a judgment to present this Court with a record sufficient to enable us to pass upon the question raised. Rule 9, Mont.R.App.Civ.P.; 9 Moore's Federal Practice §210.05[1], p. 1618-19; 4 Am.Jur.2d Appeal and Error S398. This rule is particularly crucial where the sufficiency of evidence is challenged. Yetter v. Kennedy (1977), Mont . , 571 P.2d 1152, 1156, 34 The husband's agreed statement of facts was evidently an attempt to submit an "agreed statement as the record on appeal" pursuant to Rule 9(d), M0nt.R.App.Civ.P. which in pertinent part provides: "AGREED STATEMENT AS THE RECORD ON APPEAL. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how -- the issues presented by the appeal arose -- and were decided in the district court -- and setting forth only so many of the facts averred and proved or sought to be proved as are essential - to - a decision -- of the issues presented,. . . " (Emphasis added. ) The agreed statement of facts plainly fails to form a basis upon which this Court can review the judgment of the District Court. Having failed to provide this Court with an adequate record, the husband's appeal is by dismissed. We Concur: Chief Justice Justices	April 18, 1979
aab50ca9-3b50-48e2-84e5-c5773c187cd4	STATE EX REL DIEHL CO v CITY OF	N/A	14721	Montana	Montana Supreme Court	No. 14721 I N THE S U P R E M E COURT O F THE STATE OF M3TANA 1979 STATE ex rel., THE DlEHL CQMPANY, A bbntana Corporation, Plaintiff, Relator and Respondent, -vs- THE CITY O F HELENA, KNTANA et al., Defendants, Respondents and Appellants. AppedL f m : D i s t r i c t Court of the F i r s t J d i c i a l D i s t r i c t , Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellants: H u l l , Driscoll and Sherlock, H e l e n a , &bntana Jms D r i s c o l l argued, Helena, mntana C. W. Leaphart, Jr., argued, Helena, mntana For Respondent: G e n e A. Picotte argued, Helena, mntana Suhnitted: March 26, 1979 . - J Decided : ApR 1' + - - Filed: Mr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal is by the City of Helena and its City Commission (Helena) from a judgment against it entered January 12, 1979, in the District Court, First Judicial District, Lewis and Clark County. Because of the unusual circumstances presented, this Court on motion expedited the oral argument and decision in the cause. The Diehl Company (Diehl) has been planning since 1971 for the development of a large shopping-center complex on land owned by the corporation just east of the City of Helena. In 1975, Diehl received approval from the Helena Zoning Commission for a designation of the parcel as a "B-2" zone. A B-2 zone under the Helena City ordinances allows for construction and operation of all types of businesses that would make up the contemplated shopping center. However, Diehl's plan calls for a huge planned-unit mall-type complex rather than separate stores. Helena City Ordinance 11-15-5 lists as a "conditional use" of a B-2 zone "planned-unit shopping center(s) in tracts of five or more acres. . . I' In order to make such conditional use of a B-2 zone, a developer must apply for a "conditional-use permit" following procedures outlined in the City ordinances. Diehl applied. Helena City Ordinance 11-15-2(B) provides: "(B) A conditional use permit shall only be granted by the City Commission based upon (if warranted by the facts and circumstances) a statement of findings by the City Commission that: "1. The use conforms generally to the objectives of the Comprehensive Plan and the intent of the ordinance, and "2. Such uses will not adversely affect nearby properties or their occupants, and "3. Such uses meet the overall density, coverage, yard, height and all other regulations of the district in which they are located, and "4. Public hearings have been held, after the required legal notices have been given, and the public has been given a chance to be heard upon the matter." Before the request for a permit is ruled on by the City Commission, it is first reviewed by the Zoning Commission which makes a recommendation as to whether the permit should be issued. The Zoning Commission is an advisory body only and its recommendation has no binding effect on the City Commission. The duty of the City Commission in acting upon requests for conditional-use permits is found in Helena City Ordinance 11-15-3, which spells out the conditional-use permit procedure. It provides that after the proper procedures have been followed to bring the request before the City Commission, then: "The City Commission shall, by resolution, approve, deny, or change the recommendation of the Zoning omm mission. If the City Commission denies or changes the Zoning Commission's recommendations, the reasons for such a change shall be made part of the resolution." (Emphasis added.) On July 24, 1978, Diehl's request for a conditional- use permit for a planned shopping center came before the regular meeting of the City Commission. A reading of the transcript of the public hearing held in conjunction with that meeting indicates that a significant majority of the members of the public present opposed the granting of the permit. One of the commissioners moved that the permit be denied but the motion died for lack of a second. Another commissioner then proposed the following resolution: "A resolution establishing a one-year moratorium on the granting of all conditional-use permits for planned-unit shopping centers outside the Central Business District in the City of Helena as defined in Section 15-5 of the City Zoning Ordinance on the basis of need for additional in- formation and deliberation on transportation, provision of public services, the effect on residences and businesses in the City of Helena, and other aspects of the Comprehensive Plan of Helena and affecting the health, welfare, and public safety of the people of Helena." This resolution passed. Thereafter, Diehl commenced legal proceedings for a declaratory judgment that the moratorium was illegal and that the ordinances providing for conditional-use permits were unconstitutionally vague, and requesting a writ of mandamus to require the City Commissioners to rule on his application. On August 3, 1978, Diehl filed a petition for writ of mandate in this Court. After reviewing written arguments with respect to the petition, we dismissed the same, refusing to assume original jurisdiction on October 2, 1978, because of apparent factual controversies. On October 26, 1978, Diehl filed in the District Court his complaint and petition for a declaratory judgment, writ of mandate, and order to show cause. After two disqualifications, the Hon. W. W . Lessley was called in as presiding judge in the District Court. The matter was submitted to him on affidavits and exhibits, and each party submitted proposed findings of fact, conclusions of law, and briefs. On January 12, 1979, the District Court issued a declaratory judgment and peremptory writ of mandate, and writ of prohibition, and its adopted findings of fact and conclusions of law. The District Court ordered and decreed as follows: 1 . Helena was required to issue the conditional- use permit to Diehl forthwith and was prohibited from delaying or obstructing the course of any further necessary proceedings that may be legally prequisite to the creation of the shopping center. 2 . If Helena refused to issue such conditional-use permit, Diehl was granted the right to proceed with the shopping center in all lawful ways, without the necessity of obtaining -4- any conditional-use permit from the Commission. Helena was prohibited from any interference or obstruction of the activities of Diehl in creating said shopping center. 3. The District Court further implied in its conclusions that the conditional-use permit ordinances of Helena were unconstitutional but that the necessity for reaching the issue of the validity or constitutionality of the ordinances was not involved if Helena approved the issue of the con- ditional-use permit applied for by Diehl; otherwise, said ordinances were impliedly found to be unconstitutional. Helena filed post-trial motions in the court, which were denied. Thereafter, Helena brought this appeal. Out of the welter of issues and counter-issues raised by the parties, two main problems arise and control our decision here: 1. Whether the City Commission may adopt a moratorium against the issuance of conditional-use permits in the circumstances described here. 2. Whether the writ of mandate or declaratory judgment requiring the issuance by the City of the conditional-use permit was proper. On those issues, we conclude and hold as follows: 1. While a City may adopt a reasonable general moratorium in proper circumstances against the issuance of conditional- use permits, if adopted as an urgency matter, the procedure required by section 76-2-306 MCA (formerly section 11-2711, R.C.M. 1947), must be followed. 2. The discretion of the City Commission to approve, modify or deny the recommendation of the Zoning Commission as to the issuance of a conditional-use permit cannot be controlled by writ of mandate, prohibition, or by declaratory judgment . -5- 3. A writ of mandate requiring the City Commission to act on Diehl's application for a conditional-use permit within a reasonable time is proper under the circumstances in this case. THE MORATORIUM: The first grant of statutory authority for zoning by municipalities occurred in this State in 1929. Chapter 136, Laws of 1929. Historically, the grant of the zoning authority is broadly stated, as characterized in section 76-2-301 MCA (section 11-2701, R.C.M. 1947) : "Municipal Zoning Authorized. For the purpose of promoting health, safety, morals, or the general welfare of the community, the city or town council . . . is hereby empowered to regulate - and restrict . . . the densityof population; and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes." (Emphasis added.) No specific statutory authority in Montana appears for the adoption of moratoriums with respect to zoning or the issuance of permits under zoning ordinances. The power to adopt moratoriums, if it exists, must be found within the paste and cover of the broad statutory grant "to regulate and restrict" the use of land. Other courts have found such power in local governments where the purpose of the moratorium is to allow for a rational and reasonable growth. Golden v. Planning Board of Town of Ramapo (1972), 30 N.Y.2d 359, 285 N.E.2d 291; Smoke Rise, Inc. v. Washington Suburban Sanitary Commission (D.C. Md. 1975), 400 F.Supp. 1369. Moratoriums appear to be a development of the exercise of the police power in local government. Smoke Rise, I n c , . , .3upra. - - - - A moratorium itself must be reasonable in length of time and scope. In Smoke Rise, Inc., it is said: - - "While a police powered moratorium must be reasonably limited as to time, it is clear that the reasonableness of the duration of the moratorium must be measured by the scope of the problem which is being addressed." 400 F.Supp. at 1386. A moratorium must also be limited in its purpose. It must promote the health, safety, morals or the general welfare of the community. Section 76-2-301 MCA (formerly section 11-2701, R.C.M. 19471, and designed to meet the purposes of zoning as set forth in section 76-2-304 MCA (formerly section 11-2703, R.C.M. 1947) . We perceive therefore in the statutes a legislative intent for a broad general grant of power to municipalities in their zoning regulations, and that implied in the power to restrict the use of land, as an exercise of police power, is the authority to adopt reasonable moratoriums. The procedure for the adoption of such moratoriums, however, must be according to the statutes out of which the implied authority arises. In this case, unless an urgency existed, it was the duty of the City Commission, intending to adopt a moratorium, to follow the procedure set forth in section 76- 2-303 MCA (formerly section 11-2704, R.C.M. 1947). That statute provides that the municipality, in adopting "regu- lations and restrictions" must first provide a public hearing with notice to parties in interest and citizens. That procedure was not followed in this case. The moratorium adopted here properly should have been enacted as an urgency measure under the procedures set forth in section 76-2-306 MCA (formerly 11-2711, R.C.M. 1947), relating to interim zoning ordinances. That statute limits such measures as to duration, and further, requires a public hearing with notice beforehand. Since this statute was not followed by the City Commissi~n, the moratorium was invalid. It is only in following this statute that the City Commission could act on a moratorium without first referring the matter to the Zoning Commission. See section 76-2-307 MCA (formerly section 11-2706, R.C.M. 1947). -7- Not only did the City of Helena not follow a valid procedure in adopting the moratorium here, but it effected to adopt such a moratorium when it was considering a specific application for a conditional-use permit presented by Diehl. At that time, the authority of the City Commission in acting upon the application of Diehl was circumscribed by Helena City Ordinance 11-15-3. Under that ordinance, the Commission was mandated to approve, deny or change the recommendation of the Zoning Commission by resolution, and if it denied or changed the recommendation, to state its reasons in the resolution. Helena had before it only one application for a conditional-use permit, that of Diehl. Therefore, the adoption of the moratorium in effect constituted a denial of the permit without stating its reasons. The obvious purpose of Helena Ordinance 11-15-3, is to provide a final decision with respect to any such application. The office of the statement of reasons for denial or change is the same as the office of findings of a court. It provides a reviewing authority, such as a District Court, with a method of measuring whether the action of the City Commission is arbitrary or capricious. This Court had a similar situation in State ex rel. Spring v. Miller (1976), 169 Mont. 242, 545 P.2d 660. In that case, Powell County had adopted a regulation which had the effect of preventing further subdivision in a Powell County area "for an interim period while further studies could be made." The regulation was adopted pursuant to section 76-2-206 MCA (formerly section 16-4711, R.C.M. 1947), but without complying with the notice and hearing requirements set forth in section 76-2-205 MCA (formerly section 16-4705, R.C.M. 1947). We held that temporary interim zoning regulations to be null and void for failure to follow the notice and hearing requirements before the adoption of the regulation. See also, Bryant Development Association v. Dagel (1975), 166 Mont. 252, 531 P.2d 1320. -8- In like manner, we hold the moratorium adopted by Helena in this case to be void and of no effect. HELENA'S DUTY TO ACT: --- The District Court mandated that the conditional- use permit be issued to Diehl forthwith. It added some prohibitions regarding further actions on the permit by Helena, but in essence, the mandamus, prohibition, and declaratory judgment of the District Court are all in the order of mandamus directing Helena to issue the permit without further ado. In this the District Court erred, because in any event, the City Commission of Helena has the discretion under its ordinances to take one of three actions on the permit application: approve, deny or change. There is no power in our courts to control the discretion of a municipal body or officer by mandamus. Barnes v. Town of Belgrade (1974), 164 Mont. 467, 470, 524 P.2d 1112, and cases cited therein. An abuse of discretion by such a body or officer can be reviewed in proper cases in a proceedings for writ of review or certiorari. For example, Bryant, supra. Here the City Commission never got around to exercising its discretion regarding the conditional-use permit. Until that discretion is exercised, the right to act remains lodged in the City Commission, and no court may usurp the discretionary right of the City Commission to make one of the decisions provided by the ordinance on the Diehl application. We can however, compel the City Commission to act on the application, where a delay in the exercise of discretion appears to be arbitrary and capricious. Barnard v. McInerney (1973), 162 Mont. 309, 316, 511 P.2d 330, 343, and cases cited therein. The City Commission can be compelled to perform an act it is legally bound to perform. Erie v. State Highway Commission (1969), 154 Mont. 150, 153, 461 P.2d 207, 209. While the adoption of the moratorium and the processing of this appeal might be indications of the attitude -9- of the City Commission with respect to the Diehl application, we cannot completely say on the record that if the City Commission exercises discretion, it would not grant the conditional-use permit, or that it would deny or change the recommendation of the Zoning Commission without explaining its reasons. The record shows all of the requisite hearings have been held, the proceedings before the Zoning Commission are concluded, and all that remains for final action on the Diehl application is the decision of the City Commission. It may be necessary for the Commission to have one additional hearing before taking final action, but it is certainly within our power to compel the City Commission to proceed with all reasonable dispatch to a decision on the Diehl application. Barnes, supra. Nothing we say here should be taken to indicate that we abrogate or relinquish in the slightest the role of judicial review and authority in matters such as the case under consideration. See the opinion and dissenting opinion in Lowe v. City of Missoula (1974), 165 Mont. 38, 525 P.2d 551. OTHER ISSUES: There are other issues raised by the parties to this appeal which we have no need under our holding to discuss. The District Court did not finally reach the question of constitutionality of Helena's zoning ordinances nor the statutes relating to zoning, as adopted or applied. It is not necessary to go into that issue here. There is dispute among the parties as to whether the Helena Zoning Commission did in fact make a recommendation relating to the Diehl application. While Helena argues otherwise, it does appear the majority of the Zoning Commission recommended issuance of the conditional-use permit, and the City Commission treated the application as having Zoning Commission approval. No other issues require discussion. In sum, the decision of the District Court in this case is reversed. The City of Helena and its City Commissicn are ordered to proceed with all reasonable dispatch to make and enter a resolution pursuant to Helena City Ordinance 11-15- 3, approving, denying or changing the recommendation of approval by the Helena Zoning Commission of the Diehl conditional-use permit application; and further, if the same is denied or changed, said resolution shall state the reasons for such denial or change in accordance with the ordinance. This Court would not look with favor upon the adoption of any further interim moratorium under section 76-2-306 MCA, insofar as the same might apply to the Diehl application. Each party shall pay its own costs and attorney fees. A copy of this opinion served by the Clerk on counsel shall serve the office of writ of mandate insofar as the mandatory provisions of this opinion are concerned. / Justice 1 We Concur: / p h i e f Justice- ........................... Justices Mr. Justice Daniel J. Shea concurring with the majority Opinion. I concur in the decision of the majority that a writ of mandamus was not a proper remedy, but I would not confine the ruling to such holding. The record reveals that there was absolutely no foundation for many of the crucial findings and conclusions reached by the District Court. The District Court adopted virtually in toto the proposed findings and conclusions presented by The Diehl Company, and they were totally without an evidentiary foundation. Indeed, when the smoke was cleared away, one cannot find evidence that there was ever a flame. Because of the unusual circumstances surrounding the need for an immediate decision in this case, I have not yet prepared a detailed analysis of the evidence upon which the District Court acted. I will do so at a later time but I will not delay the opinion. pdd-JA ice	April 18, 1979
f71e15d8-b544-40e0-9d0a-71f7e35ad382	STATE v HALL	N/A	14745	Montana	Montana Supreme Court	No. 14745 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, Plaintiff and Respondent, -vs- DONALD D. HALL, Defendant and Appellant. Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Morales, Volinkaty and Harr, Missoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Robert L. Deschamps, 111, County Attorney, Missoula, Montana Submitted on briefs: August 13, 1979 Decided: QCT = 1979 T - 1 3 2 Filed: Mr. Chief Justice Frank I. Haswell delivered the Opinion of the court. Defendant Donald D. Hall was convicted of two counts of aggravated assault on his two-year old stepson following a jury trial in the District Court of Missoula County. He appeals from the judgment of conviction. Defendant and the child's mother, Cathy, were married in June, 1977, following the death of the child's father. On August 21, 1977, just prior to 5:00 p.m. Cathy Hall left home to pick up some chicken for dinner and was gone about 20 minutes. Defendant and the child were home alone. On her return Cathy asked defendant where the child was. Defendant replied that the child was tired and wanted to lie down. Cathy went downstairs but was unable to arouse the child who seemed unconscious. Cathy and defendant took the child to the emergency room of the Missoula Community Hospital. While there, Cathy asked defendant how the injuries occurred. Defendant said the child was riding his new 19" tricycle, tipped over on it, and hit the wall. The same story was given by both parents to Dr. Henry Gary, a neurological specialist who inquired in order to proper1.y treat the child. From the facts obtained from the parents and his med- ical findings, Dr. Gary diagnosed the child as having a subdural hematoma and as being a battered child. Dr. Gary testified it was highly unlikely the injury could have occurred as defendant claimed, as defendant's story did not coincide with his medical finding. Because of Dr. Gary's diagnosis of child abuse, the Montana Department of Social and Rehabilitation Services was contacted and social worker McCluskie assigned to the case. McCluskie spoke to defendant and his wife concerning the incident and was given the same explanation. Dr. Daniel Harper, a Missoula pediatrician and an expert in child abuse, was called in and spoke to the parents. He likewise concluded it was a case of child abuse. The second incident occurred on October 30, 1977. Again Cathy Hall was temporarily away from home and the child was in defendant's care. Upon returning and finding no one home, she immediately drove to the Missoula Community Hospital where de- fendant told her he had been flipping the child in the air above a bed and that the child's leg had been broken. The same explan- ation was given by defendant and his wife to Dr. Steven Wisner, the pediatrician on call at the hospital. Dr. Wisner found that the child had a long spiral fracture of the left femur and other un- explained bruises, including bruises on the ears. Dr. Wisner deter- mined it was highly unlikely that the fracture of the child's femur could have occurred in the manner indicated. His diagnosis was "unexplained trauma" which was reported as suspected child abuse. Cathy called social worker McCluskie to the emergency room where defendant repeated the "flipping" story. Dr. Robert Cunning- ham, an orthopedic specialist who was called in, testified that defendant's explanation of how the child's injury occurred was highly unlikely because of the significant force that would have to be applied to cause such a break. Dr. David Jacobsen, another orthopedic specialist who treated the child after the emergency room treatment, testified it was unlikely the injury occurred as defendant related. Police were not called in until Dr. Wisner called them. Detective Scott Graham advised both Cathy and defendant of their Miranda rights at the hospital, inquired how the incident occurred, and both parents repeated the explanation previously given the doctors. An information charging defendant with two counts of ag- gravated assault was filed on March 2, 1978. Defendant pleaded not guilty and trial was set for May 1 . Defendant waived his right to a speedy trial and obtained a continuance of his trial until the fall jury term. Eight days before the trial date of October 2 defendant filed a motion to suppress all statements and admis- sions made by him to his wife Cathy, Dr. Gary, Dr. Wisner, social worker McCluskie, and to any other persons involved in the crim- inal investigation. Four days later defendant filed a brief in support of his motion to suppress. The District Court denied the motion. The motion was renewed during the course of trial and again denied. Defendant also moved to separate the two counts prior to trial. The motion was subsequently withdrawn. Trial proceeded and the jury returned a verdict of guilty on both counts. Judg- ment was entered and defendant was sentenced to 10 years on each count to be served concurrently, and the sentence was suspended. Defendant has appealed from the judgment of conviction. Defendant raises three specifications of error: (1) Denial of his motion to suppress. (2) Refusal to permit him to introduce exculpatory, re- habilitative and impeaching evidence from a civil proceeding under the Abused, Dependent and Neglected Child Act. (3) Denial of his motion to try the two counts separately. We hold that the District Court's denial of his motion to suppress was proper on two grounds: (1) the motion was untimely, and (2) it was correctly denied on the merits. Defendant's motion to suppress was untimely as it was not made until 8 days before trial. The applicable statute requires at least 10 days notice. Section 46-13-301, MCA. Here the defen- dant waited over 7 months after he was charged to file his motion and then filed it only 8 days prior to trial. The thrust of defendant's argument is that his statements and admissions were procured by persons acting as alter egos of law enforcement under the guise of civil proceedings relating to dependent, neglected and abused children and then using this information to prosecute him criminally. He claims that this subjects his statements and admissions to exclusion as violat- ing his constitutional right against self-incrimination. Defendant's motion to suppress was properly denied on the merits. The record shows that the statements to his wife Cathy, Dr. Gary, Dr. Wisner and social worker McCluskie were voluntarily given by him. Miranda warnings and safeguards do not apply to these statements and admissions because he was not a criminal suspect in police custody at the time the statements and admissions were made. See Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L Ed 2d 694; State v. Johnson (1978), Mont. , 580 P.2d 1387, 35 St.Rep. 952; State v . Hallam Mon t . (1978) , , 575 P.2d 55, 35 St.Rep. 181. Contrary to defendant's claim, neither the doctors nor the social worker were law enforcement agents nor was defendant in custody within the purview of Miranda. See Oregon v . Mathiason (1977), 429 U.S. 492, 97 S.Ct. 711, 50 L Ed 2d 714. Clearly, defendant's wife Cathy was not a law enforcement agent. The statements to Detective Graham were made after the Miranda warning was given. Defendant contends that the statements he made violated his right of privacy guaranteed by Art. 11, Sec. 10, 1972 Mont. Const. The statements were freely and voluntarily given. There is no element of surreptitious obtaining of the information or securing information after consulting law enforcement officers. Cf. State v. Coburn (1974), 165 Mont. 488, 530 P.2d 442, and State v . Brecht (1971), 157 Mont. 264, 485 P.2d 47. Additionally, constitutional provisions on right of privacy permit its invasion upon a showing of a compelling state interest. That compelling state interest is clearly shown in child abuse cases by the decla- ration of policy contained in section 41-3-101, MCA. Defendant's second specification of error relates to the District Court's sustaining objections to evidence he sought to introduce that he claims is exculpatory, rehabilitating and impeaches testimony offered by the State. He refers to an attempt to impeach a state's witness by prior inconsistent state- ments and his attempt to elicit from the child victim's grand- mother statements made to her by the child victim. Defendant does not tell us nor does the record disclose the nature of the alleged impeaching testimony or the child victim's statements to his grandmother. No offer of proof was made. Absent this, we have no basis for review. Rule 103 (a) (2) , Mont. R.Evid. The final specification of error is the denial of defen- dant's motion to try each of the two counts separately. The min- utes of the District Court show that this motion was withdrawn in the Court's chambers immediately prior to trial. This specifica- tion of error is frivolous. We have examined the other authorities cited by defen- dant in his brief. We have no quarrel with these authorities. They simply do not apply under the facts of this case. An extend- ed discussion of these authorities in this opinion would serve no useful purpose nor change the result in this case. Affirmed. ----------------------------- Chief Justice We co cur: -- -- ----- ---- &&\A	October 9, 1979
c6d2ba29-2129-4587-add0-e49c74c10c70	PILATI v PILATI	N/A	14374	Montana	Montana Supreme Court	No. 14374 I N THE SUPREME COUKC O F THE STATE O F m m 1979 l%vAlxx PILATI, Petitioner and Appellant, -vs- P A U L A. PILATI, Respondent and Respondent. Appeal frm: D i s t r i c t Court of the Thirteenth Judicial D i s t r i c t , Honorable Mbert H. Wilson, Judge presiding. Counsel of m r d : For Appellant: Terry Seifert and Gary Wilcox, Billings, Wntana For Respondent: Berger, Anderson, Sinclair and Mxphy, Billings, Pllontana m< - 7 TCT? Filed : Suhnitted on briefs: February 9, 1979 Decided: -- AFT: - 5 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 e t i t i o n e r a p p e a l s from a determination of t h e Thir- t e e n t h J u d i c i a l District, t h e Honorable Robert H. Wilson g r a n t i n g , on January 19, 1978, r e s p o n d e n t ' s motion t o quash a p p e l l a n t ' s p e t i t i o n praying f o r : (1) an o r d e r d i r e c t e d t o t h e respondent, commanding him t o appear b e f o r e t h e c o u r t t o show cause, i f any, why t h e p r o p e r t y s e t t l e m e n t agreement and t h e p a r t i e s ' decree of d i s s o l u t i o n , i n t o which t h e former w a s incorporated, should n o t be set a s i d e ; ( 2 ) 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 respondent, precluding him from s e l l i n g any p r o p e r t y acquired by him o r by t h e p a r t i e s j o i n t l y during t h e course of t h e i r marriage; ( 3 ) 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 respondent precluding him from i n t e r - f e r i n g w i t h o r bothering t h e p e t i t i o n e r and h e r c h i l d r e n ; and ( 4 ) a t t o r n e y ' s f e e s i n t h e e v e n t t h e p r o 2 e r t y s e t t l e m e n t i s set a s i d e . The p e t i t i o n was accompanied by an a f f i d a v i t signed by t h e p e t i t i o n e r - a p p e l l a n t , i n which she a l l e g e s m a t t e r s which, i f found t o be t r u e , would form t h e founda- t i o n f o r s e t t i n g a s i d e o r amending t h e p r o p e r t y s e t t l e m e n t agreement. Some of t h e s a l i e n t f a c t s follow. The p a r t i e s were married f o r over 1 3 y e a r s b e f o r e d i v o r c i n g on December 9, 1976. They had two c h i l d r e n , who a t t h e t i m e of t h e d i v o r c e w e r e ages n i n e and s i x . When married, p e t i t i o n e r was 16 y e a r s o l d , t h e respondent 35 y e a r s o l d . She had a n i n t h grade education and was n o t employed then o r a t any t i m e d u r i n g t h e course of t h e marriage. I n c o n t r a s t , respondent i s w e l l educated; he holds both a b a c h e l o r ' s and m a s t e r ' s degree and has worked toward a Ph.D. and, according t o t h e b r i e f s , a J . D . H e i s both a rancher and high school t e a c h e r and does r e a l e s t a t e a p p r a i s a l s . During t h e course of t h e marriage, he handled a l l t h e f i n a n c e s of t h e family--even t o t h e e x t e n t of purchasing t h e g r o c e r i e s and c l o t h i n g . P e t i t i o n e r a p p a r e n t l y knew nothing of t h e i r f i n a n c i a l s t a t u s , a l l e g e d l y having been d e l i b e r a t e l y k e p t i n t h e dark by respondent. E a r l y i n November 1976 p e t i t i o n e r r e t a i n e d an a t t o r n e y t o f i l e f o r d i s s o l u t i o n of marriage. H e s o f i l e d on Novem- b e r 18, 1976, i n 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 , Carbon County. Subsequently, t h a t p e t i t i o n w a s dismissed and i n i t s p l a c e one was j o i n t l y f i l e d by t h e p a r t i e s , through respondent's counsel, on December 9, 1976. P e t i t i o n e r a l l e g e s i n h e r a f f i d a v i t t h a t she was misled by respondent and h i s a t t o r n e y and induced t o f i l e t h a t latter p e t i t i o n . On t h e very day t h e j o i n t p e t i t i o n w a s f i l e d , t h e d i s s o l u - t i o n was granted; t h e decree was signed and e n t e r e d and a p r o p e r t y s e t t l e m e n t , prepared by r e s p o n d e n t ' s a t t o r n e y a l o n e and executed by t h e p a r t i e s some t e n days e a r l i e r on Novem- b e r 30, 1976, was incorporated t h e r e i n . P e t i t i o n e r even- t u a l l y received as h e r s h a r e of t h e p a r t i e s ' p r o p e r t y a one bedroom house, one a c r e of t h e 46 which was t h e "ranch" on which they had l i v e d , and a 1976 Toyota automobile. She w a s awarded custody of t h e two minor c h i l d r e n , and was t o re- c e i v e $250 p e r month f o r t h e i r support and $50 per month f o r h e r maintenance. Within s i x months of t h e d i s s o l u t i o n , p e t i t i o n e r , unable t o s u p p o r t h e r s e l f and her c h i l d r e n , was f o r c e d t o a c c e p t p u b l i c a s s i s t a n c e i n t h e form of food stamps. A t t h e t i m e of t h e d i v o r c e , p e t i t i o n e r d i d n o t know t h e e x t e n t of t h e p a r t i e s ' holdings o r t h e i r t r u e worth. She l a t e r l e a r n e d t h a t t h e 45 a c r e s which respondent r e c e i v e d was worth about $70,000 and t h a t t h e remainder of t h e prop- e r t y owned by t h e p a r t i e s was worth over a h a l f m i l l i o n d o l l a r s . Once s h e discovered t h e e x i s t e n c e and worth of t h e p r o p e r t y , she contacted an a t t o r n e y who, on June 24, 1977, f i l e d a p e t i t i o n on h e r b e h a l f . The D i s t r i c t Court, i n response, i s s u e d an o r d e r , f i l e d June 30, 1977, s e t t i n g a hearing t o show cause. Subsequently, on J u l y 21, 1977, t h e d a t e set f o r hearing, respondent f i l e d a motion t o quash. During a September 1, 1977, hearing, counsel presented o r a l arguments, b u t t h e p a r t i e s o f f e r e d no testimony of which t h e r e i s record. On January 19, 1978, a f t e r b r i e f s had been f i l e d , Judge Wilson granted r e s p o n d e n t ' s motion t o quash, from which appeal has been timely taken. The c a s e was deemed submitted on b r i e f s , s o t h e r e has been no o r a l argument. A p p e l l a n t - p e t i t i o n e r advances t h r e e i s s u e s f o r o u r c o n s i d e r a t i o n : 1. Is p e t i t i o n e r e n t i t l e d t o a hearing t o determine whether o r n o t t h e p r o p e r t y s e t t l e m e n t should be set a s i d e ? 2 . Did t h e c o u r t err i n g r a n t i n g r e s p o n d e n t ' s motion t o quash and thereby e f f e c t i v e l y d i s m i s s t h e p e t i t i o n t o set a s i d e t h e d i v o r c e decree? 3 . I f a j o i n t p e t i t i o n i s f i l e d , must t h e District Court w a i t 20 days before s i g n i n g a f i n a l decree? W e s h a l l consider t h e f i r s t two i s s u e s t o g e t h e r , inasmuch as t h e response t o one w i l l be t h e response t o t h e o t h e r . Because w e f i n d p e t i t i o n e r i s e n t i t l e d t o a hearing, t h e D i s t r i c t Court having e r r e d i n g r a n t i n g r e s p o n d e n t ' s motion t o quash, w e need n o t reach t h e f i n a l i s s u e . The reasons a r t i c u l a t e d i n r e s p o n d e n t ' s motion t o quash, on which t h e lower c o u r t g r a n t e d t h e motion, are: "1. That t h e s a i d o r d e r i n p a r t modifies a d e c r e e of d i v o r c e dated December 9, 1976. "2. That t h e t i m e f o r appeal has elapsed pursuant t o Rule 5, Nontana Rules of Appellate Procedure. "3. That t h e t i m e f o r modification o r amendment o f t h e judgment of December 9, 1976, has elapsed pursuant t o Rule 6 0 ( b ) , M.R.Civ.P." I n b r i e f response, w e note f i r s t t h a t t h e p e t i t i o n i s n o t a n appeal from t h e g r a n t i n g of t h e d e c r e e of d i s s o l u - - t i o n ; hence, t h e t i m e l i m i t a t i o n s of Rule 5, M.R.App.Civ.P., a r e i n a p p l i c a b l e . The t i m e l i m i t a t i o n upon a n independent a c t i o n seeking r e l i e f from a judgment t a i n t e d by f r a u d "normally i s laches." 7 Moore's Federal P r a c t i c e Yi60.33 (2nd e d . ) . Respondent d i d n o t plead l a c h e s , and q u i t e r i g h t l y s o , f o r p e t i t i o n e r most a s s u r e d l y d i d n o t s l e e p on h e r r i g h t s s o a s t o be barred from r e l i e f i n a c o u r t of e q u i t y . Secondly, w e p o i n t o u t t h a t even i f t i m e has run o u t under Rule 6 0 ( b ) ( 3 ) , l4.R.Civ.P.--and w e do n o t decide t h a t q u e s t i o n - - p e t i t i o n e r has a l l e g e d m a t t e r s s u f f i c i e n t t o invoke t h e e q u i t a b l e powers of t h i s Court. S t i l l unchanged i s t h e long standing p r i n c i p l e t h a t t h e a u t h o r i t y of a c o u r t of e q u i t y t o v a c a t e a decree obtained by f r a u d is i n h e r e n t . E.g., H a l l v. H a l l (1924), 70 Mont. 460, 467, 226 P. 469, 471. Montana's Uniform 24arriage and Divorce A c t , s e c t i o n 48- 330 (1) (b) (ii) , R.C.M. 1947, now s e c t i o n 40-4-208 (1) (b) (ii) MCA, s t a t e s t h a t " [ t ] he p r o v i s i o n s a s t o p r o p e r t y d i s p o s i t i o n may n o t be revoked o r modified by a c o u r t , except . . . i f t h e c o u r t f i n d s t h e e x i s t e n c e of c o n d i t i o n s t h a t j u s t i f y t h e reopening of a judgment under t h e l a w s of t h i s s t a t e . " Fraud upon t h e c o u r t and upon one of t h e p a r t i e s t o t h e p r o p e r t y s e t t l e m e n t agreement is c e r t a i n l y w i t h i n t h e scope of t h i s provision. The w i f e has a l l e g e d f a c t s ample t o j u s t i f y a reopening such a s t o r e d i s t r i b u t e t h e p r o p e r t y i n a n e q u i t a b l e manner. "[A] c o u r t o f g e n e r a l j u r i s d i c t i o n has t h e r i g h t , e n t i r e l y independent of s t a t u t e , t o g r a n t r e l i e f a g a i n s t a judgment obtained by e x t r i n s i c f r a u d , and may g r a n t t h a t r e l i e f e i t h e r on motion i n t h e o r i g i n a l cause o r upon a s e p a r a t e e q u i t y s u i t , and a f t e r t h e period p r e s c r i b e d by t h e s t a t u t e [providing a s i x month l i m i t a t i o n ] r e l i e d on by [ t h e husband]." Cure v. Southwick (1960), 137 Mont. 1, 8, 349 P.2d 575, 579. ( C i t a t i o n s omitted. ) I n t h e motion t o quash, respondent makes a b s o l u t e l y no mention of t h e substance of t h e a f f i a n t ' s a l l e g a t i o n s which, i f a c c u r a t e , c l e a r l y show f r a u d on t h e p a r t of t h e husband i n f a i l i n g t o make a f u l l and a c c u r a t e d i s c l o s u r e of a l l t h e assets of t h e p a r t i e s , whether held s o l e l y , j o i n t l y o r through a business e n t i t y . I n Bates v. Bates (1965), 1 Ariz.App. 165, 400 P.2d 593, t h e c o u r t deemed t h a t , by v i r t u e of t h e husband's motion t o d i s m i s s made i n response t o t h e w i f e ' s complaint s t a t i n g a cause of a c t i o n based on f r a u d u l e n t procurement of a d i v o r c e d e c r e e and t h e a t t e n d a n t p r o p e r t y s e t t l e m e n t , he had admitted f a c t s a l l e g e d by t h e wife. The c o u r t ' s language was " [ d l e f e n d a n t ' s admissions, v i r t u e -- of h i s Motion - t o D i s m i s s , i n c l u d e t h e following f a c t s -- t h a t a r e a l l e g e d - by p l a i n t i f f . . ." 400 P.2d a t 596. (Emphasis added.) Among t h e f a c t s deemed admitted w e r e t h e following which bear a s t r i k i n g s i m i l a r i t y t o c e r t a i n of t h o s e i n t h i s case: t h e husband, d u r i n g t h e course of t h e marriage, s e c r e t l y purchased c e r t a i n r e a l e s t a t e , t h e owner- s h i p of which was concealed from t h e wife; t h e wife d i d n o t know of t h e e x i s t e n c e of c e r t a i n of t h e p r o p e r t y a t t h e t i m e of t h e d i v o r c e and d i d n o t discover t h e f a c t s of i t s owner- s h i p and concealment u n t i l w i t h i n t h i r t y days of t h e f i l i n g of h e r complaint; t h e property was n o t known t o t h e c o u r t and n o t made t h e s u b j e c t of a d j u d i c a t i o n by t h e c o u r t a t t h e t i m e of t h e d i s s o l u t i o n . I n t h i s c a s e , t h e wife d i d n o t know of c e r t a i n of t h e p a r t i e s ' a s s e t s , s p e c i f i c a l l y c e r t a i n r e a l property of considerable worth, u n t i l a f t e r t h e d i s s o l u t i o n . I t appears t h a t she became aware of t h e considerable v a l u e of some of t h a t property when t h e ex-husband attempted t o sell some of it. Almost immediately, she contacted a n a t t o r n e y who, w i t h i n a very few days, f i l e d t h e complaint s u b j e c t of t h i s a c t i o n . The D i s t r i c t Court, n o t f u l l y a p p r i s e d , does n o t appear t o have a d j u d i c a t e d , i n i t s e n t i r e t y , t h e d i v i s i o n of t h e property. Being uninformed of a l l of t h e f a c t s of t h e m a t t e r , t h e District Court was unable t o " f i n a l l y e q u i t a b l y apportion between t h e p a r t i e s t h e property and a s s e t s belong- i n g t o e i t h e r o r both, however and whenever acquired. . ." Section 48-321 (1) , R.C.M. 1947, now s e c t i o n 40-4-202 (1) MCA. Like t h e Arizona c o u r t , w e a r e s o r e tempted t o deem admitted, by v i r t u e of t h e husband's motion t o quash, t h e statements i n t h e w i f e ' s a f f i d a v i t ; however, a s t h e p e t i - t i o n e r has requested o n l y t h a t w e provide h e r with a hearing on t h e m a t t e r , w e a r e constrained t o provide t h a t r e l i e f . I n H a l l v. H a l l , 70 Xont. a t 467, 226 P. a t 471, w e noted t h a t t h e f r a u d from which r e l i e f w i l l be granted i s t h a t which i s " e x t r i n s i c o r c o l l a t e r a l t o t h e m a t t e r s t r i e d by t h e c o u r t , and n o t t o fraud i n t h e m a t t e r s on which t h e decree was rendered." Although t h e H a l l c o u r t declared t h a t n e i t h e r t h e f a l s i t y of a l l e g a t i o n s i n t h e complaint nor t h e f a l s i t y of testimony given a t t r i a l c o n s t i t u t e d e x t r i n s i c f r a u d such as t o a f f o r d r e l i e f , it affirmed t h e District Court which granted r e l i e f t o t h e wife on whom f r a u d had been p r a c t i c e d t o procure a divorce. A s j u s t i f i c a t i o n f o r a d e c i s i o n which appears t o be, b u t which was n o t acknowledged a s being, i n contravention of i t s own a r t i c u l a t i o n of t h e r u l e t h a t r e l i e f w i l l n o t be granted f o r i n t r i n s i c f r a u d , t h e c o u r t s t a t e d : "A decree of a c o u r t of conscience ought n o t t o a f f o r d a sanctuary f o r fraud." 70 Mont. a t 473, 226 P. a t 473. I n B u l l a r d v . Zimmerman (1930), 88 Mont. 271, 277-78, 292 P. 730, 732, o f t e n c i t e d f o r t h e following, t h e Court declared: "The power of a c o u r t of e q u i t y t o g r a n t r e l i e f from a judgment obtained by f r a u d i s i n h e r e n t ; it does n o t depend upon s t a t u t e . [ C i t a t i o n omit- t e d . ] But . . . ' n o t every f r a u d committed i n t h e course of a j u d i c i a l determination w i l l furn- i s h ground f o r such r e l i e f . The a c t s f o r which a judgment o r decree may be set a s i d e o r annulled have r e f e r e n c e only t o f r a u d which i s e x t r i n s i c o r c o l l a t e r a l t o t h e m a t t e r t r i e d by t h e c o u r t , and n o t t o f r a u d i n t h e m a t t e r on which t h e judgment was rendered. * * * What, then, i s meant by t h e expression " f r a u d which i s e x t r i n s i c o r c o l l a t e r a l t o t h e m a t t e r t r i e d by t h e c o u r t ? " I t i s e x t r i n s i c o r c o l l a t e r a l w i t h i n t h e meaning of t h e r u l e , when t h e e f f e c t of it i s t o prevent t h e unsuccessful p a r t y from having a t r i a l o r from p r e s e n t i n g h i s case f u l l y . ' The r e c o r d d i s c l o s e s ample evidence t o b r i n g t h i s c a s e w i t h i n t h e r u l e announced. "'Fraud being t h e a r c h enemy of e q u i t y , a judgment obtained through f r a u d p r a c t i c e d i n t h e very a c t of g e t t i n g it w i l l be set a s i d e by a c o u r t of e q u i t y upon seasonable a p p l i c a t i o n . Indeed, t h e power of a c o u r t of e q u i t y t o g r a n t such r e l i e f i s i n h e r e n t . [ C i t a t i o n omitted.] The conscience of t h e c h a n c e l l o r moves q u i c k l y t o r i g h t t h e wrong when it i s shown t h a t through imposition p r a c t i c e d upon t h e c o u r t by a l i t i g a n t an u n f a i r advantage has been gained by him and t h u s it has been made a n instrument of i n j u s t i c e . [ C i t a t i o n omitted.] * * * I n t h e language of Lord Chief Baron Pollock i n Rogers v. Hadley: "Fraud -- c u t s down everything. The law sets i t s e l f a g a i n s t f r a u d t o t h e e x t e n t --- -- of breaking through almost every r u l e , s a c r i f i c i n g - - every maxim, g e t t i n g -- r i d of every ground of opposi- t i o n . --- The law s o abhors f r a u d a m i n n o t ----- allow t e c h n i c a l d i f f i c u l t i e s of ----- any kind t o i n t e r - f e r e t o p r e v e n t t h e success of j u s t i c e , r i g h t and -- t r u t h . " . . .' [ C i t a t i o n s o m i t t e d . ] " ( ~ m p h a s i s added. ) The ilontana c o u r t i s n o t alone i n s t a t i n g t h a t t h e f r a u d from which a p a r t y w i l l be r e l i e v e d must be e x t r i n s i c o r c o l l a t e r a l . E.g., Bates v. Bates, 400 P.2d a t 597-98. The Supreme Court of Utah i n C l i s s o l d v. C l i s s o l d (1974), 30 Utah 2d 430, 519 P.2d 241, 242, s a i d : "A m a t e r i a l m i s r e p r e s e n t a t i o n o r concealment of - a s s e t s o r f i n a n c i a l c o n d i t i o n as a r e s u l t of which - - a l i m o n y o r p r o p e r t y awarded i s less o r m o r e t h a n ----- o t h e r w i s ~ w o u l d -- h a v e m r o v i d e d f o r i s a proper -- ground f o r which t h e c o u r t may g r a n t r e l i e f t o t h e -- p a r t y who was offended & such m i s r e p r e s e n t a t i o n -- o r concealment, a b s e n t o t h e r e q u i t i e s such a s l a c h e s -- or negligence. [ C i t a t i o n s omitted and emphasis - added.] i-lowever, b e f o r e r e l i e f can be g r a n t e d , it must be determined t h a t t h e a l l e g e d misrepresenta- t i o n o r concealment c o n s t i t u t e s conduct, such a s fraud, a s would b a s i c a l l y a f f o r d t h e complaining p a r t y r e l i e f from t h e judgment. The proper d i s p o s i - t i o n of t h i s c a s e r e q u i r e s a n a n a l y s i s and discus- s i o n of t h e concepts of ' i n t r i n s i c ' and ' e x t r i n s i c ' fraud. The p u b l i c i n t e r e s t r e q u i r e s t h a t t h e r e be a n end t o l i t i g a t i o n . To accomplish t h i s o b j e c t i v e t h e c o u r t s have always d i s t i n g u i s h e d between t h e a c t i o n s of a p a r t y l i t i g a n t which b e a r upon t h e opposing p a r t y ' s o p p o r t u n i t y f o r a f a i r submission of h i s c a s e and a p a r t y ' s m i s r e p r e s e n t a t i o n during t r i a l . Those a c t i o n s a s s e r t e d t o be f r a u d u l e n t -7 which prevent a f a i r submission of t h e controversy such a s deceiving a p a r t y i n t o n o t f i l i n g an answer o r deceiving a p a r t y i n t o s t a y i n g away from c o u r t on t h e day of t h e t r i a l a r e c l a s s e d a s e x t r i n s i c f r a u d , and i f e x i s t e n t i n f a c t , e n t i t l e t h e opposing p a r t y t o r e l i e f from t h e judgment. Conduct a s s e r t e d t o be f r a u d u l e n t which occurs d u r i n g t h e course of -- t h e proceedings, such a s f a l s e testimony, whether o r n o t e x i s t e n t i n f a c t , does n o t e n t i t l e a p a r t y t o r e l i e f from t h e judgment. The p r i n c i p l e , of course, i s t h a t during a t r i a l v e r a c i t y i t s e l f i s on t r i a l , and i n t h e p u b l i c i n t e r e s t cannot be t r i e d again. Some exceptions t o t h i s r u l e e x i s t i n d i v o r c e c a s e s where t h e r e has been a g r o s s m i s r e p r e s e n t a t i o n of a s s e t s by a p a r t y . [Emphasis i n o r i g i n a l . ] " Because t h e c o u r t found t h a t t h e m i s r e p r e s e n t a t i o n w a s n o t g r o s s , f o r " [ a l t most t h e r e was a d i s p u t e as t o t h e v a l u e of some highly s p e c u l a t i v e p r o p e r t y , and an answer t o an i n t e r r o g a t o r y which might be i n t e r p r e t e d a s concealment," 519 P.2d a t 242, t h e t r i a l c o u r t ' s d e n i a l of a motion f o r a new t r i a l was affirmed. I n t h e i n s t a n t c a s e , however, t h e m i s r e p r e s e n t a t i o n i s g r o s s and t h e p e t i t i o n e r w i l l n o t be denied r e l i e f . Fraud upon t h e c o u r t i s a s p e c i e s of e x t r i n s i c f r a u d which w i l l a f f o r d e q u i t a b l e r e l i e f . " [Flraud upon t h e c o u r t . . . a u t h o r i z e s s e t t i n a a a s i d e a p r i o r judgment. Such f r a u d may c o n s i s t of --- a f f i r m a t i v e l y misrepresenting f a c t s t o t h e c o u r t o r of concealment of m a t e r i a l f a c t s by a person who i s under a l e g a l d a y t o make a f u l l d i s c l o s u r e t o t h e c o u r t . [ C i t a t i o n omitted. 1 "The power o f t h e c o u r t t o set a s i d e a judgment -- -- on t h e b a s i s of f r a u d upon t h e c o u r t rs i n h e r e n t -- -- and independent of s t a t u t e , -- a n d t h e t i m e l i n e s s of proceedings t o s e t a s i d e p r i o r judgment s o obr -- -- t a i n e d i s n o t s u b j e c t t o t h e s i x months t i m e l i m i -- --- -- t a t i o n -- i n Rule 6 0 ( b ) , M.R.Civ.P., b u t must u l t i - -- mately depend upon e q u i t a b l e p r i n c i p l e s and t h e sound d i s c r e t i o n of t h e c o u r t . [ C i t a t i o n omitted -- I n re J u l i a Ann Bad Yellow Hair (1973) . 162 Xont. 107, 1 1 1 , 509 P.2d 9, 12. ( ~ m ~ h a s i s added.) Although w e determined t h a t f r a u d w a s n o t committed on t h e c o u r t i n t h a t c a s e , w e f i n d t h a t h e r e t h e husband committed f r a u d upon t h e c o u r t i n f a i l i n g t o d i s c l o s e f u l l y t h e e x t e n t and n a t u r e of property s u b j e c t of d i v i s i o n i n t h e proceeding f o r d i s s o l u t i o n of marriage. " I n a number of c a s e s i n which t h e d i v o r c e judgment was based upon a s e t t l e m e n t agreement t o which t h e w i f e ' s consent had been obtained through t h e hus- band's concealment of p r o p e r t y and m i s r e p r e s e n t a t i o n of f i n a n c i a l s t a t u s , t h e judgment h a s been h e l d n o t conclusive on t h e ground t h a t , by reason of t h e agreement, a c t u a l j u d i c i a l c o n s i d e r a t i o n o r d e t e r - mination of t h e p r o p e r t y r i g h t s of t h e p a r t i e s had been e f f e c t i v e l y prevented o r withdrawn." Annot., 152 A.L.R. 190, 213 (1944). Selway v. Burns (1967), 150 Mont. 1, 8-91 429 P.2d 640, 644, recites t h e s e b a s i c p r i n c i p l e s : " [ R l e l i e f may be g r a n t e d e i t h e r on motion i n t h e o r i g i n a l a c t i o n o r i n a s e p a r a t e e q u i t y s u i t . Rule 60(b) e x p r e s s l y preserved t h i s i n h e r e n t power i n i t s l a s t sentence which provides: ' T h i s r u l e does n o t l i m i t t h e power of a c o u r t t o e n t e r t a i n a n independent a c t i o n t o r e l i e v e a p a r t y from a judgment, o r d e r , o r proceeding, o r t o g r a n t r e l i e f t o a defendant n o t p e r s o n a l l y n o t i f i e d a s may be provided by law, o r t o set a s i d e a judgment f o r f r a u d upon t h e c o u r t . ' "Our f e d e r a l c o u r t s a l s o recognize and u s e t h e h i s t o r i c e q u i t y power t o set a s i d e judgments gained by fraud. Hazel-Atlas Class Co. v. Hart- f o r d Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250. The only l i m i t a t i o n t h a t has been placed upon t h e e x e r c i s e o f t h i s power is t h a t t h e i n v e s t i g a t i n g c o u r t must observe t h e usual safeguards of t h e ad- v e r s a r y process by g r a n t i n g n o t i c e t o a f f e c t e d persons and by conducting a f a i r hearing on t h e e x i s t e n c e of t h e fraud. Universal O i l Co. v. Root Refining Co., 328 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447. "The fraud t h a t w i l l move a c o u r t of e q u i t y t o ---- e x e r c i s e i t s i n h e r e n t power t o v a c a t e judgments has been described a s t h a t which p r e v e n t s t h e unsuc- c e s s f u l p a r t y from having a t r i a l - o r p r e s e n t i n g i t s case f u l l y . [ C i t a t i o n s omitted.] -- I t i s always t h e kind of f r a u d t h a t goes t o t h e very i n t e g r i t y of -- -- t h e j u d i c i a l system because t h e c o u r t i s m i s l e d a n d - made one of t h e v i c t i m s of t h e fraud. [ C i t a t i o n ---- -- omitted.] Cases decided by t h i s c o u r t show t h a t t h e p r o h i b i t e d r e s u l t may be achieved e i t h e r by a£- f i r m a t i v e l y misrepresenting f a c t s [ c i t a t i o n omitted] o r by concealment of f a c t s by a person who was under a l e g a l duty t o make a f u l l d i s c l o s u r e t o t h e c o u r t . [ C i t a t i o n s omitted. 1 " (Emphasis added. ) A c o u r t i s e n t i t l e d t o presume t h a t t h e s u b s t a n t i v e c o n t e n t of documents, presented f o r i t s c o n s i d e r a t i o n i n determining t h e l e g a l and e q u i t a b l e q u e s t i o n s of a c a s e , a r e t r u t h f u l and a c c u r a t e , "and a m i s r e p r e s e n t a t i o n of a s s e t s and income i s a s e r i o u s and i n t o l e r a b l e d e r e l i c t i o n on t h e p a r t of t h e a f f i a n t which goes t o t h e very h e a r t of t h e j u d i c i a l proceeding." Casanova v. Casanova (1974), 166 Conn. 304, 348 A.2d 668, 668. Based on t h a t d e r e l i c t i o n , t h e Connecticut c o u r t determined t h a t t h e wife was e n t i t l e d t o " a new and f u l l hearing . . . u n t a i n t e d by t h e [husband's] misrepresentation." 348 A.2d a t 668-69. I n t h a t c a s e , c e r t a i n d e p o s i t i o n proceedings, subsequent t o a hearing on t h e w i f e ' s motion f o r a n o r d e r f o r temporary alimony and support f o r t h e p a r t i e s ' minor c h i l d r e n of whom s h e had custody, revealed t h a t t h e husband had m a t e r i a l l y misrepre- s e n t e d h i s f i n a n c i a l s t a t u s . I n t h e i n s t a n t case, t h e misrepresentation i s perhaps more s u b t l e , b u t no less m a t e r i a l and i n t o l e r a b l e . I n t h i s case, t h e property s e t t l e - ment agreement makes no mention whatsoever of t h e t o t a l a s s e t s of t h e p a r t i e s ; n e i t h e r does it r e c i t e what property t h e husband was t o g e t . The only mention of any property i s - t h e following: "That t h e husband s h a l l f u r n i s h t h e wife and c h i l d r e n [ t h e custody of whom had been awarded t o t h e wife] with adequate and comfortable l i v i n g q u a r t e r s by e i t h e r : a . Buying a house i n 3ed Lodge, Montana, b. Buying a mobile home and mak- i n g arrangements t o s e t same on acreage near Red Lodge, Montana, o r c . By moving t h e wife and c h i l d r e n i n t o a home p r e s e n t l y owned by husband on property owned by husband on property North of Red Lodge, Montana. I n any event, once t h e d e c i s i o n a s t o l i v i n g q u a r t e r s i s made, husband agrees t o cause t i t l e t o same t o be t r a n s f e r r e d t o wife within a reasonable t i m e . 5. That hus- band s h a l l f u r n i s h wife with an adequate v e h i c l e f o r t h e t r a n s p o r t a t i o n needs of h e r s e l f and t h e children." Thus, i n t e r m s of a "property s e t t l e m e n t , " t h e wife was t o g e t a house and a c a r , and t h e husband w a s t o g e t every- t h i n g e l s e , which it appears was worth over half a m i l l i o n d o l l a r 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 of t h e marriage. The house and t h e one a c r e on which it i s located and t h e 1976 Toyota have not been shown t o be worth over h a l f a m i l l i o n d o l l a r s , such t h a t w e could say t h e property d i v i s i o n was e q u i t a b l e . I t i s indeed t h e r u l e t h a t a judgment must be regarded a s f i n a l and conclusive, u n l e s s it can be shown t h a t t h e j u r i s d i c t i o n of t h e c o u r t has been imposed upon, o r t h a t a p a r t y , by some e x t r i n s i c o r c o l l a t e r a l f r a u d , has prevented a f a i r submission of t h e matter. E.g., Bates v. Bates, 400 P.2d a t 597. But, a s i n Bates, t h e w i f e ' s c a s e here comes w i t h i n t h e exception, f o r e x t r i n s i c fraud may a l s o c o n s i s t of deception p r a c t i c e d by a party--here, t h e husband--in purposely keeping another party--here, t h e wife--in ignorance. 400 P.2d a t 596. This s o r t of deception, j u s t i f y i n g e q u i t a b l e r e l i e f , f i t s w i t h i n t h e scope of t h a t denominated " e x t r i n s i c o r c o l l a t e r a l fraud", defined a s "some i n t e n t i o n a l a c t o r conduct by which t h e p r e v a i l i n g p a r t y has prevented t h e unsuccessful p a r t y from having a f a i r submission of t h e controversy. [ C i t a t i o n s o m i t t e d . ] " 400 P.2d a t 597. Although one might q u i b b l e t h a t i n a proceeding f o r d i s s o l u - t i o n of marriage under i.lontana's Uniform Marriage and D i - vorce A c t , t h e r e i s no " p r e v a i l i n g p a r t y " o r "unsuccessful p a r t y , " t h e s p i r i t of t h e p r i n c i p l e of e q u i t y w i l l n o t be s o e a s i l y downtrodden. There has n o t been a f a i r submission of t h e controversy here. Furthermore, " ' [ f l r a u d i n t h e s e n s e of a c o u r t of e q u i t y , p r o p e r l y i n c l u d e s a l l a c t s , omissions, and concealments which involve a breach of l e g a l o r e q u i t a b l e d u t y , t r u s t , o r confidence j u s t l y reposed, and a r e i n j u r i o u s t o another, o r by which a n undue and unconscientious advan- t a g e i s taken of a n o t h e r . ' 1 S t o r y Eq.Jur. 5 187. (Emphasis added.)" Bates, 400 P.2d a t 598. S u r e l y undue advantage was taken of Evalee P i l a t i , t o her i n j u r y , such t h a t she is e n t i t l e d t o r e l i e f i n a c o u r t of e q u i t y . For t h e reasons a r t i c u l a t e d above, w e r e v e r s e t h e judgment and remand t h e cause with i n s t r u c t i o n s t o r e i n s t a t e it and t o proceed a s l a w and e q u i t y d i c t a t e s . / / W e concur: / \ % L d @ _ ~ i a / , w Chief J u s t i c e	April 4, 1979
fbddf5bd-0aa8-4086-bc7e-f9e600e4c063	KOOTENAI CORP v DAYTON BORKOSKI	N/A	14486	Montana	Montana Supreme Court	No. 14486 IN THE SUPREME COURT OF THE STATE OF MONTANA 19 79 THE KOOTENAI CORPORATION, a Montana Corporation, Plaintiff and Respondent, WAYNE L . DAYTON and JEROME F. BORKOSKI, Defendants and Appellants. Appeal from: District Court of the Fourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellants: Milodragovich, Dale and Dye, Missoula, Montana Harold Dye argued, Missoula, Montana For Respondent: Robert B. Brown argued, Stevensville, Montana Submitted: September 18, 1979 Decided : O c T r I979 Filed: ~ J C T ; r P Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant, Jerome F. Borkoski, appeals from a denial of a motion to set aside a default judgment. On March 27, 1974, Wayne Dayton agreed to buy from the Kootenai Corporation (Corporation) a certain parcel of real es- tate in Ravalli County, Montana. The contract provided that pay- ment for the land would be made over several years and when the full purchase price was paid title would pass to the buyer. The transfer of this property also included the transfer of an on- premise beer license to the buyer. The agreement provided that in the event of a default by the buyer that all of Buyer's interest in the property would terminate and that the Buyer "shall reassign the beer license." On December 30, 1974, this contract was assigned by Wayne Dayton to Jerome F. Borkoski. At the bottom of the last page of the assignment of contract is an acceptance of the assignment signed by the President of the Corporation. On October 13, 1977, the defendant Borkoski was served with a notice of default and cancellation of contract. The reason given for the notice was that Borkoski had allowed the on-premises beer license to be revoked. On June 24, 1978, Borkoski was served with a summons and a complaint. The complaint alleged that the corporation "is the owner and is entitled to the immediate possession of certain de- scribed real property . . . " It then continued: "That the Defendant Wayne L . Dayton surrendered deed to the above-described premises to the plaintiff, which deed, conveying his interest in the premises, was recorded on the 26th day of May, 1978, in Book 147 of Deeds at Page 514, Records of Ravalli County, Montana. That the Defendant, Jerome F. Borkoski, prior to the 26th day of May, 1978, entered and took possession of the said premises peacefully, without right to do so, and from and after the 26th day of May, 1978, holds and keeps possession of the same unlawfully and by force, contrary to the form of the statute in such case made and provided." The complaint further alleged that the plaintiff was "deprived of the rents, issues and profits of said land and premises ever since the 26th day of May, 1978, to its damage in the sum of $20.00 per day . . ." and prayed for restitution and treble damages. The summons required that the defendants appear in the District Court on June 30, 1978. The summons also stated that the action was one for forcible detainer of the premises. Bor- koski did not appear in court on that date and judgment was entered against him on the same day. On July 14, 1978, Borkoski, through his attorney, filed a motion to set aside judgment by default. The motion alleged that the failure of Borkoski to appear in court on June 30 was due to excusable mistake, and that the action had not been prop- erly brought under the unlawful detainer statute, because the parties were not landlord and tenant. An affidavit attached to this motion stated Borkoski had failed to appear in court on June 30 for the following reasons: "[The defendant] was under the impression that it was not necessary for him to go to Court unless the Defendant Wayne L. Dayton was also served with a Summons ordering him to go to Court at the same time. Your Affiant was told by Mr. Dayton that he had not been served with process ordering him to appear on June 30, 1978, and assumed that it was not necessary for your Affiant to do so. Your Affiant further telephoned the Clerk of Court's office and was informed that the above mentioned matter was not on the calendar for June 30, 1978, and therefore assumed that it was not necessary for him to appear in Court on that date." The affidavit further stated that Borkoski was "informed and believes that the Plaintiff contends that [Borkoski] has forfeited his rights under the Contract . . . because [Borkoski] has allowed a certain . . . liquor license to lapse." On July 28, there was a hearing on the motion. The only person questioned during testimony was Mr. Brown, the attorney for the corporation. During this testimony the original contract for deed, the assignment of this contract to Borkoski, and the notice of default were all introduced into evidence. At the end of the hearing the district judge denied Borkoski's motion. It is from this denial that defendant appeals. The issues on appeal are as follows: I . Whether the summary proceeding of forceful detainer may be used to recover property sold under contract for deed? 11. Whether the District Court judge abused his discretion in not setting aside the judgment by default? ISSUE 1. ~efendant's central contention is that the District Court erred in allowing the plaintiff to bring an action for forcible detainer rather than requiring that the action be one for eject- ment. Defendant contends that an action for ejectment would have allowed him twenty days to answer under Rule 12(a), M.R.Civ.P. AS it occurred, the default was entered only six days after the summons was served in accordance with the forcible detainer statute. Cited in support of the propo~~tion that the plaintiff is barred from bringing this action under the forcible detainer statute is Kransky v . Hensleigh (1965), 146 Mont. 486, 409 P.2d 537. In Kransky this Court said "Whenever the unlawful detainer statutes, S93-9701, R.C.M. 1947, et seq. [now section 70-27-101, MCA, et seq.], are brought into operation it is the rule that such action may only prevail where the relation of landlord-tenant exists." 146 Mont. at 490, 409 P.2d at 539. In the present case it is clear that a landlord-tenant relationship did not exist. The legal relationship was contractual. It must be noted, however, that Kransky is limited to the unlawful detainer statute, section 70-27-108, MCA, which by its language specifically provides that the action may only be brought against a tenant. The present case was brought as a forcible detainer action under section 70-27-103, MCA. A reading of this statute will reveal that a landlord-tenant relationship is not required in order to bring this action. This section states in part: "Every person is guilty of a forcible detainer who either: "(1) by force or by menaces and threats of violence unlawfully holds and keeps the possession of any real property or mining claim, whether the same was acquired peaceably or otherwise . . ." The Corporation alleged these elements in their complaint. The cases in Montana which construe this statute and its predecessors have not limited its application to landlord-tenant circumstances. In Kennedy v. Dickie (1902), 27 Mont. 70, 69 P. 672, the plaintiff was allowed to bring a forcible detainer action against a defendant who had simply ousted the plaintiff from his farm. 27 Mont. at 73, 69 P. at 673. For other cases where a forcible detainer action was brought where there was not a land- lord-tenant relationship see, Park Saddle Horse Co. v . Cook (1931), 89 Mont. 414, 300 P. 242; Spellman v. Rhode (1905), 33 Mont. 21, 81 P. 395, and McCleary v. Crowley (1899), 22 Mont. 245, 56 P. 227. While these cases do not involve a contractual relation- ship they certainly indicate that a landlord-tenant relationship is not necessary to bring a forcible detainer action. For this reason Kransky does not apply. This is not to say that the plaintiff in the present action would have prevailed at trial under a forcible detainer action, but there is no indication under Montana law that an ejectment action must be brought when the parties have a contractual relation ship. Likewise, there is no indication that where a contractual relationship does exist between the parties that the plaintiff may not bring a forcible detainer action. The District Court did not commit error by allowing the forcible detainer action in this case. At this point we feel that it is necessary to make some observations concerning the differences between ejectment and forcible detainer actions. The Corporation alleges that the procedures for ejectment are found at sections 70-27-101, MCA, et seq. These sections include the forcible detainer statutes, among other provisions. Case law in Montana indicates that ejectment and forcible detainer are not the same cause of action. In Miner v . Cook (1930), 87 Mont. 500, 288 P. 1016, this Court said: "The vital allegations of this complaint [eject- ment] are (a) plaintiff 's ownership and right to possession of the tract of land described in the complaint and from which it is alleged he was ejected by defendants, and (b) wrongful and un- lawful ouster and ejectment by the defendants. Proof of both of these vital allegations is neces- sary in order to make out a case." 87 Mont. at 502-503, 288 P. at 1017. In Kennedy v . ~ickie, supra, this Court said: "If the purpose of the action is to obtain relief from a forcible detainer, proof must be made under section 2092 [section 70-27-203, MCA] (1) of the forcible detainer as described in section 2081 [section 70-27-103, MCA]; and (2) of the plaintiff's right to the possession at the time of the forcible detainer." 27 Mont. at 75, 69 P. at 674. As can be easily seen the two causes of action are differ- ent. In ejectment the question of title is necessary to a resolu- tion of the dispute. In forcible detainer title is not an issue. Therefore, the summary procedures provided for in sections 70-27- 101, MCA et seq., do not apply to ejectment actions. The contract which is at the heart of this action provides that upon default of the agreement by the buyer the seller (Cor- poration) had the option of terminating the agreement. In other words, the seller is given an election of whether to terminate the agreement or not upon the buyer's default. Obviously, ter- mination of the agreement is not the Corporation's sole remedy in the event of a default. As was said by this Court in White v. Jewett (1938), 106 Mont. 416, 78 P.2d 85: "A p a r t y may pursue any remedy which t h e law a f f o r d s i n a d d i t i o n t o t h e remedy provided by t h e c o n t r a c t , u n l e s s it d e c l a r e s t h e remedy t o be exclusive." 106 Mont. a t 420, 78 P.2d a t 87. I n t h e present case t h e c o n t r a c t d i d n o t s p e c i f i c a l l y name a remedy which was t o be exclusive i n t h e event of a d e f a u l t , and t h e law a f f o r d s t o t h e Corporation a f o r c i b l e d e t a i n e r action. F i n a l l y , t h e defendant contends t h a t s e c t i o n 70-27-203, MCA, is a s t a t u t e of l i m i t a t i o n s which b a r s p l a i n t i f f ' s a c t i o n . Defendant d i d not present t h i s defense i n D i s t r i c t Court, there- f o r e we w i l l not consider t h i s contention. ISSUE 11. Section 70-27-117, MCA, s t a t e s : " I f a t t h e time appointed t h e defendant does n o t appear and defend, t h e c o u r t must e n t e r h i s d e f a u l t and e n t e r judgment i n favor of t h e p l a i n t i f f as prayed f o r i n t h e complaint." I n t h i s case t h e defendant d i d n o t appear on June 30, 1978, and t h e judge had no d i s c r e t i o n a t t h i s point. A d e f a u l t judgment had t o be entered. Montana's Rules of C i v i l Procedure permit a d e f a u l t judg- ment t o be s e t a s i d e f o r t h e same reasons a t r i a l c o u r t may set a s i d e a judgment following a t r i a l on t h e m e r i t s . Rule 5 5 ( c ) , M.R.Civ.P., says i n p a r t : "For good cause shown t h e c o u r t may set a s i d e an e n t r y of d e f a u l t and, i f a judgment by d e f a u l t has been entered, may likewise s e t it a s i d e i n accord- ance with Rule 60(b) . . ." Rule 60 (b) , M.R.Civ.P. says: "On motion and upon such terms a s are j u s t , t h e c o u r t may r e l i e v e a p a r t y o r h i s l e g a l representa- t i v e from a f i n a l judgment, o r d e r o r proceeding f o r t h e following reasons: " (1) Mistake, inadvertence, s u r p r i s e , o r excus- a b l e neglect . . ." The standard of review f o r d e f a u l t judgments i s s t a t e d i n Eder v. Bereolos (1922), 63 Mont. 363, 368, 207 P. 471, 472, where t h i s Court said: "In order to justify the district court in grant- ing the motion, the defendant was required to show: (a) That he proceeded with diligence; (b) his excusable neglect; (c) that the judgment, if per- mitted to stand, will affect him injuriously, and that he has a defense to plaintiff's cause of action upon the merits." This standard of review must be applied with the under- standing that "No great abuse of discretion by the trial court in refusing to set aside a default need be shown to warrant a reversal, for the courts universally favor a trial on the merits." Brothers v . Brothers (1924), 71 Mont. 378, 383-84, 230 P. 60, 61. In Reynolds v . Gladys Belle Oil Co. (1926), 75 Mont. 332, 341, 243 P. 576, 579, this Court said " . . . since 'it is the policy of the law to have every litigated case tried on its merits,' judgments by default are not favored." This policy is best stated in Holen v. Phelps (1957), 131 Mont. 146, 150, 308 P.2d 624, 627: "In furtherance of justice, trial courts should, in applying the above statute [sec. 9187, Rev. Codes, 1921, a predecessor of Rule 60(b), M . R . C i v . P . 1 to a given case, maintain and exercise that liberal spirit which prompted the Legislature to grant them this discretionary power, and, while this court will disturb the action of a trial court in opening default only in exceptional cases, 'no great abuse of discretion by the trial court in refusing to set aside a default need be shown to warrant a reversal.'" From a reading of the above cited cases it is clear that the issue of abuse of discretion must be made on a case-by-case basis. With this in mind it is helpful to look at the defendant's actions in this case, and apply to them the standard from Eder v . Bereolos, supra, which is set out above. There is no doubt that Borkoski proceeded with diligence. His motion to set aside the default judgment was entered only 14 days after the default judgment had been entered. There is also no doubt that the defendant will be injuriously affected by the loss of this property. Defendant has a defense to plaintiff's cause of action upon the merits. Plaintiff alleged in the complaint that the defendant " . . . entered and took possession of the said premises peacefully, without right to do so . . . and keeps possession of the same unlawfully . . ." Defendant has alleged that he had the right to enter and take possession of the premises, and he has alleged that his possession continued to be lawful under the terms of the contract which was assigned to him. While we do not hold that the defendant would win upon the merits, we find that he has presented a defense of sufficient merit to meet the criteria of Eder v. Bereolos, supra. The issue comes down to the question of excusable neglect. The following Montana cases provide us with some guidance on this matter. In Brothers v . Brothers, supra, the only question presented was the defendant's excusable neglect. This Court held that the defendant's erroneous belief that her appearance before a notary public was the only appearance required of her would not warrant setting aside the default. 71 Mont. at 382. his Court went on to hold, however, that these facts coupled with the fact that the defendant had recently spent some time in a state hospital because of her insanity warranted excusable neglect. 71 Mont. at 384-85. In Schalk v . Bresnahan (1960), 138 Mont. 129, 354 P.2d 735, this Court held that it was not excusable neglect where de- fendant failed to appear because of forgetfulness. 138 Mont. at 132, 354 P.2d at 736. In Worstell v . DeVine (1959), 135 Mont. 1, 335 P.2d 305, this Court had occasion to review the Montana case law on excusable neglect. This Court said: "We observe that since 1922, the cases we have studied indicate that the decisions turn on promptness and diligence in moving to set aside the default and on whether or not a show- ing of a meritorious defense is made." 135 Mont. at 6, 335 P.2d at 307. In the present case, the defendant's strongest point is his promptness i n moving t o set a s i d e h i s d e f a u l t , and w e have held t h a t a showing of a meritorious defense has been made. I n an a f f i d a v i t t o t h e D i s t r i c t Court t h e defendant s t a t e d t h a t he d i d not appear on t h e r e t u r n d a t e because he believed t h a t he d i d not have t o appear u n t i l Wayne Dayton w a s served. He a l s o s t a t e d i n t h e a f f i d a v i t t h a t t h e Clerk of Court had s a i d t h a t no hearing d a t e had been s e t . The defendant only had s i x days from t h e t i m e of s e r v i c e u n t i l t h e d e f a u l t judgment was entered. With t h i s i n mind t h e excuse which t h e defendant offered t o t h e D i s t r i c t Court c o n s t i t u t e s excusable neglect. The 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 not s e t t i n g a s i d e t h e d e f a u l t judgment. The d e f a u l t i s vacated and t h e case 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. Chief J u s t i c e	October 11, 1979
659cb18c-2e86-46ca-bfb3-45b035b5a7da	VARCO-PRUDEN v NELSON	N/A	14468	Montana	Montana Supreme Court	No. 14468 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 VARCO-PRUDEN, a division of AMCA International Corporation, Plaintiff and Appellant, R . R. NELSON, Owner; and T & H CONTRACTORS, a Montana Corporation, Contractor, Defendants and Respondents. Appeal from: District Court of the Eighteenth Judicial District, Honorable W. W.Lessley, Judge presiding. Counsel of Record: For Appellant: Landoe, Gary and Planalp, Bozeman, Montana Peter Lineberger argued, Bozeman, Montana For Respondents: Joseph W. Sabol argued, Bozeman, Montana Submitted: February 13, 1979 Decided: 1 -$ " . 1979 Filed : A p ; , 1 . < - = , c . - rui2 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Varco-Pruden, a California corporation, plaintiff and appellant herein, appeals from an order of the Gallatin County District Court dismissing its complaint for failure to state a cause of action upon which to base foreclosure of a material- man's lien. The facts in this case are as follows. Varco-Pruden is a California corporation with its principle place of business in Turlock, California. R. R . Nelson is a Montana resident and the owner of approximately 76 acres of land in the Gallatin Valley, near Bozeman, Montana. On or about January 28, 1976, R. R . Nelson contracted with T and H Contractors, a Montana Corporation, for the erection of a metal building to be constructed upon R. R. Nelson's 76 acre tract. The contractors, in turn, made arrange- ments for Varco-Pruden to supply them with the building materials necessary for the construction of the Nelson building. It is undisputed, at least for our purposes, that materials and labor valued at $17,588 were furnished by Varco-Pruden and incorporated into the building being constructed for R. R . Nelson. It is also undisputed that Varco-Pruden was never paid for the material they furnished. Apparently, R. R. Nelson paid T and H Contractors in full, but, T and H neglected to pay Varco-Pruden. The contractor is now insolvent. On March 14, 1977, Varco-Pruden filed a materialman's lien against the real property owned by R . R . Nelson. The lien was timely filed with the Gallatin County Clerk and Recorder. On May 4, 1978, Varco-Pruden filed a complaint in the District Court, Gallatin County, seeking to foreclose their materialman's lien. A copy of the materialman's lien, containing -2- the property description, was attached to the complaint as ~xhibit'h~and must, of course, be considered a part of the complaint. Varco-Pruden's complaint named T and H Contractors and R. R. Nelson as codefendants. T and H Contractors did not appear, and Varco-Pruden was granted a $17,588 default judgment against them. R. R . Nelson appeared by filing a motion to dismiss for failure to state a claim upon which relief could be granted under Rule 12(b)(6), M0nt.R.Civ.P. The District Court heard Nelson's motion on June 12, 1978. On June 20, 1978, the District Court entered an order granting defendant's motion to dismiss. A memorandum included with the court order indicates that the judge determined that Varco-Prudens mechanics lien was legally defective because it did not adequately describe the building or structure upon which the lien was to attach. This appeal followed. Two issues are presented for our review: (1) When is it proper to dismiss a complaint under Rule 12 (b) (6), Mont.R.Civ.P.? (2) Did plaintiff's complaint state a claim upon which relief could be granted? This Court has held that a complaint should not be dis- missed for insufficiency unless it appears for certain that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Kielmann v. Mogan (1970), 156 Mont. 230, 233, 478 P.2d 275; See also: Hamman v. United States (Mont. 1967), 267 F.Supp. 411. An even stricter test is found in Wheeler v. Moe (1973), 163 Mont. 154, 160, 515 P.2d 679, 683, where this Court, quoting from Wright and Miller's Federal Practice and Procedure, stated: "The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted . . . "As a practical matter, a dismissal under Rule 12(b) (6) is likely to be granted only in the unusual case in which plaintiff includes allegations that show on the face of the com- plaint that there is some insuperable bar to ;elief. In other words, dismiisal is justified -- only when the allegations of the complaint itself --- -- clearly demonstrate that plaintiff does not have --- a claim . . ." - It is clear from the Wheeler decision that dismissal under Rule 12 (b) (6) is proper when the complaint brings to light some insuperable bar to relief. The District Court held that the lien document filed by Varco-Pruden (Exhibit "A") was defective and constituted an insuperable bar to recovery from defendant R. R . Nelson. We agree. It is fundamental that a materialman's lien becomes per- fected only after full compliance with the lien statutes. Stritzel-Spaberg Lumber Co. v. Edwards et al. (1914), 50 Mont. 49, 54, 144 P. 772. The requirements of section 45- 502, R.C.M. 1947, now section 71-3-511(1) MCA are clear: a person wishing to avail himself of the benefits of a materialman's lien must file a verified document "containing a correct description of the property to be charged with such lien." This Court has consistently held that the property to be described in a materialman's lien is the building, structure, or other improvement upon which the lien is to attach, and not the land upon which the property is located. Midland v. Ferguson (1921), 61 Mont. 402, 405, 202 P. 389; Stritzel-Spaberg, supra. We have also held that a property description in a lien is adequate "if -- the description of the building itself -- is sufficient to enable a person familiar with the locality - - - -- to point it out as the only one corresponding with the - ---- -- description contained in the lien." Caird Eng. Wks. v. --- Seven-Up Min. Co. (1940), 111 Mont. 471, 479, 111 P.2d 4267; Midland, supra at p. 405. Under the Caird and Midland decisions, this Court is required to review plaintiff's Fxhibit "A" to determine whether the description of the building "is sufficient to enable a person . . . to point it out as the only one corresponding with the description contained in the lien." Our review convinces us that the description in Exhibit "A" is wholly defective. Exhibit "A" contains a bare legal description of R. R. Nelson's 76 acre tract. The exhibit does not even attempt to describe the building, structure or improvement upon which Varco-Pruden claimed a lien. Accordingly, the District Court was correct in ruling that Varco-Pruden's purported lien was invalid. Absent a valid lien, plaintiff cannot prove a cause of action against R. R. Nelson. Therefore, the District Court correctly dismissed the complaint for failure to state a claim upon which relief could be granted. The District Court is affirmed. We Concur: Chief Justice / / Justices v	April 12, 1979
af0496c5-7131-4b8c-b7fb-850a53de6843	STATE v BLAKELY	N/A	14397	Montana	Montana Supreme Court	No. 14397 I N THE S U P - C O W O F THE STATE O F m A N A 1979 THE S ' C A T E O F r n A N A , Plaintiff and Respondent, -VS- YOLANIX EXAKELY, Defendant and Appellant. Appeal from: D i s t r i c t Court of the Eighteenth Judicial D i s t r i c t , , , Honorable Jack D. Shanstram, Judge presiding. Counsel of Record: For Appellant: Bolinger, Higqins and Andes, Bozeman, Mmtana R o y Andes argued, Bozeman, Montana Fort Respondent : Hon. Mike Greely, Attorney General, Helena, Wntana Donald White, County Attorney, B o z m , Montana Mike Lilly argued, Deputy County Attorney, Bozeman, Wntana Sutmitted: March 13, 1979 Decided: MAR 2 21771 Filed : MAR 2 "979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. This is an appeal by defendant from her conviction of criminal trespass to property following a jury trial in the District Court of Gallatin County. The incident forming the basis of the charge occurred on May 14, 1977, on land owned by the Montana Fish and Game Department near Three Forks, Montana. The complaint charged that defendant Yolanda Blakely "knowingly entered or remained unlawfully, and allowed cattle to enter and remain upon the premises . . ." in violation of section 94-6-203(1)(b), R.C.M. 1947. This statute is now codified as section 45-6-203(1)(b) MCA. Defendant was tried and convicted of this misdemeanor in justice court. She appealed this conviction to the District Court of Gallatin County. She was tried de novo, convicted by jury, and sentenced to pay a fine of $400. She now appeals this latter conviction to this Court. Defendant lives with her husband and family on a tract of land near Three Forks, Montana where they raise cattle. Ad- joining their property on the west is land owned by the Gillespies; adjoining the Gillespie land on the west is a tract of land owned by the Montana Fish and Game Department. All three tracts are bordered on the south by Carpenter's Lane, an unpaved rural road. The Fish and Game property was fenced with gates at both the southeast and southwest corners that border Carpenter's Lane. In April 1977 the southeast gate was locked and wired shut. Signs were posted at both gates containing Fish and Game Department rules and regulations. One of these rules stated "Livestock grazing allowed only with a lease." The sign on the southeast gate had been removed prior to the alleged offense, but the sign on the southwest gate had remained in place. Defendant had read at least one of the signs. During the early part of 1977 because of a feed shortage, defendant allowed her cattle to graze along Carpenter's Lane. The State's evidence indicated that both before and after the signs were posted but before May 14, 1977, defendant had been seen herding her cattle along Carpenter's Lane and then onto the Fish and Game land through the southeast gate; that her cattle had been seen on the property; and that she had been seen driving her cattle away from the property. Defendant denied having ever driven her cattle onto that tract of Fish and Game land. Defendant testified that on May 14, 1977 she had been grazing her cattle along Carpenter's Lane but about 5:30 p.m. had locked them in a 60 acre pasture. A Fish and Game warden patrolling the area noticed that the gate on the Fish and Game property was down and cattle were grazing on the property. He went to defendant's house and told defendant her cattle were on the Fish and Game property. Defendant contends she did not intentionally place her cattle on the Fish and Game property. She asserts that since her fence and the Fish and Game fence and gate were in such poor condition, the cattle must have wandered out of her property and onto the Fish and Game land. Because of a rainstorm and because she was tired, defendant did not remove her cattle until early the next morning. At trial there was no direct evidence that defendant had entered the Fish and Game property on May 14, 1977 or that she had driven her cattle onto the Fish and Game land on that date. The evidence was entirely circumstantial. Defendant has raised several specifications of error. We consider two issues controlling: (1) the sufficiency of the evidence to support the conviction, and (2) whether trespassing cattle violates the statute. The complaint charges defendant with violation of section 94-6-203 (1) (b) , R.C.M. 1947, now section 45-6-203 (1) (b) MCA, by reason of two acts: (1) knowingly entering and remaining unlawfully on Fish and Game property, and (2) allowing cattle to enter and remain upon Fish and Game property. Section 94-6-203 (1) (b) , R.C.M. 1947 provides : "Criminal trespass to property. (1) A person commits the offense of criminal trespass to property if he knowingly: "(b) enters or remains unlawfully in or upon the premises of another." A companion statute defines the meaning of the phrase "enter or remain unlawfully": "94-6-201. Definition of 'enter or remain unlawfully'. A person enters or remains unlawfully in or upon . . . premises when he is not licensed, in;ited, or-other- wise privileged to do so. A person who enters or remains upon land does so with privilege unless notice is personally communicated to him by an author- ized person or unless such notice is given by posting in a conspicuous manner." Defendant did not commit criminal trespass in violation of the statute by knowingly entering or remaining unlawfully on Fish and Game property in this case. It is undisputed that the property was open to the public. Warden Hagenston of the Fish and Game Department so testified. Defendant as a member of the public was entitled to enter and remain upon the property and could commit no crime or unlawful act in so doing. Furthermore there is no evidence that defendant was on the Fish and Game property on the date charged, May 14, 1977. There is a complete failure of proof of unlawful entry or unlawfully remaining on the property by the defendant. The second act charged against the defendant, viz. allow- ing cattle to enter and remain upon Fish and Game property, is not a crime under the statute. There is no mention of trespassing cattle in the statute nor liability of the owner thereof for violation of the statute. The former statute making herding of cattle onto another's land a criminal trespass was repealed in 1973. Ch. 513, Sec. 32, 1973 Laws of Montana. The cross- reference table relating the repealed statute to the present statute does not expand the scope or plain language of the present statute under which the defendant was charged. This table was not enacted by the legislature and has no force of law. The legislature simply repealed the old statute and enacted a new one that makes no mention of a crime by trespass- ing livestock. The new statute clearly applies only to a "person" by its express language and makes only personal entry or remaining on the premises by a person a crime. The landowner is not left without remedy for trespassing cattle under Montana law. A civil remedy for damages is pro- vided. Section 46-1409, R.C.M. 1947, now section 81-4-215 MCA. A criminal remedy for malicious mischief is provided where a person herds cattle onto another's land and causes damage. Section 94-6-102, R.C.M. 1947, now section 45-6-101 MCA. Avail- able remedies under Montana law do not include a criminal sanction under section 94-6-293(1)(b), R.C.M. 1947, now section 45-6-203(1)(b) MCA . The remaining specifications of error need not be dis- cussed in this opinion as none would change the result in the case. Reversed and dismissed. ................................ Chief Justice	March 21, 1979
cb193907-4c43-4c0b-bd0e-288ade163101	STATE v DOWNING	N/A	14394	Montana	Montana Supreme Court	No. 14394 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, Plaintiff and Respondent, VS. SAMUEL MARK DOWNING, Defendant and Appellant. Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Respondent : Douglas G. Harkin, Hamilton, MT Mike Greely, Attorney General, Helena, P q T Rick Larson argued, Helena, MT For Appellant: Robert J. Campbell argued, Missoula, MT Submitted: December 11, 1978 Decided: W R 1 2 1 9 7 9 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant appeals from an order of the Ravalli County District Court which denied his motion to dismiss and granted the county attorney's petition to revoke defendant's suspended sentence. Because ~f the nature of the question involved, the District Court judge delayed imposition of sentence pending review by this Court as tc his authority to impose a sentence. Defendant Samuel Mark Downing was arrested on November 10, 1972 and charged with burglary of a motor vehicle, a felony under section 94-901, R.C.M. 1947 (since repealed). Upon entry of a guilty plea, Downing was sentenced to three years imprisonment at Montana State Prison, with sentence suspended upon the condition that he comply with all the rules and regulations of the Montana Board of Pardons. Defendant's sentence commenced running on November 19, 1973, the day it was imposed. Approximately two and a half years later (May 14, 1976), the county attorney filed a petition seeking the revocation of Downing's suspended sentence for the reason that defendant had sold "dangerous drugs" to a Missoula man. On May 28, 1976, defendant appeared in District Court and admitted he had sold dangerous drugs. On that same day, the District Court revoked defendant's suspended sentence and entered another judgment whereby defendant was sentenced to spend sixty days in the Ravalli County Jail and thirty-four months on suspended sentence status. Defendant served the sixty days in the Ravalli County Jail, and then returned to his home in Missoula, Montana. More than a year and a half later, on February 24, 1978, the Ravalli county attorney again filed a petition seeking to revoke defendant's suspended sentence. The grounds for this revocation are not pertinent to this appeal. Defendant moved to dismiss the county attorney's petition to revoke, his motion was denied, and the District Court granted the petition to revoke defendant's suspended sentence. According to the State, the District Court could still sentence defendant to serve thirty-four months in the State Prison. However, before pronouncement of sentence, the District Court, because of the nature of the legal questions presented, authorized defendant to take this appeal. Downing first contends that the District Court did not have statutory authority to enter its May 28, 1976 judgment wherein it altered the original three year (suspended) sentence; and, he further contends that the May 28 judgment violates the double jeopardy provision of the Montana and United States Constitutions. Since this appeal can be decided solely on the question of statut~ry authority, we need not address the constitutional argument. Once a valid sentence is imposed, the court lacks jurisdiction to vacate or modify it unless specifically authorized by statute. State v. Porter (1964), 143 Mont. 528, 540, 391 P.2d 704. Here, defendant concedes that the District Court had the power to revoke his 1973 suspended sentence and require him to serve a three year term in prison. Defendant contends the District Court overstepped its statutory authority by revoking his suspended sentence and then modifying his original sentence by requiring him to serve sixty days in the Ravalli County Jail and another thirty-four months on suspended sentence status. The State's position seems to be that a three year suspended sentence can technically impede the defendant for the rest of his life. The pertinent statute in effect at the time, section 95-2206(6), R.C.M. 1947, provides as follows: "Any judge who has suspended the execution of a sentence or deferred the imposition of a sentence of imprisonment under this - section, or his successor, is authorized thereafter, in his discretion, during the period of such suspended sentence or deferred imposition of sentence to revoke such suspension or impose sentence and order such person committed, or may, in his discretion, order the ~risoner placed under the jurisdiction of the state board of pardons as provided by law, or retain such iurisdiction with this court. Prior to thg revocation of an order suspending or deferring the imposition of sentence, the person affected shall be given a hearing." (Emphasis added.) The plain meaning of the words used in section 95-2206(6) gives the District Court three alternatives for handling a defendant who has violated the terms of his probation. The District Court may: ". . . revoke such suspension . . . - and order such person committed . . . [or] order the prisoner placed under the jurisdiction of the state board of pardons . . . [or] retain such jurisdiction with this court." It is clear that these three alternatives were meant to be mutually exclusive. While they give the District Court some latitude in dealing with probation violators, they do not vest the court with completely unbridled discretion. The first alternative, that which was exercised by the District Court at the first hearing to revoke the suspended sentence, allows a judge to revoke a suspended sentence and order the defendant committed. The revocation is the most drastic alternative for "the revocation . . . leaves the defendant subject to execution of the original sentence as though it had never been suspended." Matter of Ratzlaff (1977), Mont . I 564 P.2d 1312, 1315, 34 St.Rep. 470, 473. Once the decision was made to revoke defendant's suspended sentence, the District Court had the discretion to allow a credit for the "good time" served by the defendant, but that is all. Section 95-2206(3), R.C.M. 1947. The District Court did not have the statutory authority to require defendant to serve sixty days in the Ravalli County Jail and another thirty-four months on a suspended sentence. Section 95-2206(6) did not permit this kind of modification. Accordingly, there was no authority for the District Court to grant the county attorney's petition to again revoke the suspended sentence. At this point, the District Court no longer has jurisdiction over the defendant and a sentence imposed at this time would be void. For the foregoing reasons, the District Court order dated June 30, 1978 revoking the suspended sentence is reversed. The defendant is no longer subject to the jurisdiction of the District Court. We Concur: Lli Justices I ? ' -5-	April 11, 1979
f97ad77d-35df-4b8f-9a45-3ff3f639f2bc	MONTANA POWER CO v CREMER	N/A	14672	Montana	Montana Supreme Court	N o 14672 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 19 79 - THE MONTANA P O W E R C O M P A N Y , A Montana Corporation, P l a i n t i f f and Appellant, -vs - L E O CREMER, J R . , e t a l . , Defendants and Respondents. Appeal from: D i s t r i c t Court of t h e Sixth J u d i c i a l D i s t r i c t , Honorable Jack D. Shanstrom Counsel of Record: For Appellant: Jardine, Stephenson, B l e w e t t and Weaver, Great F a l l s , Montana Lon Holden argued, G r e a t F a l l s , Montana For Respondent: Graybill, O s t r e m , Warner and Crotty, Great F a l l s , Montana Gregory Warner argued, Great F a l l s , Montana William RMorse, Absarokee, Montana For Amicus Curiae: Donald McIntyre argued, Helena, Montana Submitted: M a y 4 , 1979 Decided: JUN 2 2 1979 Filed: JUN 2: 1379 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 by t h e Montana Power Company (MPC) from a judgment of t h e D i s t r i c t Court of t h e Sixth J u d i c i a l D i s t r i c t , s i t t i n g i n Sweet Grass County, dismissing an eminent domain proceeding f o r lack of j u r i s d i c t i o n . MPC brought a condemnation a c t i o n t o acquire a per- manent easement across a s t r i p of respondents' land f o r t h e construction of a six-inch gas transmission p i p e l i n e which i n t o t a l would extend 3 8 . 3 m i l e s from MPC's p i p e l i n e s near Greycliff, Montana, t o i t s Big Coulee f i e l d located south- e a s t of Ryegate, Montana. A t t h e "necessity" hearing held on October 18, 1978, respondents objected t o t h e taking of testimony on any need f o r t h e proposed p i p e l i n e a l l e g i n g t h a t t h e p i p e l i n e i s a " f a c i l i t y " under t h e Montana Major F a c i l i t y S i t i n g A c t and therefore t h e Department of Natural Resources and Conserva- t i o n must f i r s t determine environmental compatibility and public need f o r t h e pipeline. Testimony was taken from John Robertson, MPC's gas and o i l department manager and John Van Gelder, MPC's gas production and transmission manager. Robertson t e s t i f i e d t h a t t h e proposed p i p e l i n e would connect MPC's t o t a l system of gas production, d i s t r i b u t i o n and transportation f a c i l i t i e s with i t s Big Coulee gas f i e l d s and t h a t the general purpose of t h e connection was t o re- plenish t h e depleted Big Coulee reserves f o r Lewistown, Montana, consumption. H e s t a t e d t h a t t h e estimated c o s t f o r construction of t h e p i p e l i n e w a s $1,693,000, and t h a t it would be capable of transporting approximately 8,500 m i l l i o n cubic f e e t of gas per day. On December 28, 1978, t h e condemnation s u i t was d i s - missed f o r lack of j u r i s d i c t i o n . The c o u r t found a s a matter of l a w t h a t MPC's proposed p i p e l i n e was a " f a c i l i t y " under t h e S i t i n g A c t s i n c e it l e d "from o r t o " a " f a c i l i t y " as defined by t h e S i t i n g A c t , section 75-20-104 (7) (c) MCA, formerly s e c t i o n 70-803(3)(c), R.C.M. 1947. The c o u r t a l s o found t h e p i p e l i n e t o be an "addition t o " MPC1s present n a t u r a l gas system. The c o u r t concluded t h a t M P C was barred from conducting eminent domain proceedings because it had n o t obtained a c e r t i f i c a t e from t h e Montana Board of Natural Resources and Conservation. MPC appeals from t h e D i s t r i c t Court judgment dismissing t h e a c t i o n f o r lack of j u r i s d i c t i o n and presents a question of s t a t u t o r y i n t e r p r e t a t i o n f o r review by t h i s Court, v i z . : Whether t h e MPC1s proposed gas transmission p i p e l i n e i s a " f a c i l i t y " a s defined by t h e Montana Major F a c i l i t y S i t i n g Act a t section 75-20-104 (7) MCA, formerly s e c t i o n 70-803 ( 3 ) , R.C.M. 1947? The D i s t r i c t Court found a s a matter of law t h a t MPC1s p i p e l i n e i s a f a c i l i t y under t h e A c t because it l e d t o o r from a f a c i l i t y a s defined by t h e S i t i n g A c t . The c o u r t designates MPC1s "gas gathering", "transmission and d i s t r i - bution p i p e l i n e system" as a " f a c i l i t y " t o which t h e pro- posed l i n e would connect and therefore t h e l i n e becomes a f a c i l i t y o r associated f a c i l i t y . W e disagree. Both p a r t i e s t o t h i s l i t i g a t i o n have agreed t h a t t h e i n t e n t of t h e l e g i s l a t u r e can be determined from t h e p l a i n meaning of t h e words used i n the s t a t u t e s and it follows t h a t t h e p l a i n meaning r u l e controls. This leaves no neces- s i t y t o examine l e g i s l a t i v e h i s t o r y . However, t h e p a r t i e s have nonetheless been very generous i n furnishing t h e Court with claimed evidence of l e g i s l a t i v e i n t e n t i o n . NO one r e a l l y g o t t o o c l o s e t o Laws of Montana 1979, Chapter 527, which amended s e c t i o n 75-20-104 MCA, t h e s t a t u t e under consideration here, and s p e c i f i c a l l y excludes n a t u r a l gas p i p e l i n e s from t h e S i t i n g Act. This b i l l w a s signed by t h e Governor and became e f f e c t i v e immediately on A p r i l 1 0 , 1979. This would seem t o l i m i t considerably t h e n e c e s s i t y f o r a long and involved discussion of t h e p r i n c i p l e s of s t a t u t o r y construction i n t h i s Opinion. Additionally, t h e Montana Department of Natural Re- sources and Conservation appeared by b r i e f and argued on behalf of t h e s t a t u t o r y construction urged by appellant. The Department has n o t considered gas transmission l i n e s connecting o t h e r gas transmission l i n e s leading t o o r from gas w e l l s o r f i e l d s a s a f a c i l i t y under t h e A c t . This Court has previously held t h a t i n s t a t u t o r y construction problems g r e a t deference must be shown t o t h e i n t e r p r e t a t i o n given t o t h e s t a t u t e by t h e agency o r o f f i c e r s charged with i t s administration. Department of Revenue v. Puget Sound Power and Light Co. (1978), Mont. , 587 P.2d 1282, 1286, 35 St.Rep. 1368, 1372. This has more than usual import here as t h e dismissal below was based on t h e g a s l i n e being a " f a c i l i t y . " The development of t h e case law i n Montana with r e s p e c t t o t h e r u l e s of s t a t u t o r y construction may be summarized i n t h e following a n a l y s i s : (1) Is t h e i n t e r p r e t a t i o n consis- t e n t with t h e s t a t u t e a s a whole? ( 2 ) Does t h e i n t e r p r e - t a t i o n r e f l e c t t h e i n t e n t of t h e l e g i s l a t u r e considering t h e p l a i n language of t h e s t a t u t e ? ( 3 ) Is t h e i n t e r p r e t a t i o n reasonable s o as t o avoid absurd r e s u l t s ? and ( 4 ) Has an agency charged with t h e administration of t h e s t a t u t e placed a construction on t h e s t a t u t e ? Dunphy v. Anaconda Co., (19681, 151 Mont. 76, 80, 438 P.2d 660, 662; Home Building & Loan Association v. Fulton (1962), 1 4 1 Mont. 113, 115, 375 P.2d 312, 313; Teamster Local #45 v. Cascade County School D i s t . #1 (1973), 162 Mont. 277, 280, 511 P.2d 339, 341; S t a t e ex rel. Cashmore v. Anderson (1972), 160 Mont. 175, 184, 500 P.2d 921, 926-27; Puget Sound Power & Light Co., supra. For t h e p i p e l i n e i n question t o f a l l within t h e param- eters of t h e S i t i n g Act, it must be a p i p e l i n e designed f o r o r capable of t r a n s p o r t i n g gas from o r t o a major f a c i l i t y . See s e c t i o n 75-20-104(7) ( c ) MCA, formerly s e c t i o n 70- 803 (3) ( c ) , R.C.M. 1947, which s t a t e s : "Each p i p e l i n e and associated f a c i l i t i e s de- signed f o r o r capable of t r a n s p o r t i n g gas, water, o r l i q u i d hydrocarbon products from o r t o a f a c i l i t y located within or without t h i s s t a t e of t h e s i z e i n d i c a t e d i n subsection (7) (a) of t h i s section." The f a c i l i t i e s i n d i c a t e d i n t h e referenced subsection i n - clude f a c i l i t i e s capable o f : (1) generating 50 megawatts of e l e c t r i c i t y ; ( 2 ) producing 25 m i l l i o n cubic f e e t of g a s p e r day; (3) producing 25,000 b a r r e l s of l i q u i d hydrocarbon products p e r day; ( 4 ) enriching uranium minerals; (5) u t i - l i z i n g , r e f i n i n g o r converting 500,000 tons of c o a l per year. For t h e gas p i p e l i n e t o be a f a c i l i t y under t h e S i t i n g Act, t h e p i p e l i n e must come from o r go t o one of t h e s e types of f a c i l i t i e s . Section 75-20-102 MCA, formerly s e c t i o n 70-802, R.C.M. 1947, e s t a b l i s h e s t h a t t h e S i t i n g A c t is aimed a t t h e "lo- c a t i o n , construction and operation of power and energy conversion f a c i l i t i e s . " Likewise, t h e f a c i l i t i e s described i n s e c t i o n 75-20-104 (7) (a) MCA a l l c l e a r l y contemplate t h e s i t i n g and construction of a r t i f i c i a l (man-made) f a c i l i t i e s t o a i d i n t h e conversion of a r a w m a t e r i a l t o a commercial energy product. Section 75-20-102 (7) (a) (i) MCA concerns t h e generation of e l e c t r i c i t y . This s e c t i o n contemplates t h a t t h e energy product, e l e c t r i c i t y , does n o t occur commercially i n t h e n a t u r a l s t a t e . Clearly, t h e S i t i n g A c t contemplates t h a t a r t i f i c i a l f a c i l i t i e s w i l l be constructed t o convert a n a t u r a l resource, such a s c o a l o r w a t e r , t o an energy product such a s e l e c t r i c i t y . I n a s i m i l a r v e i n s e c t i o n 7 5 - 2 0 - 1 0 4 ( 7 ) ( a ) ( i i i ) recog- n i z e s t h a t t h e production of l i q u i d hydrocarbon products r e q u i r e s t h e involvement of a s i t i n g a u t h o r i t y . The extrac- t i o n o r gathering of t h e l i q u i d hydrocarbon product is n o t t h e determinative c r i t e r i o n . The determinative c r i t e r i o n i s t h e production of an energy product through a conversion process. Under s e c t i o n 75-20-104(7)(a) MCA, o i l and gas r e f i n e r i e s are exempted from t h e S i t i n g A c t . Consequently, t h e S i t i n g A c t i s concerned only with those f a c i l i t i e s t h a t a r e needed t o convert a raw m a t e r i a l , such a s c o a l , t o a l i q u i d hydrocarbon product. F a c i l i t i e s t h a t a r e needed t o s e p a r a t e n a t u r a l l y occurring products which may be found together, such a s crude o i l and associated n a t u r a l gas, and f a c i l i t i e s which perform t h e mechanical a c t i o n of e x t r a c t i n g l i q u i d hydrocarbon products from t h e e a r t h a r e n o t w i t h i n t h e scope of t h i s d e f i n i t i o n . Section 75-20-104 (7) ( a ) ( i v ) MCA concerns t h e enriching of uranium minerals. I t involves t h e conversion of t h e i s o t o p i c r a t i o of uranium t o another i s o t o p i c r a t i o . Simply s t a t e d , t h e process involves t h e conversion of uranium i n i t s n a t u r a l s t a t e t o an energy product form which i s n o t commercially a v a i l a b l e i n t h e n a t u r a l state. A s i n t h e cases of t h e o t h e r f a c i l i t i e s described above, t h e common thread l i n k i n g the defined f a c i l i t i e s together i s t h e production by a r t i f i c i a l methods of an energy product through a conversion process. Likewise, t h i s common thread i s found i n s e c t i o n 715-20- 1 0 4 (7) ( a ) (v) which concerns t h e u t i l i z i n g , r e f i n i n g o r converting of coal. A s i n t h e above-described s i t u a t i o n s , a raw material, coal, i s converted by a r t i f i c i a l methods t o an energy product i n t h e form of heat, e l e c t r i c i t y , gas, hydrocarbon products o r energy i n any form f o r ultimate public use. I t i s t h e conversion of t h e raw m a t e r i a l t o a commercial product t h a t i s t h e s u b j e c t of t h e S i t i n g A c t . Therefore, i f s e c t i o n 75-20-104 (7) ( a ) (ii) i s t o be con- sidered compatible with t h e remaining subsections of s e c t i o n 75-20-104(7) ( a ) , as it must be i n considering t h e s t a t u t e a s a whole, t h e gas producing f a c i l i t y must be limited t o those types of f a c i l i t i e s t h a t convert n a t u r a l l y occurring mate- r i a l t o an energy product. Gas wells and f i e l d s , a s de- scribed i n t h e D i s t r i c t Court's order dismissing f o r lack of j u r i s d i c t i o n , are not t h e type of f a c i l i t i e s t h a t convert n a t u r a l l y occurring gas t o an energy product. Rather, t h e f a c i l i t i e s a r e gathering and t r a n s p o r t a t i o n of a n a t u r a l l y occurring energy product. Such f a c i l i t i e s are n o t s u b j e c t t o t h e requirements of t h e S i t i n g A c t . A s noted above, t h e S i t i n g Act i s c l e a r l y aimed a t t h e "location, construction and operation of power and energy conversion f a c i l i t i e s . " The key phrase i s "conversion f a c i l i t i e s . " Nowhere i n t h e S i t i n g A c t is t h e r e express authorization f o r t h e S t a t e t o site t h e mining o r gathering a c t i v i t i e s of a p o t e n t i a l applicant, except i n those cases where t h e a c t u a l mining a c t i v i t y involves t h e conversion of t h e energy form. The e x t r a c t i o n of n a t u r a l gas and t h e ultimate transportation of t h e gas from i t s n a t u r a l s t a t e t o t h e u l t i m a t e consumer does n o t involve a conversion process s u b j e c t t o t h e S i t i n g Act. Although t h e gas may be sweetened, cleaned, pressurized o r otherwise processed t o make it s u i t a b l e f o r burning, it i s n o t converted t o some o t h e r form by processing through any "power o r energy conversion f a c i - l i t y . " The judgment and order of t h e D i s t r i c t Court i s re- versed and vacated, and t h i s matter i s remanded t o t h e t r i a l c o u r t with i n s t r u c t i o n s t o proceed expeditiously with t h e eminent domain proceedings. W e concur: 7 h - & A $ f Chief J u s t i c e J u s t i c e s M r . J u s t i c e John C. Sheehy, 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 . No. 1 4 6 7 2 MONTANA POWER COMPANY V S . LEO CREMER ----------------- D I S S E N T ELERKOFSUPREMECOURI. &TATE OF MONTANA Mr. Justice Daniel J. Shea dissents: I dissent because this natural gas pipeline plainly and properly comes within the definition of a "facility" under the Montana Major Facility Siting Act. Section 70-803 (3) (c) , R.C.M. 1947, now section 75-20- 104(7) (c) MCA provides: "'Facility' means: " (c) each pipeline and associated facilities designed for, or capable of, transporting gas, water, or liquid hydrocarbon products from or to a facility located within or without this state of the size indicated in subsection ( 3 ) (a) of this section; . . ." Section 70-803(3) (a) (ii) , R.C.M. 1947, now section 75-20- 104 (7) (a) (ii) MCA provides: "'Facility' means: "(a) each plant, unit, or other facility and associated facilities, except for oil and gas refineries, "(ii) designed for, or capable of, producing twenty-five million (25,000,000) cubic feet of gas per day or more, or any addition thereto having an estimated cost in excess of two hundred fifty thousand dollars ($250,000), or . . ." The question, then, is whether the pipeline to or from which the pipeline would lead is designed for or capable of "producing" 25 million cubic feet of gas per day or more. The Greycliff connection is tied in with MPC's total gas production system which is capable of producing approximately 290,000 million cubic feet of gas per day. Therefore, the proposed pipeline leads from or to a facility capable of producing in excess of 25 million cubic feet of gas per day. Preliminarily, the majority opinion noted that section 70-20-104 MCA was recently amended so as to exclude natural gas pipelines from the Siting Act. This fact, according to the opinion, "would seem to limit considerably the necessity for . . . statutory construction." In this case, we are concerned with the Act as it existed before the 1979 amendment. If anything, the amendment indicates that the legislature sought to change existing law (Tuttle v. Morrison-Knudsen Co. (1978), Mont. , 580 P.2d 1379, 1382, 35 St.Rep. 864, 869; Montana Milk Control Bd. v. Community Creamery Co. (1961), 139 Mont. 523, 526, 366 P.2d 151, 152), and the change is effective only after the date of the amendment. Section 43-510, R.C.M. 1947, now section 1-2-203 MCA. The opinion regards the fact that the Department has not considered gas lines connecting other gas lines to be "facilities" as deserving of "great deference". Dept. of Rev. v. Puget Sound Power and Light Co., supra. The cited case stated, but did not apply, this notion of statutory construction. However, Doe v. Colburg (1976), 171 Mont. 97, 100, 555 P.2d 753, 754 did, stating: "This Court has on several occasions considered the interpretative regulations by administrative agencies charged with the duty of administering and enforcing a legislative act, for an under- standing of the provisions that must be carried out. (Cites omitted. ) "While such administrative interpretations are not binding on the courts, they are entitled to respectful consideration." (Emphasis added.) Here, no interpretive rulings on the Department's treatment of pipeline-to-pipeline facilities exist. Surely, the Department's inaction cannot be viewed as the legal equivalent to the promulgation of an interpretive ruling. The opinion then declares that Montana's rules of statutory construction may be summarized in a four-part analysis. This analysis neglects to mention the fundamental rule that legislative intent must first be determined from the plain meaning of the words used. Section 93-401-15, R.C.M. 1947, now section 1-2-101 MCA; Dunphy, supra; Teamsters Local #45, supra; Cashmore, supra. Instead, the opinion reverses the inquiry and asks, "does the interpretation reflect the intent of the legislature considering the plain language of the statute?" In short, does our opinion find support in the statute? Turning to the legislative policy statement in section 70-802, R.C.M. 1947, now section 75-20-102 MCA, the opinion seizes upon the "key phrasew--"conversion facilitiesw--as a statement of the Act's limited coverage. Even a cursory reading of the provision demonstrates that the legislative concern was not restricted to energy conversion facilities, but was generally aimed at furthering this State's policy of maintaining and improving "a clean and healthful environment . . . to protect the environmental life support system from degradation and prevent unreasonable depletion and degradation of natural resources." Section 70-802, supra. It is not inconsistent with this policy to impose siting requirements regulating the location, safety, construction and maintenance of gas pipelines. Indeed, the need for such legislation has prompted enactment of similar laws both by the United States Congress (49 U.S.C. 51671, et seq.) and by our sister states (See e.g., Wash.Rev.Code 580.50.010, et seq., and 0r.Rev.Stat. 5757.039.) To bolster its decision the Court attempts to trace a "common thread linking the defined facilities together" and determines that the common denominator is the conversion process necessary to produce the other enumerated energy forms. It appears the Court went too far in its search for commonality. For example, in discussing the definition of liquid hydrocarbon producing facilities, section 75-20-104 (7) (a) (iii) , it is stated that only such facilities that convert a raw material, such as coal, to a liquid hydrocarbon product are included. This totally unsolicited statement is not supported by the legislative history of section 75-20-104 (7) (a) (iii) . The 1975 Legislature specifically deleted any reference to gasification or liquefaction facilities for the obvious purpose of broadening the scope of the definition. If there is a "common thread" linking the facilities subject to the siting requirements of the Act, it is simply the potential environmental impact posed by each of the enumerated facilities. The District Court ruled correctly that the proposed gas pipeline is a "facility" and therefore subject to the requirements of the Major Facility Siting Act. Under the Act, the utility cannot conduct eminent domain proceedings until it has obtained a certificate of environmental compatibility and public need from the Department of Natural Resources and Conservation. Therefore, I would affirm the District Court order dismissing eminent domain prosedings.	June 22, 1979
a342d069-ec63-437b-bdc4-1e7d59e734cc	STATE v SEADIN	N/A	14573	Montana	Montana Supreme Court	No. 14573 I N THE S U P R E M E COURT O F THE STATE OF MIIWANA 19 7 9 STATE: O F M)NTANA, Plaintiff and Respondent, ERNEST SEADIN, ~efendant and Appellant. Appeal f m : District Court of the Third Judicial District, Honorable Fbbert J. Boyd, Judge presiding. Counsel of Record: For Appellant: Byron Boggs argued, Anaconda, Wntana For Respondent: Hon. Mike Greely, Attorney General, Helena, Mntana Richard Larson argued, Assistant Attorney General, H e l e n a , Wntana Ted L. Mizner argued, County Attorney, Deer Lodge, Wntana Subnitted: March 12, 1979 _. _ \ . . .. s i . - . Filed : 4 - 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. On September 14, 1978, defendant moved 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, f o r an o r d e r dismissing t h e Information f i l e d a g a i n s t him because of t h e f a i l u r e of t h e S t a t e of Montana t o comply w i t h t h e p r o v i s i o n s of t h e I n t e r s t a t e Agreement on Detainers. Sec- t i o n s 95-3131 through 95-3132, R.C.M. 1947, now s e c t i o n s 46- 31-101 through 46-31-102 MCA. The D i s t r i c t Court denied t h e motion. O n October 2 , 1978, defendant was found g u i l t y of t h e o f f e n s e of escape. H e appeals. On A p r i l 15, 1977, defendant escaped from t h e Montana S t a t e P r i s o n while s e r v i n g concurrent t e r m s of f i v e and seven y e a r s imposed i n January 1975. H e was a r r e s t e d i n Colorado on another charge i n August 1977 and subsequently convicted. While a t t h e Denver County j a i l awaiting d i s - p o s i t i o n of t h e Colorado charge, defendant was served w i t h a d e t a i n e r charging him w i t h escape from t h e Montana S t a t e Prison. H e was subsequently t r a n s f e r r e d t o t h e Colorado S t a t e P r i s o n a t Canyon C i t y b u t apparently t h e p r i s o n o f f i c i a l s w e r e n o t n o t i f i e d of t h e outstanding d e t a i n e r . Because t h e d e t a i n e r was n o t forwarded t o t h e p r i s o n , t h e p r i s o n o f f i - c i a l s would n o t a i d defendant i n processing t h e d e t a i n e r . Defendant then sought t h e a i d of another inmate a t t h e Colorado i n s t i t u t i o n . A motion f o r quick and speedy t r i a l was d r a f t e d and, on February 23, 1978, defendant s e n t c o p i e s of t h e motion t o t h e Clerk of t h e D i s t r i c t Court f o r Powell County, t h e Warden of t h e Montana S t a t e P r i s o n , and t h e County Attorney f o r Powell County. ilolores Munden, s u p e r v i s o r of r e c o r d s a t t h e I~Iontana S t a t e p r i s o n , subsequently t e s t i f i e d t h a t s h e received a copy of t h e motion along with a copy of d e f e n d a n t ' s Colorado commitment on March 2, 1978. Defendant was r e t u r n e d t o Montana on Friday, 3larch 25, 1978, and an Information charg- i n g him w i t h escape was f i l e d i n t h e D i s t r i c t Court on t h e following Thursday. The m a t t e r was scheduled f o r t r i a l on May 15. The t r i a l was rescheduled f o r J u l y 17, and then rescheduled again f o r September 19. N o r e a s o n f o r t h e continuances appears i n t h e record. On September 6, counsel were n o t i f i e d t h a t t h e Septem- b e r 19 t r i a l s e t t i n g had been vacated. Defendant responded by moving t o dismiss t h e Information on t h e grounds t h a t he had n o t received a prompt d i s p o s i t i o n of t h e charge a s r e q u i r e d by t h e I n t e r s t a t e Agreement on Detainers. The motion was denied. Defendant was t r i e d on October 2, 1978, approximately 210 days o r seven months a f t e r defendant had n o t i f i e d t h e o f f i c i a l s of h i s d e s i r e t o be t r i e d on t h e escape charge. The i s s u e presented f o r review i s whether t h e D i s t r i c t Court e r r e d i n denying d e f e n d a n t ' s motion t o dismiss t h e Information charging him w i t h escape pursuant t o t h e pro- v i s i o n s of t h e I n t e r s t a t e Agreement on Detainers. Defendant argues t h a t he should have been t r i e d w i t h i n t h e n e x t "term of c o u r t " a f t e r h i s n o t i f i c a t i o n t o t h e S t a t e of Montana. H e argues t h a t t h e S t a t e ' s f a i l u r e t o b r i n g him t o t r i a l w i t h i n t h r e e months v i o l a t e s t h e p r o v i s i o n s of t h e I n t e r s t a t e Agreement on ~ e t a i n e r s as adopted i n Montana. The S t a t e contends t h a t t h e Agreement on ~ e t a i n e r s does n o t apply where a p r i s o n e r ' s t r a n s f e r t o t h e r e c e i v i n g s t a t e i s n o t f o r t h e purpose of e f f e c t i n g a prompt d i s p o s i t i o n of u n t r i e d charges t h e r e and i s not t o be followed by t h e p r i s o n e r ' s r e t u r n t o t h e sending s t a t e . The S t a t e goes on t o argue t h a t defendant's r e q u e s t d i d n o t s u b s t a n t i a l l y comply with t h e Agreement's requirements because it d i d n o t include a c e r t i f i c a t e from Colorado a u t h o r i t i e s s t a t i n g " t h e term of [ h i s ] commitment, t h e time served and t h e time remaining t o be served, t h e amount of good t i m e defendant may have earned, and defendant's p a r o l e s t a t u s . " F i n a l l y , t h e S t a t e argues t h a t t h i s c a s e involves a speedy t r i a l question and t h a t under t h e f a c t s of t h e c a s e , t h e r e was no d e p r i v a t i o n of defendant's r i g h t t o a speedy t r i a l . The United S t a t e s Supreme Court r e c e n t l y addressed t h e provisions of t h e I n t e r s t a t e Agreement on Detainers i n United S t a t e s v. Mauro (1978), 436 U.S. 340, 98 S.Ct. 1834, 56 L Ed 2d 329. Noting t h a t t h e agreement has been adopted by 46 s t a t e s , t h e Court went on t o s t a t e t h e following: "The Agreement . . . i s designed ' t o encourage t h e expeditious and o r d e r l y d i s p o s i t i o n of . . . charges [outstanding a g a i n s t a p r i s o n e r ] and de- termination of t h e proper s t a t u s of any and a l l d e t a i n e r s based on u n t r i e d indictments, informa- t i o n s , o r complaints.' A r t . I. I t p r e s c r i b e s procedures by which a member S t a t e may o b t a i n f o r t r i a l a prisoner i n c a r c e r a t e d i n another mem- ber j u r i s d i c t i o n and by which t h e p r i s o n e r may demand t h e speedy d i s p o s i t i o n of c e r t a i n charges pending a g a i n s t him i n another j u r i s d i c t i o n . I n e i t h e r case, however, t h e provisions of -- t h e Agree- ment a r e t r i g g e r e d only when a ' d e t a i n e r ' i s -- - - f i l e d with -- t h e c u s t o d i a l (sending) S t a t e b y y another S t a t e (receiving) having u n t r i e d charges pending a g a i n s t t h e prisoner; t o o b t a i n temporary custody, t h e receiving S t a t e must a l s o f i l e an appropriate ' r e q u e s t ' with t h e sending S t a t e . " (Emphasis added.) 436 U.S. a t 343-44, 98 S . C t . a t 1838, 56 L Ed 2d a t 336. The provisions of t h e agreement, t h e r e f o r e , bind t h e r e - ceiving s t a t e when t h e d e t a i n e r i s f i l e d . Two q u e s t i o n s arise a t t h i s p o i n t . The f i r s t i s whe- t h e r d e f e n d a n t ' s motion f o r speedy t r i a l s u b s t a n t i a l l y complied w i t h t h e requirements of t h e A c t . W e f i n d t h a t it d i d . I n Rockmore v. S t a t e (1974), 21 Ariz.App. 388, 519 P.2d 877, t h e Arizona Supreme Court addressed a similar i s s u e . The s t a t e had argued t h a t t h e d e f e n d a n t ' s p e t i t i o n was incomplete because it was n o t accompanied by a c e r t i f i c a t e a s r e q u i r e d by A r t i c l e I11 and t h a t t h e defendant had n o t had t h e sending state, C a l i f o r n i a , o f f e r t o d e l i v e r t e m - porary custody a s r e q u i r e d by A r t i c l e V. The c o u r t found no m e r i t i n t h e s e arguments because t h e o f f i c i a l s of t h e sending state a r e r e q u i r e d t o send t h e c e r t i f i c a t e and an o f f e r of custody. Relief should n o t be denied a defendant when o f f i c i a l s of t h e sending s t a t e f a i l t o comply with t h e p r o v i s i o n s t o which they a r e bound. Rockmore, 519 P.2d a t 879. I n s o f i n d i n g , t h e c o u r t c i t e d ~ r t i c l e I X of t h e Agreement which provides t h a t " [ t l h i s agreement s h a l l b e l i b e r a l l y construed s o a s t o e f f e c t u a t e i t s purposes." I n t h e i n s t a n t c a s e it appears t h a t defendant d i d a l l t h a t he could do t o comply w i t h t h e p r o v i s i o n s of t h e Agree- ment. The S t a t e invoked t h e p r o v i s i o n s of t h e Agreement by lodging t h e d e t a i n e r and by o b t a i n i n g custody of defendant i n accordance w i t h t h e Agreement's p r o v i s i o n s . W e f i n d , then, t h a t under t h e circumstances of t h e i n s t a n t c a s e , d e f e n d a n t ' s s u b s t a n t i a l compliance w i t h t h e Agreement's procedure invoked t h e p r o v i s i o n s of t h e Agreement. The second q u e s t i o n w e must address concerns t h e mean- i n g of t h e phrase " n e x t t e r m of c o u r t " a s it appears i n A r t i c l e I11 of Montana's v e r s i o n of t h e Agreement. The Agreement a s adopted i n most s t a t e s provides: ". . . h e s h a l l be brousht t o t r i a l w i t h i n one - - - - - - - - - - hundred e i g h t y days a f t e r h e s h a l l have cause t o be d e l i v e r e d t o t h e prosecuting o f f i c e r and t h e a p p r o p r i a t e c o u r t of t h e prosecuting o f f i c e r s j u r i s d i c t i o n w r i t t e n n o t i c e of t h e p l a c e of h i s imprisonment and h i s r e q u e s t f o r a f i n a l dispos- i t i o n t o be made of t h e indictment, information o r complaint . . ." (Emphasis added.) A r t . 111, I n t e r s t a t e Agreement on Detainers. Montana's v e r s i o n s u b s t i t u t e s t h e phrase " a t t h e n e x t t e r m of c o u r t " f o r t h e uniform act's phrase " w i t h i n one hundred e i g h t y days." This s u b s t i t u t e d phrase has never been con- s t r u e d by t h i s Court. Defendant a r g u e s t h a t s e c t i o n 93-315, R.C.M. 1947, now s e c t i o n 3-5-401 MCA, d e f i n e s t h i s phrase: "The d i s t r i c t c o u r t of each county which i s a judi- c i a l d i s t r i c t by i t s e l f has no terms, and must be always open f o r t h e t r a n s a c t i o n of b u s i n e s s , except on l e g a l holidays and n o n j u d i c i a l days. J u r i e s f o r t h e t r i a l of causes must be c a l l e d by t h e judge a s o f t e n as t h e p u b l i c business r e q u i r e s . -- I n each d i s t r i c t where two o r more c o u n t i e s are u n i t e d t h e --- judge thereof must f i x t h e t e r m of c o u r t i n each ----- -- county i n h i s d i s t r i c t , and t h e r e must b e a t least - --- f o u r t e r m s a y e a r i n each county. Any o r d e r of t h e ---- judge of such d i s t r i c t f i x i n g t e r m s of c o u r t s h a l l be f i l e d i n t h e o f f i c e of 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 i n each county of h i s d i s t r i c t , and s h a l l remain i n e f f e c t u n t i l f u r t h e r o r d e r of t h e judge; provided, t h a t nothing i n t h i s s e c t i o n s h a l l be construed t o p r e v e n t t h e c a l l i n g of a s p e c i a l t e r m of c o u r t , w i t h o r without a jury, when i n t h e opin- i o n of t h e p r e s i d i n g judge t h e same i s necessary. The d i s t r i c t judge may adjourn a t e r m of d i s t r i c t c o u r t i n one county t o a f u t u r e day c e r t a i n , and i n t h e meantime hold c o u r t i n another county." (Emphasis added. ) Defendant contends t h a t s i n c e " t h e r e must be a t least f o u r t e r m s a year" each t e r m must be t h r e e months i n l e n g t h . The S t a t e argues t h a t t h e s t a t u t e d e f i n i n g t e r m s of c o u r t does n o t r e q u i r e t e r m s t o be of equal l e n g t h . Thus, t h e requirement of f o u r t e r m s could conceivably be s a t i s f i e d i n a d i s t r i c t w i t h t h r e e t e r m s of one day and one t e r m of 362 days. A problem would a r i s e i n i n t e r p r e t i n g t h i s phrase a s applied t o a county which i s a j u d i c i a l d i s t r i c t by i t s e l f i n t h a t , according t o t h e s t a t u t e , such a d i s t r i c t "has - no terms." But i n t h e i n s t a n t case, counsel f o r t h e S t a t e admitted during o r a l argument t h a t t h e Third J u d i c i a l D i s - t r i c t comprises more than one county and has terms, though t h e length of t h e t e r m s i s not c o n s i s t e n t . The S t a t e a l s o admitted t h a t defendant was not t r i e d within t h e next term of c o u r t a f t e r he had submitted h i s request f o r d i s p o s i t i o n . A r t i c l e V(c) of t h e Agreement provides i n p e r t i n e n t p a r t : ". . . i n t h e event t h a t an a c t i o n on t h e . . . information . . . on t h e b a s i s of which t h e de- t a i n e r has been lodged i s not brought t o t r i a l within t h e periods provided by t h i s a c t , t h e appropriate c o u r t of t h e j u r i s d i c t i o n where t h e . . . information . . . has been pending s h a l l e n t e r an order dismissing t h e same with prejudice and any d e t a i n e r based thereon s h a l l cease t o be of any force o r e f f e c t . " Therefore, defendant's conviction i s reversed. The D i s t r i c t Court i s i n s t r u c t e d t o e n t e r an order dismissing with preju- d i c e t h e information charging defendant with escape. W e concur: s h i e f Justice,, Mr. Chief Justice Frank I. Haswell, specially concurring: I concur in the result on the ground that institutional delay chargeable to the state denied defendant his right to a speedy trial. Chief Justice	April 16, 1979
27e62c82-dee6-472b-9676-6a6ca14dfd9c	VELTE v ALLSTATE INS CO	N/A	14574	Montana	Montana Supreme Court	N o . 14574 IN THE S U P R E M E COUHT O F THE STATE O F rnrnANA 1979 C O N N I E J. VELTE et al. , Plaintiffs and Appellants, -VS- ALLsI'ATE INSURANCE COMPANY, Defendant and Respondent. Appeal from: D i s t r i c t Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellants: E m J. Dolve, Jr., Billings, Wntana Calvin A.Calton, Billings, Wntana Rodd HamMn argued, Billings, mntana For Respondent: Anderson, Symnes, B - , Gerbase, Cebull & Jones, Billings, plbntana Richard F. Cebull, Billings, Wntana Subsnitted: March 19, 1979 -- -- Decided: APR 1 7 1979 T - Filed: .' " i ' ' , - Mr. Justice Gene B. Daly delivered the Opinion of the Court. This is an appeal brought by the survivors and the personal representative of the estate of Oscar F. Johnson. Johnson was killed as the result of an automobile collision in Billings, Montana, in July 1976. At the time of the accident, Johnson was a passenger in an automobile driven by John Schaefer and insured by defendant Allstate Insurance Company. Schaefer's policy with Allstate had a liability limit of $10,000 as well as an uninsured motorist endorse- ment. The other automobile involved in the accident was not insured. Johnson's heirs and personal representative filed claims with Allstate, which in turn offered to pay the claimants the policy limit of $10,000, applicable to the injury or death of one person. The heirs and personal representative contended they were entitled to more compen- sation, arguing that the Motor Vehicle Safety Responsibility Act, at section 53-438, R.C.M. 1947, now section 61-6-103 MCA, required the insurer to pay at least $25,000 in compen- sation for Oscar Johnson's death. At Allstate's suggestion, appellants commenced a declaratory action in the District Court, Yellowstone County, seeking to have the policy limits declared to be $25,000 rather than $10,000. The ~istrict Court ruled in favor of defendant Allstate's motion to dismiss on September 7, 1978. In a memorandum accompanying that order, the District Court stated the issue presented to it as whether the law required liability coverage of at least $25,000, regardless of the agreed-upon terms of the policy: "The complaint seeks t o e s t a b l i s h t h a t Montana l a w r e q u i r e s motor v e h i c l e l i a b i l i t y coverage f o r bodily i n j u r y t o be i n t h e sum of $25,000 regardless of any lesser s t a t e d l i m i t s i n t h e issued policy ($10,000 i n t h i s c a s e ) . . ." On appeal t h e h e i r s and personal representative present a new theory--namely, t h a t s e c t i o n 40-4403, R.C.M. 1947, now s e c t i o n 33-23-201 MCA, e n t i t l e s them t o g r e a t e r compensation than t h e s t a t e d l i a b i l i t y l i m i t s of t h e A l l s t a t e policy. Appellants contend t h a t s e c t i o n 40-4403 r e q u i r e s an i n s u r e r t o provide a t l e a s t $25,000 per person and $50,000 per accident of uninsured motorist coverage and t h a t they a r e t h e r e f o r e e n t i t l e d t o $15,000 of t h a t coverage under t h e uninsured motorist endorsement of Johnson's policy with A l l s t a t e . W e conclude t h a t t h e D i s t r i c t Court c o r r e c t l y decided t h e i s s u e presented t o it, and t h a t appellants may n o t r a i s e , f o r t h e f i r s t time on appeal, t h e i s s u e of whe- t h e r they are e n t i t l e d t o uninsured motorist b e n e f i t s under Schaefer's policy. A. Appellant's s t a t u t o r y l i m i t s arqument. The i s s u e of whether an automobile owner must have a p a r t i c u l a r amount of l i a b i l i t y insurance o r l i a b i l i t y insur- ance covering p a r t i c u l a r s i t u a t i o n s has been before t h i s Court on s e v e r a l previous occasions. I n Northern Assurance Company of America v. Truck Insurance Exchange (1968), 151 Mont. 132, 439 P.2d 760, t h e i s s u e was whether an exclusion i n a l i a b i l i t y policy was c o n s i s t e n t with t h e s t a t u t o r y policy of t h e Motor Vehicle Safety Responsibility A c t . The Court reasoned t h a t t h e exclusion w a s "not v i o l a t i v e of public policy" because t h e law required l i a b i l i t y insurance i n only c e r t a i n s p e c i f i e d instances, and t h a t a policy which t h e owner v o l u n t a r i l y obtained w a s n o t s u b j e c t t o t h e cover- age requirements of t h e S a f e t y Responsibility Act. 151 Mont. a t 136-37, 439 P.2d a t 763. I n Boldt v. S t a t e Farm Mutual Automobile Insurance Co. (1968), 151 Mont. 337, 443 P.2d 33, an i n j u r e d p l a i n t i f f sought t o have a c l a u s e i n a l i a b i l i t y p o l i c y declared void because it c o n f l i c t e d with t h e Safety Responsibility A c t . The Court again r u l e d t h a t t h e A c t ' s requirements " a r e n o t a b s o l u t e b u t a r e a p p l i c a b l e under c e r t a i n circumstances and a r e s u b j e c t t o c e r t a i n l i m i t a t i o n s and exceptions." 151 Mont. a t 341, 443 P.2d a t 35. The Court reasoned t h a t t h e l a w required an automobile owner t o c a r r y l i a b i l i t y insur- ance a s proof of f i n a n c i a l r e s p o n s i b i l i t y i n only c e r t a i n s p e c i f i e d circumstances, and otherwise " i s n o t required t o p o s t proof of f u t u r e f i n a n c i a l r e s p o n s i b i l i t y a t a l l . " 151 Mont. a t 343, 443 P.2d a t 36. Since an owner may n o t be required t o purchase l i a b i l i t y insurance a t a l l , t h e Court concluded t h a t t h e requirements a p p l i c a b l e t o p o l i c i e s i s s u e d and c e r t i f i e d as proof of f i n a n a c i a l r e s p o n s i b i l i t y had no a p p l i c a t i o n t o p o l i c i e s which owners v o l u n t a r i l y obtain. 151 Mont. a t 343-44, 443 P.2d a t 36. See a l s o , Universal Underwriters Insurance Co. v. S t a t e Farm Mutual Automobile Insurance Co. (1975), 166 Mont. 128, 134, 531 P.2d 668, 672. Appellants argued before t h e D i s t r i c t Court t h a t s e v e r a l amendments t o s e c t i o n 53-438 changed t h e a p p l i c a t i o n of t h e s t a t u t e making it a p p l i c a b l e t o a l l automobile l i a - b i l i t y p o l i c i e s i s s u e d i n Montana. They make no mention of t h a t argument i n t h e i r b r i e f s on appeal, however. Under t h e r u l e e s t a b l i s h e d i n Northern Assurance and Boldt, t h e argument t h a t t h e Safety Responsibility A c t r e q u i r e s t h e i n s u r e r t o i s s u e l i a b i l i t y p o l i c i e s with no less than $25,000 coverage must be r e j e c t e d . I n t h i s case, a s i n Northern Assurance and Boldt, t h e owner v o l u n t a r i l y obtained t h e l i a b i l i t y coverage. There i s no s t a t u t o r y b a s i s upon which t o r e q u i r e t h i s voluntary policy t o be construed as providing more than t h e $10,000 coverage which i t s t e r m s show. B. Appellants' Uninsured Motorist Argument. Appellants argue t h a t s e c t i o n 40-4403 r e q u i r e s t h e i n s u r e r t o provide a t l e a s t $25,000/50,000 uninsured m o t o r i s t coverage along with any l i a b i l i t y p o l i c y it i s s u e s , and t h a t they a r e e n t i t l e d t o $15,000 compensation from t h e owner's uninsured m o t o r i s t policy with A l l s t a t e . Their p o s i t i o n i s t h a t because t h e owner had only $10,000 of l i a b i l i t y cover- age, he was uninsured t o t h e e x t e n t of t h e d i f f e r e n c e be- tween h i s l i a b i l i t y coverage and t h e uninsured m o t o r i s t coverage required by t h e s t a t u t e . A review of t h e b r i e f s of both p a r t i e s before t h e D i s t r i c t Court i n d i c a t e s t h i s argument is r a i s e d f o r t h e f i r s t t i m e on appeal. The D i s t r i c t Court w a s presented with, and decided only, t h e question of whether t h e S a f e t y Responsibility A c t ' s coverage requirements applied t o t h e owner's l i a b i l i t y policy. Therefore, a p p e l l a n t s may n o t now raise t h e i s s u e of uninsured m o t o r i s t coverage. I t i s w e l l s e t t l e d t h a t a p a r t y "may n o t change h i s theory on appeal t o t h i s Court from t h a t advanced i n t h e t r i a l court." Chamberlain v. Evans (1979), - Mont . I 591 P.2d 237, 240, 36 St.Rep. 419, 423-24. See a l s o , Sturdevant v. M i l l s (19781, - Mont. , 580 P.2d 923, 925, 35 St.Rep. 839, 842. Appellants argue, however, t h a t t h e theory of uninsured m o t o r i s t coverage p r e s e n t s a ques- t i o n of law only, and t h e r e f o r e need n o t be presented t o t h e D i s t r i c t Court i n advance of t h e appeal. They urge f u r t h e r t h a t a d e c l a r a t o r y judgment a c t i o n p r e s e n t s a unique s i t u a - t i o n , because such an a c t i o n i s brought s o l e l y f o r t h e purpose of determining i s s u e s of law, and t h a t an a p p e l l a t e c o u r t may consider t h e s e i s s u e s d e novo. -- The Uniform Declaratory Judgments Act, s e c t i o n 93-8907, R.C.M. 1947, now s e c t i o n 27-8-312 MCA, provides t h a t " [ a l l 1 o r d e r s , judgments and decrees under t h i s a c t may be reviewed as o t h e r o r d e r s , judgments and decrees." Only one Montana d e c i s i o n d i r e c t l y construes s e c t i o n 93-8907 and t h a t deci- s i o n concerns a p p e l l a t e review of f a c t u a l findings: " I n a d e c l a r a t o r y judgment a c t i o n . . . t h e d i s t r i c t c o u r t determines i s s u e s of f a c t i n t h e same manner a s i s s u e s of f a c t i n o t h e r pro- ceedings. Section 93-8909, R.C.M. 1947. W e review t h e a c t i o n of t h e d i s t r i c t c o u r t t h e same a s i n o t h e r proceedings. Section 93-8907, R.C.M. 1947." S t a t e Highway Commission v. West Great F a l l s Flood Control and Drainage D i s t r i c t (1970), 155 Mont. 157, 171, 468 P.2d 753, 761. Courts i n o t h e r Uniform Declaratory Judgments Act j u r i s d i c t i o n s have considered more p r e c i s e l y t h e i s s u e of whether an a p p e l l a n t has more l a t i t u d e t o a l t e r h i s theory on appeal i n a d e c l a r a t o r y a c t i o n than i n o t h e r types of c i v i l a c t i o n s , and have concluded t h a t he does not. Board of Supervisors of F a i r f a x County v. W i l l i a m s (1975), 216 Va. 49, 216 S.E.2d 33, 39 n. 3; City of S t . Louis v. Missouri Commission on Human Rights (Mo. 1974), 517 S.W.2d 65, 71; Crowe v. Wheeler (Colo. 1968), 439 P.2d 50, 53; Goldberg v. Valve Corporation of America (1967), 89 Ill.App.2d 383, 233 N.E.2d 85, 90. I n each of t h e s e d e c i s i o n s t h e c o u r t s r u l e d t h a t they would n o t determine l e g a l i s s u e s which t h e p a r t i e s f a i l e d t o p r e s e n t t o t h e t r i a l c o u r t , e i t h e r by o b j e c t i o n o r by pleadings. I t i s c l e a r t h a t appellants here have changed t h e i r theory on appeal. A t t h e D i s t r i c t Court l e v e l , they sought a d e c l a r a t i o n t h a t s e c t i o n 53-438, R.C.M. 1947, required t h e i n s u r e r t o provide Schaefer with $25,000 of motor vehicle l i a b i l i t y coverage (paragraphs V - V I I of complaint, and paragraph 1 of prayer f o r judgment). On appeal, they s t a t e an e n t i r e l y d i f f e r e n t theory, involving an uninsured mo- t o r i s t claim: "Because A l l s t a t e f a i l e d t o provide l i a b i l i t y coverage equalling t h e minimum amount set a t s e c t i o n 53-438, R.C.M. [1947], (Supp. 1977), Schaeffer should be considered an uninsured d r i v e r and Velte, e t a l . , are e n t i t l e d - t o recover under t h e uninsured motorist s e c t i o n of -- t h e A l l s t a t e policy." (Emphasis added.) The r u l e applied t o new t h e o r i e s r a i s e d on appeal i s t h e same f o r a c t i o n s brought under t h e Declaratory Judgment Act a s it i s f o r o t h e r c i v i l a c t i o n s . Therefore, w e w i l l n o t determine a p p e l l a n t s ' uninsured motorist claim. The judgment of t h e D i s t r i c t Court i s affirmed. W e concur: Q4-45 u s t i c e s	April 16, 1979
a4aaf6bb-9fa9-4d3c-960a-b0da26c523ea	MATTER OF INQUIRY INTO J L B	N/A	14399	Montana	Montana Supreme Court	IN THE SUPREME COURT OF THE STATE OF MONTANA IN THE MATTER OF INQUIRY INTO J.L.B. YOUTH IN NEED OF CARE. Appeal from: District Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: Klaus Sitte argued, Legal Services, Missoula, Montana For Respondent: Robert L. Deschamps, 111, County Attorney, Missoula Montana Karen Townsend, Deputy County Attorney, argued, Missoula, Montana Suzann Weiland, Deputy County Attorney, argued, Missoula, Montana Dennis Lind argued, Missoula, Montana Mary B. Troland appeared, Assistant Attorney General, Helena, Montana David Scott, SRS appeared, Helena, Montana Submitted: February 1, 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. A mother b r i n g s t h i s appeal from t h e conclusions and judgment 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 , which declared h e r daughter a neglected c h i l d , and g r a n t e d permanent custody over t h e c h i l d t o 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 with a u t h o r i t y t o consent t o h e r adoption. The mother contends f i r s t t h a t s e c t i o n 10-1301(2) ( a ) and ( b ) , R.C.M. 1947, now s e c t i o n 41-3-102(2) ( a ) and ( b ) MCA, d e f i n i n g "abuse" and " n e g l e c t " w e r e u n c o n s t i t u t i o n a l l y vague a s a p p l i e d t o her. Second s h e contends t h a t t h e a p p r o p r i a t e standard of proof t o be a p p l i e d t o t h e S t a t e i n a termination of p a r e n t a l r i g h t s proceeding i s t h e " c l e a r and convincing" s t a n d a r d , r a t h e r than t h e "preponderance of evidence" standard. The mother's t h i r d c o n t e n t i o n i s 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 removing t h e c h i l d permanently from her mother because t h a t d e c i s i o n w a s n o t supported by even a preponderance of t h e evidence. W e a f f i r m t h e d e c i s i o n of t h e D i s t r i c t Court. The c h i l d was born on May 16, 1975, when h e r mother w a s seventeen y e a r s o l d . H e r p a r e n t s w e r e n o t married a t t h e t i m e of her b i r t h , nor have they e v e r been married. They d i d l i v e t o g e t h e r on a f a i r l y r e g u l a r b a s i s from s h o r t l y a f t e r t h e c h i l d ' s b i r t h u n t i l December 1977. I n her f i f t h month of pregnancy t h e mother was r e f e r r e d t o a P u b l i c Health S e r v i c e nurse, Mary XcCall, by a high school counselor. From t h a t t i m e on t h e mother and c h i l d have been f r e q u e n t l y v i s i t e d by a v a r i e t y of h e a l t h and w e l f a r e o f f i c i a l s o f f e r i n g a s s i s t a n c e and i n s t r u c t i o n i n c h i l d c a r e . Mary McCall t e s t i f i e d t h a t s h e m e t w i t h t h e mother and arranged t o have a s o c i a l worker assigned t o h e r . s h e f u r t h e r arranged f o r t h e mother t o m e e t w i t h an e l i g i b i l i t y t e c h n i c i a n t o provide a s s i s t a n c e i n r e c e i v i n g Iledicaid money f o r p r e n a t a l c a r e and arranged an appointment w i t h a physi- c i a n t o provide her w i t h t h a t c a r e . She a l s o r e f e r r e d t h e mother t o t h e W.I.C. program, a f e d e r a l n u t r i t i o n a l program f o r women, i n f a n t s , and c h i l d r e n , f o r p r e n a t a l n u t r i t i o n a l a s s i s t a n c e . A s e n i o r s t u d e n t s o c i a l worker from t h e Univer- s i t y of Montana, Tricia W i l l i a m s , made weekly v i s i t s t o t h e mother from December 1974 u n t i l t h e c h i l d was born. The mother was l a t e r r e f e r r e d t o t h e "At-Risk Program" of t h e Missoula City-County Health Department, which a t t e m p t s t o i d e n t i f y mothers and c h i l d r e n t h a t w i l l be a t r i s k f o r p o t e n t i a l h e a l t h problems due t o p r e n a t a l o r d e l i v e r y compli- c a t i o n s . According t o Mary McCall, t h e mother was r e f e r r e d t o t h e program because s h e was under e i g h t e e n , had n o t had p r e n a t a l c a r e f o r t h e f i r s t f i v e months of h e r pregnancy, w a s unable t o r e a d o r w r i t e , had s u f f e r e d a kidney i n f e c t i o n and anemia during h e r pregnancy, and was unmarried. A s a r e s u l t of t h i s r e f e r r a l , Mary XcCall r e g u l a r l y v i s i t e d t h e mother a t h e r mother's home d u r i n g t h e summer of 1975 and learned of t h e baby's problem of s t a y i n g awake and c r y i n g most of t h e t i m e . I n McCall's judgment, t h e problem was caused by t h e i n f a n t ' s d i e t . H e r mother had p u t c e r e a l i n h e r formula, which McCall concluded was probably con- s t i p a t i n g t h e baby because s h e w a s t o o young t o handle s o l i d food. McCall a l s o found t h e mother t o be depressed and anxious from l a c k of s l e e p . She a s s i s t e d h e r w i t h t h e p r e p a r a t i o n of formula f o r h e r baby, demonstrating each s t e p r a t h e r than leaving w r i t t e n i n s t r u c t i o n s because t h e mother was unable t o read. 14cCall a l s o helped t h e mother with an a p p l i c a t i o n f o r a low-income housing p r o j e c t i n Missoula when she i n d i c a t e d a d e s i r e f o r independence from her home. The mother obtained t h e low-income housing and l i v e d i n h e r own apartment i n t h e f a l l of 1975. Another s e n i o r s t u d e n t from t h e U n i v e r s i t y made a t o t a l of 22 v i s i t s w i t h t h e mother t h a t f a l l t o a s s i s t w i t h c a r e f o r h e r c h i l d . During t h a t t i m e , PllcCall received a r e f e r r a l from t h e W.I.C. program r e q u e s t i n g n u t r i t i o n a l counseling f o r t h e mother, and v i s i t e d h e r once again. The mother had been feeding t h e c h i l d soda pop r a t h e r than j u i c e , t e l l i n g McCall t h a t j u i c e gave t h e baby d i a r r h e a . McCall t e s t i f i e d t h a t t h e mother's apartment was messy, w i t h empty beer cans l y i n g around, sacks of garbage on t h e f l o o r and d i r t y d i s h e s i n t h e s i n k . She a l s o noted t h a t t h e mother made no e f f o r t t o pick up h e r daughter when s h e c r i e d , and t h a t t h e baby appeared i r r i t a b l e . PlcCall was t o l d by t h e apartment manager t h a t t h e baby had been c r y i n g a l l n i g h t , b u t t h e mother denied t h a t claim when asked by McCall. McCall a l s o had s e v e r a l v i s i t s w i t h t h e baby's f a t h e r , who was o c c a s i o n a l l y w i t h t h e mother during her v i s i t s . H e t o l d McCall t h a t he hoped t o marry t h e mother sometime, b u t never had d e f i n i t e p l a n s . H e t o l d h e r t h a t h e had f a i l e d one armed s e r v i c e s test b u t was hoping t o t a k e another s o t h a t he could e n t e r t h e m i l i t a r y and then marry t h e mother. The marriage always appeared t o be c o n t i n g e n t upon t h e f a t h e r ' s a b i l i t y t o o b t a i n a s t a b l e job and home, b u t t h o s e c o n d i t i o n s never m a t e r i a l i z e d . McCall concluded from h e r a s s o c i a t i o n w i t h t h e mother t h a t she was n o t r e t a i n i n g t h e b a s i c c h i l d c a r e information given her: "When I would v i s i t h e r , I u s u a l l y r e i t e r a t e d t h e same k i n d s of t h i n g s about n u t r i t i o n a l i n s t r u c t i o n s , t h e need f o r a r e g u l a r physician f o r [ t h e baby], t h e need f o r immunizations t o p r o t e c t [ t h e baby] from preventable childhood d i s e a s e s and many t i m e s when I would v i s i t h e r , t h i s m a t e r i a l seemed t o be new a s i f s h e had never heard it before. She i n d i c a t e d t o m e t h a t s h e was n o t r e t a i n i n g t h i s information t h a t I had been g i v i n g her." I n A p r i l 1976 t h e p a r e n t s brought t h e baby t o D r . K i t Johnson, a p e d i a t r i c i a n , following t h e i r attempts t o g i v e t h e baby a "green d i s h soap" enema. According t o t h e par- e n t s , t h e baby had s u f f e r e d c o n s t i p a t i o n f o r t h r e e days p r i o r t o t h e attempted enema. D r . Johnson t e s t i f i e d t h a t t h e baby appeared " a c u t e l y i l l " and "screamed of pain." H e had her admitted t o a h o s p i t a l where she stayed overnight. Mary McCall had l i t t l e formal c o n t a c t w i t h t h e mother and c h i l d a f t e r February 1976 when they moved from h e r geographical j u r i s d i c t i o n . However, s h e continued t o have some c o n t a c t . On August 2 4 , 1976, t h e mother appeared i n an a l l e y behind t h e Missoula County Health and Welfare Building a s McCall r e t u r n e d from a home v i s i t . She had t h e baby w i t h h e r and t o l d Piccall t h a t s h e was going t o have a nervous breakdown; t h a t s h e and t h e f a t h e r had had a f i g h t ; t h a t she needed a b a b y s i t t e r f o r h e r daughter f o r two weeks; t h a t she had no money o r food f o r t h e baby; t h a t t h e f a t h e r was d r i n k i n g heavily; t h a t she was angered by t h e baby's con- tinuous c r y i n g ; and t h a t she was a f r a i d s h e was going t o h u r t t h e c h i l d . The baby was unwashed and c a r r i e d a b o t t l e o f s p o i l e d , curdled milk. McCall took them i n t o t h e Department of S o c i a l S e r v i c e s t o make care arrangements f o r mother and daughter. With two s o c i a l w e l f a r e workers t h e r e , Gwen P e t e r s o n and Arlene Grossman, McCall agreed t h a t t h e baby should be placed i n temporary f o s t e r c a r e u n t i l her mother was again a b l e t o t a k e c a r e of her. The mother went along w i t h t h i s d e c i s i o n , and t h e c h i l d was temporarily placed. The following day, however, t h e mother reappeared, demanded h e r c h i l d ' s r e t u r n , and accused t h e w e l f a r e s t a f f of s t e a l i n g h e r daughter. A f t e r some d i s c u s s i o n w i t h Peterson, Grossman, and McCall, t h e mother agreed t o placement f o r h e r c h i l d and h e r s e l f w i t h a family i n C l i n t o n , I:Iontana, where t h e mother h e r s e l f had once been a f o s t e r c h i l d . She later signed a s t i p u l a t i o n s t a t i n g t h e t e r m s of t h a t agreement, which became t h e b a s i s of a temporary custody o r d e r signed by District Court Judge E. Gardner Brownlee on September 3, 1976. The Baker family, with whom mother and daughter were t o s t a y , agreed t o s e r v e a s p a r e n t i n g models, helping t h e mother t o understand h e r r e s p o n s i b i l i t i e s . I n October 1976, t h e mother and h e r c h i l d r e t u r n e d t o Missoula t o l i v e w i t h t h e f a t h e r . H e had obtained a job and a t r a i l e r house, b u t soon l o s t t h e job due t o excessive drinking. Through t h e f a l l months t h e mother missed s e v e r a l W.I.C. appointments a t which she was t o r e c e i v e high p r o t e i n foods. She d i d , however, r e c e i v e in-home a s s i s t a n c e from B e a t r i c e Fournier, a home a t t e n d a n t f o r t h e Nissoula County Welfare Department. Fournier helped t h e mother p l a n menus and, r e a l i z i n g h e r i n a b i l i t y t o r e a d , brought h e r p i c t u r e s of food groups t o a i d i n her planning. She t e s t i f i e d , however, t h a t t h e mother f a i l e d t o comprehend t h e need f o r a balanced d i e t and t h a t t h e i n s t r u c t i o n s w e r e n o t g e t t i n g through t o h e r . I n November 1976 Arlene Grossinan took t h e c h i l d t o D r . Johnson t o examine a stomach r a s h . D r . Johnson concluded t h a t t h e r a s h was n o t s i g n i f i c a n t b u t diagnosed an i n f e c t i o n i n both of t h e baby's e a r s . He prescribed an a n t i b i o t i c , b u t Arlene Grossman discovered t h a t t h e mother f a i l e d t o g i v e her daughter t h e prescribed amount a t t h e appropriate t i m e s . Nor d i d t h e mother r e t u r n t o D r . Johnson i n two weeks f o r a checkup on t h e c h i l d ' s e a r s a s she had been i n s t r u c t e d . On January 18, 1977, t h e c h i l d had another appointment with D r . Johnson. A t t h a t time she exhibited physical and emotional s i g n s which D r . Johnson concluded required f o s t e r placement: ". . . a t t h i s t i m e t h e c h i l d was very r e s t l e s s and i r r i t a b l e and she was b i t i n g on her mother a s her mother p u t it. She appeared t h i n , s l i g h t l y swollen abdomen, her mother s t a t e d t h a t she had had inadequate food f o r t h e last month because of i n s u f f i c i e n t amount of money, s t a t e d she was n o t l i v i n g with [ t h e f a t h e r ] , s t a t e d [ t h e c h i l d ] had a cold and n o t feeding w e l l f o r t h e last month . . . The abdomen was s l i g h t l y distended, t h e e a r s , t h e r i g h t was s l i g h t l y d u l l i n d i c a t i n g t h a t maybe some r e s i - dual i n f e c t i o n . . . I thought a t t h i s time t h e c h i l d was maybe s u f f e r i n g from malnutri- t i o n and maternal inadequacy, unable t o cope with t h e c h i l d . " D r . Johnson f u r t h e r t e s t i f i e d t h a t h i s examination showed t h a t t h e c h i l d had l o s t weight s i n c e t h e previous November. I n February 1977 D r . Johnson again examined t h e c h i l d when her temporary f o s t e r mother, Marlene Donnelly, brought her t o him. The ear i n f e c t i o n had n o t y e t c l e a r e d up b u t otherwise her physical condition appeared normal. M r s . Donnelly described t o him, however, t h a t t h e c h i l d had a strong tendency t o scavenge f o r food, e s p e c i a l l y t o e a t o u t of household garbage. D r . Johnson t e s t i f i e d t h a t such a tendency bears a high c o r r e l a t i o n t o food deprivation. H e reported h i s f i n d i n g s t o t h e Missoula County Welfare Depart- ment and t e s t i f i e d l a t e r t h a t t h e c h i l d d i d n o t r e c e i v e adequate p a r e n t a l c a r e . Based upon t h e mother's and d a u g h t e r ' s p a s t r e c o r d of d i f f i c u l t i e s , and D r . Johnson's recommendations, Carol LaCasse, a Missoula County s o c i a l worker, f i l e d a p e t i t i o n f o r temporary i n v e s t i g a t i v e a u t h o r i t y and p r o t e c t i v e ser- v i c e s . The D i s t r i c t Court granted t h e p e t i t i o n on January 19, 1977, a u t h o r i z i n g t h e Department of S o c i a l and Rehabili- t a t i o n S e r v i c e s t o t a k e temporary custody of t h e c h i l d . During t h e n e x t s e v e r a l weeks SRS continued t o a s s i s t t h e p a r e n t s i n l e a r n i n g p a r e n t i n g s k i l l s , b u t w i t h r e s u l t s s i m i l a r t o t h o s e experienced e a r l i e r . I n p a r t i c u l a r , Carol LaCasse sought p a r e n t i n g t r a i n i n g f o r t h e mother. She placed t h e c h i l d i n t h e home of an experienced f o s t e r mother, Marilyn F e r n e l i u s , who served a s a p a r e n t i n g model f o r t h e mother during January 1977. The mother v i s i t e d M r s . F e r n e l i u s on weekdays and discussed and planned menus w i t h h e r . M r s . F e r n e l i u s a l s o i n s t r u c t e d t h e mother i n d i s c i p l i n i n g her daughter b u t t e s t i f i e d t h a t t h e mother was incapable of c o n t r o l l i n g t h e baby, t h a t i n e f f e c t t h e c h i l d c o n t r o l l e d h e r mother. M r s . F e r n e l i u s t e s t i f i e d t h a t she observed t h e same a t t r a c t i o n t o garbage which Marlene Donnelly l a t e r r e p o r t e d t o D r . Johnson. ~ f t e r s e v e r a l weeks Marilyn F e r n e l i u s requested t h a t t h e c h i l d be placed elsewhere because she was a l r e a d y providing f o s t e r c a r e f o r a teenage g i r l who r e q u i r e d a g r e a t d e a l of h e r t i m e . Within a few weeks t h e c h i l d was placed i n t h e f o s t e r care of M r s . Sadie Milward where s h e remained u n t i l t h e t i m e of t h e hearing on t h e p e t i t i o n t o g r a n t permanent custody t o SRS. While t h e c h i l d stayed w i t h t h e Milwards, t h e p a r e n t s v i s i t e d t h e i r daughter and took her with them a t times b u t returning her t h e same day. The record, however, does not r e f l e c t t h a t e i t h e r n a t u r a l parent was provided with f u r t h e r p a r e n t a l t r a i n i n g s e r v i c e s during t h i s time. Following t h e c h i l d ' s temporary removal t h e c h i l d and parents had psychological examinations by t h r e e psycholo- g i s t s , D r . Richard Ball, D r . Herman Walters and D r . William S t r a t f o r d . D r s . B a l l and Walters, who examined t h e parents, and D r . S t r a t f o r d , who examined t h e c h i l d , a l l concluded t h a t SRS should seek permanent adoptive custody because of t h e general inadequacy of t h e parents, t h e parents' apparent i n a b i l i t y t o change, and because of t h e c h i l d ' s s p e c i a l needs. O n t h e o t h e r hand, a p s y c h i a t r i s t , D r . Yoel Hoell, who a l s o examined t h e mother, concluded t h a t he could f i n d no p a r t i c u l a r c h a r a c t e r i s t i c s which would absolutely prevent her from being an adequate parent. He t e s t i f i e d t h a t many people with r e l a t i v e l y low l e v e l s of i n t e l l i g e n c e a r e ade- quate parents. A p e d i a t r i c i a n , D r . Daniel Harper, saw t h e mother and c h i l d on s e v e r a l occasions a s D r . Johnson's successor a f t e r t h e c h i l d had been placed i n temporary SRS custody. H e t e s t i f i e d t h a t following t h e temporary custody order t h e c h i l d while i n t h e presence of her mother seemed more "bonded" t o her f o s t e r mother than t o her n a t u r a l mother, and t h a t t h e c h i l d d i d not look t o her own mother a s an "orientating" o r "guiding" force. D r . Harper a l s o t e s t i f i e d t h a t D r . Johnson's concerns about growth d e f i c i e n c i e s w e r e probably not a source of g r e a t concern, s i n c e it w a s l a t e r c l e a r t h a t t h e c h i l d was of normal s h o r t s t a t u r e . Following t h e hearing on t h e p e t i t i o n f o r permanent custody, t h e D i s t r i c t Court issued i t s findings, conclusions and judgment. The c o u r t found t h a t t h e mother's l i m i t e d education and o t h e r l e a r n i n g d i s a b i l i t i e s and t h e f a t h e r ' s excessive d r i n k i n g had r e s u l t e d i n "improper parenting" and had " s u b j e c t e d t h e minor c h i l d t o p h y s i c a l and emotional n e g l e c t a s w e l l as o t h e r evidence of improper t r a i n i n g . " I t found f u r t h e r t h a t t h e p a r e n t s w e r e unable o r unwilling t o provide t h e necessary t r a i n i n g and guidance f o r t h e i r c h i l d ; t h a t SRS was r e q u i r e d t o p l a c e t h e c h i l d i n f o s t e r c a r e p r i m a r i l y because of a l a c k of and need f o r emotional develop- ment; t h a t f o s t e r placement had r e s u l t e d i n " g r e a t improve- ment" i n h e r development; 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 would n o t be served by r e t u r n i n g h e r t o one o r both p a r e n t s because t h e n a t u r a l mother "appears incompetent t o f a c e and handle t h e problems presented t o p a r e n t s by c h i l - dren i n t h e i r advancing y e a r s " ; and t h a t t h e c h i l d ' s b e s t i n t e r e s t s could only be m e t by h e r adoption " i n t o a home where t h e p a r e n t s have demonstrated t h e i r a b i l i t y " t o r a i s e and guide a " c h i l d w i t h problems." The c o u r t concluded f i r s t t h a t t h e c h i l d was neglected and second t h a t h e r b e s t i n t e r e s t s and f u t u r e w e l f a r e could only be served by g r a n t i n g permanent adoptive custody t o 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 . ~ a s e d upon t h e s e f i n d i n g s and conclusions, t h e c o u r t g r a n t e d custody t o SRS w i t h a u t h o r i t y t o consent t o h e r adoption. C o n s t i t u t i o n a l i t y -- of t h e Neglect S t a t u t e A s - Applied The mother's f i r s t contention i s t h a t s e c t i o n 10- 1301(2) ( a ) and (b) , R.C.M. 1947, now s e c t i o n 41-3-102 ( 2 ) ( a ) and ( b ) MCA, was u n c o n s t i t u t i o n a l l y a p p l i e d t o terminate h e r p a r e n t a l r i g h t s . H e r argument i s t h a t because s e c t i o n 10- 1 3 0 1 ( 2 ) , which d e f i n e s "abuse" and " n e g l e c t " , f a i l s t o s t a t e any s p e c i f i c harms t o a c h i l d which might j u s t i f y termina- t i o n of p a r e n t a l r i g h t s , it i s s u b j e c t t o overly-broad i n t e r p r e t a t i o n and a r b i t r a r y a p p l i c a t i o n . She contends t h a t i n t h i s c a s e t h e c h i l d i s n o t s u f f e r i n g any p a r t i c u l a r harm which r e q u i r e s state i n t e r v e n t i o n i n t o family l i f e b u t t h a t t h e S t a t e merely p e r c e i v e s t h a t t h e c h i l d would be b e t t e r o f f i n some home o t h e r than her n a t u r a l mother's. This, she asserts, i s an inadequate j u s t i f i c a t i o n f o r termination of h e r p a r e n t a l r i g h t s . This Court has recognized t h a t family i n t e g r i t y i s a c o n s t i t u t i o n a l l y p r o t e c t e d i n t e r e s t . Guardianship of Doney (1977) I Mont. , 570 P.2d 575, 577, 34 St.Rep. 1107, 1110. A s t h e United S t a t e s Supreme Court held i n S t a n l e y v . I l l i n o i s (1972), 405 U.S. 645, 651, 92 S.Ct. "The Court has f r e q u e n t l y emphasized t h e i m - p o r t a n c e of t h e family. The r i g h t s t o conceive and t o r a i s e o n e ' s c h i l d r e n have been deemed ' e s s e n t i a l , ' Meyer v. Nebraska, 262 U.S. 390, 399 (1923), ' b a s i c c i v i l r i g h t s of man,' Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and ' [ r l i g h t s f a r more precious . . . than p r o p e r t y r i g h t s , ' May v. Anderson, 345 U.S. 528, 533 (1953). 'It i s c a r d i n a l with u s t h a t t h e cus- tody, c a r e and n u r t u r e of t h e c h i l d r e s i d e f i r s t i n t h e p a r e n t s , whose primary f u n c t i o n and f r e e - dom i n c l u d e p r e p a r a t i o n f o r o b l i g a t i o n s t h e s t a t e can n e i t h e r supply nor h i n d e r . ' P r i n c e v. Massachusetts, 321 U.S. 158, 166 (1944). The i n t e g r i t y of t h e family u n i t has found protec- t i o n i n t h e Due Process Clause of t h e Fourteenth Amendment, Meyer v. Nebraska, supra, a t 399, t h e Equal P r o t e c t i o n Clause of t h e Fourteen Amend- ment, Skinner v. Oklahoma, supra, a t 541, and t h e Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J., concur- r i n g ) . " The mother contends t h a t s e c t i o n 10-1301(2) w i l l inade- q u a t e l y p r o t e c t t h e s e c o n s t i t u t i o n a l i n t e r e s t s i f it i s i n t e r p r e t e d t o a u t h o r i z e a termination of her r i g h t s a s a p a r e n t i n t h i s case. The s t a t u t e i t s e l f merely d e f i n e s "abuse" o r " n e g l e c t " : (2) 'Abuse' o r ' n e g l e c t ' means: " ( a ) t h e commission o r omission of any a c t o r a c t s which m a t e r i a l l y a f f e c t t h e normal 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- cal 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 , guardian, o r custodian who thereby and by rea- son of p h y s i c a l o r mental i n c a p a c i t y o r o t h e r cause r e f u s e s o r , 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 r e s p o n s i b i l i t i e s f o r proper and necessary s u b s i s t e n c e , education, medical, o r any o t h e r c a r e necessary f o r t h e y o u t h ' s physi- cal, moral, and emotional well-being." S i n c e a f i n d i n g of "abuse o r n e g l e c t " however 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 , Guardianship of Doney, 570 P.2d a t 577, 34 St.Rep. a t 1110, t h e meaning a p p l i e d t o it i s t h e p a r e n t ' s only safeguard a g a i n s t u n j u s t i f i e d i n t r u s i o n i n t o t h e family u n i t . To i l l u s t r a t e h e r contention, t h e mother c o n t r a s t s t h e r e l a t i v e l y u n s p e c i f i c t e r m s contained i n s e c t i o n 10-1301(2) w i t h t h e more p r e c i s e standards proposed by t h e I n s t i t u t e of J u d i c i a l Administration-American Bar Association J o i n t Commission on J u v e n i l e J u s t i c e Standards i n i t s Standards R e l a t i n g t o Abuse and Neglect ( T e n t a t i v e D r a f t 1977) (IJA/ABA s t a n d a r d s ) . The IJA/ABA proposals a r e based upon a " s t r o n g presumption f o r p a r e n t a l autonomy i n c h i l d r e a r i n g , " and l i m i t " c o e r c i v e i n t e r v e n t i o n " t o p r o t e c t c h i l d r e n "only where t h e c h i l d i s s u f f e r i n g o r t h e r e i s a s u b s t a n t i a l l i k e l i h o o d t h a t t h e c h i l d w i l l s u f f e r , s e r i o u s harm." IJA/ABA Standards 1.1 and 1.3(A). The IJA/ABA p r o p o s a l s seek t o avoid unnecessary o r u n j u s t i f i e d i n t r u s i o n s i n t o family i n t e g r i t y by c l o s e l y d e f i n i n g t h e grounds f o r i n t e r v e n t i o n i n t e r m s of s p e c i f i c , o b j e c t i v e , s e r i o u s harm t o t h e c h i l d . For example, a c o u r t may o r d e r in-home s u p e r v i s i o n o r remove a c h i l d from h i s o r h e r p a r e n t s i f : "A c h i l d has s u f f e r e d , o r t h e r e i s a substan- t i a l r i s k t h a t t h e c h i l d w i l l imminently suf- f e r , p h y s i c a l harm causing disfigurement, impairment of b o d i l y functioning, o r o t h e r s e r i o u s p h y s i c a l i n j u r y a s a r e s u l t of condi- t i o n s c r e a t e d by h i s / h e r p a r e n t s o r by t h e f a i l u r e of t h e p a r e n t s t o adequately s u p e r v i s e o r p r o t e c t him/her; "A c h i l d i s s u f f e r i n g s e r i o u s emotional damage, evidenced by s e v e r e a n x i e t y , depression, o r withdrawal, o r untoward a g g r e s s i v e behavior toward s e l f o r o t h e r s , and t h e c h i l d ' s p a r e n t s a r e n o t w i l l i n g t o provide t r e a t m e n t f o r him/ her. " IJA/ABA Standards 2 . 1 (B) and (C) . The r a t i o n a l e behind t h e s e s t a n d a r d s i s p a r t i c u l a r l y important t o t h e mother's p o s i t i o n because t h e District C o u r t ' s f i n d i n g s focused p r i n c i p a l l y on emotional r a t h e r than p h y s i c a l n e g l e c t of h e r daughter: ". . . t h e Department of S o c i a l and Rehabili- t a t i o n S e r v i c e s was r e q u i r e d t o p l a c e t h i s very young c h i l d i n f o s t e r homes p a r t i a l l y because of t h e c h i l d ' s p h y s i c a l needs b u t mostly be- cause t h e emotional development of t h e c h i l d w a s s o lacking t h a t t h e only chance f o r t h e c h i l d t o have a reasonable f u t u r e was t o p l a c e t h e c h i l d i n a home a b l e t o provide f o r i t s p h y s i c a l and emotional needs." (Emphasis added.) A s t h e mother p o i n t s o u t , vague abuse and n e g l e c t s t a t u t e s o f t e n r e s u l t i n a r b i t r a r y a p p l i c a t i o n when t h e p a r e n t s involved i n t h e a l l e g e d n e g l e c t a r e poor and unedu- c a t e d . Katz, Ambrosino, McGrath & Sawitsky, Legal Research on Child Abuse & Neglect: P a s t and F u t u r e , 11 Fam.L.Q. 151, 172-75 (1977); Wald, S t a t e I n t e r v e n t i o n on Behalf of "Ne- g l e c t e d " Children: Standards f o r Removal of Children from T h e i r Homes, Xonitoring t h e S t a t u s of Children i n F o s t e r Care, and Termination of P a r e n t a l Rights, 28 Stan.L.Rev. 623 (1976) (Wald 11); Wald, S t a t e I n t e r v e n t i o n on Behalf of "Neglected" Children: A Search f o r X e a l i s t i c Standards, 27 S t a n . ~ . ~ e v . 985 (1975) (Wald I ) ; Areen, I n t e r v e n t i o n Between P a r e n t and Child: A Reappraisal of t h e S t a t e ' s Role i n Child ~ b u s e and Neglect Cases, 6 3 Ge0.L.J. 887, 917-32 (1975) (Areen) . I t i s l i k e l y however t h a t t h e g r e a t e s t percentage of c h i l d n e g l e c t c a s e s involve m a t t e r s s i m i l a r t o t h e p r e s e n t one i n which t h e a l l e g e d n e g l e c t r e s u l t s n o t from t h e de- l i b e r a t e design of a p a r e n t , b u t r a t h e r from t h e p a r e n t ' s low mental o r emotional c a p a c i t y and low f i n a n c i a l s t a t u s . Wald I a t 1020-21; Areen a t 888; Dembitz, Welfare Home V i s i t s : Child v e r s u s P a r e n t s , 57 A.B.A.J. 871 (1971). P a r e n t s i n t h i s category are sometimes d e s c r i b e d a s "mar- g i n a l " people: " . . . they a r e c o n t i n u a l l y a t t h e border- l i n e of being a b l e t o s u s t a i n themselves--economically, emotionally, and mentally." Wald I a t 1021. A s B e a t r i c e Fournier described t h e mother i n t h i s c a s e , "Well, I t h i n k [ t h e mother] i s going t o have a hard enough t i m e t o t a k e c a r e of h e r s e l f . " A p a r e n t ' s a b i l i t y t o c a r e f o r himself o r h e r s e l f n a t u r a l l y a f f e c t s h i s o r h e r a b i l i t y t o provide a s t a b l e , supportive home f o r a c h i l d . "Such p a r e n t s may provide l i t t l e emotional support f o r t h e i r c h i l d r e n . While t h e c h i l d r e n may n o t be p h y s i c a l l y abused, l e f t unattended, dangerously malnourished, o r o v e r t l y r e j e c t e d , they may r e c e i v e l i t t l e love, a t t e n t i o n , s t i m u l a t i o n , o r emotional involvement." Wald I a t 1021. The United S t a t e s Supreme Court has r e c e n t l y observed t h a t middle-class s o c i a l workers tend t o favor long t e r m f o s t e r placement f o r c h i l d r e n of such f a m i l i e s , " t h u s re- f l e c t i n g a b i a s t h a t treats t h e n a t u r a l p a r e n t s ' poverty and l i f e s t y l e a s p r e j u d i c i a l t o 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 . " Smith v. Organization of F o s t e r Families f o r E q u a l i t y & Reform (1977), 431 U.S. 816, 832, 97 S.Ct. 2094, 2105, 53 L.Ed.2d 1 4 , 29 ( c i t i n g , Rein, Nutt & Weiss, F o s t e r Family C a r e : Myth and R e a l i t y , i n Children and Decent People 24, 25-29 (A. Schorr ed. 1 9 7 4 ) ) . Y e t , t h e mother contends poverty and i t s v a r i o u s a t t e n d a n t l i f e s t y l e s must n o t be equated w i t h n e g l e c t a b s e n t some showing of a c t u a l o r i m - minent harm t o t h e c h i l d . See Wald I a t 1001-02; Wald I1 a t 649-50; Areen a t 925-28, 930-32. This Court has h e l d t h a t t h e S t a t e may n o t t e r m i n a t e a p a r e n t ' s r i g h t t o r a i s e h i s o r h e r own c h i l d "merely because 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 non- p a r e n t has more f i n a n c i a l r e s o u r c e s o r pursues a ' p r e f e r - a b l e ' l i f e s t y l e . " Guardianship of Doney, 570 P.2d a t 578, 34 St.Rep. a t 1110. Beyond t h a t p r i n c i p l e , however, it i s more d i f f i c u l t t o say what i s t h e minimum c o n s t i t u t i o n a l l y a c c e p t a b l e standard f o r such an extreme i n t e r v e n t i o n i n t o family i n t e g r i t y . The IJA/ABA s t a n d a r d s , which remain i n t e n t a t i v e d r a f t form, might provide a p o l i c y measure by which t o e v a l u a t e t h e adequacy of s e c t i o n 10-1301(2), b u t they r e p r e s e n t only one proposal. Other proposals a r e e q u a l l y a v a i l a b l e f o r our c o n s i d e r a t i o n . Areen f o r example, h a s proposed a standard f o r n e g l e c t which i s d e l i b e r a t e l y less s p e c i f i c than t h e proposed IJA/ABA s t a n d a r d s , espe- c i a l l y i n t h e a r e a most r e l e v a n t t o t h i s c a s e , "emotional" n e g l e c t : "A ' n e g l e c t e d ' c h i l d i s one whose p h y s i c a l o r emotional h e a l t h i s s i g n i f i c a n t l y impaired, o r i s i n danger of being s i g n i f i c a n t l y impaired, a s a r e s u l t of t h e a c t i o n o r i n a c t i o n of h i s p a r e n t , guardian, o r primary c a r e t a k e r . " Areen a t 933. While t h i s standard, l i k e t h e IJA/ABA proposal, focuses t h e a t t e n t i o n of t h e c o u r t on t h e "condition of t h e c h i l d r a t h e r t h a n on p a r e n t a l f a u l t , " it d e l i b e r a t e l y avoids l i s t i n g s p e c i f i c evidences of emotional damage such a s "severe a n x i e t y , " "depression," "withdrawal," and "untoward aggres- s i v e behavior." The reason, which i s of obvious importance h e r e , i s a l a c k of adequate consensus among c h i l d behavior e x p e r t s a s t o what behavior symptoms i n d i c a t e emotional d e p r i v a t i o n . Areen a t 933. A t o t a l l y d i f f e r e n t approach i s found i n t h e Model S t a t u t e f o r Termination of P a r e n t a l Rights (MSTPR), prepared by t h e Neglected Children Committee of t h e National Council of J u v e n i l e and Family Court Judges. See, 27 J u v . J u s t . No. 4 , 3, 7 (1976). The NSTPR d i r e c t s t h e c o u r t t o c o n s i d e r t h e p a r e n t ' s f i t n e s s d i r e c t l y r a t h e r than look f o r s p e c i f i c evidence of harm t o t h e c h i l d . S e c t i o n 1 2 ( 1 ) ( a ) , f o r example, r e q u i r e s t h e c o u r t t o consider t h e "emotional i l l n e s s , mental i l l n e s s o r mental d e f i c i e n c y of -- t h e p a r e n t , of such d u r a t i o n o r n a t u r e a s t o render t h e p a r e n t u n l i k e l y t o c a r e f o r t h e ongoing p h y s i c a l , mental and emotional needs of t h e c h i l d . " (Ehnphasis added. ) I n a p r e f a c e t o t h e MSTPR, i t s a u t h o r s , judges from s e v e r a l s t a t e s , n o t e t h a t they "have n o t been i s o l a t e d from nor unmindful of t h e c r o s s c u r r e n t s of t h e behavioral sci- ences which have preoccupied t h i s n a t i o n i n r e c e n t years." 27 J u v . J u s t . a t 3 . Y e t a s judges, they continue, they have been a b l e t o " t e s t t h e s e t h e o r e t i c a l fermentations a g a i n s t t h e r e a l i t i e s of t h e i r day-to-day p r a c t i c e . " 27 J u v . J u s t . a t 3-4. The Council of J u v e n i l e and Family Court Judges has re- sponded more d i r e c t l y t o t h e IJA/ABA proposed s t a n d a r d s , concluding t h a t they o f f e r e n t i r e l y inadequate p r o t e c t i o n t o c h i l d r e n : "This lengthy volume needs d r a s t i c r e v i s i o n i n t h a t it t o t a l l y d i s r e g a r d s t h e r i g h t s of a c h i l d t o be p r o t e c t e d and s a f e i n h i s home en- vironment. These standards g r e a t l y l i m i t t h e process by which a neglected o r abused c h i l d may be p r o t e c t e d through t h e j u v e n i l e j u s t i c e system. There i s an attempt by t h e a u t h o r s t o restrict t h e i n t e r f e r e n c e of s o c i e t y i n t h e upbringing of c h i l d r e n . While t h i s i s obvi- o u s l y a worthwhile g o a l , t h e r e needs t o be a balance s o t h a t youngsters can be adequately p r o t e c t e d from t h e p h y s i c a l and mental abuse and n e g l e c t of p a r e n t s . " 8 J u v e n i l e and Family Court N e w s l e t t e r , No. 6 a t 9 (1978). Thus, t h e IJA/ABA t e n t a t i v e d r a f t proposals which t h e mother relies on l a c k n o t only a consensus of s u p p o r t among c h i l d behavior e x p e r t s , Areen a t 933, b u t a r e considered inadequate by t h e National Council of J u v e n i l e and Family Court Judges. While it i s n o t t h i s C o u r t ' s p o s i t i o n t o d e c l a r e whether one proposal o r another i s a b e t t e r ap- proach, w e can say w i t h some confidence t h a t t h e IJA/ABA proposal i s n o t t h e only c o n s t i t u t i o n a l approach. The proceedings i n t h i s case need n o t b e measured a g a i n s t t h e IJA/ABA model and r e j e c t e d on c o n s t i t u t i o n a l due p r o c e s s grounds i f they f a i l t o m e e t i t s strict standards. See, S t a t e v. McMaster (1971), 259 O r . 291, 486 P.2d 567, 569. Our p a s t d e c i s i o n s i n d i c a t e t h a t s e c t i o n 10-1301(2) is n o t so broadly i n t e r p r e t e d a s t o permit termination of p a r e n t a l r i g h t s merely because t h e c o u r t s o r t h e concerned s o c i a l w e l f a r e agency disapprove of t h e p a r e n t s ' l i f e s t y l e s . See, Guardianship of Doney, 570 P.2d a t 578, 34 St.Rep. a t 1110; Matter of F i s h e r (1976), 169 Flont. 254, 258-59, 545 P.2d 654, 656. On t h e o t h e r hand, t h e s t a t u t e i s broad enough t o include emotional d e p r i v a t i o n , inadequate n u t r i - t i o n , and extreme and prolonged u n c l e a n l i n e s s of t h e c h i l d under t h e d e f i n i t i o n of n e g l e c t . Matter of J. J.S. (1978), Mont. I 577 P.2d 378, 380-81, 35 S t . ~ e p . 394, 395, 397. See a l s o , Matter of Henderson (1975), 168 Mont. 329, 332, 542 P.2d 1204, 1205-06. I n t h e p r e s e n t c a s e t h e D i s t r i c t C o u r t ' s f i n d i n g of poor emotional development of t h e c h i l d was based on t h e testimony of s e v e r a l q u a l i f i e d witnesses. The record does n o t show t h a t t h e mother d e l i b e r a t e l y r e f u s e d t o provide emotional support f o r h e r daughter. Rather, t h e s o c i a l w e l f a r e workers who attempted t o h e l p h e r t e s t i f i e d t h a t t h e mother was simply incapable of c a r i n g f o r h e r daughter, p h y s i c a l l y a s w e l l as emotionally. Thus, t h i s c a s e i n v o l v e s n o t s o much a l e g a l due process problem of n o t i c e t o t h e mother of what behavior was expected of h e r o r what she could do t o have h e r daughter r e t u r n e d t o h e r , b u t r a t h e r a human problem of a mother's i n a b i l i t y t o understand her c h i l d ' s needs and t o r e a l i s t i c a l l y provide f o r them. W e a r e aware t h a t t h e mother may have received con- f l i c t i n g i n s t r u c t i o n s , e s p e c i a l l y regarding d i s c i p l i n e of h e r c h i l d . However, an o v e r a l l reading of t h e testimony i n d i c a t e s t h a t t h e mother's problem went beyond t h e s e ap- p a r e n t c o n f l i c t s , f o r she was n o t even capable of under- standing o r r e t a i n i n g simple i n s t r u c t i o n s i n t h e f i r s t p l a c e . The mother's c o n d i t i o n , which was d e s c r i b e d t o t h i s Court a s " b o r d e r l i n e mentally r e t a r d e d , " p r e s e n t s a s p e c i a l problem which c o u r t s i n o t h e r s t a t e s have r e c e n t l y considered. The New York Family Court, i n Guardianship of Strausberg (1977), 92 Misc.2d 620, 400 N.Y.S.2d 1013, d e a l t w i t h t h e same s o r t of c o n d i t i o n a s w e f a c e here: "A summary of t h e e x p e r t testimony . . . showed t h e respondent t o be a b o r d e r l i n e r e t a r d e d person, who under stress i s e a s i l y confused i n h e r thinking. That a t t h e pres- e n t t i m e and i n t h e immediate f u t u r e t h e respondent has l i t t l e understanding o r ca2a- c i t y t o provide t h e nurturance, s t r u c t u r e and c o n t r o l s and f u l f i l l o t h e r emotional needs of a developing c h i l d . " 400 N.Y.S.2d a t 1014. The c o u r t noted p a r t i c u l a r l y t h e impending d i f f i c u l t i e s which would c o n f r o n t p a r e n t and c h i l d i f they w e r e r e u n i t e d and expressed concern over t h e t i m e which f u r t h e r a t t e m p t s a t t r a i n i n g t h e mother i n c h i l d c a r e methods would r e q u i r e : "The o l d e r t h e c h i l d g e t s t h e more d i f f i c u l t it w i l l become f o r t h e respondent t o f u l f i l l t h e p a r e n t a l r o l e and provide t h e d i r e c t i o n s t r u c t u r e and o t h e r emotional needs of t h e c h i l d herein. The i n f a n t . . . should n o t be h e l d i n limbo f o r t h i s i n d e f i n i t e p e r i o d of t i m e f o r t h e purposes of t r a i n i n g t h e respon- d e n t i n t h e a r e a of c h i l d c a r e . " 400 N.Y.S.2d a t 1015. On t h i s b a s i s , t h e c o u r t r e f u s e d t o o r d e r t h e c h i l d r e t u r n e d t o h e r mother. However, mental d e f i c i e n c i e s a l o n e do not j u s t i f y termination i f t h e r e i s no evidence t h a t t h e c h i l d i s i n some way harmed o r l i k e l y t o be harmed because of t h e p a r e n t ' s condition. I n construing i t s termination s t a t u t e , t h e Minnesota Supreme Court made t h i s requirement c l e a r : ". . . w e wish t o s t a t e unequivocally t h a t mental i l l n e s s i n and of i t s e l f s h a l l n o t be c l a s s i f i e d as ' o t h e r conduct' which w i l l per- m i t termination of p a r e n t a l r i g h t s . Rather, i n each case, t h e a c t u a l conduct of t h e p a r e n t i s t o be evaluated t o determine h i s o r h e r f i t n e s s t o maintain t h e p a r e n t a l r e l a t i o n s h i p w i t h t h e c h i l d i n q u e s t i o n s o a s t o n o t be d e t r i m e n t a l t o t h e c h i l d . " I n re Kidd (Minn. 1978), 261 N.W. 2d 833, 835. See a l s o , I n re E&B (Utah 1 9 7 8 ) , 578 P.2d 831, 833-34; I n re Telles (1978), Gal-App., 151 Cal.Rptr. 263, 266-67; Matter of F i s h Mont. - I n t h e p r e s e n t case t h e D i s t r i c t Court found t h a t t h e c h i l d was harmed by h e r mother's f a i l u r e t o provide adequate emotional support, and concluded t h a t t h e mother was "incom- p e t e n t t o f a c e and handle t h e problems presented t o p a r e n t s by c h i l d r e n i n t h e i r advancing y e a r s . " These c o n s i d e r a t i o n s a r e beyond t h e m e r e "poverty" o r " l i f e s t y l e " c h a r a c t e r i z a - t i o n s which t h i s Court found inadequate i n F i s h e r and Doney. Here, 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 c h i l d was harmed by her home environment i s supported by t h e testimony of s o c i a l workers, p h y s i c i a n s , and psychologists. W e con- c l u d e , t h e r e f o r e , t h a t s e c t i o n 10-1301 (2) was c o n s t i t u - t i o n a l l y a p p l i e d i n t h i s c a s e . Standard - of Proof The mother's second contention on appeal i s t h a t t h e burden of proof r e q u i r e d of t h e S t a t e i n a termination of p a r e n t a l r i g h t s a c t i o n i s t h e " c l e a r and convincing" s t a n - dard, and t h a t t h e S t a t e f a i l e d t o m e e t t h a t burden. N o previous d e c i s i o n of t h i s Court has set f o r t h t h i s r e q u i r e - ment, nor is any p a r t i c u l a r burden mandated by s t a t u t e . However, i n l i g h t of o u r p a s t r u l i n g s and t h e i n t e r e s t s involved i n such c a s e s , w e hold t h a t t h e s t a t e must show, by c l e a r and convincing evidence, t h a t t h e c h i l d i s neglected o r abused b e f o r e p a r e n t a l r i g h t s may be terminated. A s t h e foregoing a n a l y s i s shows, p a r e n t a l i n t e r e s t s i n r a i s i n g c h i l d r e n a r e c o n s t i t u t i o n a l l y p r o t e c t e d . W e n o t e f u r t h e r t h a t i n t h i s c a s e t h e p r o t e c t i o n which t h e mother enjoys i s n o t weakened by t h e f a c t t h a t h e r c h i l d was born o u t of wedlock. S t a n l e y v. I l l i n o i s , 405 U . S . a t 651-52, 92 S.Ct. a t 1213, 31 L.Ed.2d a t 559. The c o n s t i t u t i o n a l v a l u e of p r o t e c t i n g family i n t e g r i t y a l s o has received s u p p o r t from a p o l i c y p o i n t of view a s noted by t h e a u t h o r i t i e s above. s i m i l a r l y , t h e d e c l a r a t i o n of p o l i c y which accom- p a n i e s t h e s t a t u t e s governing termination p l a c e s emphasis on t h e p r e s e r v a t i o n of family u n i t y "whenever p o s s i b l e . " S e c t i o n 10-1300(4), R.C.M. 1947, now s e c t i o n 41-3-101(1) (d) MCA. See, Matter of F i s h e r , 169 Mont. a t 258-59, 545 P.2d a t 656. I n t h e p a s t t h i s Court has held t h a t t h e r e q u i r e d s t a n d a r d of proof i n a termination of p a r e n t a l r i g h t s c a s e i s " s u b s t a n t i a l c r e d i b l e evidence" t h a t t h e c h i l d i s abused, neglected, o r dependent. Matter of F i s h e r , 169 Mont. a t 258, 545 P.2d a t 656. Y e t , of t h o s e s t a t e s t h a t have con- s i d e r e d t h e i s s u e , most have chosen between a "preponderance of t h e evidence" s t a n d a r d and t h e " c l e a r and convincing" t e s t proposed by t h e mother. See, Matter of Orzo (1975), 84 Misc.2d 482, 374 N.Y.S.2d 554, 564-65 and n. 20. While t h e d i s t i n c t i o n between t h e s e standards i s o f t e n e l u s i v e , w e conclude t h a t t h e higher standard r e p r e s e n t e d by t h e " c l e a r and convincing" test more adequately f u r t h e r s t h e p o l i c y of family u n i t y and more n e a r l y approximates t h e previous approach of t h i s Court than does t h e "preponderance of evidence" test. See I n re Maria (U.S. T e r r i t o r i a l Court, V . I . 1978), 5 Fam.L.Rep. 2089, 2090; I n re T e l l e s , 151 Cal.Rptr. a t 265-66; Matter of Rosenbloom (Minn. 1978), 266 N.W.2d 888, 889-90. I t i s important t o observe t h a t t h i s t e s t does n o t deny c h i l d r e n t h e p r o t e c t i o n they need. W e n o t e i n p a r t i c u l a r t h a t t h e t h e " c l e a r and convincing" s t a n d a r d of proof i s n o t a s r i g o r o u s as t h e "beyond reasonable doubt" standard. See, I n re Maria, 5 Fam.L.Rep. a t 2090; I n re T e l l e s , 151 CaL.Rptr. a t 265; Matter of Rosenbloom, 266 N.W.2d a t 889. The D i s t r i c t Court d i d n o t abuse i t s d i s c r e t i o n i n concluding t h a t t h e mother was a n u n f i t p a r e n t ; r a t h e r , i t s conclusion i s supported by s u b s t a n t i a l c r e d i b l e evidence. The judgment g r a n t i n g permanent adoptive custody t o 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 s affirmed. W e concur: - Chief J u s t i c e e, ,2i?LA J u s t i c e s	May 16, 1979
ac4466b9-5772-4330-add5-0a21dc27a83c	HILL v SQUIBB SONS E R	N/A	14407	Montana	Montana Supreme Court	No. 14407 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 VICTOR F. HILL and MINNIE M. HILL, Plaintiffs and Appellants, SQUIBB & SONS, E.R., A FOREIGN CORPORATION; and FREDERIC S. MARKS, M.D., Defendants and Respondents. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellants: Kelly and Foley, Billings, Montana William T. Kelly argued, Billings, Montana For Respondents: Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana Jack Ramirez argued, Billings, Montana Anderson, Symmes, Brown, Gerbase, Cebull & Jones, Billings, Montana Submitted: February 8, 1979 qp:, - i 1979 Decided: ' " - 5 - - Filed: .c. ; -;rq - Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. This is an appeal by plaintiffs from judgments entered in the District Court of Yellowstone County on a directed ver- dict in favor of defendant Squibb & Sons, a partial directed verdict in favor of defendant Frederic S. Marks, and a jury verdict rendered in favor of Dr. Marks on the remaining claims against him. Plaintiff Victor I ? . Hill suffers from severe allergic reactions (contact dermatitis) to a variety of substances and most severely to petroleum based products. Hill was a mechanic by trade, and thus was subject to constant exposure to those products. He was first treated by defendant Dr. Marks in 1952, at which time the flareups of his dermatitis were occurring only about twice a year. By the mid-19601s, however, plaintiff's condition had worsened to the point where he was seeing Dr. Marks three or four times a month. After 1969, the visits to Dr. Marks averaged about two times a month. A well recognized treatment of skin problems is the use of a class of drugs known as steroids, a kind of synthetic cortisone. Cortisone and all cortisone related drugs have signif- icant and well-known side effects. Dr. Marks initially treated plaintiff with injections of ACTH, a chemical which stimulates natural production of cortisone by the adrenal glands. The ACTH was administered in conjunction with topical steroid creams applied directly to the affected areas and prescriptions for steroid pills to be orally ingested. In 1965, Dr. Marks began using an injectible steroid called Kenalog- 40 which had recently been put on the market by defendant Squibb & Sons. From 1965 to 1970, Dr. Marks gave plaintiff injections of Kenalog-40, together with oral and topical steroids, at approx- imately two week intervals. Occasional injections of ACTH were also given to plaintiff during that period. In the summer of 1970 plaintiff spilled brake fluid over a large part of his body, causing an extremely severe flare- up of the dermatitis. Dr. Marks increased the steroid treat- ments by supplementing the ACTH and Kenalog-40 injections with more oral steroids. Over the last five months of his treatment by Dr. Marks, up to his final visit on January 18, 1971, plain- tiff was treated with a total of 1450 mg. of sterane, an oral steroid, and 440 mg. of Kenalog-40 by injection. At his last visit to Dr. Marks in January 1971, plain- tiff was referred by Dr. Marks to the Billings Clinic. Plaintiff had some facial swelling which Dr. Marks wanted the clinic to check into. On January 20, 1971, the Billings Clinic referred plaintiff to its staff dermatologist, a Dr. Smoot. Upon learn- ing of plaintiff's history, Smoot immediately discontinued the injections of steroids because he "could see nothing but problems down the road." Dr. Smoot continued to prescribe oral steroids and steroid creams, gradually tapering them off. As the steroid treatment was lessened, the dermatitis worsened, until in July 1971 it was so bad Hill was disabled completely and had to give up his job. In March 1971, while under treatment at the Billings Clinic, Hill first noticed blurring vision and in the fall of that year he required surgical removal of cataracts. In 1973, he developed back pain and was diagnosed to have osteoporosis, a loss of calcium in the bones. Cataracts and osteoporosis of the types that plaintiff exhibited are both characteristic side effects of steroid treatment. On September 9, 1974, a complaint was filed in Yellow- stone County District Court by Victor and Minnie Hill alleging that plaintiff's cataracts and osteoporosis were the result of the actions of Squibb & Sons and Dr. Marks, The claim against ~quibb & Sons was framed in three counts, alleging negligence, strict liability in tort, and breach of express and implied warranties. The central theory of the claim was that Squibb's Kenalog-40 was negligently marketed and was a defective product because the package inserts provided with the drug did not warn specifically enough of its dangerous side effects. As to Dr. Marks, the complaint alleged, in summary, negligence in failing to fully advise plaintiffs in regard to the risks associated with steroid treatments and in failing to properly monitor the effects of the treatment on Victor Hill over the nearly twenty year period in which steroids were administered to him. After a period of extensive discovery, jury trial was had on the matter before Judge Robert H. Wilson. Plaintiffs testified that Dr. Marks had never told them of the side effects of steroid treatment, and that if he had, then Victor Hill would have quit his job to avoid exposure to the substances which caused his dermatitis. Dr. Marks and his nurse, on the other hand, testified that while the specific side effects were never enum- erated, plaintiffs were informed many times that steroid treat- ment was dangerous, that Dr. Marks hesitated to continue using it, and that Victor Hill should get another job. There was evidence that plaintiff did, in fact, try to seek other employment but had no alternative skills. There was also testimony that plaintiff's condition was a severe one, that long-term steroid therapy, while risky, was not entirely unheard of, and that the decision to under- take such therapy is a matter of informed judgment by the treat- ing physician after weighing the risks and benefits. At the close of plaintiffs' case, defendant Squibb & Sons' motion for directed verdict was granted on the ground that there was no expert testimony that the package insert Squibb included with Kenalog-40 was inadequate in warning of its side effects, ~efendant Marks also moved for directed verdict, raising the statute of limitations as a bar and arguing further that plaintiff had failed to establish a prima facie case because there had been no expert testimony that Dr. Marks had failed to act as a reasonably prudent physician in the area would have acted in the same circumstances. The court denied Marks' motion, hold- ing that in regard to the statute of limitations there was a question of fact for the jury as to when plaintiffs' claim arose; and that while lack of expert testimony was fatal to the plain- tiffs' claim in regard to the question of malpractice, the issue of lack of informed consent should go to the jury because the question of whether plaintiffs had been told enough to make their own judgment as to continuation of the treatment was a question "readily ascertainable by the layman." The case was submitted to the jury in that posture, and a verdict in favor of defendant Marks was returned. The verdict was rendered in a general form; it does not appear from the record whether the jury found the statute of limitations issue to be determinative or if it was rather the merits of the informed consent question that controlled. On appeal, plaintiffs raise the following issues: 1. Whether the filing of an ex parte trial brief by de- - fendant Squibb was a violation of plaintiffs' due process rights. 2. Whether the trial court erred in granting a directed verdict in favor of defendant Squibb. 3. Whether the trial court erred in excluding from evi- dence certain of plaintiffs' proposed exhibits. 4 . Whether the trial court erred in granting a directed verdict in favor of defendant Marks on the issue of malpractice. 5. Whether the trial court erred in submitting the issue of the statute of limitations to the jury rather than treating it as a matter of law to be decided by the court. Plaintiffs first objected to Squibb's ex parte trial brief - in the lower court in a motion for a new trial. Plaintiffs' spec- ific objection was that Squibb's ex parte brief had compromised - plaintiffs' case in that it failed to cite many pertinent deci- sions and distorted plaintiffs' evidence and the applicable law. Plaintiffs also objected to the practice of allowing - ex parte trial briefs in general, contending that it violates a party's right to an adversary hearing. Rule 19 of the Rules of Practice of the District Court of the Thirteenth Judicial District specifically allows the filing of trial briefs to be used solely for the benefit of the trial court and not divulged to opposing counsel. There is little authority addressed to the propriety or impropriety of this practice. The ABA Code of Professional Responsibility, DR 7-llO(B), contemplates submission of trial briefs without service on oppos- ing counsel where "authorized by law". "[Iln the absence of statute, rule, direction of the court, or agreement between coun- sel requiring service on opposing counsel, it is not necessary, and indeed not wise, to exchange trial briefs because of the pos- sibility of educating opposing counsel as to the lawyer's theories in regard to his case." 5 Am.Jur.Trials p . 92-93. The liter- ature on preparation for trial in products liability cases strong- ly recommends filing of trial briefs by plaintiffs in such actions. Cf. 12 Am. Jur. Trials p . 121. We recognize that theoretically a rule allowing for the filing of ex parte briefs may be suspect in that it conflicts - with the spirit of openness and cooperation underlying the modern rules of civil procedure. Nonetheless, judges have a right to secure a trial brief from the attorneys in a cause and, indeed, in a complex case such a brief may be indispensible to inform the judge of the nuances of the arguments that will be forwarded at trial. In our opinion, if the fact that the contents of the brief will be divulged inhibits counsel from accomplishing that end and thereby impedes the ability of the judge to be fully informed, then a rule allowing for - ex parte trial briefs is defensible. In any event, plaintiffs' attack on the rule here on constitutional grounds is not persuasive. Plaintiffs themselves could have filed such a brief if there were matters they felt were in need of clarification or explanation. Plaintiffs pre- sented testimony for eight days, at the conclusion of which Squibb moved for directed verdict. Thereafter, both the attorney for Squibb and the attorneys for plaintiffs were given ample opportunity to argue the motion. Under these circumstances, we cannot find that plaintiffs were denied due process. Further- more, our reading of the trial brief in conjunction with the record and our review of the authorities cited in it does not indicate that plaintiffs' case was in any way compromised there- by. We find no error on this point. We now turn to the second issue on appeal; alleged error in the directed verdict for Squibb & Sons. Squibb maintains that the directed verdict was proper because plaintiffs failed to produce expert testimony that the package insert in Squibb's prod- uct inadequately warned of dangers. Squibb contends that because of this failure plaintiffs did not establish a prima facie case. We agree. As a general rule, the duty of a drug manufacturer to warn of the dangers inherent in a prescription drug is satisfied if adequate warning is given to the physician who prescribes it. Dyer v . Best Pharmical (Ariz.App. 1978), 118 Ariz. 465, 577 P.2d 1084; Terhune v. A . H. Robins Co. (1978), 90 Wash.2d 9, 577 P.2d 975; McEwen v . Ortho Pharmaceutical Corp. (1974), 270 Or. 375, 528 P.2d 522; Davis v. Wyeth Laboratories, Inc. (9th Cir. 1968), 399 ~ . 2 d 121; 28 C.J.S. Drugs & Narcotics Supplement 857. By logical extension, then, since the warning is directed to physicians, only they or someone with similar expertise concerning pharmec- euticals would be qualified to determine whether or not the warn- ing was adequate. There are no Montana cases specifically holding that a plaintiff must produce expert testimony to sustain an action against a drug company for failure to warn adequately of side effects of its products. There are, however, numerous Montana decisions to the effect that, in a malpractice suit against a doctor or dentist, expert evidence is the only proper guide and without it a plaintiff cannot recover. Cf. Llera v. Wisner (1976), 171 Mont.254 , 557 P.2d 805, 33 St.Rep. 1211; Collins v. Itoh (1972), 160 Mont. 461, 503 P.2d 36; Callahan v. Burton (1971), 157 Mont. 513, 487 P.2d 515; Negaard v . Feda (1968) , 152 Mont. 47, 446 P.2d 436. We hold that the reasoning of these decisions ex- tends to the situation involved here. In matters "with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence." Callahan, 157 Mont. at 520, 487 P.2d at 518-519. The adequacy of a warning directed to physicians is such a matter. This conclusion is consistent with the only other case we have found where on similar facts an attempt was made to reach the jury without expert testimony that the warning was inadequate. Carlsen v . Javurek (8th Cir. 1979, 526 F.2d 202. In Carlsen, of a directed verdict in favor of the manufacturer/ an anesthetic was upheld on appeal. Here, as in Carlsen, there was no expert testimony that the warning was inadequate. On the contrary, the only expert testimony on the issue was that of Dr. Marks, who stated that in his opinion the warning was - adequate. Therefore, even viewing the evidence in the light most favorable to plain- tiffs, we find that the directed verdict in favor of Squibb & Sons was correct. The third issue on appeal involves alleged error in exclusion from evidence of several of plaintiffs' proposed ex- hibits. The contested items are a 1977 Handbook of Practical Pharmacology stating that osteoporosis could be a complication of long-term steroid treatment, and a Contac package. We find no error in the exclusion of the former because a 1977 publication is no proof of knowledge that could be imputed to Squibb & Sons during the period 1965 to 1971 when plaintiff was being treated. Plaintiffs argued that the Handbook should have been admitted under Rule 407, Mont.R.Evid. That rule has no application here because the Handbook did not originate with Squibb and was not a subsequent remedial measure taken by Squibb. As to the Contac package, plaintiffs apparently offered it as an exhibit because defense counsel in his opening statement noted that Kenalog-40 was "like a Contac pill" in that the drug is suspended in the bloodstream and dissolved into the system over a period of time. From this, plaintiffs sought to use the warning on the Contac package that it is "not for frequent or prolonged use" as evi- dence of inadequacy of the warning on the Kenalog-40 package insert for lack of that phrase. Plaintiffs' argument is with- out merit. The Contac package warning has no relevance because Contac is a nonprescription drug and the warning is not intended for the informed use of a physician but for the patient himself. The District Court properly excluded both exhibits. The fourth issue under consideration concerns the directed verdict for Dr. Marks on the issue of malpractice. The District Court held that plaintiffs! failure to produce expert testimony in that regard was fatal to their cause of action. Plaintiffs contend that this was error because Dr. Marks allegedly admitted that he had violated the applicable standard of care and thereby provided against himself sufficient expert testimony to establish a prima facie case. It is true that in several recent cases we have cited with approval Evans v. Bernhard (1975), 23 Ariz.App. 413, 533 P.2d 721, for the proposition that third party expert testimony is not necessary if a defendant doctor's own testimony establish- es the standard of care and departure from it. Montana Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 545 P.2d 670; Llera v. Wisner (1976), 171Mont.254 , 557 P.2d 805, 33 St.Rep. 1211. Further, in Thomas v. Merriam (1959), 135 Mont. 121, 337 P.2d 604, we indicated that negligence of a doctor may be shown by his own admissions. The crux of this issue is, then, did Dr. Marks in fact testify what the standard of care was and that he had violated it? We find that he did not. In urging that Dr. Marks did so testify, plaintiffs rely primarily on the following exchange that occurred during cross- examination: "Q. Is it fair to say that with respect to Vic Hill, from the standpoint of the standard of care, you didn't apply to him in administering Kenalog that standard of care that you think you should have, is that correct? A. In retrospect. "Q. The answer is yes? A . Yes." This short colloquy taken out of context does not, however, when read in balance with the rest of Dr. Marks' testimony, have the conclusive effect plaintiffs would give it. It does not appear that Dr. Marks ever established what the standard of care was, or admitted that he violated it. At one point he says "I was - the standard of care", since he was the only doctor in the com- munity with specialized training in the treatment of disorders like that of Victor Hill. He also testified that in Victor Hill's case, in his best medical judgment, there were no alternatives to the treatment he gave. Plaintiffs' contentions in this regard are not b o r ~ o u t by Dr. Marks' testimony, and the District Court did not err in directing a verdict in his favor on the malpractice claim for lack of expert testimony. In conjunction with the directed verdict on the malpractice issue, Dr. Marks has asked us to review the trial court's denial of his motion for directed verdict on the issue of in- formed consent. Marks contends that the trial court erred in submitting the issue of informed consent to the jury in view of the fact that there was no testimony, expert or otherwise, that an ordinarily prudent physician would have been more specific in warning of the possible side effects of steroid treatment. Marks maintains that even though he has not cross-appealed on this matter we can review the denial of his motion for directed verdict on the informed consent issue under Rule 14, M.R.App. Civ.P. From our research into the authorities construing the statutory predecessors of Rule 14, M.R.App.civ.P., it does not appear that Marks comes within either its scope or its purpose on the circumstances present here. Francisco v . Francisco (1948), 120 Mont. 468, 191 P.2d 317, 1 ALR2d 625; J. M . Hamilton Co. v. Battson (1935), 99 Mont. 583, 44 P.2d 1064, 101 A.L.R. 520; 5 Am Jur 2d Appeal and Error 8653. Therefore we decline to under- take the review requested by Dr. Marks in this regard. Nonetheless, we note in passing that the doctrine of in- formed consent is one concerning which there is significant con- fusion caused by a failure in many of the reported cases to recognize distinctions. See 36 Ford.L.Rev. 639 (1968). "In most cases involving this issue, courts have held that expert testimony is necessary to establish the existence and scope of a physician's duty to inform his patient of the risks of a proposed treatment. The type of expert testimony required is testimony as to the degree of risk or, more commonly, testimony as to the standard medical practice to disclose risks under the same or similar circumstances or, similarly, testimony as to whether a reasonable medical practitioner would have disclosed a given risk under the same or similar circumstances." Annot. 52 ALR3d 1084, 1088. Montana follows the latter version of the majority rule. Negaard v. Feda (1968), 152 Mont. 47, 446 P.2d 436; Doerr v . Movius (1970), 154 Mont. 346, 463 P.2d 477; Llera v. Wisner (1976), 171 Mont. 254, 557 P.2d 805, 33 St-Rep. 1211. The trial court judge in this case was aware of these Montana decisions when he ruled on Dr. Marks' motion for direct- ed verdict. He allowed the issue of informed consent to go to the jury despite the absence of expert testimony because he felt that the circumstances of the case came within language from Llera, that expert medical testimony is not necessary if "the conduct complained of is readily ascertainable by a layman." Llera v . Wisner, 557 P.2d at 811, 33 St.Rep. at 1217-1218. We note that this language from Llera goes to the question of the establishment of a standard of care to demonstrate negligence generally rather than to a standard of sufficiency of the physi- cian's disclosure. In our opinion, there are different consid- erations involved. Cf 36 Ford.L.Rev. 639 (1968). In any event, since the jury found for Dr. Marks, if there was error in sub- mitting the informed consent issue to them it was harmless error. Therefore, any further discussion of the correctness or incorrect- ness of the distinction drawn by the trial court judge would be inappropriate here. The final issue involved in this appeal is alleged error by the court in submitting to the jury the question of whether plaintiffs' claim was barred by the statute of limitations. Plain- tiffs contend that in Montana the application of the statute of limitations is to be determined by the court as a matter of law. In support of that position plaintiffs rely on Hornung v . Richard- son-Merrill, Inc. (D.Mont. 1970), 317 F.Supp. 183. Hornunq was a products liability action against a drug manufacturer where the defendant's motion for summary judgment on the statute of limi- tations was denied because there was an issue of fact as to when the plaintiffs should have become aware of the causal connection between the damages at issue and the defendant's product. Judge Russell Smith stated that on the trial of the case the Court would resolve that issue of fact on the basis of the evidence presented. In a footnote to that statement, Judge Smith noted: "I would have thought that the fact problems surrounding the application of a statute of lim- itations would be resolved by a jury in a jury case, but apparently the rule is otherwise." Hornung, 317 F.Supp. at 185. The cases cited in support of that footnote are Falls Sand & Gravel v. Western Concrete, Inc. (D-Mont. 1967), 270 F.Supp. 495, and Owens v. White (9th Cir. 1965), 342 F.2d 817. Our review of those decisions and the cases cited in them indicates that they represent a line of authority that was inapplicable to the cir- cumstances, and that the initial thought mentioned by Judge Smith in his footnote was correct. Falls Sand & Gravel, supra, was a case involving alleged negligent misrepresentation by a contractor of the amount of materials to be furnished by a supplier. The court equated neg- ligent misrepresentation with fraud and cited several Montana fraud cases holding that the time at which there has been a discovery of facts constituting fraud to start the running of the statute of limitations is a question of law. Kerrigan v. O'Meara (1924), 71 Mont. 1, 227 P. 819; Ray v. Divers (1928), 81 Mont. 552, 264 P. 673. As to Owens, supra, that was a malpractice action, but it was a decision construing Idaho law under which the issue of when a plaintiff's claim accrued for purposes of the statute of limi- tations is apparently a preliminary matter of law in every case "and like all issues of law must be resolved by the court even though this will require evidence." Owens, 342 F.2d at 819. In relying on Falls Sand & Gravel and Owens, the court in Hornung overlooked the line of authority which controls here and should have been controlling there. Accordingly, plaintiffs' reliance on Hornung here is inappropriate. The rule in Montana and in the majority of jurisdictions is that whether an action is barred by t h e s t a t u t e of l i m i t a t i o n s i s f o r t h e jury when t h e r e is c o n f l i c t i n g evidence a s t o when t h e cause of action accrued. Stagg v. Stagg (1931), 90 Mont. 180, 300 P. 539; 54 C.J.S. Limitations of Actions S399. That was t h e case here. Plain- t i f f s made some unsubstantiated a l l e g a t i o n s t h a t D r . Marks had somehow concealed t h e i r cause of action from them, but t h e r e is no evidence i n t h e record t h a t would support application of t h e special r u l e i n fraud cases here. W e hold t h a t t h e D i s t r i c t Court properly submitted t h e i s s u e of t h e s t a t u t e of l i m i t a t i o n s t o t h e jury. None of t h e specifications of e r r o r raised by p l a i n t i f f s have m e r i t . The judgments entered by t h e D i s t r i c t Court a r e a f f irmed. Chief J u s t i c e Justice John C. Sheehy, specially concurring: I concur with the foregoing opinion, but I want to express my disapproval of Rule 19 of the Thirteenth Judicial District, or any rule like it which permits the filing of - ex parte briefs with the Court. I do not find in this case that the filing of the - ex parte trial brief deprived the plaintiff of due process, but I can conceive of situations in which substantial harm would be done to a party's case where trial briefs (in effect, private communications to the trial court that are not served upon the other party) deprive the District Court of the benefit of the adversary process. The spirit of the federal rules of civil procedure, upon which the Montana rules of civil procedure are based, is full and open disclosure of fact and law. That spirit is best expressed in Burton v . Weyerhaeuser Timber Company (D.C. Oregon 1941), 1 F . R R 571, where the trial court said: ". . . I can sympathize with the desire of counsel, experienced in the older forms of practice, to withhold disclosure of such dramatic issues until the midst of trial, but it must be made clear that surprise, both as a weapon of attack and defense, is not to be tolerated under the new federal procedure. . . "Faithfully administered in spirit, as my senior colleague and I are endeavoring to administer them, the new rules outlaw the sporting theory of justice from Federal courts." 1 F.R.D. at p. 573. All attorneys practicing under the Montana Rules of Civil Procedure should come to know that the guidepost of practice under the rules is full disclosure of law and fact. This is most effectually done by adherence to pretrial procedure. At that time, as the Court said in Burton, supra: "1. Parties are expected to disclose all legal and fact issues which they intend to raise at trial, save only such issues as may involve privilege or impeaching matter. As to these two exceptions, disclosure may be made to the judge conducting the pretrial hearing without disclosure to opposing counsel, and a ruling will be made on the exception claimed. "The test to be applied on impeaching matter or any factual issue, which counsel feels should not be disclosed to his opponent in advance of the trial, is the simple one--whether disclosure or nondisclosure will best promote the ends of justice. That is for the judge conducting the pretrial hearing to determine." 1 F.R.D. at 5 7 2 . The day is gone when the prototype old fashioned attorney produced the hidden witness at trial or the uncited but decisive case and left the opposing attorney lying bloody on the courtroom floor. Justice is achieved, under the spirit of our modern rules, by full and open disclosure of law and fact. The statements in Burton were approved in the Ninth Circuit Court of Appeals in Walker v . West Coast Fast Freight Inc. (9th Cir. 1956), 2 3 3 F.2d 939.	April 5, 1979
df2025f7-8cd4-450d-be3d-879a4c7c8d6a	ST JAMES COMMUNITY HOSPITAL v DEP	N/A	14460	Montana	Montana Supreme Court	No. 1 4 4 6 0 I N THE SUPREME COURT OF THE STATE OF MONTANA S T . JAMES COMMUNITY HOSPITAL, INC., A MONTANA CORPORATION, P l a i n t i f f and A p p e l l a n t , DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES 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 W. W. L e s s l e y , 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 m i t h L a w F i r m , H e l e n a , M o n t a n a C h a d w i c k S m i t h argued, H e l e n a , M o n t a n a C o r e t t e , S m i t h & D e a n , B u t t e , M o n t a n a F o r R e s p o n d e n t : L e a p h a r t L a w F i r m , H e l e n a , M o n t a n a W. W i l l i a m L e a p h a r t 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 : - B A Y 2 3 1979 MAY 2 3 1979 F i l e d : a m & , , C l e r Mr. Justice Daniel J. Shea delivered the Opinion of the Court. St. James Community Hospital appeals from an order of the Lewis and Clark County District Court granting summary judgment to the Department of Social and Rehabilitation Services (SRS) in an action for declaratory judgment. The hospital brought suit for a judicial determination that by enacting House Bill 269 (the 1975-1977 legislative appropriations bill), the Montana Legislature intended that Montana hospitals participating in the federal Medicaid program be reimbursed on the basis of their "full and adequate costs" rather than their "reasonable costs" as defined in the federal Medicaid regulations. The controversy stems from the same contractual relation- ship recently discussed by this Court in Montana Children's Home et al. v. Dept. of SRS (1979), Mont . , 592 P.2d 481, 36 St.Rep. 507. Beginning in 1967, SRS contracted with several Montana hospitals to provide inpatient hospital services to eligible Medicaid recipients. The standard contract between SRS and the hospitals provided that SRS would reimburse the hospitals on the basis of "reasonable costs", which were to be determined at the end of each fiscal year by Blue Cross of Montana, in compliance with federal guidelines. In the interim, however, SRS would reimburse the hospitals on the basis of their "standard charges" to the cash-paying general public with appropriate adjustments between the two standards to be made at the end of the fiscal year. If the federally defined "reasonable.. costsWwere found to be less than "full and adequate costs", the hospitals could negotiate with SRS for a supplemental allowance bringing the total to "full and adequate costs". The funds for this supplemental allowance were drawn from SRS's general biennium legislative appropriation. Before the commencement of the ensuing fiscal year, on June 30, 1976, SRS terminated its standard contract with the hospitals and the parties contemporaneously executed an "interim agreement". By this agreement SRS was to pay the hospitals less than their standard charges and the hospitals agreed to continue providing services to Medicaid patients, without being held to "accord and satisfaction". The interim agreement further provided that if the Legislative Interim Finance Committee ruled that the legislative intent behind House Bill 269 (the 1975-1977 appropriations bill) was to pay hospitals "full and adequate costs", then the hospitals would be retroactively reimbursed on that basis. On July 23, 1976, however, the Interim Finance Com- mittee passed a motion that House Bill 269 was not appropriated to provide funds for supplementation of the federal standard of "reasonable costs". Nonetheless, St. James Community Hospital continued to provide medical services to eligible Medicaid patients. SRS refused to pay more than "reasonable costs" for the medical services, and the hospital therefore started the present lawsuit. On January 21, 1977, St. James Community Hospital filed a declaratory judgment action seeking a determination that the 1975 Legislature intended the hospitals be paid "full and adequate costs" throughout the entire 1975-1977 biennium, rather than just half of the biennium. Upon cross-motions for summary judgment, the District Court granted summary judgment to SRS and held: "House Bill No. 269, 1975, constituted an appropriation to the General Fund from which the Department of SRS can administer the Medicaid program consistently with Title XIX of the Social Security Act . . . House Bill 269 contains absolutely no expression of legislative intent to pay participating hospitals 'full and adequate' costs. Payment of 'full and adequate' costs from 1967-1976 was a matter of contract between SRS and the hospitals and said contracts are not evidence of legislative intent." The hospital presents four issues for our review and we hold against the hospital on each issue. Two of them can be disposed of summarily. The hospital contends that _a legislative interim committee has no authority to make a binding determination of legislative intent, but we need not discuss this issue because both sides agree that the committee has no such authority. The hospital also contends that federal law, namely 42 U.S.C. §1396a, et seq., and the appropriate regulations, do not prohibit the reimbursement of hospitals beyond "reasonable costs" as defined by federal law. That, however, would only become a consideration if we determined that the hospital was entitled to compensation beyond "reasonable costs" under the remaining two issues. Since we do not so determine, we do not reach the issue of whether federal law prohibits reimbursement beyond the federally established "reasonable costs" limitations. The remaining issues are whether the 1975 Legislature intended to appropriate funds for payment of full and adequate costs to the hospitals through the end of the 1975-1977 biennium, and if not, whether SRS is bound nonetheless to pay full and adequate costs under implied contractual and equitable principles to avoid unjust enrichment of SRS. St. James Community Hospital contends that, by enacting House Bill 269, the Legislature intended providers of Medicaid services in Montana be reimbursed for their "full and adequate costs". The argument is that since full and adequate costs were paid for the first year of the 1975-1977 biennium, the Legislature must have intended the same for the second year. The "full and adequate cost" reimbursements for the first year of the biennium were made pursuant to written contracts between SRS and the hospitals. When SRS terminated its contract with the hospital on June 30, 1976, it thereby ended its contractual obligation to pay full and adequate costs. Absent a contract, there is nothing in the legislative appropriations bill which would allow recovery of full and adequate costs. House Bill 269 is a general appropriations bill. It does not approve, direct or refer to a continuation of supplemental payments. Nor can such legislative intent be gathered from the circumstances surrounding the enact- ment of House Bill 269. The circumstances to which the hospital alludes--the contract and its terms--were not the motivating influence behind adoption of the appropriations bill. It would indeed be burdensome to hold that con- tractors engaged by the State may not be terminated until the end of the biennium unless specifically authorized by the Legislature. The hospital also claims that payment of less than "full and adequate costs" will result in higher charges to the cash-paying public and that the Legislature could not have intended such an unreasonable or oppressive result. As already stated, there is no indication that the Legi- slature considered this contract in its biennium appropriation. We note, moreover, that the "reasonable cost" limitation under the federal statute and regulations is designed to encourage "economy, efficiency and quality of care." Johnson's Professional Nursing Home v . Weinberger (5th Cir. 19741, 490 F.2d 841, 843. See also, American Medical Association v . Matthews (D.C. Ill. 1977), 429 F.Supp. 1179, 1199. It is not for this Court to modify this general policy by adopting a different standard than that intended by Congress. The hospital further charges that SRS has taken advantage of the hospitals by using their services from July 1, 1976 through June 30, 1977 knowing full well the hospitals would accept no less than full and adequate cost reimbursement. It contends therefore that the situation gives rise to an implied contract, obligating SRS to pay the full value of the benefits received. An implied contract, however, arises not from the consent of the parties, but from principles of natural justice and equity, based on the doctrine of unjust enrichment. Brown v . Thornton (1967), 150 Mont. 150, 432 P.2d 386. Here, the hospital initially consented to the arrangement. The law will not imply a promise to pay the value of services rendered and accepted if there is a special agreement to pay a particular amount or in a particular manner for the services rendered. 66 Am.Jur.2d Restitution and Implied Contracts g6, 25. In the instant case, Medicaid services were furnished after June 30, 1976 by reason of the "interim agreement". This agreement contemplated that whatever statement of legislative intent the standing committee made, would determine the measure of payment for Medicaid care after June 30, 1976. Even if this Court were to accept the hospital's argument that the committee's adverse ruling did not bind the hospitals and that the matter then had to be litigated, the measure of reimbursement for Medicaid services rendered after June 30, 1976 would depend on the court's determination of legislative intent. The interim agreement thus precludes recovery under a theory of quasi- contract. The judgment of the District Court is affirmed. Jus We Concur: d e f Justice \ Justices	May 23, 1979
ba571803-ca13-4b3b-b792-2652b600385f	MURPHY v STATE	N/A	14252	Montana	Montana Supreme Court	No. 14252 IN THE SUPREME COURT OF THE STATE OF MONTANA KEVIN T. MURPHY, Petitioner, VS. STATE OF MONTANA, Respondent. ORIGINAL PROCEEDING: Decided: hfRR 2 7 1979 Filed: W R 2 1Q79 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Petitioner, Kevin T. Murphy, filed a pro se application for habeas corpus on April 10, 1978. By order of July 21, 1978 this petition was denied as a proceeding for habeas corpus but it was decided that the portions of the petition concerning sentence imposed upon the petitioner would be treated as a pe- tition for post conviction relief under Title 95, Ch. 26, R . C . M . 1947, now Title 46, Ch. 21 MCA. Kevin T. Murphy was found guilty by a jury on September 23, 1976 of a burglary committed on May 3, 1976. He was sentenced on October 1, 1976 to confinement in the State Prison for the term of not less than 10 years. The order of commitment contains the following: "It is further ordered and adjudged and this order does order and adjudge that said defendant, Kevin T. Murphy, is a persistent offender, and that said Defendant receive no credit for the time served to date in the Silver Bow County Jail. That the defendant is not to be granted good time as a first offender, but must earn his own credit for good time." One issue raised by petitioner is whether a letter dated September 28, 1976 addressed to the sentencing judge and signed by John Lynch as parole and probation officer at Butte, Montana was used as a presentence report by the judge at the sentencing on October 1, 1976. The memorandum filed by the Silver Bow County Attorney in response to the court order of July 21, 1978 raised factual questions as to his letter. The court ordered an evidentiary hearing in the District Court. The hearing was held on January 26, 1979 and on February 14, 1979 the judge of the District Court filed an order and judgment with this Court. In part the order states: "That an evidentiary hearing was had and a report dated September 28, 1976 of the Pardon and Parole Officer, namely John Lynch, was entered in evidence, and said report was recognized by the court as being the same as was served upon the parties and delivered to the Court before sentencing in this matter which had occurred on the first day of October, 1976." The order then confirmed the order of October 1, 1976. The Silver Bow County Attorney's brief states: "This letter, dated September 28, 1976, is in the form of an arrest record of the Defendant while under the supervision of Probation and Parole Office. This letter is not in the proper form of a presen- tence as required by Section 95-2004, R . C . M . 1947 (now section 46-18-112 MCA) . . . The letter after listing ten arrests from March 1973 to February 1976 concludes as follows: "Along with the current charge, there have been a total of six charges involving burglary that Kevin Murphy has been involved in during the time this office has been associated with him - a period of a little over three years. "During this time, we have attempted to work with him in every way possible. We have tried to get him help for his drug and alcohol problems but he has been totally unreceptive. "At this time, the only alternative I can recommend is incarceration in Montana State Prison." The memorandum of the Silver Bow County Attorney states: "In March, 1973 petitioner KEVIN T. MURPHY entered a plea of Guilty to the charge of Burglary, a Felony, in the District Court of the First Judicial District, Lewis and Clark County, and received a three (3) year Deferred Imposition of Sentence. In September, 1974, the Petitioner entered a plea of Guilty to the charge of Burglary, a Felony, in the District Court of the Second Judicial District, Butte-Silver Bow County, and received a one (1) year Deferred Imposition of Sentence. The Petitioner completed the probationary period in both cases without being revoked. Motions by the Petitioner to have these Guilty pleas expunged from the Court records were not filed until November, 1977. "Based on the two (2) above-mentioned cases the Peti- tioner was found to be a persistent Felony offender, pursuant to Section 95-2206.5, R.C.M. 1947, (section repealed by section 6, Ch. 340, Laws of 1977) after he was found Guilty of Burglary, a Felony, on October 1, 1976. . ." From the above it is clear that the letter of September 28, 1976 was used as a presentence investigation. Further it did not comply with the requirements of section 95-2204, R . C . M . 1947, now 46-18-112 MCA, and while there may be discretion in the trial judge not to order a presentence investigation under section 95-2203, R.C.M. 1947, now 46-18-111 MCA, such was not the case here; especially where the report was used to find the defendant a persistent offender. Under section 95-2206.5, enacted by Sec- tion 2, Ch. 312, Laws of 1975. Repealed by Section 6, Ch. 340, Laws of 1977. Also enacted by Ch. 12 as Section 3, Laws of 1975 was an amendment of section 95-3214, R . C . M . 1947, now section 46-23- 201 MCA but amended by Section 60, Ch. 184, Laws of 1977, amended Section 3, Ch. 340, Laws of 1977, and amended Section 3, Ch. 580, Laws of 1977, which provided that no convict serving a time sen- tence could be paroled until he had served at least one-third of his full term, less good time allowance off if he were desig- nated a persistent felony offender under section 95-2206.5 as opposed to serving one-fourth of a full term less good time allow- ance off if not a persistent felony offender. The defendant therefore is entitled to be returned to the District Court in Silver Bow County for resentencing for the follow- ing reasons: (1) The letter of September 28, 1976 did not comply with section 95-2204, R.C.M. 1947, now 4.6-18-112 MCA, and the proce- dure set out in Kuhl v . District Court (1961), 139 Mont. 536, 366 P.2d 347, 351. (2) The denial of credit for time served in the Silver Bow County jail before conviction is error. Section 95-2215, R . C . M . 1947, now section 46-18-403 MCA, states: "Credit for incarceration prior to conviction. (a) Any person incarcerated on a bailable offense and against whom a judgment of imprisonment is rendered shall be allowed credit for each day of incarceration prior to or after conviction . . ." Such credit is granted by the statute as a matter of right. Maldanado v . Crist (1973), 162 Mont. 240, 510 P.2d 887; State ex rel. Bovee v . District Court (1973), 162 Mont. 98, 508 P.2d 1056; In the Matter of Hanson (1976), 169 Mont. 80, 544 P.2d 816; Matter of LeDesma (1976), Mont . , 554 P.2d 751, 33 St.Rep. 902. The remaining issue presented is not ready for decision. As stated above the court apparently relied on two previous deferred impositions of sentence to find defendant a persistent felony offender under section 95-2206.5, R . C . M . 1947 as it existed on October 1, 1976. Section 95-2207, R.C.M. 1947, now 46-18-204 MCA, provides for dismissal after deferred imposition. "Whenever the court has deferred the imposition of sentence and after termination of the time period during which imposition of sentence has been deferred, upon motion of the court, the defendant, or the de- fendant's attorney, the court may allow the defen- dant to withdraw his plea of guilty or may strike the verdict of guilty from the record and order that the charge or charges against him be dismissed." Here the defendant did not move until November 1977, more than a year after the October 1, 1976 sentence, to have the pleas of guilty withdrawn and the charges dismissed. As to the question of whether a guilty plea followed by a deferred imposition of sentence can be relied upon by the State as a prior felony conviction in order to invoke the persistent felony offender statute, sufficient facts are not known. As this matter must be returned to the District Court for resentencing the issue should be addressed by the District Court. In passing it should be noted that other courts have come to different conclusions on this or similar issues. See State v. Drew (1971), 158 Mont. 214, 490 P.2d 230. Judge Russell Smith refers to it as "adopting the Omar Khayyam approach". Fite v . Retail Credit Company (D.C.Mont. 1975), For a good discussion of the development of the similar California statute, California Penal Code, Sec. 1203.4, see State v . Walker, 14 Wash.App. 348, 541 P.2d 1237, 1240; see also State v. Bock (1958), 80 Idaho 296, 311, 328 P.2d 1065; ~adilla v . State (1977), 90 N.M. 664, 568 P.2d 190; (1949) 2 Stanford L . Rev. 221; (1954) 27 S.Cal. L.Rev. 327. As to the definition of conviction under such a statute see 12 S.Cal. L.Rev. 201. Effect of expungement on criminal conviction, (1967), 40 S.Cal. L.Rev. 127; Expungement myth, (1963) 28 Los Angeles Bar Bulletin (1963) 161; Wiping out a criminal or juvenile federal jury, L. Baum (1965), 40 S.Bar J. 816. The sentence is vacated and the cause remanded to the District Court with directions to resentence petitioner Kevin T. Murphy in a manner not inconsistent with this opinion. Chief Justice Jus ices s'	March 19, 1979
7ced3420-d7a0-4f26-b2d8-6b5bdd271c03	ANACONDA-DEER LODGE CO v LORELLO	N/A	14390	Montana	Montana Supreme Court	No. 14390 IN THE SUPREME COURT OF THE STATE OF MONTANA 19 79 ANACONDA-DEER LODGE COUNTY, Plaintiff and Respondent, -vs- PETER J. LORELLO et al., Defendants and Appellants. Appeal from: District Court of the Third Judicial District, Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Appellants: Scanlon & Connors, Anaconda, Montana For Respondent : Radonich & Brolin, Anaconda, Montana Submitted on briefs: January 24, 1979 Decided: I' t$fn Filed: f ---- ; j g Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Peter J. Lorello, defendant, appeals from a declaratory judgment of the Deer Lodge County ~istrict Court holding that a proposed gambling ordinance was unconstitutional. We af firm. The basic facts in this case are not in dispute. On May 2, 1977, the Anaconda-Deer Lodge local government charter became effective. The charter provided that the unified county government would be run by a five man board of commissioners and a professional city-county manager. On July 13, 1977, Peter J. Lorello and approximately fifteen percent of the qualified electors of Deer Lodge County submitted a proposed gambling ordinance to the Anaconda-Deer Lodge Board of Commissioners. Lorello's group requested that the Board present the proposed gambling ordinance to the voters of Deer Lodge County at the next general election. The ordinance in question, if approved by the voters, would legalize all forms of gambling within the borders of Deer Lodge County. The Board of Commissioners, not certain that the proposed ordinance would be valid as submitted, initiated a declaratory judgment action in the District Court, Deer Lodge County, seeking a declaration on the validity and constitutionality of the proposed ordinance. The trial judge ruled that the proposed ordinance was invalid, un- constitutional, and that the proposed ordinance could not be submitted to the Deer Lodge County electorate. This appeal followed. The sole issue on appeal is whether the electorate of a local government unit may initiate a gambling ordinance which is more liberal than statewide gambling laws. The main controversy is the meaning to be attached to the term "the people" as it appears in 1972 Mont. Const. Art. 111, 59. The section states: "All forms of gambling, lotteries, and gift enterprises are prohibited unless authorized bv acts of the lesislature or by - the people through initiative or referendum." (Emphasis added.) The District Court held that the term is synonymous with the voters of the entire State of Montana. Defendant Lorello, on the other hand, urges that the term "the people" is general enough to refer to the electors of a local government unit (i.e. the electors of Deer Lodge County). The meaning attached to the term "the people" will be dispositive of this appeal. If the term refers to the electorate of the entire State, the citizens of Deer Lodge County cannot legalize forms of gambling which have not been "authorized" by the legislature or the electorate of the State. Conversely, if the term refers to the voters of a local government unit, the voters of Deer Lodge County must be allowed to vote on the proposed gambling ordinance. The interpretation urged by defendant Lorello would lead to absurd results, and this cannot be a rational interpretation of the Constitution. Ronish v. School Dist. No. 1 (1960), 136 Mont. 453, 348 P.2d 797. The framers used the term "the people" as a shorthand reference to the citizens of the entire State of Montana. We find support for such interpretation by reference other portions of our constitution. For example, the following language appears in the Preamble to our Constitu- tion: "We the people of Montana grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this constitution." (Emphasis added.) In addition to its use in the Preamble, the term "the people" appears thirteen times in the first three articles of our Constitution. Wherever the term appears, it is obvious that the framers were referring to the citizens of Montana as a homogeneous group, and not to an isolated group such as the electors of a local government unit. We would no doubt create absurdities in other portions of the Constitution if we accepted defendant's strained interpretation. It simply was not intended. We hold that the legislature or "the people" of the entire state, are the only two groups empowered to legalize forms of gambling in this State. Any attempt to legalize gambling by any other group (i.e. the electors of Deer Lodge County) is expressly forbidden by 1972 Mont. Const. Art. 111, 59. Having disposed of the merits of the case, we note that this case demonstrates a serious problem facing this Court: the frivolous appeal. If cases are appealed as a matter of course, without regard to a good faith analysis of merit, this Court will not be able to avoid a serious backlog in our docket. We urge attorneys to exercise their good faith judgment before undertaking an appeal. The judgment of the We Concur: ----------- Justices v -4-	April 5, 1979
7563521a-93fb-4bd7-80a0-1fde8783616e	JORDAN v MANOR	N/A	14435	Montana	Montana Supreme Court	No. 14435 IN THE SUPRElME COURT OF THE STATE OF MONTANA 1979 IDABEL McLEISH JORDAN, ARTHUR McLEISH JORDAN and ROSEMARY J. JORDAN, Plaintiffs and Appellants, ELIZABETHAN MANOR, et al., Defendants and Respondents. Appeal from: ~istrict Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellants: Towe, Ball, Enright & Mackey, Billings, Montana Gerald Neely argued, Billings, Montana For Respondents: Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana Ronald Lodders argued, Billings, Montana Submitted: February 6, 1979 Decided: APR 2 1979 Filed: @R 2 F 1Q?s -, - Mr. Justice John C. Sheehy delivered the Opinion of the Court. Plaintiffs appeal from an order of the District Court, Yellowstone County, granting partial summary judgment in favor of defendant Elizabethan Manor in an action against it and one other party. Elizabethan Manor is a condominium project conceived by three Billings developers. Desiring to obtain financing for their project, the developers entered into subscription and purchase agreements with interested individuals in which the individuals agreed to purchase certain units of the condominium to be constructed. In these agreements the prospective unit owners acknowledged receipt of copies and subscribed to the condominium declaration and bylaws. Plaintiff Jordan signed her agreement on September 21, 1971 as indicated by the record before this Court. On November 21, 1971, the developers purchased the land upon which the condominium units were eventually constructed. On June 1, 1972, pursuant to section 67-2315, R.C.M. 1947, now section 70-23-302 MCA, the developers filed as a preliminary declaration and bylaws, the documents represented by the copies attached to the subscription and purchase agreements. These documents indicated how the condominium would be operated once it was completed and had formal existence, and were virtually identical to the final documents later certified and filed. Between June 15, 1972 and November 9, 1972 the developers executed warranty deeds to the separate units to individuals who had signed the purchase agreements. The developers on March 22, 1973 filed the final signed declaration, and a certificate that the bylaws had been adopted and signed by two of the developers, one as chairman of the board of directors of the association of unit owners and one as secretary of the association. This action was pursuant to section 67-2303, R.C.M. 1947, now section 70-23- 103 MCA, and section 67-2320, R.C.M. 1947, now section 70- 23-307 MCA. As indicated above, these documents were virtually identical to the copies of documents attached to the subscription and purchase agreements which were acknowledged and subscribed to by each individual subscriber and future owner. On December 11, 1973, at the annual meeting of the defendant association a majority of the association approved the bylaws filed on March 22, 1973, and further ratified all acts of the directors to December 11, 1973. After the condominium had been functioning for sometime in a communal living arrangement involving plaintiff and the Idabel Jordan other apartment owners, plaintifdbecame dissatisfied with certain aspects of the situation and stopped paying her assessed share of the common expenses as provided for in the bylaws. A series of unpleasant encounters between plaintiff and other members of the association followed. On August 20, 1974, plaintiff filed a two-count complaint in the District Court for Yellowstone County. Count one named Elizabethan Manor Association as defendant and alleged the statutory procedure for establishing a condominium had not been correctly followed. The first count sought a declaratory judgment as to the rights, status and legal relation between plaintiffs and the association, a complete financial accounting from the association to plaintiff, and an injunction enjoining the association from "acting in a manner contrary to the law and to the rights of plaintiffs with respect to the operation and maintenance of said condominium." Count two named as defendant a property management firm which was administering the affairs of the condominium. The partial summary judgment entered by the District Court does not address the second count and that count is therefore not involved in this appeal. Elizabethan Manor filed an answer and counterclaim denying any failure to comply with the condominium laws and claiming damages for arrearages in the assessment of common expenses. The counterclaim prayed for judgment for the arrearages and foreclosure and sale of plaintiff's interest in the condominium unit pursuant to sections 67- 2326 and 2327, R.C.M. 1947, now sections 70-23-607 and 70-23-608 MCA . Motion for partial summary judgment as to the matters concerning them was made by Elizabethan Manor Association on October 28, 1976. After briefs had been submitted by both parties, the District Court entered an order of partial summary judgment in favor of the association to the extent the final declaration and bylaws of the condominium were valid and enforceable and the association was entitled to judgment against Mrs. Jordan for arrearages in the assessment for admitted common expenses. The court reserved judgment on expenditures not admitted by plaintiff. Foreclosure was granted but stayed on the condition the amount of admitted common expenses due be made current forthwith and thereafter paid regularly when due. The order of partial summary judgment was made final by certification pursuant to Rule 54(b), M0nt.R.Civ.P. on April 24, 1978. This appeal followed. Elizabethan Manor cross-appealed from that portion of the partial summary judgment entered by the District Court which denied respondent its attorney fees as claimed in its motion for summary judgment. Before proceeding with a discussion of the merits in this appeal it is necessary to indicate the scope of our consideration of this case. This matter is before this Court on an appeal from a partial summary judgment, properly certified as final, declaring only that the final declaration and bylaws were valid and thus the condominium had proper existence, defendant Elizabethan Manor was entitled to a judgment for plaintiffs'share of admitted expenditures, and that defendant Elizabethan Manor was entitled to a foreclosure of its lien for such expenditures. Such foreclosure was stayed upon the condition the plaintiff pay her share of expenses determined as due and owing and thereafter regularly pay the assessed share of common expenses. These are the only matters which have been finally determined by the District Court. It has reserved issues on the remaining challenged expenses and thus still has jurisdiction over these two parties. We therefore decline plaintiff Jordan's invitation to rule on issues not addressed by the District Court, preferring to wait until a final judgment on those issues has been presented to us. See Rule 1, M0nt.R.App.Civ.P. In reviewing an appeal from a summary judgment this Court's concern is whether the moving party is entitled to judgment on the law applicable to the facts established by the pleadings, depositions, answers to interrogatories and admissions on file together with affidavits appearing in the record. Audit Services, Inc. v. Haugen (19791, Mont . , 591 P.2d 1105, 36 St.Rep. 451; State v. Jennings (Alaska 1976), 555 P.2d 248; Cherry v . Vanlahi, Inc. (19751, 216 Kan. 195, 531 P.2d 66; Rule 56(c), M0nt.R.Civ.P. Reviewing the record it is apparent the only issue in this appeal between these parties is the validity of the procedure establishing the condominium project. Plaintiff has admitted expenditures forming the basis of the judgment, questioning only their validity as to the authority of the condominium -5- to make the assessment, alleging it was not properly formed. Thus, we are able to frame the issues presented by this appeal in the following manner. First, was the District Court correct in ruling the final declaration and bylaws were valid? Second, was it proper for the District Court to stay the foreclosure of the lien upon the condition plaintiff Idabel Jordan regularly pay the future charges not yet assessed? Third, was the amount of the judgment here correctly computed? Finally, is defendant Elizabethan Manor entitled to attorney fees in this action? The initial issue presents a question of first impression to this Court which involves the statutory construction of provisions of the Montana Unit Ownership Act, sections 67-2301, et seq., R.C.M. 1947, now sections 70-23-101, et seq., MCA. Section 67-2303, R.C.M. 1947, as it read at the times pertinent hereto stated that in order to submit any property to the provisions of the act a "declaration" must be recorded by the owner of the property. Section 67- 2304, R.C.M. 1947, now section 70-23-401 MCA, indicates that once the property is submitted to the act the individual units may be conveyed, encumbered or subjected to other "juridic acts". Section 67-2302, now section 70-23-102 MCA, defines "unit" as a part of the property intended for indep- endent use; "unit owner" as a person owning a unit in fee simple; and "association" as all the unit owners acting in accordance with the declaration and bylaws. Plaintiff argues the statutory requirements for esta- blishment of a condominium project have not been complied with and therefore the assessments made against her unit are without legal authority. This argument is based on the contention that when the final declaration, which was signed by the developers, was filed in March 1973 the developers were not "owners" and thus not capable of executing that document. The developers had previously executed subscription agreements and warranty deeds to the units to the prospective grantees and thus, contends plaintiffs were not owners of the property entitled to file the declaration. Plaintiffs aaso contend the bylaws were improperly adopted and certified. These bylaws were signed and certified by the developers as owners and officers of the association and were filed simultaneously with the final declaration on March 22, 1973. Because the developers were not owners as plaintiffs have previously argued, and because the bylaws were not adopted by each of the persons to whom the developers had executed warranty deeds and were not certified by officers of an association of those persons, plaintiffs contend the bylaws were in- effectual and actions taken pursuant to those bylaws were without legal authority. We do not agree with this argument. The filing of the final declaration is the most significant event in the establishment of a condominium. It is this action which subjects the property in question to the provisions of the act and it is this subjection which allows the units of the condominium to be conveyed as "individual" units. In construing an act very similar to Montana's, the Hawaii Supreme Court stated that the filing of the final declaration submitting the property to the provisions of the act "makes the property susceptible to conveyance of individual units." State Savings & Loan - - Association v. Kauaian Development Co. (1969), 50 Haw. 540, 445 P.2d 109, 116 (emphasis added.) Our own statute indicates, as did the Hawaiian provision, that it is only while the property is submitted to the Unit Ownership Act, via the final declaration, that a unit may be individually conveyed and encumbered. Section 67-2304, R.C.M. 1947, now section 70-23-401 MCA. We therefore conclude that until the final declaration is filed those who are the fee owners of the condominium project are the fee owners of the units of the project. As such, these persons are the parties contemplated by statute to sign and file the final declaration. Section 67-2303, R.C.M. 1947, now section 70-23-103 MCA. In the present case the developers of the project were such parties and did so validly file the final declaration. Because no units may be individually conveyed, or encumbered until the final declaration is filed submitting the property to the act, the subscription agree- ments and warranty deeds divested the developers of no interest in the property until the final declaration was filed;, thus they remained the fee owners until that time. See, 15A Arn.Jur.2d Condominiums S26, p. 855. Having determined the final declaration was properly executed and recorded, we now consider plaintiffs: arguments with respect to the bylaws. As we have stated above, the fee owners of the units until the final declara- tion is recorded, and thus "unit owners" by statutory definition (section 67-2302(14), R.C.M. 1947, now section 70-23-102(17) MCA), are those persons who own the condominium project, here the developers. The statutory scheme requires all unit owners to adopt the bylaws by which the association of unit owners is governed and for the presiding officer and secretary of the association to certify these bylaws. This certification must be recorded simultaneously with the recording of the final declaration. Section 67-2320(2), R.C.M. 1947, now section 70-23-307(2) MCA. The developers - 8- in this case signed the bylaws as unit owners and certified the bylaws as officers of the association of unit owners of which they were the sole members. Appellant argues this procedure was not valid. We conclude it was - valid. Until the final declaration is filed, the fee owners of the project are the fee owners of the units and thus the "unit owners". As "unit owners" they are the "association" who must adopt bylaws and whose officers must certify the bylaws, such certificate to be recorded simultaneously with the final declaration. This is what happened in the present case and which we determine was not improper. We note, moreover, that in the present case all future unit owners, including plaintiff, affirmed virtually the same declaration and bylaws when they signed the subscription and purchase agreements. Furthermore, once the final declaration was recorded thus giving life to the otherwise inert warranty deeds to the individual purchasers, these owners then constituted the association and could amend the bylaws if they desired. We therefore hold the District Court was correct in its conclusion the condominium was properly formed and affirm the summary judgment on this point. We now must consider whether the District Court could correctly stay the foreclosure of the lien provided for by statute upon the condition the plaintiff pay all overdue assessments determined to be owing and to regularly pay all future assessments for common expenses. We note preliminarily that section 67-2326 (1) , R.C.M. 1947, now section 70-23-607(1) MCA provides for a lien against the individual unit for common expenses. This lien is perfected by filing a claim containing a true statement of the account due for such common expenses. Section 67-2326(2), R.C.M. 1947, -9- now section 70-23-607(2) MCA. The lien in this case was properly perfected to the extent of the supporting account. Because the condominium project was validly Idabel Jordan established the expenditures plaintiff/has admitted are proper as against her and thus the lien could be foreclosed. The question that remains is whether the District Court could impose a stay with respect to the payment of current and future assessments. Section 67-2326(1), R.C.M. 1947, now section 70-23-607(1) MCA, provides for a lien upon the individual unit for all common expenses chargeable to that unit. The defendant association perfected its lien in the manner provided for in section 67-2326 (2) , R.C.M. 1947, now section 70-23-607 (2) MCA and it is this lien defendant association sought to foreclose in its counter-claim. The District Court granted the foreclosure but stayed its execution upon the condition Idabel set forth above. However, if plaintiff/Jordan complies with that part of the condition requiring payment of common expenses currently due and owing, the lien of the defendant association is extinguished. Payment of the debt upon which a lien is based extinguishes the lien, and thus here also the foreclosure based upon it. Bushman Construction Co. v. Air Force Academy Housing, Inc. (10th Cir. 1964), 327 F.2d 481, 485; Richter v. Walker (1951), 36 Cal.2d 634, 226 P.2d 593, 599; 57 C.J.S. ~ e c h a n i d Liens S247. The debt in this case obviously consists only of those assess- ments due up until the time of judgment of foreclosure or otherwise as any future assessments are undetermined and not yet in issue. In this circumstance there is nothing to stay with respect to payment of future assessments, as payment of currently due and owing assessments extinguishes -10- the lien and thus the basis for foreclosure. We therefore modify the District Court's partial summary judgment by striking that portion of the judgment staying the execution of foreclosure on the condition the plaintiff "thereafter regularly pay the common expenses as assessed when due . . ." and by limiting the stay to the condition plaintiff pay those expenses determined by the District Court as currently owing. We are next asked to consider the correctness of the Idabel District Court's computation of plaintiff/Jordants share of admitted expenditures. Defendant Elizabethan Manor has Idabel agreed with plaintiff/Jordanls argument that the amount of common expenses plaintiff has paid should be deducted from her assessed share and not from the total common expenditures before computing her share as was done by the District Court. The only question remaining are the numbers to be used in Idabel this computation. ~laintiff/Jordan argues she has been assessed twice for amounts placed in reserve accounts and would therefore not include those amounts in her computation. The bylaws of the association, which we have upheld herein, clearly provide for such reserves. See, Bylaws, Art. VI, Sl(d). The maintenance of such reserves by condominium associations has been judicially sanctioned. Association of Unit Owners of the Inn of the Seventh Mountain v. Gruenfeld (1977), 277 Ore. 259, 560 P.2d 641, 644. Because plaintiff has not paid any expenses except for the amount credited below, she could not have already made her contribution to the reserve account and thus is not being twice assessed for the same expense. The judgment of the District Court is therefore modified to comport with the following computation. Total of association checks for common expenditures Sept. 1972 - October 1976 Less: Total of checks not "admitted" reserved by the court 4,840.44 Total to be divided fourteen ways (Fourteen individual units) 26,326.87 One-fourteenth of above 1,880.49 Less: Jordan payment Total due by Jordan under judgment dated April 24, 1978 $1,225.74 The final matter in this appeal is defendant association's claim for attorney fees. Defendant is correct in its statement that this Court has held attorney fees are available when provided for in an agreement between the parties to a lawsuit. Kintner v. Harr (1965), 146 Mont. 461, 408 P.2d 487. In this cause the declaration provided for recovery of attorney fees by the prevailing party in litigation resulting from the default of payment of common expenses. Final Declaration, 516 (a) , (c) . The operative words are "the prevailing party". As this action now stands we do not perceive a prevailing party with respect to a final, complete judgment. The District Court has only decided, and we have affirmed, that the condominium was validly formed and that the defendant is entitled to a judgment of $1,225.74. There remains to be decided the validity of plaintiffs' assessed share of over $4,80O,.QO in common expenses and the necessity of an accounting. A prevailing party is the one who has an affirmative judgment rendered in his favor at the conclusion of the entire case. Ennis v. Ring (1959), 56 Wash.2d 465, 341 P.2d 885, 889. The entire case here has not been concluded as between these two - parties. We therefore affirm the District Court's ruling at this point that each party bear their own attorney fees. Judgment modified in part and affirmed in part, and remanded for further proceedings in accordance with this opinion. The parties shall bear their own appeal costs. -- Justice We Concur: Chief Justice	April 24, 1979
bdc6ec46-3461-4ace-acb2-a51fa81c9cc3	MARRIAGE OF KUNTZ	N/A	14257	Montana	Montana Supreme Court	No. 14257 I N THE SUPREME C O W O F THE STATE O F I4XCANA 1979 IN RE TI-E MAFUUAGE O F NANCY E. K U W Z , Petitioner and Respondent, -VS- THOMAS M . K W Z , Respondent and Appellant. Appeal from: District Court of the Eighth Judicial District, Hon. H. William Coder, J d g e presiding. Counsel of Record: For Appellant: Ralph T. Randono, Great Falls, Montana For Respondent: Church, Harris, Johnson & Williams, Great Falls, Mntana Sdmitted on briefs: March 12, 1979 Decided: Ai , , i 1 19-9 - Filed : .-: M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. c his i s an appeal from a judgment of t h e D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , County of Cascade, i n which t h e c o u r t granted respondent Nancy Kuntz a d i s s o l u t i o n of marriage and ordered c e r t a i n custody and property disposi- t i o n s . The t r i a l c o u r t ordered t h a t t h e land and home, which w e r e valued a t $59,850, be sold and a f t e r a l l debts connected with it paid, t h e proceeds equally divided. I n addition, t h e machinery and livestock w e r e ordered sold. The remain- ing j o i n t debts of t h e p a r t i e s were t o be paid from t h e proceeds and t h e remainder divided equally. Each p a r t y was awarded t h e v e h i c l e they w e r e using a t t h e time of separation. P r i o r t o discussing t h e i s s u e s r a i s e d by appellant, w e note t h a t t h e counsel f o r appellant herein was not t h e counsel t h a t t r i e d t h i s matter before t h e D i s t r i c t Court. Therefore, some of t h e i s s u e s r a i s e d on appeal w e r e matters t h a t , had he been present a t the t i m e of t h e t r i a l , would have been handled d i f f e r e n t l y . Nevertheless, he takes t h e record a s he f i n d s it. The i s s u e s presented f o r our review a r e : 1. Did t h e D i s t r i c t Court err i n making t h e d i v i s i o n of property between t h e p a r t i e s ordered i n i t s decree of October 17, 1977? 2. Did t h e D i s t r i c t Court make t h e required findings of f a c t necessary t o support t h e decree? 3 . Did t h e D i s t r i c t Court make t h e required conclu- sions of l a w necessary t o support t h e decree? 4 . Did t h e D i s t r i c t Court err i n excluding t h e evi- dence of Howard Parker a s t o value? 5. id t h e D i s t r i c t Court err i n i t s r u l i n g s upon examination of Bruce A. Nelson ( a ) a s t o t h e exclusion of testimony a s t o o t h e r s a l e s and (b) a s t o accepting t h e opinion of t h e witness? For t h e purpose of t h i s opinion w e d i v i d e t h e i s s u e s i n t o two c a t e g o r i e s , combining i s s u e s one through t h r e e on whether o r n o t t h e c o u r t followed t h e s t a t u t e s a s required i n considering t h e p a r t i e s t a s s e t s f o r d i s t r i b u t i o n and i s s u e s f o u r and f i v e a s t o whether t h e testimony concerning property v a l u a t i o n w a s properly received. Appellant takes i s s u e with t h e f a c t t h a t t h e c o u r t d i d n o t s p e c i f i c a l l y f i n d a c e r t a i n value a s t o property, both personal and r e a l , and be more s p e c i f i c i n i t s findings. H e a l l e g e s t h a t s e c t i o n 40-4-202 MCA r e q u i r e s such f i n d i n g s by t h e c o u r t i n t h e d i v i s i o n of t h e property. Here, t h e c o u r t found t h a t t h e value of t h e house and land w a s $59,850 and t h a t t h e r e w a s a $15,000 mortgage outstanding. The c o u r t then ordered t h e property s o l d and t h e proceeds divided equally a f t e r t h e indebtedness w a s paid. While t h e c o u r t d i d n o t s p e c i f i c a l l y p l a c e a value on t h e few c a t t l e o r t h e small amount of machinery t h a t was on t h e farm, it d i d i n s t e a d order t h a t it be s o l d with t h e farm and ordered those proceeds divided equally a l s o . I n our opinion t h i s was a workable method i n dividing t h e only a s s e t s of t h e p a r t i e s a s both p a r t i e s had contributed towards t h e i r preservation. The c o u r t ' s order i s l o g i c a l and p r a c t i c a l , and i n our opinion follows t h e requirements of s e c t i o n 40-4- 202 MCA and case law. A review of t h e c a s e law upholds t h e f i n d i n g of t h e D i s t r i c t Court i n t h i s regard. See I n re Marriage of Caprice (1978) Mont . , 585 P.2d 641, 35 St.Rep. 1460, and Marriage of Barron (1978), Mont . , 580 P.2d 936, 35 St.Rep. 891. Appellant relies on s e v e r a l c a s e s of t h i s Court which he b e l i e v e s a r e c o n t r o l l i n g : Robertson v. Robertson (1978), Mont. , 590 P.2d 113, 35 St.Rep. 1889; I n re Mar- r i a g e of Capener (1978), Mont. , 582 P.2d 326, 35 St.Rep. 1026; Vivian v. Vivian (1978), Mont . , 583 P.2d 1072, 35 St-Rep. 1359; I n re Marriage of K r a m e r (1978), Mont . , 580 P.2d 439, 35 St.Rep. 700; and Martinez v. Martinez (1978), Mont. I 573 P.2d 667, 35 St.Rep. 61. These c a s e s a r e n o t a t p o i n t i n t h i s m a t t e r f o r they e i t h e r had no f i n d i n g s a s t o t h e a s s e t s of t h e p a r t i e s o r record upon which r e q u i r e d a determination of n e t worth t o s u p p o r t t h e d i s t r i b u t i o n i n p a r t i c u l a r cases t o one of t h e p a r t i e s . P u t t i n g a n e t d o l l a r f i g u r e on t h e bottom l i n e would n o t a f f e c t t h e judgment i n t h i s c a s e f o r t h e sale would e s t a b l i s h what t h e f i g u r e should be. H e r e , what t h e D i s - t r i c t Court says i n i t s o r d e r is: Here are t h e a s s e t s , s e l l them, pay your j o i n t d e b t s , and s p l i t what remains. I t i s a simple, p r a c t i c a l and l o g i c a l way f o r t h e District Court t o d i v i d e 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 d i s - s o l v i n g t h e i r marriage. The duty of t h e c o u r t w a s t o con- s i d e r t h e s t a t u t o r y f a c t o r s and e q u i t a b l y d i v i d e t h e prop- e r t y . W e f i n d t h a t t h e c o u r t d i d so. I n a d d i t i o n , a p p e l l a n t argues t h a t t h e f a c t s do n o t support t h e f i n d i n g s . The standard f o r reviewing t h a t claim i s c l e a r l y set f o r t h i n I n re Marriage of Jorgensen (1979), Mont. , 590 P.2d 606, 36 St-Rep. 233, where w e s a i d t h a t f i n d i n g s may n o t be d i s t u r b e d by u s u n l e s s c l e a r l y erroneous (Rule 5 2 ( a ) , M.R.Civ.P.). The evidence h e r e s u p p o r t s t h e f i n d i n g s . The r u l e i n Montana f o r o u r review of p r o p e r t y d i v i s i o n i n m a r i t a l c a s e s i s whether t h e D i s - t r i c t Court a c t e d a r b i t r a r i l y , without employment of con- s c i e n t i o u s judgment, o r exceeded t h e bounds of reason i n view of a l l t h e circumstances. Zell v. Zell (1977), Mont. . 570 P.2d 33, 34 St.Rep. 1070. Appellant has not shown a r b i t r a r i n e s s on t h e p a r t of t h e D i s t r i c t Court t h a t goes beyond conscientious judgment o r beyond reason. W e next consider whether t h e c o u r t properly admitted t h e expert testimony of Bruce Nelson, a r e a l t o r , concerning t h e value of t h e acreage and t h e buildings on same, and then r e s t r i c t e d cross-examination on t h e s a l e s of other property i n t h e area. Appellant c l a i m s t h i s case must be reversed because M r . Nelson was allowed t o t e s t i f y about t h e value of t h e r e a l e s t a t e . He a l s o claims h i s attorney should have been allowed t o cross-examine M r . Nelson about other s a l e s . M r . Nelson w a s allowed t o t e s t i f y as an expert about h i s opinion of t h e r e a l e s t a t e value. Rule 702, Mont.R.Evid., reads: " I f s c i e n t i f i c , technical, o r other specialized knowledge w i l l assist t h e t r i e r of f a c t t o under- stand t h e evidence o r determine a f a c t i n i s s u e , a witness q u a l i f i e d a s an expert by knowledge, s k i l l , experience, t r a i n i n g , o r education, may t e s t i f y t h e r e t o i n t h e form of opinion o r other- wise." (Emphasis supplied.) The c o u r t must decide whether t h e expert i s q u a l i f i e d . Rule 104, Mont.R.Evid. M r . Nelson's q u a l i f i c a t i o n s a r e found i n t h e record: he i s a licensed r e a l e s t a t e broker; has been s o s i n c e 1952; belongs t o professional organizations; and has made h i s l i v i n g s i n c e 1952 s e l l i n g real e s t a t e state-wide. He has s o l d numerous farm p r o p e r t i e s , i s f a m i l i a r with t h e values of property i n t h e area, and had inspected t h e property i n question. The c o u r t allowed h i s opinion a s t o the value. W e f i n d no e r r o r . The D i s t r i c t Court considered a l l necessary f a c t o r s and made r u l i n g s considered e q u i t a b l e under t h e circumstances. W e a f f i r m t h e judgment of t h a t c o u r t . /' 1 J u s t i c e / W e concur: % , c e , a w & 4 m i e f J u s t i c e	April 9, 1979
ce2f6b23-a0cc-4517-830f-6f7bed1dd3df	STATE v OLSON	N/A	14533	Montana	Montana Supreme Court	No. 14533 IN T H E : SUPREME C O W O F THE STA'IE O F I'43NTANA 1979 STATE O F PDNTANA, Plaintiff a n d Respondent, -VS- RAYI'mJD L . OLSON, Deferdant a n d A p p e l l a n t . Appeal f m ; District Court o f t h e Nineteenth Judicial District, Honorable Robert M . Holter, Judge p r e s i d i n g . Counsel o f R e c o r d : For A p p e l l a n t : R . T . Randono, Great Falls, bbntana For R e s p o n d e n t : H o n . M i k e Greely, A t t o r n e y General, Helena, mntana Allen Chronister argued, Assistant Attorney General, Helena, Mxkana William A . Douglas, County Attorney, Libby, mntana Submitted: March 26, 1979 Decided : 1 3 - t * Filed : 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. This appeal i s taken from a judgment denying Olson's p e t i t i o n f o r r e l e a s e from t h e S t a t e H o s p i t a l i n Warm Springs. Findings o f f a c t , conclusions of law and judgment w e r e e n t e r e d on August 1 4 , 1978, i n t h e D i s t r i c t Court of Lincoln County by t h e Honorable Robert M. H o l t e r . I n 1969 Olson w a s charged with two counts of rape. H e gave n o t i c e of i n t e n t t o r e l y on t h e defense of i n s a n i t y . The c a s e was submitted t o t h e jury and a g u i l t y v e r d i c t was r e t u r n e d . On appeal t h e judgments w e r e reversed and a new t r i a l was ordered. S t a t e v. Olson (1971), 156 Mont. 339, 480 P.2d 822. Before t h e second t r i a l t h e judge found Olson " n o t g u i l t y " by reason of i n s a n i t y and ordered him committed t o t h e S t a t e H o s p i t a l on March 18, 1971. The committment o r d e r r e f e r r e d t o t h e d e p o s i t i o n s and testimony of D r s . I4iguel F. Gracia and Robert A. Wetzler, q u a l i f i e d p s y c h i a t r i s t s who had examined Olson. I n 1972 Olson walked away from t h e Warm Springs f a c i l - i t y and went t o Great F a l l s . From 1972 u n t i l 1977 Olson l i v e d i n G r e a t F a l l s w i t h h i s wife and family. H e obtained a job, had a telephone d i r e c t o r y l i s t i n g , and a d r i v e r ' s l i c e n s e a l l under h i s own name. H e joined both a l o c a l union and t h e l o c a l chapter of t h e Moose Lodge, a g a i n using his own name. On February 17, 1977, an o r d e r was e n t e r e d f o r t h e i s s u a n c e of a bench warrant d i r e c t i n g : "IT I S HEREBY ORDERED: "That Bench Warrant i s s u e f o r t h e arrest of t h e captioned Defendant, Raymond LeRoy Olson, and t h a t he f o r t h w i t h be r e t u r n e d t o t h i s Court - f o r purposes of determining whether he should be r e l e a s e d from - custody -- of Warm s p r i n g s S t a t e ~ o s z t a l without B a i l . " (Emphasis added. ) Olson's period of residence i n Great F a l l s was n o t completely without i n c i d e n t . I n September o r October of 1976 Olson unexpectedly appeared i n t h e bedroom of one Karla White a t about 2:00 o r 3:00 a.m. while s h e was sleeping. Olson l e f t when t o l d t o , although, a s t h e S t a t e contends, t h e presence of White's male companion may have hastened h i s retreat. A year later on September 1, 1977, Olson a s s a u l t e d t h e same woman i n t h e e a r l y morning hours. I n t h i s a t t a c k , Olson grabbed White, knocked h e r down, and shoved h e r f a c e i n t o t h e concrete, t h r e a t e n i n g t o break h e r neck. Olson apparently d i d t r y t o snap White's neck b e f o r e dragging h e r o f f i n t o a vacant f i e l d . Although t h e r e was no sexual a s s a u l t , Olson's continuing p h y s i c a l a s s a u l t was i n t e r r u p t e d o n l y by t h e a r r i v a l of t h e p o l i c e . Olson claims he was u p s e t over White's treatment of h e r ex-husband, 3 l s o n ' s f r i e n d . This i n c i d e n t l e d t o Olson's a r r e s t and being charged with misdemeanor a s s a u l t and unlawful r e s t r a i n t . The charges w e r e u l t i m a t e l y dismissed. Although t h e order of February 17, 1977, d i r e c t e d t h a t t h e r e be a hearing t o determine Olson's s t a t u s and although he was taken t o K a l i s p e l l and held i n j a i l f o r a t least a week, t h e r e was no hearing and he was r e t u r n e d summarily t o t h e S t a t e Hospital. On December 27, 1977, Olson p e t i t i o n e d f o r r e l e a s e . H e was subsequently examined by D r . Hamilton C. Pierce and D r . George Gelernter, both q u a l i f i e d p s y c h i a t r i s t s , whose re- p o r t s w e r e introduced a s e x h i b i t s a t t h e hearing on August 3, 1978. I n a d d i t i o n t o t h e s e e v a l u a t i o n s , Olson and h i s wife t e s t i f i e d and 35 letters of personal reference from Olson's supervisors, co-workers, and f r i e n d s were introduced a s e x h i b i t s without objection. F i n a l l y , an i n t e r i m s o c i a l h i s t o r y and a mental s t a t u s examination r e p o r t and evalua- t i o n prepared during Olson's confinement a t Warm Springs i n l a t e 1977 w e r e submitted on Olson's b e h a l f . The substance o f t h e s e r e p o r t s a s w e l l as o f t h e e v a l u a t i o n s by t h e two p r i v a t e p s y c h i a t r i s t s was t h a t Olson s u f f e r e d no mental i l l n e s s and should be r e l e a s e d . The S t a t e , i n opposing t h e 2 e t i t i o n f o r r e l e a s e , i n t r o - duced p a r t s of t h e p s y c h i a t r i c evidence from t h e 1970 r a p e t r i a l , s p e c i f i c a l l y t h e testimony of D r . Wetzler, along with testimony from Karla White, t h e woman Olson a l l e g e d l y a t - tacked i n 1977. The District Court denied Olson's p e t i t i o n c i t i n g i n i t s f i n d i n g s t h e testimony of D r . Wetzler i n 1970 t h a t Olson had a "grave d e f e c t , a grave i l l n e s s , " t h a t t h e two i n c i - d e n t s involving Karla White were s i m i l a r t o t h e o r i g i n a l r a p e s , and t h a t Olson had received no p s y c h i a t r i c treatment s i n c e 1972. The f i n a l f i n d i n g and conclusion of t h e D i s - t r i c t Court were: "5. That t h i s Defendant i s now s u f f e r i n g from a mental d i s e a s e o r d e f e c t which renders him unable t o c o n t r o l himself a t t i m e s and which r e s u l t s i n h i s being a danger t o t h e person of o t h e r s . "[Conclusions of Law] That t h e P e t i t i o n of t h e Defendant f o r r e l e a s e from t h e Montana S t a t e Nos- p i t a 1 should be denied by reason of t h e f a c t t h a t t h i s Defendant remains a danger t o t h e person of o t h e r s . " Olson w a s ordered returned t o W a r m Springs S t a t e Hos- p i t a l . From t h e d e n i a l of h i s p e t i t i o n , Olson appeals. Olson broadly a s s e r t s t h a t t h e i s s u e f o r review is whether t h e D i s t r i c t Court e r r e d i n denying h i s p e t i t i o n . The S t a t e breaks t h i s i s s u e down and a d d r e s s e s t h e p o i n t s Olson pursues: 1. Whether t h e t r a n s c r i p t of D r . W e t z l e r ' s testimony from t h e p r i o r t r i a l was admissible. 2 . Whether t h e District Court could r e l y on t h e testi- mony of t h e woman Olson a l l e g e d l y a t t a c k e d . 3. Whether t h e evidence was s u f f i c i e n t t o support t h e District C o u r t ' s judgment. By t h i s appeal from t h e d e n i a l of h i s p e t i t i o n f o r release, Olson s p e c i f i c a l l y c h a l l e n g e s t h e u s e of t h e testi- mony of two w i t n e s s e s by t h e lower c o u r t : (1) t h e t r a n - s c r i b e d testimony of D r . Wetzler a s given i n Olson's 1970 r a p e t r i a l ; and ( 2 ) t h e testimony of Karla White a s t o two i n c i d e n t s involving h e r and Olson. W e w i l l consider t h e testimony of each s e p a r a t e l y . Testimony of -- D r . Wetzler. This testimony a s presented t o t h e D i s t r i c t Court by t h e S t a t e c o n s i s t e d e x c l u s i v e l y of t h e t r a n s c r i p t of W e t z l e r ' s testimony a t Olson's t r i a l i n 1970. This testimony was based on W e t z l e r ' s two-hour exam- i n a t i o n of Olson i n January 1970. W e t z l e r has n e i t h e r examined Olson s i n c e 1970, f i l e d any s o r t of updated evalu- a t i o n , nor d i d he appear a t t h e hearing on Olson's p e t i t i o n . I n s h o r t , t h i s t r a n s c r i b e d testimony r e l a t e s t o Olson's mental c o n d i t i o n a s of January 1970. Olson p e t i t i o n e d f o r r e l e a s e under s e c t i o n 95-508, R.C.M. 1947, now s e c t i o n s 46-14-301 through -304 MCA, which e s t a b l i s h e s t h e procedure f o r commitment t o and r e l e a s e from t h e S t a t e H o s p i t a l a t Warm Springs following a c q u i t t a l on t h e ground of mental d i s e a s e o r d e f e c t . The p r o v i s i o n s of t h a t s e c t i o n c l e a r l y c a l l f o r a determination of t h e mental c o n d i t i o n of a committed person a s of t h e time of t h e p e t i - t i o n f o r release. E.g., s e c t i o n 95-508(1) (hearing " t o determine h i s p r e s e n t mental c o n d i t i o n " ) , ( 2 ) ( r e q u i r i n g t h e appointment of two p s y c h i a t r i s t s t o examine t h e person a f t e r t h e f i l i n g of a p e t i t i o n ) , now s e c t i o n s 46-14-301(2) and 46- 14-302(2) MCA. Accord, Rouse v. Cameron (D.C. C i r . 1966), 373 F.2d 451, 461 n. 43; S t a t e v. Cuvelier (1978), 175 Conn. 100, 394 A.2d 185, 189; S t a t e v . F i e l d s (1978), 77 N . J . 282, 390 A.2d 574, 585; People v. G i l e s (Colo. 1976), 557 P.2d 408, 411-12. While perhaps t h i s Court has n o t decided t h e e x a c t q u e s t i o n presented by Olson, we have decided t h a t evidence of mental c o n d i t i o n a s of s e v e r a l y e a r s b e f o r e t h e comvis- s i o n of a crime, S t a t e v. Nee1 (1978), Mon t . , 580 P.2d 456, 459, 35 St.Rep. 833, 837, o r as of s e v e r a l y e a r s a f t e r t h e commission of a crime, S t a t e ex rel. Main v . D i s t r i c t Court (1974), 164 Mont. 501, 508-09, 525 P.2d 28, 32, i s n o t s u f f i c i e n t evidence of mental c o n d i t i o n a t t h e t i m e of t h e commission of a c r i m e . The r e v e r s e i s a l s o t r u e : evidence of mental c o n d i t i o n a t t h e t i m e of t h e com- mission of a crime i s n o t s u f f i c i e n t evidence of mental c o n d i t i o n some e i g h t y e a r s l a t e r upon p e t i t i o n f o r r e l e a s e . Powell v. F l o r i d a ( 5 t h C i r . 1 9 7 8 ) , 579 F.2d 324, 330. W e a r e r e l u c t a n t , however, t o hold t h a t testimony of mental c o n d i t i o n a t t h e commission of a crime is always i n a d m i s s i b l e on t h e q u e s t i o n of mental c o n d i t i o n a t some p o i n t later upon p e t i t i o n f o r r e l e a s e . For example, under s e c t i o n 95-508(1), now s e c t i o n 46-14-301(2) MCA, a person committed t o Warm Springs S t a t e H o s p i t a l following a c q u i t t a l i s e n t i t l e d t o a hearing w i t h i n 50 days of confinement t o determine h i s p r e s e n t mental condition. I n such cases, t h e earlier testimony may be h e l p f u l t o t h e D i s t r i c t Court i n evaluating t h e a c q u i t t e e ' s mental h e a l t h . People v. Turner (1978), 62 Ill.App.3d 782, 379 N.E.2d 377, 379-80. A s t h e i n t e r v a l between t h e o r i g i n a l evaluation and t h e subsequent p e t i t i o n f o r r e l e a s e lengthens, however, t h i s e a r l i e r testi- mony l o s e s i t s probative value. I n t h i s case, where e i g h t y e a r s elapsed between t h e o r i g i n a l evaluation and t h e sub- sequent p e t i t i o n f o r r e l e a s e , with no intervening examina- t i o n by t h e witness, t h e probative value of t h e e a r l i e r testimony of t h e witness i n judging t h e p r e s e n t mental condition of Olson i s questionable. Our conclusion i s strengthened by t h e o t h e r testimony and evidence i n t h e record before t h e D i s t r i c t Court. Included i n t h i s evidence w e r e evaluations of Olson by o t h e r p s y c h i a t r i s t s o r psychologists. These evaluations, contrary t o t h a t of D r . Wetzler, were based on examinations of Olson i n l a t e 1977 and e a r l y 1978 a f t e r h i s r e t u r n t o Warn Springs. The l a t e r evaluations a r e unanimous i n t h e i r findings t h a t Olson no longer s u f f e r s from any mental d i s e a s e o r d e f e c t and t h a t he should be released from confinement a t Warm Springs. Thus, i n t h e words of D r . Hamilton Pierce: " I n summary, I see no evidence of mental i l l n e s s i n t h i s p a t i e n t and I doubt i f he ever has had mental i l l n e s s t o t h e degree t h a t could be considered a cause of h i s a n t i s o c i a l a c t i v i t i e s . H e i s an i m - p u l s i v e person and he has r e l a t i v e l y weak c o n t r o l s which a r e weakened more by h i s tendency t o drink. I do not s e e him a s mentally ill now o r i n t h e p a s t . " D r . George Gelernter, a l s o of Great F a l l s , concluded: "At t h i s p o i n t , I f i n d no evidence of s e r i o u s emo- t i o n a l i l l n e s s . I n c a r c e r a t i o n a t t h e S t a t e Hospital would seem t o s e r v e no purpose o t h e r than custo- d i a l , s i n c e t h e r e i s no 'treatment' f a c i l i t y t h e r e t h a t would be meaningful t o him. I f t h e l e g a l as- p e c t s of h i s charges required i n c a r c e r a t i o n , it would s e e m more appropriate a t t h e S t a t e Prison i n D e e r Lodge i f t h e purpose i s purely i n c a r c e r a t i o n . " F i n a l l y , t h e D i s t r i c t Court had before it a packet of evaluations prepared by t h e p s y c h i a t r i c s t a f f a t Warm Springs. I n t h e s e evaluations, t h e examining s o c i a l worker, "question[ed] t h e appropriateness of [Olson's] c u r r e n t incarceration." The discharge summary signed by D r . Harry Xanthopoulos and o t h e r s s t a t e s : " S i g n i f i c a n t Findings: " I t was t h e f i n d i n g s of t h e Forensic Region team t h a t he was s u f f e r i n g from no mental d i s o r d e r and t h a t he was n o t appropriately i n t h e h o s p i t a l . . ." The f i n a l diagnosis of Olson by t h e s t a f f a t t h e S t a t e Hospital s t a t e s t h a t he has no mental d i s o r d e r . Comparison of t h e p s y c h i a t r i c testimony presented by t h e S t a t e with t h a t presented by Olson leaves no p o s s i b l e conclusion o t h e r than t h a t Olson has e s t a b l i s h e d by a pre- ponderance of t h e p s y c h i a t r i c evidence t h a t he i s e n t i t l e d t o be released. Section 95-508(3), R.C.M. 1947, now s e c t i o n 46-14-302(4) MCA. W e t h e r e f o r e proceed t o an examination of t h e testimony of Karla White. Testimony of - Karla White. Unlike t h e testimony of D r . Wetzler, t h e testimony of Karla White is n o t s u b j e c t t o a t t a c k on t h e b a s i s t h a t it i s n o t timely o r r e l e v a n t . Her testimony concerns i n c i d e n t s involving Olson which occurred w i t h i n about f i f t e e n months of h i s f i l i n g a p e t i t i o n f o r r e l e a s e . One of t h e s e i n c i d e n t s r e s u l t e d i n Olson's a r r e s t and r e t u r n t o Warm Springs. The testimony is undoubtedly damaging t o Olson's case. See, People v. G i l e s (Colo. 1976), 557 P.2d 408, 4 1 2 . Given our conclusion a s t o t h e c u r r e n t value of D r . Wetzler's 1970 testimony, however, t h e question becomes whether White's testimony, standing alone, j u s t i f i e s Olson's continued confinement a t Warm Springs. W e conclude t h a t it does not. White, a s noted e a r l i e r , t e s t i f i e d concerning two separate i n c i d e n t s involving Olson which occurred a year a p a r t . I n t h e f i r s t i n c i d e n t , Olson appeared uninvited i n White's bedroom i n t h e e a r l y morning. H e l a t e r explained he had been trying t o rouse White f o r about an hour and when he f a i l e d , he c a l l e d her mother who supposedly asked him t o check on her. Olson d i d leave when t o l d t o by White. The circumstances of t h i s incident and t h e manner of Olson's be- havior possesses only a s u p e r f i c i a l s i m i l a r i t y t o h i s sexual a t t a c k s i n 1970. The second i n c i d e n t t o which White t e s t i f i e d was t h e t i m e t h a t Olson suddenly appeared a s White was g e t t i n g o u t of her c a r , knocked her down, and pushed her face i n t o t h e concrete before dragging her t o a nearby vacant f i e l d where he continued t o p r e s s her face i n t o t h e g r a s s . White's recount of what Olson s a i d t o her during t h i s a t t a c k i s illuminating: "Q. What happened next? A. W e more o r less j u s t were talking. H e asked m e i f I knew why he w a s doing t h i s t o m e , and i f I wanted t o know, and I s a i d , 'Yes, I do.' ---- He s a i d he was doing -- it f o r m y - sister. " Q . What happened next? A. ----- He t o l d me t h a t it was not m e he was a f t e r anymore; t h a t it was m l ----- husband, and t h a t I should g e t up and run along towards t h e road and n o t t u r n around and j u s t run. " (Emphasis added. ) Again, t h e r e was no sexual a s s a u l t o r conduct of any kind. This incident a l s o i s very d i s s i m i l a r t o t h e e a r l i e r sexual a t t a c k s and apparently had f o r i t s motive not sexual a s s a u l t b u t revenge f o r a f r i e n d apparently wronged. Cf. S t a t e v. Hesse (1977), 117 N.H. 329, 373 A.2d 345, 347 (defendant, acquitted of a s s a u l t on a black man because of i n s a n i t y , assaulted a black man a f t e r escape from h o s p i t a l ) . Olson w a s charged only with simple a s s a u l t and unlawful r e s t r a i n t , both misdemeanors. Both charges were eventually dismissed. White's testimony a s w e l l a s Olson's s p e c i a l s t a t u s a t t h e t i m e of t h e a t t a c k leads us t o review t h e e n t i r e s t a t u - t o r y scheme f o r t h e commitment and r e l e a s e of persons ac- q u i t t e d of crime because of mental d i s e a s e o r defect. Olson's s p e c i a l s t a t u s of which we speak i s t h a t of an i n s a n i t y a c q u i t t e e on - de f a c t o self-imposed "probation" from Warm Springs f o r a period of over f i v e years from t h e t i m e he walked away from t h e S t a t e Hospital i n August 1972, u n t i l h i s a r r e s t on September 1, 1977. Our review i n i t i a l l y r e v e a l s a c o n f l i c t i n t h e s e s t a t - u t e s as t o whether criminal o r a n t i s o c i a l behavior alone warrants confinement a t Warm Springs. The Revised Commis- sion Comment t o s e c t i o n 95-508, R.C.M. 1947, governing r e l e a s e s t a t e s : ". . . It seems preferable t o make dangerousness t h e c r i t e r i o n f o r continued custody r a t h e r than t o provide t h a t t h e committed person may be discharged o r released when restored t o s a n i t y a s defined by t h e mental hygiene laws. Although h i s mental d i s - ease may have g r e a t l y improved, such a person may s t i l l be dangerous because of f a c t o r s i n h i s per- s o n a l i t y and background other than mental disease. Also, such a standard provides a possible means f o r t h e control of t h e occasional defendant who successfully feiqned mental disease t o gain an a c q u i t t a l . - The prescribed procedure p r o t e c t s both t h e public and t h e defendant by providing -- -- f o r an independent p s y c h i a t r i c examination of -- t h e defendant before a c t i o n on -- - a p p l i c a t i o n - f o r r e l e a s e , and then e i t h e r f o r summary favor- a b l e a c t i o n on t h e application o r a f u l l hear- ing." (Emphasis added. ) This comment, a s w e l l as t h e language of section 95-508 itself,would seem t o i n d i c a t e t h a t t h e m e r e f a c t of Olson's criminal a s s a u l t on White i s reason enough t o warrant h i s continued confinement. The d e f i n i t i o n of mental d i s e a s e o r d e f e c t excluding r e s p o n s i b i l i t y contained i n s e c t i o n 95-501, R.C.M. 1947, now s e c t i o n 46-14-101(2) MCA, i n d i c a t e s o t h e r - w i s e : " ( 2 ) A s used i n t h i s c h a p t e r , t h e t e r m 'mental d i s e a s e o r d e f e c t ' does n o t i n c l u d e an abnormality manifested only by repeated c r i m i n a l o r other- w i s e a n t i s o c i a l conduct." The c o n f l i c t between t h e s e p r o v i s i o n s i s more apparent than r e a l , however. Obviously, t h e i n t e n t of t h e s e s t a t u t e s i s t o d e a l with a n exceptional c l a s s of people who, because of t h e i r mental c o n d i t i o n , a r e n o t t o be h e l d c r i m i n a l l y l i a b l e f o r a c t s which otherwise would b e considered c r i m i n a l . S t a t e v. Taylor (1971), 158 Mont. 323, 331, 491 P.2d 877, 881. The c r u c i a l c r i t e r i o n f o r i n c l u s i o n i n t h i s c l a s s i s possession of a mental d i s e a s e o r d e f e c t excluding responsi- b i l i t y . S e c t i o n 95-501, R.C.M. 1947, now s e c t i o n 46-14-101 MCA; Powell v. F l o r i d a ( 5 t h C i r . 1978), 579 F.2d 324, 332. C l e a r l y , under t h i s s t a t u t e , t h e m e r e commission of a crimi- n a l a c t does n o t p l a c e t h e a c t o r i n t h i s exceptional class; n e i t h e r should t h e mere commission of a c r i m i n a l a c t by a person once deemed t o be a member of t h i s c l a s s n e c e s s a r i l y b e construed a s evidence of h i s continued i n c l u s i o n i n t h i s c l a s s . I n Rouse v. Cameron (D.C. C i r . 1966), 373 F.2d 451, t h e Federal Court of Appeals was faced with a s i m i l a r s i t u a t i o n and a s i m i l a r s t a t u t o r y scheme. That c o u r t concluded: ". . . A person i n v o l u n t a r i l y committed and con- f i n e d under D.C.Code § 24-301 i s e n t i t l e d t o re- l e a s e i f h e has 'recovered h i s s a n i t y and w i l l n o t i n t h e reasonable f u t u r e be dangerous t o himself o r o t h e r s . ' That t h e 'person s o confined has some dangerous p r o p e n s i t i e s does n o t , standing a l o n e , warrant h i s continued confinement i n a government mental i n s t i t u t i o n under S 24-301 D.C.Code. - The . . . must -- b e r e l a t e d to o r a r i s e o u t o f a n abnormal mental c o n d i t i o n . ' " - --- 373 F.2d a t 459. (Emphasis added.) Accord, S t a t e v. Cuvelier (1978), 175 Conn. 100, 394 A.2d I n o t h e r words, t h e m e r e f a c t t h a t a person may have once been a c q u i t t e d on t h e b a s i s of i n s a n i t y does n o t f o r - ever a f t e r i n s u l a t e him from t h e s a n c t i o n s imposed under t h e c r i m i n a l j u s t i c e system i n t h e e v e n t of f u t u r e c r i m i n a l o r a n t i s o c i a l conduct, a b s e n t some evidence t h a t h i s f u t u r e conduct i s somehow r e l a t e d t o h i s mental d i s e a s e o r d e f e c t . People v. Dublin (1978), 63 111.App.3d 387, 380 N.E.2d 311 35; L e e v. Kolb (W.D. N.Y. 1978), 449 F.Supp. 1368, 1382. I n s h o r t , a sexual psychopath should n o t be a b l e t o r o b a bank, f o r example, and be automatically immune from c r i m i n a l punishment by v i r t u e of h i s e a r l i e r diagnosed i n s a n i t y . Neither should t h e f a c t t h a t he robbed t h e bank a u t o m a t i c a l l y b e taken a s evidence of h i s continuing sexual psychopathy. There must be some demonstrated r e l a t i o n between t h e two types of behavior. I n t h i s regard, t h e following d i s c u s s i o n i n Goldstein & Katz, Dangerousness - and Mental I l l n e s s , 70 Yale L . J . 225, 237-38 (1960) i s informative: ". . . what d i s p o s i t i o n i s t o be made of those a c q u i t t e d by reason of i n s a n i t y who remain dan- gerous--whatever meaning w i l l be given t o t h a t word--but who have 'recovered s a n i t y ' a t l e a s t t o t h e e x t e n t t h a t they could no longer be held had they been c i v i l l y committed? Continued de- t e n t i o n would b e t h e s t a t u t o r y answer. -- But t o hold a p a t i e n t s o l e l y f o r p o t e n t i a l dangerous- n e s s would snap t h e t h i n l i n e between d e t e n t i o n f o r therapy d e t e n t i o n - f o r r e t r i b u t i o n . . . Not -- t o r e l e a s e such persons would i n e f f e c t be t o equate an undefined ' d a n g e r o u s n ~ s ' with an - -- undefined mental i l l n e s s . Since t h e r e can be no such equation, a d e c i s i o n n o t t o r e l e a s e s o l e l y on t h e b a s i s of p o t e n t i a l dangerousness would be l i k e a d e c i s i o n n o t t o discharge a t u b e r c u l a r patient--though no longer infectious--because he is a p o t e n t i a l k i l l e r o r check-forger . . ." (Em- p h a s i s added.) Evidence t h a t Olson's a t t a c k on White w a s r e l a t e d t o h i s mental d i s o r d e r diagnosed i n 1970 i s lacking i n t h i s case. I n f a c t , had Olson f i r s t come t o t h e a t t e n t i o n of t h e p o l i c e a s a r e s u l t of h i s a t t a c k on White and had he a t t h a t t i m e chosen t o r e l y on t h e defense of i n s a n i t y , t h e defendant would have been unsuccessful because everyone who examined him found no evidence of mental d i s o r d e r . Instead t h e evidence is t o t h e opposite e f f e c t . A l l of t h e p s y c h i a t r i c and psychological evaluations of Olson performed a f t e r h i s recommitment t o Warm Springs were made with f u l l knowledge of h i s a t t a c k on White. Even with t h i s knowledge, t h e s e e x p e r t s determined t h a t Olson suffered no mental d i s o r d e r a s of t h e time of t h e i r examination. I n t h i s connection, t h e provisions of s e c t i o n 95- 5 0 8 ( 4 ) , R.C.M. 1947, now s e c t i o n 46-14-304 MCA, a r e r e l e - vant: " ( 4 ) I f , within f i v e ( 5 ) years a f t e r t h e c o n d i t i o n a l r e l e a s e of a committed person, t h e c o u r t determines, a f t e r hearing evidence, t h a t t h e conditions of re- l e a s e have n o t been f u l f i l l e d and t h a t f o r t h e s a f e t y of t h e person o r f o r t h e s a f e t y of o t h e r s h i s con- d i t i o n a l r e l e a s e should be revoked, t h e c o u r t s h a l l immediately order him t o be recommitted t o t h e super- intendent of Warm Springs s t a t e h o s p i t a l , s u b j e c t t o discharge o r r e l e a s e only i n accordance with t h e pro- cedure prescribed above i n subsections ( 2 ) and ( 3 ) . " A s noted above, Olson's s t a t u s a t t h e time of h i s a t t a c k on White on September 1, 1977, was unique. H e had walked away from Warm Springs i n August 1972 and had lived i n Great F a l l s f o r t h e next f i v e years. During t h i s period, Olson found a job, joined a union, joined t h e l o c a l Moose Lodge, and apparently e s t a b l i s h e d a more compatible, under- standing r e l a t i o n s h i 2 with h i s wife. The degree t o which Olson f i t i n t o t h e community i s a t t e s t e d t o by t h e 35 per- sonal reference letters from h i s employers, f r i e n d s , and mworkers admitted i n t o evidence a t t h e hearing. See, H i l l v. S t a t e (Fla. App. 1978), 358 So.2d 190, 205. I n a very r e a l sense, then, h i s s t a t u s was t h a t of a c o n d i t i o n a l , a l b e i t self-determined, r e l e a s e e , t h e condition frankly being t h a t he avoid c o n t a c t with t h e law. For t h e five-year period s p e c i f i e d i n s e c t i o n 95-508 ( 4 ) , Olson l i v e d up t o t h i s condition. W e recognize, of course, t h a t t h i s s e c t i o n i s n o t d i r e c t l y a p p l i c a b l e t o a person i n Olson's s t a t u s . Never- t h e l e s s , t h e i n t e n t of t h e l e g i s l a t u r e i n enacting t h i s s e c t i o n was t o c r e a t e a t i m e l i m i t beyond which t h e S t a t e cannot automatically revoke t h e r e l e a s e of a person once committed t o Warm Springs and subsequently returned t o t h e community. Olson d i d s u c c e s s f u l l y l i v e i n Great F a l l s , under h i s self-imposed conditions, f o r longer than t h i s s t a t u t o r y time l i m i t . To t a k e him from h i s s u c c e s s f u l l y r e c r e a t e d l i f e and r e t u r n him t o an i n d e f i n i t e confinement i n Warm Springs on t h e s o l e b a s i s of a misdemeanor a s s a u l t charge carrying a maximum s i x month sentence offends t h i s i n t e n t . Therefore, w e think it was incumbent upon t h e S t a t e a t t h i s l a t e d a t e t o have come forward with stronger evi- dence than w a s presented t o show t h a t Olson continues t o s u f f e r from a mental d i s o r d e r r e q u i r i n g h i s renewed con- finement a t Warm Springs. The S t a t e apparently assumed t h a t it only had t o show t h a t Olson a t one time had a mental d i s e a s e o r d e f e c t and t h a t more r e c e n t l y he had committed an a n t i s o c i a l a c t with- o u t having t o show a r e l a t i o n s h i p between t h e two. This was an erroneous assumption. O n t h e evidence presented thus f a r , Olson has shown by a preponderance of t h e evidence he i s e n t i t l e d t o h i s r e l e a s e . It i s n o t t h e f u n c t i o n of t h i s Court, however, t o d i r e c t t h e release of persons committed t o Warm Springs S t a t e Hospital; t h a t power belongs t o t h e D i s t r i c t Court. S e c t i o n 95-508, R.C.M. 1947, now s e c t i o n s 46-14-301 through -304 MCA; Application of Zion (1978), Mont. , 585 P.2d 1084, 1090, 35 St.Rep. 1475, 1482. Given t h e s e r i o u s - n e s s of t h e o f f e n s e s f o r which Olson was o r i g i n a l l y com- m i t t e d , t h e f a c t t h a t he has undergone no p s y c h i a t r i c t r e a t - ment s i n c e t h e t i m e of h i s " r e l e a s e " from t h e h o s p i t a l , t h e two i n c i d e n t s involving Karla White, and t h e f a c t t h a t t h e S t a t e proceeded on an erroneous assumption a s t o i t s burden of proof i n t h e previous hearing, w e conclude t h a t t h i s cause must b e remanded f o r f u t h e r testimony on t h e s p e c i f i c q u e s t i o n of whether Olson's a n t i s o c i a l behavior a s i l l u s - t r a t e d i n t h e i n c i d e n t s involving Karla White have any r e l a t i o n s h i p t o any mental d i s e a s e o r d e f e c t c u r r e n t l y s u f f e r e d by Olson. People v. Dublin (1978), 63 Ill.App.3d 387, 380 N.E.2d 31, 35; Application of $filler (1974), 46 A.D.2d 177, 362 N.Y.S.2d 628, 633-34. The p o i n t t o be determined by t h e District Court i s whether Olson's p r e s e n t "dangerousness," i f any, i s r e l a t e d t o o r growing o u t of t h e abnormal mental c o n d i t i o n he e x h i b i t e d i n 1970. The m e r e f a c t t h a t Olson may have a tendency towards a n t i s o c i a l behavior i s n o t s u f f i c i e n t t o warrant h i s con- t i n u e d confinement i n Warm Springs. See, H a r r i s v . United S t a t e s (D.C. 1976), 356 A.2d 630, 632. I f Olson does n o t s u f f e r from a mental d i s e a s e o r d e f e c t which causes t h i s behavior, t h e r e i s no reason f o r continuing t o i n c l u d e him i n t h e exceptional c l a s s of people d i s c u s s e d e a r l i e r . Baxstrom v . Herold (1966), 383 U.S. 107, 114-15, 86 S.Ct. 760, 764-65, 1 5 L.Ed.2d 620, 625-26. The o r d i n a r y punish- ments of t h e c r i m i n a l j u s t i c e system are adequate t o handle Olson's f u t u r e c r i m i n a l conduct, i n such circumstances. W e a l s o p o i n t o u t t h a t t h e District Court i s n o t l i m i t e d t o e i t h e r recommit Olson t o Warm Springs o r r e l e a s e him unconditionally. S e c t i o n 95-508 g i v e s t h e District Court a u t h o r i t y t o r e l e a s e c o n d i t i o n a l l y persons committed t o t h e S t a t e H o s p i t a l by p l a c i n g such c o n d i t i o n s a s it deems neces- s a r y on t h e release. But see, Application of Zion (1978), Mont. , 585 P.2d 1084, 35 St.Rep. 1475. On remand, t h e D i s t r i c t Court should n o t f o r e c l o s e t h e p o s s i b i l i t y of c o n d i t i o n a l r e l e a s e a s a proper means of balancing Olson's i n t e r e s t i n l i b e r t y a g a i n s t s o c i e t y ' s i n t e r e s t i n p r o t e c t i o n from p o t e n t i a l l y dangerous persons. Application of Zion, 585 P.2d a t 1087, 35 St.Rep. a t 1478; H i l l v. S t a t e , 358 So.2d a t 209. The judgment of t h e D i s t r i c t Court denying Olson's p e t i t i o n f o r r e l e a s e i s reversed. The cause i s 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. W e concur: J u s t i c e s 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 . I am aware of t h e d i f f i c u l t problem faced by t h e majority, and perhaps t h e s o l u t i o n presented i s t h e only one a v a i l a b l e . However, t h e time has come t o focus on t h e absurd p o s i t i o n s t h a t c o u r t s a r e now p u t i n when i n t e r - p r e t i n g t h e mental condition of defendants i n t r y i n g t o determine t h e i r criminal l i a b i l i t y . Appellant, a s noted i n t h e opinion of t h e majority and i n a p r i o r case before t h i s Court, i s a known r a p i s t . P r i o r t o , and noted i n our opinion i n S t a t e v. Olson (1971), 156 Mont. 339, 480 P.2d 822, he w a s charged with an a s s a u l t i n a county adjacent t o Lincoln County and allowed t o plead t o a lesser offense. The testimony of defense p s y c h i a t r i s t s i n t h e above case i n d i c a t e d t h a t he w a s e n t i t l e d t o t h e provi- s i o n s of s e c t i o n s 46-14-101 through 46-14-304 MCA (formerly s e c t i o n s 95-501 through 95-509, R.C.M. 1947). D r . Wetzler i n d i c a t e d t h a t he was a dangerous person who had: ". . . a grave d e f e c t , a grave i l l n e s s , a s e r i o u s problem of h i s i n a b i l i t y t o accept h i s own sexual f e e l i n g s any more than you o r I can perhaps accept o r c o n t r o l hunger . . . I cannot p r e d i c t t h e outlook. I would say it would be a grim and guarded one . . . Because of t h e long d u r a t i o n of h i s i l l n e s s and p a r t i c u l a r l y a s w e a r e again d e a l i n g with a p e r s o n a l i t i e s weakness, a p e r s o n a l i t y d e f e c t . . . Because he i s dangerous t o be a t l a r g e . H e has no c o n t r o l a t times. This is what w e are t a l k i n g about, h i s c o n t r o l , h i s d e f e c t , h i s i l l n e s s . I f he has shown t h e s e manifesta- t i o n s s i n c e 12, 1 4 y e a r s of age, and he i s now what, 27, 28, p l u s t h e evidence of t h e Min- nesota Multiphasic T e s t , w e have conclusive proof t h a t t h i s man needs t o be confined." With t h i s testimony before t h e c o u r t and a v a i l a b l e later f o r consideration by attending p s y c h i a t r i s t s , and with l i t t l e o r no treatment a t t h e S t a t e Hospital during t h e year he spent t h e r e , w e now have testimony before us t h a t he should have never been s e n t t o t h e S t a t e Hospital. I f t h a t i s t r u e , fraud was perpetrated on t h e c o u r t when it found a p p e l l a n t not g u i l t y by reason of i n s a n i t y . Had t h e t r i a l c o u r t not accepted t h i s testimony, a p p e l l a n t would have faced r e t r i a l and could have been convicted and sentenced t o a long t e r m i n t h e S t a t e Prison--from which escape i s con- siderably more d i f f i c u l t than it i s from t h e S t a t e Hospital. I n addition I am disturbed t h a t a p a t i e n t a t t h e S t a t e Hospital "designated a s dangerous" can walk away from t h a t i n s t i t u t i o n , with no n o t i f i c a t i o n t o t h e committing author- i t i e s , o r t o any of t h e law enforcement a u t h o r i t i e s i n t h e S t a t e . The r e s u l t i s t h a t w e have such a person a t l a r g e i n the S t a t e f o r a five-year period. Somewhere i n t h i s case, we have a complete breakdown of r e s p o n s i b i l i t y t o t h e people of t h i s S t a t e . They a r e e n t i t l e d t o more protection-- p a r t i c u l a r l y t h e women of t h i s State--than has been exhi- b i t e d here. F a i l u r e on t h e p a r t of t h e S t a t e Hospital a u t h o r i t i e s t o n o t i f y law enforcement o f f i c i a l s evidences, i n m y opinion, gross negligence and a r e c k l e s s disregard f o r t h e r i g h t s and safeguard of t h e public. A s a r e s u l t of such a c t i o n s by s t a t e o f f i c i a l s i n o t h e r j u r i s d i c t i o n s , persons injured by such inmates, o r t h e i r survivors, a r e seeking r e d r e s s a g a i n s t t h e s t a t e f o r i n j u r i e s done by t h e i n m a t e while a t large. 2 Restatement of Torts 2d gives guidance on t h e i s s u e of t h e duty owed any members of boards o r t h e responsible o f f i c i a l s a t i n s t i t u t i o n s who r e l e a s e such persons. Section 319, "Duty of Those i n Charge of Person Having Dangerous Propensities" s t a t e s : "One who takes charge of a t h i r d person whom he knows o r should know t o be l i k e l y t o cause bodily harm t o o t h e r s i f n o t controlled i s under a duty t o e x e r c i s e reasonable c a r e t o c o n t r o l t h e t h i r d person t o prevent him from doing such harm." The i l l u s t r a t i o n s t o Section 319 involve t h e negligent r e l e a s e of an i n f e c t i o u s p a t i e n t from a p r i v a t e h o s p i t a l with an i n f e c t i o u s d i s e a s e (based, i n t e r a l i a , on Missouri, K & T. R. Co. v. Wood (1902), 95 Tex. 223, 66 S.W. 449) and t h e escape of a homicidal maniac p a t i e n t due t o t h e negli- gence of guards employed by a sanitarium (based, i n t e r a l i a , on Austin W. Jones Co. v. S t a t e (1923), 1 2 2 M e . 2 1 4 , 119 A. 577). The S t a t e a s s e r t s it used Wetzler's 1970 testimony because Wetzler was o u t of s t a t e , r e s i d i n g i n t h e S t a t e of Washington, where he has h i s p r a c t i c e , and w a s t h e r e f o r e n o t a v a i l a b l e t o t e s t i f y . I n f a c t , D r . Wetzler has r e t i r e d and h i s records a r e n o t a v a i l a b l e a t t h i s time. I b e l i e v e t h e t r a n s c r i b e d testimony was c l e a r l y admis- s i b l e under s e c t i o n 95-1802(e), R.C.M. 1947, now s e c t i o n 46- 15-204 MCA, which provides t h a t t h e sworn t r a n s c r i b e d testi- mony of a witness, t h a t t h e defendant has been a b l e t o cross-examine, i s admissible i f t h e witness i s o u t of t h e s t a t e . S t a t e v. LaCario (1974), 163 Mont. 511, 518 P.2d 982; S t a t e v . Bouldin (1969), 153 Mont. 277, 456 P.2d 830; and S t a t e v. Zachmeier (1969), 153 Mont. 64, 453 P.2d 783. A s t o t h e presumption of continuing i n s a n i t y , Montana recognizes t h e common law presumption t h a t i n s a n i t y , once proved, i s presumed t o e x i s t . Appellant's a s s e r t i o n t h a t t h e presumption ends a f t e r f i v e years i s wholly unfounded. Presumption must be judged on a case-by-case b a s i s ; t h e inference s t e a d i l y diminishes i n f o r c e with t h e l a p s e of t i m e a t a r a t e proportionate t o t h e q u a l i t y of t h e perma- nence belonging t o t h e thing i n question u n t i l it ceases. Sommer v. Wigen (1936), 103 Mont. 327, 62 P.2d 333; People v. Baker (1954), 4 2 Cal.2d 550, 268 P.2d 705; S t a t e V . Garver (1950), 190 O r . 291, 225 P.2d 771. The S t a t e w a s required t o prove t h a t Olson's i n s a n i t y w a s permanent and continuing. Wetzler's testimony c l e a r l y went t o t h a t question. The S t a t e was n o t t r y i n g t o pass t h e testimony o f f a s evidence of Olson's condition a t t h e t i m e of t h e hearing b u t a s testimony concerning Olson's former condition which was t o serve a s an explanation of h i s cur- r e n t actions. Olson was diagnosed i n 1970 as having a mental problem of long standing f o r which he was ordered t o be confined and t r e a t e d . Y e t one year a f t e r h i s commitment, Olson escaped from Warm Springs and f o r t h e f i v e years between 1972 and 1977 received no treatment. Thus, a p p e l l a n t has been essen- t i a l l y untreated f o r t h i s grave i l l n e s s ; a presumption t h a t it continues is appropriate. The S t a t e does n o t believe t h a t t h e o r i g i n a l testimony on i n s a n i t y i s always s u f f i c i e n t t o keep t h e person confined. I t was t h e combination of Wetzler's testimony, t h e a t t a c k on White, and t h e f a c t t h a t Olson had received no treatment which made t h e S t a t e ' s case. A s t o t h e use of Karla White's testimony, t h e r e was s u b s t a n t i a l s i m i l a r i t y between t h e 1969 rapes committed by Olson, t h e 1977 a t t a c k on White, and t h e 1976 appearance by Olson i n White's bedroom. While no sexual a s s a u l t took place, t h e r e may have been one had not t h e p o l i c e intervened i n one incident o r White n o t had a male companion i n t h e o t h e r . The 1969 rapes took place a t n i g h t when t h e victims' husbands w e r e away and a f t e r Olson had threatened t o harm t h e i r children. The a t t a c k on White a l s o occurred a t n i g h t , and appellant had inquired a s t o t h e whereabouts of her c h i l d and husband. Olson was required t o prove t h a t he was e n t i t l e d t o release by a preponderance of t h e evidence. Appellant produced evidence t h a t he i s not mentally ill and t h a t he has adjusted t o community and family l i f e . The S t a t e , on t h e o t h e r hand, produced evidence t h a t a p p e l l a n t w a s diag- nosed i n 1970 a s having a grave and s e r i o u s mental i l l n e s s , t h a t he had raped two women i n 1969, and t h a t he had perpe- t r a t e d an a t t a c k upon a woman i n 1977 t h a t was s i m i l a r , as f a r a s it went, t o t h e e a r l i e r rapes. The evidence a l s o showed t h a t a p p e l l a n t had received e s s e n t i a l l y no treatment f o r h i s mental i l l n e s s . Upon t h i s record, t h e D i s t r i c t Court was e n t i r e l y j u s t i f i e d i n determining, a s it d i d , t h a t a p p e l l a n t had n o t shown an e n t i t l e m e n t t o r e l e a s e by a preponderance of t h e evidence. Even ignoring t h e t r a n s c r i p t of Wetzler's testimony, t h e evidence shows t h a t Olson was a physical danger t o o t h e r s i n 1970 and remained s o i n 1977. A s s t a t e d i n t h e Revised Commission Comment t o s e c t i o n 95-508, R.C.M. 1947, now s e c t i o n s 46-14-301 through 46-14-304 MCA: ". . . It s e e m s p r e f e r a b l e t o make dangerous- ness t h e c r i t e r i o n f o r continued custody r a t h e r than t o provide t h a t t h e committed person may be discharged o r r e l e a s e d when r e s t o r e d t o s a n i t y a s defined by t h e mental hygiene laws. Although h i s mental d i s e a s e may have g r e a t l y improved, such a person may s t i l l be dangerous because of f a c t o r s i n h i s p e r s o n a l i t y and back- ground o t h e r than mental disease. Also, such a standard provides a p o s s i b l e means f o r t h e c o n t r o l of t h e occasional defendant who may be q u i t e dangerous b u t who s u c c e s s f u l l y feigned mental d i s e a s e t o g a i n an a c q u i t t a l . . ." This comment i s p a r t i c u l a r l y appropriate i n t h e p r e s e n t c a s e based on White's uncontroverted testimony. I would a f f i r m t h e D i s t r i c t Court. / \ J u s t i c e r	April 18, 1979
8dfe1f6b-29cc-446f-ab68-f550bc5b3ba9	STATE v SULLIVAN DEPUE	N/A	14381	Montana	Montana Supreme Court	N o . 14381 I N T H E S U P R E M E COURT O F T H E STATE OF MONTANA 1979 T H E STATE O F M O N T A N A , P l a i n t i f f and Respondent, -vs- DENNIS SULLIVAN and DAVID A. DePUE, Defendants and Appellants. Appeal from: D i s t r i c t Court of t h e Second J u d i c i a l D i s t r i c t , Honorable Robert J. Boyd, Judge presiding. Counsel of Record: For Appellants: Leonard J. Haxby argued, Butte, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mary B. Troland argued, A s s i s t a n t Attorney General, John G. Winston argued, County Attorney, Butte, Montana Submitted: January 29, 1979 Decided: MAY 2 3 1 9 7 9 Filed: MAY 2 3 1939 Mr. Justice Daniel J. Shea delivered the Opinion to the Court. Defendants Sullivan and DePue appeal from a judgment of the Silver Bow County District Court convicting them, after a jury verdict, of the crime of robbery. At about 3:30 a.m. on December 25, 1977, two men entered the Circle K store in Butte, Montana. They approached the till behind which William Rabey, a store employee, was standing. One of the men cocked and pointed a .38 caliber revolver at Rabey, told him to lie on the floor and keep still or he would be shot. The cash registers and safe were being emptied when Ms. Mattson, a prospective customer, entered the store and approached the counter. She, too, was ordered at gun point to lie on the floor. Before the men left, one of them broke the locked glass door of the store's beer cooler, took some beer and cut his hand in the process. Later the same morning, the defendants were stopped in Anaconda, Montana and a -38 caliber revolver was removed from defendant DePue's person. With DePue's written consent, police officers searched his vehicle and found various items connecting the defendants with the robbery including bags of money from the Circle K store, a case of beer and a box of gun shells. Defendants were advised of their constitutional rights both verbally and in writing as evidenced by their signatures on "rights cards". While in custody, Officer Wilkinson questioned the defendants and attended to Sullivan's cut hand. Sullivan stated at trial that his hand was cut by a broken beer bottle in a fall. According to Officer Wilkinson's testimony, DePue stated the money found in his car was won in a gambling game, but defendant Sullivan admitted it came from the Circle K store in Butte. At trial, both defendants denied having made these statements and maintained they did not know how the money got into the car. On the day after the robbery, police officers showed mug books to Rabey and Ms. Mattson. Rabey positively identified defendants Sullivan and DePue from the photo- graphic line ups. Ms. Mattson recognized DePue's picture but had some difficulty finding Sullivan's likeness. At trial she admitted that her identification of Sullivan was aided by the police informing her that he had been arrested with DePue. Defendants relied on an alibi defense at trial. They claimed to be asleep at a friend's house when the robbery took place. However, no witness testified to corroborate their alibi. The State's case began with testimony from Rabey and Mattson. Rabey described the robbers in significant detail. In recalling their faces, he stated one robber had no mustache or beard and the other had stubble, but not a full beard. Ms. Mattson, on the other hand, testified that the robber who held the gun on her had a beard. Following a verdict of guilty, defendants were each sentenced to serve thirty years in prison. Defendants raise the following issues for our review: 1. Did the District Court err in denying defendants' motion to dismiss and motion for a directed verdict at the close of the State's case-in-chief? 2. Did the District Court err in either giving or refusing certain instructions? 3. Did the District Court err in admitting certain real and testimonial evidence? 4. Did the District Court err in allowing a witness to testify concerning her pretrial photographic identification of defendants? Defendants maintain that the court erred in denying their motions for dismissal and directed verdict at the close of the State's case-in-chief. The motions were based in part on the State's purported failure to establish the fear element of robbery. Section 94-5-401(1) ( b ) , R.C.M. 1947, now section 45-5-401 (1) (b) MCA, requires proof that the accused either "threatens to inflict bodily injury" upon another - or "purposely or knowingly puts any person in fear of immediate bodily injury." Either element alone is sufficient to satisfy the statute. Even so, the State's case contained evidence of both the threat of bodily injury and of fear instilled in the victims. Rabey testified that defendant DePue threatened to "blow [his] . . . head off" if he moved and that he was afraid during the robbery. Ms. Mattson testified that defendant DePue pointed a gun at her and that she too was afraid he would harm her. Defendants'motion to dismiss was also based on the State's alleged failure to prove the identity of the defendants as the robbers. Defendants point to the conflict of Ms. Mattson's in court recollection that the robbers had facial hair and Rabey's testimony that they were clean shaven. A motion for directed verdict or dismissal should only be granted if there is no evidence upon which the jury could rest its verdict. State v . Thompson (19781, Mont . , 576 P.2d 1105, 1108, 35 St.Rep. 343, 340. Here, there was substantial evidence, apart from the in- court identifications, that connected these defendants with the crime. The day after the robbery, both witnesses to the offense positively identified the defendants as the robbers by photographic line up. The fruits of the crime were found in defendant DePue's automobile. Officer Wilkinson testified that defendant Sullivan admitted obtaining these items from the Circle K store in Butte. Clearly, there was no error in denial of defendants' motions for dismissal or directed verdict. Defendants next assign error to the court's giving of an instruction which stated in part that a witness can be impeached "by evidence that he has previously been convicted of a felony." This is an incorrect statement of the law in Montana. Rule 609, Mont.R.Evid. prohibits evidence of prior convictions for the purpose of attacking the credibility of a witness. The rationale underlying this rule is that proof of a prior felony conviction does not necessarily evidence a willingness to lie. In the instant case, however, the instruction though improper, was not prejudicial. Both defendants testified on their own behalf, but the fact of their prior felony convictions was not brought to the jury's attention, and no other witnesses testified that they had a previous felony conviction. Since the error did not affect the substantial rights of the defendants, it does not warrant reversal of their convictions. Section 95-2425, R.C.M. 1947, now section 46-20-702 MCA. Two instructions are challenged as repetitious and unduly emphasizing a theory advanced by the State to defendants' prejudice. One instruction is a quotation of the robbery -5- statute. The other sets out the elements of proof under the statute. These instructions merely aided the jurors in applying the law to the case. We fail to see any prejudice under the facts of this case. Defendants argue that by refusing four proposed instructions, the court effectively withdrew a theory of the case supported by the evidence. However, they do not say just what theory was affected by the withdrawn instructions. One instruction, on the state's burden of proof and the jury's right of mutual consultation, was fully addressed in several instructions given by the court. An instruction on the probative value of witness testimony was fully covered by another instruction. An instruction on jury deliberation was fully explained in an instruction given by the court. Finally, the material in an instruction explaining the role of the jury and the meaning of certain actions taken by the judge and counsel during trial was included in four instructions given by the court. Refusal to give instructions on the same subject is not prejudicial error. State v. Larson (19781, Mont . , 574 P. 2d 266, 270, 35 St.Rep. 69, 74. Each of the proposed instructions cited by the defendants was adequately presented, and more clearly expressed, by the instructions actually given. The third issue involves the admissibility of certain testimonial and real evidence which at trial was objected to as "without proper foundation". Officer Wilkinson's testimony on defendant Sullivan's alleged statement that the bags of money found in DePue's car were from the Circle K is now challenged as both without proper foundation and as hearsay. According to defendants, the proper foundation should include place, date, and time of - 6- the statement as well as the persons present. No such foundational prerequisite is mandated by law. It was sufficient that Officer Wilkinson had personal knowledge under Rule 602, Mont.R.Evid. and that the statement was voluntarily made. State v. Lenon (1977), Mont . , 570 P.2d 901, 906, 34 St.Rep. 1153, 1157. Defendants' hearsay argument is unreviewable because not specified at trial. Rule 103 (a) (1) , Mont.R.Evid. The copy of the receipt for items seized on search of defendant DePue's automobile (exhibit no. 7) was intro- duced through Officer Krumrn who made the search, prepared and signed the document. Again, defendants' contention is "no proper foundation". The substance of defendants' contention is unintelligible. We find no error in admission of the document. Admission of exhibit no. 9, a rights card signed by defendant DePue, is challenged as in violation of Rule 104(b), Mont.R.Evid. Apparently defendants disapprove of the order in which the State presented the facts at trial, arguing that the card should have been introduced through Officer Wilkinson, who signed the card, rather than Officer Ivan- kovich, "who had nothing to do with the document". Officer Ivankovich testified that he saw defendant DePue sign the card in his presence. If counsel's foundational objection was pursuant to Rule 104(b), he should have stated why the proferred evidence should only have been conditionally admitted, i.e. what "connecting facts" were missing. It would then be incumbent upon him (not the court) to renew the objection after the State rested its case by motion to strike. Officer Ivankovich's firsthand knowledge that the document was what it purported to be was sufficient for its introduction and admissibility. Rule 901(b) (1) , Mont. R.Evid. Finally, defendants claim prejudicial error in allowing Ms. Mattson to testify on her pretrial photographic identi- fication of the defendants. Ms. Mattson's mug shot identi- fication of defendant Sullivan was admittedly "with the help of the police". Her difficulty in identification might be explainable in that when she entered the Circle K, one of the robbers had his back to her and she only "glanced" at him. In any event, defense counsel failed to object and thus preserve this issue for appellate review. Rule 103(a) Defendants' convictions are affirmed. .? We Concur: Justices	May 23, 1979
a358afb9-e9ca-4dcc-92c0-80d14d720f32	STATE v MONT DEPT OF PUBLIC SERV	N/A	14531	Montana	Montana Supreme Court	No. 14531 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA, MONTANA CONSUMER COUNSEL, Petitioner and Respondent, -vs- MONTANA DEPARTMENT OF PUBLIC SERVICE REGULATION et al., Respondents and Respondents, and CITY OF BILLINGS, Respondent and Appellant. Appeal from: District Court of the First Judicial District, Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Appellant: Calvin A. Calton, Billings, Montana For Respondents: Geoffrey Brazier, Helena, Montana James Paine, Helena, Montana Thomas N. Kelley, Billings, Montana David McCullough, Billings, Montana Submitted on briefs: January 29, 1979 Decided : c-. :' - 6 1 9 n - Filed: . -. ' i - s Mr. Justice John C. Sheehy delivered the Opinion of the Court. This appeal is from an order of the District Court, First Judicial District, Lewis and Clark County, denying a motion to change the place of trial to the District Court of the Thirteenth Judicial District, Yellowstone County. This cause is decided on briefs without oral argument. Appellant, City of Billings, Montana (Billings) operates a water department providing water services to customers, all residing in Yellowstone County, Montana, but principally within the city limits of Billings. On October 17, 1977, Billings petitioned the Montana Department of Public Service Regulation and Montana Public Service Commission (PSC), for authority to increase the rates charged by Billings to its customers. On July 17, 1978, PSC entered an order authorizing Billings to increase its rates by the amount of $1,636,000 per year. Billings, dissatisfied with the PSC water rate order, filed an action for review in the District Court in Yellowstone County. The Montana Consumer Counsel had also participated in the proceedings before the PSC on the water rate application by Billings. The Consumer Counsel, also dissatisfied with the PSC order of July 17, 1978, filed for judicial review of the same water rate order in the District Court of Lewis and Clark County. Billings was named, properly, as a respondent in the Lewis and Clark County District Court action brought by the Consumer Counsel. On August 25, 1978, Billings filed its motion in the Lewis and Clark County District Court action for a change of venue from that county to the District Court of Yellowstone County. After objections were filed by the Consumer Counsel, the Lewis and Clark County District Court denied the motion on September 7, 1978. Billings moved for a reconsideration of that denial which was not granted. Appeal to this Court by Billings followed. The action in Yellowstone County District Court brought by Billings is still pending. The Montana Consumer Counsel is an "office" under 1972 Mont. Const., Art. XIII, S2. It has the constitutional duty to represent consumers in hearings before the Public Service Commission among others. Under ststutes implementing the Constitutional provision, the Consumer Counsel "may institute, intervene in, or otherwise participate in appropriate proceedings in the state and federal courts . . . in the name of and on behalf of the utility and transportation consuming public of the State of Montana or substantial elements thereof including review of decisions rendered by [the PSC]." Section 70-707(5), R.C.M. 1947, now section 69- 2-202 (2) MCA. Under this statutory grant of power, the Consumer Counsel represented before the PSC the water consumers in Yellowstone County affected by the Billings application for water rate increase, and still represents their interest. Any party in interest dissatisfied with an order of the PSC fixing utility rates may bring an action to set aside those rates. Section 70-128, R.C.M. 1947, now section 69-3-402(1) MCA. The place of trial is not specifically fixed in that section, except to say: ". . . [Mlay within thirty days commence an action in the district court of the -- proper county against the commission and other interested parties as defendants to vacate and set aside . . . such . . . rates . . ." (Emphasis added.) Billings contends that the "proper county", contemplated in the foregoing statute is to be determined under the provisions of section 93-2902, R.C.M. 1947, now sections 25-2-103 and 25-2-105 MCA, which provided in pertinent part: "Actions for the following causes must be tried in the county where the cause or some part thereof arose, subject to the like power of the court to change the place of trial: "2. Against a public officer, or persons specially appointed to execute his duties, for an act done by him in virtue of his office 11 . . . Billings further contends that under our decision of Montana-Dakota Utilities v. Public Service Commission of Montana (1940), 111 Mont. 78, 107 P.2d 533, Yellowstone County is the place where the order of the PSC will be put into operation, and therefore the District Court of that county is the place where the action must be tried. On the other hand, the Consumer Counsel contends, and its original petition in the District Court recites, that he brings his action in Lewis and Clark County District Court under the provisions of the Montana Administrative Procedure Act, and particularly under section 82-4216, R.C.M. 1947, now section 2-4-702 MCA, which provides in subdivision (2) (a) thereof: "Proceedings for review shall be instituted by filing a petition in district court within thirty days after service of the final decision of the aaencv . . . Exce~t J .' & as otherwise provided & statute, the - petition shall be filed in the district court for the county where the petitioner resides or has his principal place of business or where the agency maintains its principal office." (Emphasis added.) The Consumer Counsel further contends, and the District Court agreed, that the decision in Montana-Dakota, was overruled in Lunt v . Division of Workmen's Compensation (1975), 167 Mont. 251, 537 P.2d 1080. Section 82-4216, R.C.M. 1947, is a general statute providing for judicial review of the actions of any admini- strative agency of the state. Section 70-128, R.C.M. 1947, on the other hand is specifically directed to judicial review of rate orders of the PSC. Moreover, the language of section 82-4216, "except as otherwise provided by statute" seems to indicate the legislative intent that in specific instances, other statutes be looked to in order to determine venue. The general rule is that where two statutes, one of which deals with a subject in general terms and another in more minute terms, the special statute controls the general statute to the extent of any inconsistency. State v. Holt (1948), 121 Mont. 459, 194 P.2d 651; In Re Wilson's Estate (1936), 102 Mont. 178, 56 P.2d 733. But the statutes are to be harmonized if possible. We hold therefore that it is permissible for the Consumer Counsel to bring actions for judicial review of PSC-fixed utility rates under the pro- visions of section 82-4216, but where the venue chosen is challenged by a proper party, then the provisions of section 70-128, R.C.M. 1947, now section 69-3-402(1) MCA, control in determining venue. In examining section 70-128, now section 69-3-402(1) MCA, we see that the action may be brought in the District Court of the "proper county". In the case of an action against a governmental agency or public officer, the - 5- proper county is determined by section 93-2902, now sections 25-2-103 and 25-2-105 MCA. As we have shown, the proper county under section 93-2902 is that "where the cause, or some part thereof, arose". The cause of action here is the threatened enforcement and collection in Yellowstone County of water rates esta- blished by the order of PSC. The PSC order is operative only in Yellowstone County. The order may have been deliberated upon and issued out of the offices of PSC in Helena, but the attack upon the order is upon its operative effect, which takes place wholly in Yellowstone County. The operative effect of the order is to set rates for water supplied and used in Yellowstone County. Billings is contending that the water rates set by the PSC are not sufficient. The Consumer Counsel is contending that the water rates are excessive. The result in either case can affect consumers only in Yellowstone County. The cause of action therefore arises in that county. In our decisicn in Montana-Dakota, we determined that under section 93-2902, it is not the mere making of the order but the place where it is put into operation, that determines where the cause of action arose. 111 Mont. at 80, 107 P.2d at 535. When this Court said in Lunt, that the holding in Montana-Dakota was overruled, it was only to the extent that Lunt was inconsistent with the earlier case. Lunt and Montana-Dakota were each properly decided within their respective spheres. We said so in Guthrie v. Montana Department of Health and Environmental Sciences (19771, Mont . , 561 P.2d 913, 34 St.Rep. 155, 160. Similarly in Billings Associated Plumbing v. Emerson (1977) Mont . , 563 P.2d 1123, 34 St.Rep. 309, we agreed that the Montana-Dakota case was not overruled by the decision in Lunt with respect to the factual situation presented in Billings Associated Plumbing. Here, it is the operation of the PSC order that is alleged to injure either Billings or the persons represented by the Consumer Counsel. Under that factual situation, the decision of Montana- Dakota is very much alive for this case and controls our determination here. The order of the District Court denying change of venue is reversed. The cause is remanded to the District Court with instructions to enter an order to transfer the cause from the District Court of the First Judicial District, Lewis and Clark County, to the District Court of the Thirteenth Judicial District, Yellowstone County. We Concur: ief Just c Zfl% .............................. Justices	April 5, 1979
ab8cf413-cd7d-44fc-a3af-6b6b5508009e	ST EX REL TAX APPEAL BRD v BR	N/A	14226	Montana	Montana Supreme Court	No. 14226 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STATE OF MONTANA ex rel. STATE TAX APPEAL BOARD, Relator and Respondent, -vs- MONTANA BOARD OF PERSONNEL APPEALS, Respondents and Appellants. Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellants: Jerry L. Painter argued, Helena, Montana For Respondent: Smith and Harper, Helena, Montana Charles A. Smith 111, argued, Helena, Montana Submitted: February 9, 1979 ~ecided:APR 2 5 1979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. On an appeal from a job classification by the Montana Department of Administration, the Personnel Division of that department determined the employee, Vernon Miller, was entitled to a classification of his position as Grade 14. Miller's employing state agency is the State Tax Appeal Board (STAB). A formal order directed to STAB requiring Miller's reclassification was issued by the Board of Personnel Appeals (BPA) on March 30, 1977. On April 1, 1977, STAB petitioned BPA for a hearing. BPA refused STAB a hearing on the ground that it was not a party to the pro- ceeding before BPA. STAB made application to the District Court for a writ of mandamus to vacate BPA's order, and to require BPA to grant STAB a hearing. On January 23, 1978, the District Court, First Judicial District, Lewis and Clark County, entered its order in accordance with the prayer of STAB, requiring that the Montana Board of Personnel Appeals conduct a hearing in which STAB would be a necessary party and vacating BPA's order of May 24, 1977 reclassifying the employee's position. The parties agree in briefs that the following are the facts in the case: On November 4, 1976, Vernon B. Miller, an employee of the Montana State Tax Appeal Board, filed a grievance with the Montana Board of Personnel Appeals, alleging that he was misclassified as an Administrative Officer I, Grade 13, and that he should be reclassified as an Executive Secretary 11, Grade 15. He filed his grievance under the authority of section 82A-1014, R.C.M. 1947, now sections 2-15-1705, 2- 18-1011, 1012, 1013 MCA and section 24.26.403 M.A.C. In accordance with the grievance procedure of section 24.26.403 M.A.C. (then sectiqn 24.3.8B(lO)S8710 M.A.C.) two of the STAB members denied Miller's appeal and one supported his appeal. Miller then proceeded to step two of the grievance procedure and presented his appeal to Jack Crosser, Depart- ment Director. Crosser neither supported nor denied Miller's appeal, but merely recited the relationship that exists between STAB and the Department of Administration, was as an administratively attached body. Miller then proceeded to step three of the grievance procedure, which is before the Personnel Division, Department of Administration. The Personnel Division audited the position, talking to the individual staff members and to Miller. It determined that Miller was indeed misclassified although in its final determination it found that Miller should be classified as an Executive Secretary I, Grade 14. Miller agreed to this classification. STAB, however, refused to comply with the Personnel Division's instruction to submit the necessary papers for the reclassification, where- upon Miller requested that the Board issue an order. On March 30, 1977, the Board issued an order to STAB finding that since Miller and the Personnel Division were in agree- ment as to Miller's classification, that Miller had been aggrieved by the operation of Title 59, Chapter 9, R.C.M. 1947, and was entitled to be reclassified. On April 1, 1977, STAB wrote the Board protesting the BPA order of March 30, 1977, and demanded a hearing on Miller's proper classification. On April 7, 1977, the administrator of BPA denied by letter the demand of STAB for a hearing on the ground that section 82A-1014, R.C.M. 1947, now sections 2-15-1705, 2-18- 1011, 1012, 1013 MCA, the controlling statute, did not provide for an employer grievance as to the operation of Title 59, Chapter 9. -3- Thereafter, a hearing was set up for BPA to reconsider whether STAB should be given a hearing. This hearing was conducted on May 10, 1977 but no representative of STAB was present. The BPA after considering the matter, voted not to give STAB a hearing. On May 24, 1977, an order was issued by BPA denying STAB'S petition for a hearing and ordering the upgrade of the position held by Vernon Miller. On June 16, 1977, STAB filed its application for a writ of mandamus in District Court which resulted in the January 23, 1978 order. Basically the issue in this cause is whether the Board of Personnel Appeals was required to grant STAB, the employer, a hearing on its employee's proper job classification. BPA contends the extraordinary relief granted by the District Court was not proper in this case because there was no duty owed STAB. BPA argues that within the statutory scheme for resolving wage classification disputes of state employees there is no statutory allowance for representation by STAB as employer. Thus BPA has no power to entertain respondent's objections to the classification at a hearing. STAB in essence contends the Montana Administrative Procedure Act (MAPA) applies to the proceedings before the BPA, and that STAB has a right to be heard as a "party" in a "contested case" under MAPA. See section 82-4209, R.C.M. 1947, now section 2-4-601, 612 (1) , 603, 614, 623 (2) MCA. Mandamus is an extraordinary remedy which lies to compel only a "clear legal duty". Butte Youth Service Mont . Center v. Murray (1976), , 551 P.2d 1017, 1019, 33 St-Rep. 610; Burgess v. Softich (1975), 167 Mont. 70, 535 P.2d 178; section 93-9102, R.C.M. 1947, now section 27-26-102(1) MCA. The essential question raised by this appeal thus becomes whether BPA had a clear legal duty to hold a hearing at which STAB would be a party. An analysis of the statutes and regulations involved constrains this Court to hold it did not. In 1973, the legislature enacted section 59-903, et seq., R.C.M. 1947 (now section 21-8101 et seq., MCA) giving the Department of Administration the authority and duty to develop a wage and personnel classification plan for all state employees in order to provide uniformity in wages for state employment. Within the Department of Administration, the Personnel Division, Classification Bureau, is charged with maintaining "a uniform job classification program for all classified employees of the State of Montana" and with assigning "appropriate grade levels for each position." Section 2-2.1-0100 (2) (i) (1) M.A.C. Generally, the employing agency initiates action for the reclassification of a position and is afforded the opportunity by the Personnel Division to have input into the division's decision. Should the employee be dissatisfied with the classification or reclassification received, the employee may commence a grievance procedure before BPA pursuant to section 82A-1014(4) (a-d), R.C.M. 1947, now sections 2-18-1011, 1012, 1013 MCA and section 24.26.403 M.A.C. The grievance procedure is composed of four steps. The first two steps involve consideration of the employee's grievance within his department or agency. Section 24.26.403 (I), (2) M.A.C. If the employee remains dissatisfied he submits his appeal to the Personnel Division as the third step of the procedure. Section 24.26.403(3) M.A.C. The Personnel Division then reviews the matter, again accepting input from the employing agency, and renders a decision. If the employee agrees with the Personnel Division the matter is ended. If the employee is still not satisfied the matter is submitted to the Board of Personnel Appeals for resolution. -5- Section 24.26.403(4) M.A.C. The board then conducts an in- vestigation or inquiry and makes a preliminary determination. If the employee rejects this preliminary determination, the board is directed to conduct a hearing in accordance with the MAPA (Title 82, Chapter 42, R.C.M. 1947, now sections 2-4-101, et seq., MCA). The regulations are clear that the interests of the state in this hearing are represented by the Classification Bureau, Personnel Division, Department of Administration. Section 2-2.1-0100 (2) (i) (1) , M.A.C. The board can, once it finds the employee aggrieved, order the appropriate agency to take action to resolve the grievance. Section 82A-1014 (4) (c) , now section 2-18-1012 MCA. The board or the employee may petition the District Court for enforcement of the board's order. Section 82A- 1014 (4) (d) , now section 2-18-1013 MCA. This review of the statutory framework and the regulations adopted to flesh out that framework makes plain that no clear legal duty existed on the part of the Board of Personnel Appeals to provide a hearing at which STAB would be a party. The dispute in this matter did not reach the point where a hearing was necessary according to the regulations. The employee and the Personnel Division agreed upon a classification, thus under the regulations the appeal was ended. Furthermore, even if this appeal could be construed as a "contested case" requiring a hearing under the MAPA, STAB could not participate as it is not a "party" within the meaning of MAPA. A con- tested case means any proceeding before an agency in which a determination of legal rights, duties, or privileges of a party is required by law to be made after an opportunity for hearing. Section 82-4203(3), now section 2-4-102 MCA. A "party" is a person or agency (1) named or admitted as a party or (2) properly seeking and entitled as of right to be admitted as a party. Section 82-4203(6), now section 2-4- 102 MCA. STAB has not been named or admitted as a party. The dispute initially arose due to the employee's reclassification -6- by the Fersonnel Division. Thus, the only way STAB can be considered a "party" is i f S Z F E 3 is properly seeking and entitled as of right to be a party. But the statutes and regulations governing the classification procedure do not contemplate participation by the employing agency other than the opportunity for input into the Personnel Division's decision. If and when the dispute reaches step four of the formal appeals procedure, the employee represents his in- terests and the personnel Division through its Classification Bureau represents the interests of the state including, theoretically, those of the employing state agency. There- fore the ~oard of Fersonnel Appeals had no clear legal duty, and no authority, to hear the objections of STAB. This Court has made clear administrative agencies are bound by the terms of the statutes or regulations granting them their powers and are required to act accordingly. State ex rel. Anderson v. State Board of Equalization (1957), 133 Mont. 8, 319 P.2d 221. Thus, there was no "clear legal duty" to hold a hearing at which STAB would be a party. STAB may have a legitimate concern about the classification of its employees. Its remedy, however, is not in the courts under the present statutes. It is within the legislative prerogative either to require the Personnel Division to give greater consideration to STAB'S opinion, or to change the statutes to allow STAB input at a panel hearing should STAB not agree on a classification with the Personnel Division. Therefore, the order of the District Court remanding this action back to BPA for a hearing is hereby vacated and the District Court is instructed to grant BPA's motion to dismiss the mandamus action. No costs are allowed. Justice We Concur: Chief Justice \	April 24, 1979
8f5fc1ef-2697-471c-b5ca-e3a4fc0ad3e2	SCHAFER v STATE	N/A	14491	Montana	Montana Supreme Court	No. 14491 I N THE S U P R E M E C O W O F THE STATE O F M 3 N T A N A 1979 ScHAFER and DONNA SCHAFER, Parents and natural guardians of BETTY MAE SCHAFER, Plaintiffs and Appellants, STATE O F l D N T A N A , DEPARTMENT OF rnSrITUTIONS, m u J Y T A I N VIEW SCHOOL, Defendants and Respondents. Appeal froan: D i s t r i c t Court of the Second Judicial District, Honorable J a m e s D. Freeborn, Judge presiding. Counsel of Record: For Appellants: Jack M. Scanlon, Anaconda, mntana Garrity, Keegan and Brown, Helena, mntana For Respondents: Garlington, I;ohn and Robinson, Missoula, Mntana Suldtted on briefs: January 24, 1979 Decided: MAT! 2 1 im . - " k?' , j g & Filed : 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. P l a i n t i f f s A l b e r t and Donna Schafer brought t h i s a c t i o n on ~ p r i l 15, 1977, as p a r e n t s and n a t u r a l guardians of Betty M a e Schafer (Betty Mae) f o r personal i n j u r i e s a r i s i n g o u t of a n automobile accident. The S t a t e Department of I n s t i t u - t i o n s ( t h e S t a t e ) answered, a l l e g i n g a f f i r m a t i v e defenses of c o n t r i b u t o r y negligence and supervening cause i n a d d i t i o n t o general d e n i a l s of negligence and causation. On completion of discovery, t h e S t a t e f i l e d a motion f o r summary judgment on t h e primary b a s i s t h a t , a s a matter of law, none of t h e a c t s of t h e S t a t e w e r e n e g l i g e n t nor d i d they c o n s t i t u t e t h e proximate cause of Betty Mae's i n j u r i e s . On August 1, 1978, t h e District Court of t h e Second J u d i c i a l District, S i l v e r Bow County, granted summary judgment i n favor of t h e S t a t e . Schafers appeal from t h i s order. The f a c t s underlying t h i s appeal begin i n March 1973. A t t h a t t i m e , Betty Mae, t h e t r u e p l a i n t i f f i n i n t e r e s t , was committed t o t h e Mountain V i e w School f o r G i r l s under o r d e r of t h e District Court of t h e Third J u d i c i a l District. She w a s then t h i r t e e n y e a r s o l d . Both Mountain V i e w School and t h e A f t e r c a r e Services Bureau, responsible f o r supervising a c h i l d a f t e r r e l e a s e from Mountain V i e w , a r e i n t h e Correc- t i o n s Division of t h e S t a t e Department of I n s t i t u t i o n s . Unfortunately, Betty Mae was n o t an i d e a l p a r t i c i p a n t i n e i t h e r t h e Mountain V i e w o r Aftercare programs. She repeatedly r a n away from Mountain V i e w . When placed i n a f o s t e r home i n Harlem pursuant t o a formal Aftercare agree- ment, she r a n away and was, i n f a c t , "kicked out" of t h a t home, r e t u r n i n g t o Mountain V i e w i n October 1974. A 1975 placement i n a Job Corps program i n Oregon was a l s o unsuc- c e s s f u l because Betty M a e r a n away. I n January 1976, Betty Mae w a s again t r a n s f e r r e d t o t h e f o s t e r home i n H a r l e m . This time, while she had some prob- l e m s , Betty Mae d i d o b t a i n a job and, according t o A f t e r c a r e personnel, her o v e r a l l behavior improved. I n September 1976, she requested and received an authorized leave f o r a home v i s i t t o Anaconda f o r t e n days. According t o her deposition, Betty M a e had made such v i s i t s previously with- o u t i n c i d e n t , always r e t u r n i n g when she w a s supposed t o . This t i m e , however, Betty Mae decided t o s t a y i n Ana- conda and f i n d a job. She contacted t h e l o c a l Aftercare counselor f o r an extension of her l e a v e f o r an a d d i t i o n a l week u n t i l she found a job. The counselor gave her per- mission t o do t h a t . Betty Mae d i d f i n d a job, b u t apparently a d e c i s i o n had n o t y e t been made a s t o t h e wisdom of allowing Betty Mae t o remain i n Anaconda. Her p a r e n t s saw no problem, b u t both t h e Deer Lodge County truancy o f f i c e r and t h e Anaconda C i t y P o l i c e juvenile o f f i c e r w e r e opposed. N o formal modification of t h e o r i g i n a l Aftercare agreement t r a n s f e r r i n g Betty Mae t o Harlem was executed. Betty Mae's a c t i v i t i e s during t h i s home v i s i t a r e disputed by t h e p a r t i e s . I t appears she stayed with her p a r e n t s f o r a few days b u t eventually moved i n t o her s i s t e r ' s apartment. There i s a l s o some i n d i c a t i o n i n t h e record t h a t she frequented l o c a l taverns, although t h e Aftercare workers deny any knowledge of t h e s e a c t i v i t i e s . I t does appear undisputed t h a t Betty M a e d i d a t t e n d p a r t i e s a t which she consumed l i q u o r and used drugs. It w a s following such a p a r t y t h a t t h e automobile a c c i d e n t giving rise t o t h e i n s t a n t l i t i g a t i o n occurred. On October 18, 1976, a f t e r leaving a p a r t y , Betty ~ a e was a passenger i n a c a r driven by Mark Stigen. Stigen was d r i v i n g from Anaconda t o Butte a t n i g h t on an i c y highway a t a speed i n excess of 80 m i l e s per hour. H e l o s t c o n t r o l of h i s vehicle, and it r o l l e d , throwing Betty Mae out. Stigen has admitted driving i n a careless and negligent manner. This a c t i o n was then brought seeking damages f o r t h e i n j u r i e s sustained by Betty Mae. I n i t s simplest form t h e i s s u e presented f o r review i s whether t h e t r i a l c o u r t properly granted summary judgment i n favor of t h e S t a t e . The Schafers' theory of t h e case, and t h e reason s u i t w a s brought a g a i n s t these defendants, i s t h a t t h e S t a t e was negligent i n f a i l i n g t o properly supervise Betty Mae i n allowing her t o remain i n Anaconda and eventually t o be injured i n t h e automobile accident. I n support of t h i s theory, Schafers repeatedly c i t e t o Betty Mae's p a s t behavior, t o t h e o f f i c i a l r e p o r t s and recommendations t h a t she be c l o s e l y supervised a t a l l t i m e s , and t o t h e f a i l u r e of Aftercare t o e x e r c i s e t h i s supervision during t h e days immediately p r i o r t o t h e accident. From t h i s sequence of events, Schafers would hold t h e S t a t e l i a b l e f o r t h e in- j u r i e s Betty Mae suffered. While w e agree t h a t Betty Mae had a h i s t o r y of irrespon- s i b l e behavior which t h e S t a t e was charged t o c o n t r o l , w e cannot agree t h a t t h e r e s p o n s i b i l i t y o r l i a b i l i t y of t h e S t a t e extends t o t h e i n c i d e n t involving o r i n j u r i e s incurred by Betty Mae under t h e circumstances. The crux of t h i s case is the element of negligence known a s f o r e s e e a b i l i t y . This element serves as a l i m i t on l i a b i l i t y f o r a c t s which might, under other circumstances, be negligent. The substance of f o r e s e e a b i l i t y a s it relates t o negligence is t h a t a defendant who could n o t foresee any danger of i n j u r y from h i s conduct o r any r i s k from an i n t e r - vening f o r c e i s n o t negligent. Mang v. Eliasson (1969), 153 Mont. 431, 436, 458 P.2d 777, 780. Absent f o r e s e e a b i l i t y , t h e r e i s no duty; absent duty, t h e r e i s no negligence. F o r e s e e a b i l i t y i s measured on a s c a l e of reasonable- ness; it i s n o t measured a b s t r a c t l y . Ford v. Rupple (1972), 161 Mont. 56, 64, 504 P.2d 686, 691. The perspective i s from t h e time of t h e a l l e g e d l y negligent a c t : ". . . i n weighing t h e likelihood of harm, t h e seriousness of i n j u r y and t h e value of t h e i n - terest t o be sacrificed--the law judges t h e a c t o r ' s conduct i n t h e l i g h t of t h e s i t u a t i o n a s it would have appeared t o t h e reasonable man i n h i s shoes a t t h e time of t h e a c t o r omission complained o f . Not what a c t u a l l y happened, b u t what t h e reasonably prudent person would then have foreseen as l i k e l y t o happen, i s t h e key t o t h e question o f r e a s o n a b l e n e s s . . ." Mans v. ~ l i a s s o n , 153 Mont. a t 436-37, 458 P.2d at-781. (Emphasis i n o r i g i n a l . ) A s t h e law i s n o t concerned with what a c t u a l l y happened, n e i t h e r i s it concerned with m e r e p o s s i b i l i t i e s : ". . . Negligence carries with it l i a b i l i t y f o r consequences which i n t h e 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 prudent 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." Jackson v. William Dingwall Co. (1965), 145 Mont. 127, 135, 399 P.2d 236, 240. Applying t h e s e p r i n c i p l e s t o t h e f a c t s of t h e c a s e a t hand, w e a r e unable t o see how t h e S t a t e could have possibly foreseen t h e sequence of events leading t o Betty Mae's i n j u r i e s . The intervening f a c t o r s of (1) a possibly i n t o x i - cated t h i r d person (2) d r i v i n g a t n i g h t ( 3 ) too f a s t ( 4 ) on an i c y road r e s u l t i n g i n i n j u r i e s t o Betty M a e , who volun- t a r i l y chose t o be a passenger i n t h e automobile, completely sever any l i a b i l i t y f o r any a l l e g e d negligence on t h e p a r t of t h e S t a t e . To s t r e t c h t h e concept of f o r e s e e a b i l i t y t o t h i s e x t e n t i s t o do away with t h e element e n t i r e l y and make t h e S t a t e t h e absolute i n s u r e r of any person under i t s supervision. Furthermore, with regard t o t h e f o r e s e e a b i l i t y of t h e a c t s of t h i r d persons, t h i s Court s t a t e d i n Lencioni v. Long (1961), 139 Mont. 135, 139, 361 P.2d 455, 457: " I . . . Wrongful a c t s of independent t h i r d per- sons, n o t a c t u a l l y intended by t h e defendant, a r e n o t regarded by t h e law a s n a t u r a l conse- quences of h i s wrong, and he i s n o t bound t o a n t i c i p a t e t h e general p r o b a b i l i t y of such a c t s , any more than a p a r t i c u l a r a c t by t h i s o r t h a t i n d i v i d u a l . . . 1 11 This statement a p p l i e s t o t h e f o r e s e e a b i l i t y by t h e S t a t e of S t i g e n ' s negligent d r i v i n g . Schafer r e l i e s on t h e s i m i l a r cases of Gibson v. United S t a t e s (3rd C i r . 1972), 457 F.2d 1391, and Bjornemo v. United S t a t e s (D. Mont. 1976), No. CV-75-73-BU. These cases a r e d i s t i n g u i s h a b l e on t h e i r f a c t s . I n both cases, a Job Corps e n r o l l e e i n j u r e d a t h i r d person: i n Gibson, by plunging a screwdriver through t h e temple of a Job Corps i n s t r u c t o r ; i n Bjornemo, by smashing a s t o l e n t a x i i n t o another v e h i c l e a t a n i n t e r s e c t i o n . I n both cases t h e United S t a t e s was held negligent f o r f a i l i n g t o properly supervise and r e s t r a i n t h e e n r o l l e e s who were known t o have behavior problems. I n t h e i n s t a n t case, however, it was n o t Betty Mae who, because of lack of r e s t r a i n t , i n j u r e d a t h i r d party. In- s t e a d , she was a "passive" p a r t i c i p a n t i n an automobile a c c i d e n t , an event which e a s i l y could have occurred no matter what type of supervision t h e S t a t e exercised over her, s h o r t of locking her i n a room somewhere. Such r e s t r i c - t i v e d e t e n t i o n i s n o t t h e goal of our juvenile i n s t i t u t i o n s and programs. See s e c t i o n 80-1410, R.C.M. 1947, now s e c t i o n 53-30-202 MCA. Nor do t h e s t a t u t e s governing t h e s e programs impose such a duty upon them. See s e c t i o n s 80-1401, -1410, R.C.M. 1947, now s e c t i o n s 53-1-201, 53-30-202 MCA. I n s h o r t , t h e f a c t t h e accident occurred as it d i d had no r e l a t i o n t o t h e S t a t e ' s course of a c t i o n immediately p r i o r t o t h e accident. Betty Mae w a s showing an apparent improvement i n her behavior, had secured proper permission t o come t o Anaconda f o r a home v i s i t , and once i n Anaconda had received permission t o remain and look f o r a job which she found. Under t h e circumstances t h e S t a t e could not be c a l l e d negligent, e s p e c i a l l y when t h e purpose of t h e After- c a r e program i s t o e a s e t h e t r a n s i t i o n from i n s t i t u t i o n t o community. Section 80-1414, R.C.M. 1947, now s e c t i o n 53-30- 226 MCA. Indeed, t h e type of accident i n which Betty M a e was involved could have happened a s e a s i l y i n Harlem with her f o s t e r p a r e n t s d r i v i n g as i n Anaconda with Mark S t i g e n d r i v i n g . F i n a l l y , Schafers argue t h a t t h e element of foresee- a b i l i t y always c r e a t e s an i s s u e f o r t h e jury and quote t h e following excerpt from 57 Am.Jur.2d Negligence 5205 a t 579: "Where it is claimed t h a t t h e defendant's a c t was n o t t h e proximate cause of t h e i n j u r y be- cause t h e r e s u l t could n o t reasonably have been foreseen, it i s o r d i n a r i l y a question f o r t h e jury whether t h e r e s u l t should reasonably have been foreseen. Even though t h e f a c t s are not disputed, i f t h e r e ---- i s room f o r a reasonable d i f f e r e n c e o f opinion a s t o whether an i n t e r - vening a c t w a s negligent and foreseeable, t h e question i s one f o r t h e jury." (Emphasis added.) Accord, Stenberg v. Beatrice Foods Co. (1978), Mont . , 576 P.2d 725, 727, 35 St.Rep. 294, 296. The empha- s i z e d p o r t i o n s of t h i s quote p o i n t o u t t h e weakness of Schafers' argument. W e conclude, a s d i d t h e D i s t r i c t Court, t h a t t h e r e i s no "room f o r a reasonable d i f f e r e n c e of opinion a s t o whether [ t h e S t a t e ' s ] a c t was n e g l i g e n t and foresee- able." I f w e w e r e t o adopt Schafers' p o s i t i o n , every negli- gence c a s e would have t o go t o t h e jury, thus eliminating t h e summary judgment procedure which i s a p a r t of our l e g a l process. 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	March 20, 1979
8d60aaff-6b81-490f-88e7-6b571f3b0f6b	UTICK v UTICK	N/A	14558	Montana	Montana Supreme Court	N o . 14558 I N THE SUP^ COUHT O F THE STATE O F rnNTANA 1979 ANDREW J. UTICK, Claimant and Appellant, -VS- ANDFEW J. UTICK d/b/a CAPITAL MXEL AND SEFWICE S T A T I O N , Drployer, and STATE COMPrnsATION INSuRANa FUND, Defendant and Respondent. Appeal £ram: Workers' Canpensation Court Hon. William E. Hunt, Judge presiding. Counsel of Record: For Appellant: Hoyt and Lewis, Great Falls, bbntana John C. Hoyt argued, Great Falls, Wntana For Respondent: Tim Reardon argued, Helena, mntana Submitted: March 14, 1979 Decided: A P R 2 0 1 9 7 9 ~ild: APR E 0 1 9 n -. Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Claimant Andrew J. Utick appeals from an order of the Workers' Compensation Court denying his request for a lump sum advance payment of total disability benefits due him from the State Compensation Insurance Fund. Andrew J. Utick was the owner of the Capital Motel & Service Station in Helena, Montana, which he had operated and managed for the past 30 years. He had elected coverage for himself with the State Compensation Insurance Fund. Utick sus- tained two separate industrial accidents; the first on July 11, 1974, and the second on August 26, 1975. In the first accident, he sustained a fracture of the left ankle and foot. The second accident occurred when his weak left ankle collapsed and he fell and injured his back. At the time of the second accident, Utick was 63 years old. As to Utick's first injury, the State Fund accepted lia- bility and medical benefits were paid. Disability payments, however, were denied because Utick had allegedly lost no wages due to that injury. On the second injury, the State Fund denied the claim entirely on the grounds that Utick allegedly failed to file some required forms. On June 21, 1977, Utick filed a petition for hearing with the Workers' Compensation Court, alleging that the State Fund had wrongfully failed and refused to pay the compensation due him. The petition asked that he be awarded temporary total disability compensation for the appropriate periods of time as a result of both industrial accidents; that his medical expenses be paid; that he be awarded a permanent partial disability award as a result of his injuries; that the award be paid in a lump sum; that he be awarded reasonable attorney fees and costs; and that the State Fund be assessed the statutory ten percent penalty for unreasonable refusal to pay the claims. A hearing was held on the petition on December 22, 1977, at which time the State Fund acknowledged that it had accepted payment of premiums from Utick in regard to the second accident and that therefore coverage as to that accident would be con- ceded despite his alleged failure to file the required forms. Findings of fact, conclusions of law, and judgment subsequently entered determined, among other things, that Utick was entitled to temporary total benefits for only a portion of what he had requested; that he was suffering a permanent partial disability of 50%; and that he was entitled to the 10% penalty increase on the award. Utick filed notice of appeal from the judgment, but the notice was subsequently withdrawn when the State Fund's petition for rehearing was granted by the Workers' Compensation Court. The petition for rehearing was based on the fact that the Work- ers' Compensation Court's order was not clear as to whether Utick's permanent partial 50% disability was to be paid biweekly or in a lump sum, and on an alleged miscalculation of the rate of compensation. Utick concurred in the petition for rehearing, alleging that a new hearing was necessary because the court, contrary to the evidence, had not found that he was totally per- manently disabled. Prior to the second hearing, Utick filed an affidavit with the court again requesting that his benefits be converted to a lump sum settlement. The affidavit showed that if he could receive the present value of his future benefits in a lump sum, he would lend the money to a family corporation which in turn would finance expansion of a restaurant on property owned by the corporation. By so doing, the affidavit alleged, Utick would be guaranteed an income of $20,500 per year as his share of lease payments to the corporation, whereas compensation benefits paid to him on a weekly basis would amount to only $7,923.76 per year. At the rehearing, the Division of Workers' Compensation conceded the permanent total disability of Utick. The only issue contested was whether his request for a lump sum settle- ment should be granted. The Division resisted Utick's request for a lump sum award, but stated no reasons in support of its position. Both the Division and the Workers' Compensation Court acknowledged that the investment plan submitted by Utick in his affidavit in support of his request for a lump sum settlement would work. Nonetheless, the court found that while a lump sum settlement would be in Utick's best interests, the request would be denied since there was no real need shown. In its order of denial, the Workers' Compensation Court reasoned that payment under the plan proposed by Utick was "not in keeping with the spirit of the Act which is to pay compensation for loss of wages rather than indemnity payments for establishment of a claim." The court found that in Utick's case periodic payments best complied with the purpose and intent of the law. From the order denying his request for a lump sum settlement, Utick has brought this appeal. Statutory authority for the conversion into a lump sum of biweekly payments provided for under the orkmen's Compensation Act is found in section 92-715, R.C.M. 1947, now section 39-71-741 MCA. The grant or denial of a lump sum settlement will not be interfered with on appeal unless there is an apparent abuse of discretion. Kent v . Sievert (1971), 158 Mont. 79, 489 P.2d 104; Kuehn v . National Farmers Union Property & Cas. Co. (1974), 164 Mont. 303, 521 P.2d 921. Thus, the only issue for our determin- ation on this appeal is whether there was an apparent abuse of discretion by the Workers' Compensation Division in resisting, and the Workers' Compensation Court in denying appellant's re- quest for a lump sum settlement under the circumstances present here. The general rule is that payments under the Workmen's Compensation Act are periodic. Lump sum settlements are an exception to the general rule. Malmedal v. Industrial Accident Board (1959), 135 Mont. 554, 342 P.2d 745; Laukaitis v. Sisters of Charity of Leavenworth (1959), 135 Mont. 469, 342 P.2d 752; Legowik v . Montgomery Ward (1971), 157 Mont. 436, 486 P.2d 867; Kent v. Sievert, supra; Kuehn v . Nat. Farmers Union Property & Cas. Co., supra. This does not mean, however, that lump sum awards are looked on with disfavor. They should be awarded with- out hesitancy "where the best interests of the parties demand it." Laukaitis, 135 Mont. at 474, 342 P.2d at 755, citing Landeen v. Toole County Refining Co. (1929), 85 Mont. 41, 47, 277 P. 615, 617. Each case for a lump sum payment stands or falls on its own merits. Codling v . Aztec Well Servicing Co. (1976), 89 N.M. The most recent Montana case discussing the question of lump sum settlements is Kuehn, supra, wherein the guiding prin- ciples are summarized as follows: "A review of the Montana precedent on this point indicates that conversion . . . to . . . lump sum payments is the exception rather than the rule. This is, as it should be, in the best interests of the injured workman, whose paycheck is generally better substituted for by a weekly benefit check rather than a lump sum windfall. The criteria determinative of the advisability of conversion to . . . a lump sum award have generally been held to be '. . . the best interests of the claimant, his family, and for the best interests of the public . . .'. (Citations omitted.) The existence of a 'pressing need' and/or 'outstanding indebtedness' has likewise been held to be relevant criteria; (Citation omitted.)" Kuehn, 164 Mont. at 307, 521 P.2d at 923-924. This discussion in Kuehn recognizes what is adopted by the authorities generally as the reasoning behind the rule that payments under the Workmen's Compensation Acts should be made periodically rather than in a lump sum; that is, that the average workman for whose protection the acts are intended would be in- capable of handling a single large sum of money, would soon dissipate it, and would then be in as poor straits as if Work- men's Compensation had never existed. See 3 ÿ arson's Workmen's Compensation Law 582.71. While this underlying rationale may hold true in the majority of cases, it clearly does not apply here. On the con- trary, it was demonstrated by Utick without dispute by the Work- men's Compensation Division or the Workers' Compensation Court that Utick could utilize a lump sum award to assure a substantial source of regular income for himself. Applying the criteria spelled out in Kuehn, supra, we hold that Utick's request for a lump sum settlement should have been granted. We recognize that in this case there is absent the "press- ing need" or "outstanding indebtedness" factor customarily relied on in lump sum settlement cases. Nonetheless, we find that be- cause of the circumstances involved in this case the general criteria of "the best interests of the claimant, his family, and the best interests of the public" are better fulfilled if the lump sum award is ordered. The circumstances that influence our decision in this case are not limited merely to the clear demonstration by Utick of what his best interests were from the economic or financial perspective. We are also persuaded by what appears to us as arbitrary and unfair treatment of Utick by the Workmen's Compen- sation Division from the very outset in handling his claim. Coun- sel for Utick stated during oral argument of this appeal that at no time during the pendency of the claim, including the time after which the Workers' Compensation Court had specifically ordered the Division to make certain payments to Utick, had the payments due him been current. Counsel for the Division conceded that tick's claim had been badly mishandled and offered an apology to Utick for any resulting hardship or inconvenience. Because Utick clearly demonstrated what his best interests were and the Division established no countervailing interests, because the Division gave no reasons for not allowing the lump sum award but merely relied on its unbridled discretion, and because a lump sum award here will finally put an end to the conflict between Utick and the Division and allow him to "put behind him" the arbitrary treatment he has suffered (see Legowik v. Montgomery Ward, supra), we conclude that the denial of the lump sum settlement was an abuse of discretion. We do not by this decision alter in any way the general rule or the principles established in our prior opinions regard- ing that rule, viz. that lump sum settlements are an exception to the usual mode of payment contemplated by the Workmen's Com- pensation Act. We hold only that the circumstances of this case give rise to an occasion on which the exception should be applied. The order of the Workers' Compensation Court denying appellant's request for a lump sum advance payment of benefits due him from the State Compensation Insurance Fund is reversed. As to the amount of the lump sum award, neither party to this appeal has supplied us with sufficient information to calculate the proper figure. The amounts appellant has already received under the periodic payments being made to him up to the time of oral argument of this appeal and the method of discounting to present value the total due him for a lump sum settlement are referred to obliquely in the briefs, but the record is insuffi- cient for us to undertake the calculation ourselves. The claim is therefore remanded to the Workmen's Compensation Division with instructions to award appellant a lump sum settlement as it should have been calculated according to the usual lawful procedures of the Division as of October 2 3 , 1978, the date the Workers' Compensation Court erroneously denied the lump sum award, tak- ing into account and adjusting for whatever amounts appellant was paid by the Division in periodic payments subsequent to that date. The 10% penalty increase ordered by the Workers' Compensation Court for the failure of the Division to pay Utick at the time the money was due shall also apply to the lump sum award ordered herein and the calculation shall be adjusted accordingly. That portion of the Workers' Compensation Court's order allowing reasonable attorney fees to Utick is affirmed. Each party shall bear its own costs and attorney fees on appeal. Reversed in part and remanded. . Chief Justice	April 19, 1979
1302aee9-4ca9-4094-b12d-69e84773ef0c	STATE EX REL MARLENEE v DISTRICT	N/A	14620	Montana	Montana Supreme Court	IN THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA ex rel. CARMEN D. MARLENEE, Relator, VS. DISTRICT COURT OF THE FIFTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF DANIELS and THE HONORABLE M. JAMES SORTE, the Judge thereof, Respondents. ~ - ~ p O R D E R PER CURIAM: Respondents' petition for rehearing and relator's ob- jections thereto having been filed herein and considered by the Court, IT IS ORDERED; That the opinion in the above named cause, decided on March 8, 1979, is modified as follows: (1) On Page 6 , lines 2 through 8 are deleted and the following put in their place. "The district court shall enter a decree of dis- solution of marriage if: (b) the court finds t h a + t h o rnarr; 3 m n : ; --, "(i) that the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of this proceeding; or "(ii) that there is serious marital discord which adversely affects the attitude of one or both of the parties towards the marriage; . . ." Section 48-316, R.C.M. 1947, now section 40-4-104 MCA. (Emphasis supplied.) ( 2 ) O n page 3 , l i n e 1 1 from t h e t o p of t h e page, t h e words "Both counsel were present." a r e deleted. A s so modified, t h e p e t i t i o n f o r rehearing is denied. DATED t h i s 2 d - day of March, 1979. 0 ' J u s t i c e s V No. 1 4 6 2 0 IN THE SUPHEME COURT OF THE STATE OF MCKCANA 1 9 7 9 STATE OF KINTANA, ex rel., CARMEN D. M ? m m E E , Relator, DISTRICT C O W OF THE FDTEENX JUDICIAL DISTRICT OF THE STATE OF MINTANA, I N AND FOR THE COUNTY OF DANIELS and THE HONOl?Al3LE M. JAMES SOFEE, the Judge thereof, Respondents. ORIGINAL, PFuxEEDING: C o u n s e l of Record: For Relator : G e n e H u n t l e y , Baker, Wntana For R e s p o n d e n t s : James Sinclair, B i l l i n g s , Wntana Suhitted on briefs: February 13, 1 9 7 9 wided:IRAR 6 . - 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. This is an original application for a writ of supervis- ory control or alternatively for a writ of review seeking reversal of a District Court order dissolving a marriage. We ordered briefs filed and the application is now before us for determination. The underlying action to which this application relates is cause number 3096 in the District Court of Daniels County entitled "In re: The Marriage of Carmen D. Marlenee, Petitioner, and Ronald C. Marlenee, Respondent." In that action the wife sought a dissolution of the marriage, custody of the minor child- ren of the parties, and a division of the marital property whereby she would receive the husband's equity in the farm and ranch real estate, machinery and cattle, and the residence and furniture in Scobey in lieu of child support and the husband would receive all other property of the parties including a chalet. The husband filed a response in that action admitting the marriage was irretrievably broken; admitting that the wife was a fit person for custody of the minor children and that the child- ren's best interests would be served by awarding their custody to the wife; denying that he was not a fit and proper person for the custody of the children as alleged by the wife; denying that the property division sought by the wife is equitable; and seeking an equitable division of the marital property. During the course of proceedings the deposition of the husband was taken and various motions were filed by the parties. On November 9, 1978 the district judge set all pending motions for hearing in Wolf Point, Roosevelt County, Montana on November 21. Roosevelt County is in the same judicial district (the 15th) as Daniels County; the presiding district judge was the district judge of the entire fifteenth judicial district. The time and place where the motions would be heard was for the accomodation of counsel. Both counsel orally stipulated to the time and place of hearing and that the matter would be deemed to have been heard in ~aniels County. The order was subsequently vacated because of a conflict involving the wife's counsel. On November 22 an order was entered setting the hearing on dissolution of the marriage and all pend- ing matters for November 28 in Sidney, Richland County, Montana outside the fifteenth judicial district but before the same pre- siding judge of the fifteenth judicial district. The hearing was held as scheduled in Sidney, Richland County, Montana. Both counsel were present. Neither of the parties personally appeared. No objections to the time and place of hearing appear in the record of the hearing. On November 29, the presiding judge entered an order (1) granting the husband's motion for judgment on the pleadings on the divorce issue and declaring the marriage dissolved, (2) re- serving division of the marital property for a later hearing and determination, and (3) ordering the parties not to transfer, dis- pose or encumber the property except in the usual course of business or for the necessities of life. No findings of fact or conclusions of law were made or issued, nor was any determin- ation made on custody of the minor children. In the application for a writ of supervisory control or a writ of review now before this Court, the wife seeks to vacate and set aside the decree dissolving the marriage. She lists two legal issues for review: (1) whether the District Court can grant a divorce without a hearing where both parties have alleged that the marriage is irretrievably broken; (2) whether a divorce can be granted by a judge outside the district in which he is author- ized to act. We accept jurisdiction to review these issues by writ of supervisory control. We are empowered to do so by Article VII, Section 2(1) granting us "original jurisdiction to issue, hear, and determine writs of habeas corpus and other writs as may be provided by law", and by Article VII, Section 2(2) granting this Court "general supervisory control over all other courts". The writ of supervisory control has been a part of the law of this state for over 50 years. State ex rel. Rubin v . District Court et al. (1921), 62 Mont. 60, 203 P. 860; State ex rel. Heinze v . District Court etc. (1905), 32 Mont. 579, 81 P. 345. We consider this a proper case for a writ of supervisory control because relator wife has no plain, speedy and adequate remedy at law by appeal. Rule 54(b), M.R.Civ,P. provides: " (b) Judgment Upon Multiple Claims or Involving Multi~le Parties. When multiple claims for relief - or muitiple parties are involbed in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an ex- press direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or any other form of decision is subject to revision at any time be- fore the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." Here there was no express determination by the District Court that there is no just reason for delay in judgment on the claim for dissolution of the marriage nor is there an express direction for entry of judgment thereon, Without these prerequis- ites, relator wife cannot appeal from the order dissolving the marriage at this time nor at any time prior to entry of judgment or decree on all issues before the District Court. Krusemark v. Mont . Hansen et al. (1979), -' - P.2d , 36 St.Rep. 159. Respondent husband directs our attention to section 48- 328, R . C . M . 1947, now section 40-4-108 MCA, providing that a decree of dissolution of marriage is final when entered, subject to the right of appeal and Rule 1, M.R.App.Civ.P. providing for an appeal from a final judgment. Neither of these sections grant the right of immediate appeal from a partial judgment. Instead the right of immediate appeal from a judgment on a part but not all of the claims for relief in a single action is governed by Rule 54(b), M.R.Civ.P., as discussed in the preceding paragraph. Having accepted jurisdiction of the application for a writ of supervisory control, we are confronted with the question of whether a District Court can grant a judgment on the plead- ings dissolving the marriage where both parties allege the mar- riage is irretrievably broken without an evidentiary hearing and entry of findings to that effect supported by the evidence. Relator wife argues that the District Court cannot under the Uniform Marriage and Divorce Act (UMDA) enacted by the Montana legislature cite McKim v . McKim (1972), 100 Cal.Rptr. 140, 493 P.2d 868, in support. Respondent husband contends the District Court can, or alternatively that the pleadings plus his deposition empower the District Court to grant judgment of dissolution. 1379; Friedman v. Friedman (1974), 233 Ga. 254, 210 S.E.2d 754; and the dissenting opinion in McKim, supra. We note that although the District Court indicated at the hearing respondent husband's deposition would be considered, the order dissolving the marriage was simply a judgment on the plead- ings. It will be so considered in this opinion. Whatever the law may be in other jurisdictions, the Montana legislature has established the law in Montana. The UMDA as enacted in Montana provides: "The court, after hearing, shall make a finding whether the marriage is irretrievably broken . . ." Section 48-319, R . C . M . 1947,-now section 40-4-107 MCA. (Emphasis supplied.) No such finding was made in this case. The UMDA as enacted in Montana further provides: "The district court shall enter a decree of dissolution of marriage if: "(b) the court finds that the marriage is irre- trievably broken, which findings shall be supported by evidence." Section 48-316, R.C.M. 1947, now section 40-4-104 MCA. No such evidence was introduced or findings made in this case. Respondent husband argues that the District Court's order is a judgment on the pleadings and that all necessary allegations are contained in the petition and response in that court, both of which were under oath and all pertinent and required allega- tions were admitted. We have no quarrel with the general law permitting entry of judgment on the pleadings in cases where the necessary allega- tions are admitted. However, Montana law is equally clear that a specific statute is enacted governing a particular subject, the general statute or law must yield to the specific statute to the extent of any conflict. Huber v . Groff (1976), Mont . I 558 P.2d 1124, 1134, 33 St.Rep. 1124; State ex rel. Browrnan v. Wood (1975), 168 Mont. 341, 543 P.2d 184. Here the specific stat- utes governing dissolution of marriage (UMDA) require the court to make findings that the marriage is irretrievably broken supported by evidence which controls over any general statutes or law on judgments on the pleadings to the extent of any inconsistency. In view of our holding on this issue we need not reach or decide the second issue. We hold the judgment of dissolution of the marriage was prematurely entered for the reasons stated in this opinion. Chief Justice We concur:	March 8, 1979
7b7088f8-ac16-459d-9665-80c972f3807f	MAXWELL v ANDERSON	N/A	14336	Montana	Montana Supreme Court	No. 14336 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 RAY C. MAXWELL, Plaintiff, Respondent and Cross-Appellant, G. C. ANDERSON, JR., and CAROLE J. ANDERSON, husband and wife, Defendants and Appellants. Appeal from: District Court of the Thirteenth Judicial District, Honorable Jack Shanstrom, Judge presiding. Counsel of Record: For Appellants: Ayers and Alterowitz, Red Lodge, Montana Michael G. Alterowit argued, Red Lodge, Montana For Respondent: Meglen, Murray and Bassett, Billings, Montana J. F. Meglen argued and Chares A. Murray, Jr. argued, Billings, Montana Submitted: December 19, 1978 Decided: MAR 2 8 1979 Filedr , 2, 19f9 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 a c t i o n involves t h e f o r e c l o s u r e of a mechanic's l i e n by respondent Ray C. Maxwell on a house which he con- t r a c t e d t o b u i l d f o r a p p e l l a n t s Anderson. The D i s t r i c t Court, Thirteenth J u d i c i a l D i s t r i c t , ordered t h e Andersons t o pay Maxwell, t h e c o n t r a c t o r , $15,038.88 on h i s l i e n and a t o t a l of $9,223.41 t o o t h e r s u p p l i e r s who a l s o held l i e n s f o r m a t e r i a l s i n t h e house. I n a d d i t i o n , t h e D i s t r i c t Court ordered Andersons t o pay t h e c o n t r a c t o r ' s a t t o r n e y ' s f e e s i n t h e amount of $3,500. From t h e f i n a l judgment, Andersons appeal. I n May 1976, G. C. Anderson, Jr., prepared and entered i n t o a w r i t t e n agreement with Ray Maxwell t o have Maxwell b u i l d a house f o r t h e Andersons. The w r i t i n g , e n t i t l e d a "construction agreement," provided a r e c i t a t i o n of an "estimated c e i l i n g -- c o s t of $46,500" and allowing f o r a 10 percent margin. During t h e course of construction, Anderson requested numerous changes o r a d d i t i o n s , which t o t a l e d i n c o s t some $14,157.40. The construction agreement provided t h a t Maxwell was t o be paid on a monthly b a s i s f o r h i s m a t e r i a l s and on a bi-weekly b a s i s f o r labor. The construction proceeded normally and Andersons made t h e i r payments on schedule u n t i l September 13, 1976, when M r . Anderson t o l d Maxwell he d i d n o t have enough money t o make t h e next payment. Maxwell considered himself ter- minated on t h e 1 7 t h of September and withdrew h i s crew from t h e p r o j e c t . Anderson contacted Maxwell on t h e 23rd t o arrange h i s r e t u r n t o t h e job, b u t on t h e following day no workmen w e r e on t h e job. Maxwell f i l e d a mechanic's l i e n t o p r o t e c t h i s i n t e r e s t and t h e m a t e r i a l s f o r which he had n o t been paid. At trial Maxwell limited his proof to the issue of how much money he had put into the project by the time his lien was filed and the amount he had actually been paid. Following September 1976, three other business firms, Marchello Hardware, Sherwin Williams, and American Appliance Co., also filed liens on materials used on the project. By the pleadings, the parties had put into issue the question of which party, the Andersons or Maxwell, was responsible for this payment. (The American Appliance lien was included in Maxwell's lien, and Maxwell has acknowledged its payment prior to appeal.) At the conclusion of trial without a jury, the court entered the following conclusions and judgment: "1. Mr. Maxwell has filed a mechanic's lien in accordance with Section 45-502, Revised Codes of Montana, 1947, as amended. "2. The mechanic's lien was properly foreclosed and recovers the value of labor and material as set forth in the lien. "3. Mr. Maxwell substantially completed construc- tion of the defendants' dwelling. "4. The defendants are legally responsible for additional liens and charges against the defen- dants, individually or against the property. "5. The term 'estimates' as used in the May 15, 1976, agreement does not limit the amount of money that the plaintiff may recover. "6. That the defendant, G. C. Anderson, is not entitled to any damages based on loss of wages. "7. That Mr. Maxwell is not a general contractor as a matter of law. "8. The plaintiff is entitled to reasonable attor- neys' fees as provided by Section 93-8614, Revised Codes of Montana, 1947, as amended. "JUDGMENT "Pursuant to the foregoing Findings of Fact and Con- clusions of Law, judgment is entered in plaintiff's favor as follows: "1. The defendants s h a l l pay t o t h e p l a i n t i f f t h e sum of F i f t e e n Thousand S i x Hundred Thirty-Six and 38/100 D o l l a r s , ($15,636.38), minus t h e following s e t - o f f s , f o r a t o t a l of F i f t e e n Thousand Thirty- E i g h t and 88/100 D o l l a r s ($15,038.88): " a . Bypass Valve----------- $70.00 "b. C o r r e c t i o n of W a l l - - - - - 7.50 "c. Correction of S t a i r w e l l 20.00 "d. Correction of C r a w l Space ---------------- 500.00 $597.50 "2. The defendants s h a l l pay t o t h e p l a i n t i f f i n t e r e s t on t h e above amount from September 23, 1976, u n t i l t h e e n t i r e d e b t has been p a i d i n f u l l . "3. That i n t h e e v e n t t h e defendants a r e unable t o pay t h e amount of t h e judgment, t h e Court s h a l l s u p e r v i s e t h e s a l e of any and a l l a s s e t s of defen- d a n t s which may be h e l d t o s a t i s f y s a i d judgment. " 4 . That p l a i n t i f f have judgment a g a i n s t defendants f o r any d e f i c i e n c y remaining i n t h e e v e n t t h e pro- ceeds from t h e s a l e do n o t s a t i s f y p l a i n t i f f ' s claim. "5. That t h e defendants pay any and a l l a d d i t i o n a l l i e n s a g a i n s t t h e property. "6. The defendants s h a l l pay reasonable a t t o r n e y s ' f e e s i n t h e amount o f T h i r t y Five Hundred D o l l a r s ($3500.00), and t h e p l a i n t i f f s h a l l pay t h e balance of F i f t e e n Hundred Two D o l l a r s ($1502.00). "7. That defendants s h a l l pay a l l c o s t s of s u i t . " Appellants p r e s e n t f i v e i s s u e s f o r review by t h i s Court: 1. Is a l i e n h o l d e r e n t i t l e d t o judgment on h i s mechanic's l i e n without r e f e r e n c e t o a n estimated p r i c e s t a t e d i n t h e c o n t r a c t upon which t h e l i e n i s based? 2. Is t h e defendant i n a l i e n f o r e c l o s u r e a c t i o n e n t i t l e d t o a d i r e c t e d v e r d i c t when t h e l i e n h o l d e r f a i l s t o show by t h e p a r t i e s ' c o n t r a c t t h a t he w a s i n f a c t e n t i t l e d t o t h e amount on which he i n t e n d s t o f o r e c l o s e ? 3. Is an award of a t t o r n e y ' s f e e s properly made when ( a ) t h e p r e v a i l i n g p a r t y f a i l e d t o p r e s e n t evidence on f e e s i t s case-in-chief? and, (b) t h e l o s i n g p a r t y had no opportunity t o cross- examine a s t o t h e amount of f e e s involved? 4. May a D i s t r i c t Court properly order a p a r t y i n a l i e n f o r e c l o s u r e a c t i o n t o pay o f f l i e n s held by o t h e r l i e n h o l d e r s who are n o t p a r t i e s t o t h e foreclosure? 5. Is an a p p e l l a n t e n t i t l e d t o a t t o r n e y ' s f e e s i n t h e event t h a t he p r e v a i l s on appeal? The f i r s t two i s s u e s involve t h e same b a s i c question and can be t r e a t e d as one i s s u e . Appellants' p o s i t i o n i s t h a t t h e maximum p r i c e they could be expected t o pay under t h e f a c t s i s t h e " t o t a l c e i l i n g c o s t " of $51,150 p l u s a d d i t i o n a l c o s t s f o r t h e i r a l t e r a t i o n s , amounting t o $14,157.40. Although a p p e l l a n t s do not s t a t e t h i s f i g u r e i n t h e i r b r i e f , it appears t h a t t h e t o t a l they consider themselves t o owe Maxwell under any circumstance i s $65,307.40. Appellants do n o t consider themselves responsible f o r t h e payment of $9,223.41 t o o t h e r c o n t r a c t o r s . The D i s t r i c t Court s p e c i f i c a l l y found t h e Andersons " l e g a l l y responsible f o r a d d i t i o n a l l i e n s and charges." Maxwell contends t h a t because he chose t o proceed under t h e l i e n s t a t u t e s , r a t h e r than c o n t r a c t law, t h e l i e n law governs t h i s case. Under t h e applicable l i e n law, he con- tends, he i s e n t i t l e d t o an e q u i t a b l e quantum meruit f o r m a t e r i a l s and labor p u t i n t o t h e p r o j e c t without regard t o any underlying c o n t r a c t o r agreement. H e f u r t h e r argues t h a t , even i f t h e matter were t o be decided under c o n t r a c t law, t h e estimated p r i c e indicated i n t h e construction agreement would n o t a c t as a l i m i t on t h e c o n t r a c t o r ' s recovery. The Montana mechanic's l i e n s s t a t u t e does n o t speci- f i c a l l y say what r o l e t h e c o n t r a c t between t h e owner and l i e n h o l d e r p l a y s i n determining t h e amount of t h e l i e n . S e c t i o n 45-501, R.C.M. 1947, now s e c t i o n 71-3-501 MCA, simply provides: "Every . . . b u i l d e r . . . performing any work and l a b o r upon, o r f u r n i s h i n g any m a t e r i a l . . . f o r , any b u i l d i n g . . . upon complying with t h e p r o v i s i o n s of t h i s chapter, f o r h i s work o r l a b o r alone, o r m a t e r i a l . . . furnished, has a l i e n upon t h e property upon which t h e work o r l a b o r i s done o r material i s furnished." While a n agreement i s necessary as a p r e r e q u i s i t e t o a l i e n ' s e x i s t e n c e , t h e r i g h t i s s t a t u t o r y and n o t dependent on whether t h e c o n t r a c t with t h e owners of t h e property i s w r i t t e n , o r a l , express o r implied. Nontana d e c i s i o n s are less c l e a r a s t o how t h e t o t a l c o n t r a c t p r i c e a f f e c t s t h e amount of t h e l i e n . The p a r t i c u l a r q u e s t i o n r a i s e d by ap- p e l l a n t s h e r e was addressed i n Smith v. Gunniss (1943), 115 Mont. 362, 383-84, 1 4 4 P.2d 186, 193. I n Gunniss t h e owners had c o n t r a c t e d f o r work t o be done on t h e i r home, b u t had n o t agreed upon a t o t a l p r i c e . I n s t e a d , t h e owners had agreed t o pay f o r t h e remodeling by s i g n i n g " a T i t l e One Federal Housing n o t e i n t h e amount due" a t t h e completion of t h e p r o j e c t . Such n o t e s w e r e l i m i t e d t o $2500 by l a w . Therefore, t h e owners argued t h a t they had l i m i t e d t h e i r o b l i g a t i o n t o t h a t amount. The Court noted, however, t h a t t h e owners had been a p p r i s e d during t h e remodeling t h a t t h e c o s t s w e r e going over $2900 and t h a t t h e owners permitted t h e work t o continue beyond t h a t p o i n t . Thus, it r u l e d t h a t t h e owners had acquiesced i n an abandonment of t h a t c o n t r a c t provision. Gunniss i s n o t our c a s e on a l l p o i n t s b u t does demon- s t r a t e t h a t under proper circumstances an award can be made based on t h e reasonable c o s t of labor and m a t e r i a l s f u r - nished by t h e l i e n h o l d e r , i n disregard of t h e o r i g i n a l c o n t r a c t . Maxwell i s i n a s t r o n g e r p o s i t i o n because he was building under an agreement drawn by t h e owner which w a s based on an "estimated" c o s t of m a t e r i a l and labor f o r a c e r t a i n s t r u c t u r e . The estimated c o s t was f u r t h e r s u b j e c t t o a number of v a r i a b l e s , i.e., 10 percent o r i g i n a l e r r o r , owner permitted t o f u r n i s h a l l labor p o s s i b l e t o hold down c o s t s and t h e a b s o l u t e r i g h t of t h e owner t o change plans and s p e c i f i c a t i o n s a t w i l l . I n any event, o t h e r c o u r t s have determined estimated c o s t s t o mean: "The 'estimated c o s t ' of a building means t h e rea- sonable c o s t of a building e r e c t e d i n accordance with plans and s p e c i f i c a t i o n s r e f e r r e d t o and n o t n e c e s s a r i l y t h e amount agreed upon by t h e p a r t i e s o r an o f f e r accepted by defendant. . . An estimate i s equivalent of 'more o r l e s s ' and does n o t pre- tend t o be based on absolute c a l c u l a t i o n s . Use of t h e word precludes accuracy. 'To make an e s t i m a t e ' o r d i n a r i l y means t o c a l c u l a t e roughly o r t o form an opinion a s t o amount from imperfect d a t a . See B e e l e r v. M i l l e r , Mo. App., 254 S.W.2d 986, 990, and a u t h o r i t i e s c i t e d ; 15 Words and Phrases, 'Es- t i m a t e ' , pp. 373-380; Black, Law Dictionary (Fourth Ed. 1951), 648; B a l l e n t i n e ' s Law Dictionary (Third Ed. 1969), 420." Denniston and P a r t r i d g e Co. v. Mingus (Iowa 1970), 179 N.W.2d 748, 752-53. Appellants admit t h a t a l l m a t e r i a l and labor claimed by Maxwell were i n f a c t used i n t h e construction of t h e house, and t h a t a p p e l l a n t s changed t h e plans many t i m e s during construction. The D i s t r i c t Court found that t h e owners "acted independently and f o r t h e i r own b e n e f i t when they purchased m a t e r i a l and secured s e r v i c e s from o t h e r c o n t r a c t o r s . " Appellants do n o t attempt t o show evidence contrary t o t h e D i s t r i c t C o u r t ' s conclusion. They r e l y i n s t e a d upon t h e c o n t r a c t o r ' s f a i l u r e t o show a modification i n t h e construc- t i o n agreement allowing f o r a higher t o t a l p r i c e . I n t h i s kind of s i t u a t i o n , it i s not necessary t o prove a modifica- t i o n of t h e c o n t r a c t by Maxwell. The p a r t i e s never had a "firm" c e i l i n g . Therefore, t h e D i s t r i c t Court properly determined t h e value of t h e l i e n which Maxwell held on Andersons' house. Additionally, t h e findings of t h e D i s - t r i c t Court on t h i s i s s u e were never challenged by substan- t i a l evidence t o t h e contrary and must stand affirmed. Morrison v. City of Butte (1967), 150 Mont. 106, 112, 431 P.2d 79. The remaining i s s u e s may be t r e a t e d summarily. F i r s t , a p p e l l a n t s contend t h a t t h e D i s t r i c t Court wrongly awarded Maxwell a t t o r n e y ' s f e e s because Maxwell f a i l e d t o put on evidence of f e e s during h i s case-in-chief and because appel- l a n t s were denied an opportunity t o cross-examine a s t o t h e i r reasonableness. A s t o t h e f i r s t objection, appellants focus primarily on t h e D i s t r i c t Court's f a i l u r e t o o f f e r an explanation f o r permitting Maxwell t o reopen h i s case-in-chief and present evidence of a t t o r n e y ' s fees. Appellants concede t h a t t h e matter of permitting a l i t i g a n t t o reopen h i s case-in-chief i s placed within t h e d i s c r e t i o n of t h e t r i a l court. Section 93-5101(4), R.C.M. 1947, now s e c t i o n 25-7-301(4) MCA. They contend, however, t h a t they were injured by t h e c o u r t ' s a c t i o n by t h e mere f a c t t h a t Maxwell was permitted t o p u t on evidence and received an award. This has nothing t o do with t h e i n j u r y t h a t might r e s u l t from a d i s o r d e r l y presentation of evidence. N o showing i s made t h a t a p p e l l a n t s were in- jured by t h e manner i n which t h e evidence was presented. While reopening a case-in-chief may n o t be d e s i r a b l e , a more s u b s t a n t i a l showing of harm should be made before t h i s i s declared r e v e r s i b l e e r r o r . A s t o t h e second contention, t h e D i s t r i c t Court ordered Maxwell t o present an itemized statement within twenty days, which he did. Some two months l a t e r t h e D i s t r i c t Court issued i t s findings, conclusions, and judgment. Appellants could have obtained a copy and entered t h e i r objections a t any time during t h e interim. They should not now be per- mitted t o r a i s e t h e i s s u e a s r e v e r s i b l e e r r o r . Appellants' next i s s u e concerns 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 order them t o pay debts and l i e n s t o e n t i - ties not p a r t i e s t o t h e foreclosure action. The D i s t r i c t Court d i d n o t order appellants t o make payments of any s p e c i f i c sums t o s p e c i f i c businesses. Instead, it found a p p e l l a n t s l e g a l l y responsible f o r o t h e r l i e n s and charges and ordered generally t h a t appellants pay those. The i s s u e of o t h e r l i e n s and charges arose from t h e a c t i o n s of t h e p a r t i e s . Maxwell included t h e l i e n of A m e r i - can Appliance Co. i n h i s amended l i e n . Appellants, on November 2 , 1977, submitted a motion t o amend t h e i r answer and counterclaim. I n t h e i r amended counterclaim they asked t h e D i s t r i c t Court t o order Maxwell t o pay t h e debts t o Marchello Hardware and Sherwin Williams Co. Thus, t h e p a r t i e s asked t h e D i s t r i c t Court t o determine which of them owed various separate businesses and thereby submitted themselves t o i t s j u r i s d i c t i o n . O n t h i s b a s i s t h e r e appears no reason t o reverse t h e D i s t r i c t Court's determination of which p a r t y owes these o t h e r debts. Appellants' l a s t i s s u e involves a t t o r n e y ' s fees. heir argument i s very b r i e f on t h i s point. They note f i r s t t h a t they requested reasonable a t t o r n e y ' s f e e s i n t h e i r answer and counterclaim. Second, they p o i n t t o t h e evidence of a t t o r n e y ' s f e e s which they presented a t t r i a l . Third, they note t h a t on A p r i l 15, 1977, they made an o f f e r of judgment t o p l a i n t i f f , conditioned upon p l a i n t i f f ' s paying o f f a l l t h e o t h e r mechanic's l i e n s which had been f i l e d on t h e house. Their argument then is: "Given t h e f a i l u r e of proof on t h e p a r t of Respondent, a s w e l l a s Appellants' w i l l i n g - ness t o s e t t l e t h i s matter e a r l y on, it i s submitted t h a t Appellants w e r e e n t i t l e d t o be awarded a t t o r n e y f e e s a s prayed f o r and t h a t t h e Supreme Court should e i t h e r order t h e payment of such a t t o r n e y f e e s t o Appellants o r remand t h e i s s u e of a t t o r n e y f e e s t o t h e D i s t r i c t Court f o r f u r t h e r testimony i n con- nection therewith. " Section 93-8614, R.C.M. 1947, now s e c t i o n 71-3-124 NCA, e s t a b l i s h e s t h e p r i n c i p l e of when a t t o r n e y ' s f e e s a r e recover- a b l e on a l i e n f o r e c l o s u r e a c t i o n . They a r e recoverable i n a reasonable amount " t o each claimant whose l i e n i s estab- l i s h e d " and " t o t h e defendant a g a i n s t whose property a l i e n i s claimed, i f such l i e n be n o t e s t a b l i s h e d . " The s t a t u t e makes a t t o r n e y ' s f e e s recoverable t o t h e p r e v a i l i n g party. I f t h e defendants, a p p e l l a n t s i n t h i s case, do not win, they a r e not e n t i t l e d t o a t t o r n e y ' s f e e s . W e concur: Jpstices 4	March 27, 1979
9ce94e7f-716e-464c-92cd-17e85e33d46b	HIGGINS v MONTANA HOTEL CORP	N/A	14263	Montana	Montana Supreme Court	No. 14263 I N THE SUPREME C O U R T O F THE STATE O F M O N T A N A 1979 EUGENE HIGGINS et a l . , P l a i n t i f f s and Respondents, -vs- T H E M O N T A N A HOTEL CORPORATION e t a l . , Defendants and Appellants. Appeal from: 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 , Honorable Robert J. Boyd, Judge p r e s i d i n g . Counsel o f Record: For Appellants: McCaffery and Peterson, Butte, Montana John L. Peterson argued, Butte, Montana For Respondents: Poore, McKenzie, Roth, Robischon & Robinson, B u t t e , Montana James A. Poore argued, Butte, Montana Michael J. McKeon, Anaconda, Montana Submitted: February 13, 1979 Decided : M4r( 12 1 9 3 i\bb\i, L i9-i3 F i l e d : Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This appeal is from a judgment entered in the District Court for Deer Lodge County, on March 20, 1978, in a tax title proceeding. Appellant appeals from the decree quieting title in respondent and respondent asserts that attorney fees should be awarded. On April 6, 1964, the Montana Hotel Corporation, as owner of the Marcus Daly Hotel in Anaconda, Montana entered a construction contract with Thomas Lutey, doing business as Lutey Construction Company. The contract provided that Lutey Construc- tion Company (Lutey) was to remodel the hotel and build a motel on ad j acent lots. Lutey completed work in 1965 and being unpaid for part of the contract, on October 25 of the same year, filed a mechanic's lien against the hotel and motel properties. Other contractors were in the same position and also filed liens. In a foreclosure action commenced by the other contrac- tors on April 19, 1967, Lutey, the Montana Hotel Corporation and others were named as defendants. Lutey cross-complained and his lien, in the amount of $56,070 was foreclosed by a default judg- ment entered on March 2, 1977. The judgment recited that Lutey had a "first valid and subsisting lien upon the interest of the Montana Hotel Corporation." Meanwhile, Montana Hotel had leased the property upon which the motel was to be built from Torgerson Brothers, Inc. with the understanding that it would be built. The motel was built but the corporation did not pay its property taxes for 1967, 1968, 1969, 1971, 1972 or 1974 and the property was struck off to Deer Lodge County in the amounts assessed. On January 27, 1976, Eugene Higgins, a respondent in this action, paid the taxes, received a certificate of tax assignment on the hotel property, and published notice of intent to apply for a tax deed to that property. On May 12, 1976, Montana Hotel Corporation assigned its leasehold interest in the motel property to Higgins. On May 27, 1976, Higgins paid the back taxes, penal- ties and interest accrued which pertained to the buildings and improvements on the motel property. The county treasurer con- sidered the motel building and improvements to be personal prop- erty and did not issue a certificate of tax assignment. On February 11, 1977, Higgins entered into a contract with Marouf Carpenter, a respondent in this action, whereby Carpenter obtained an option to purchase the motel property. The contract provided that Carpenter would not have to purchase until satis- fied that Higgins' leasehold could be transferred free and clear of all liens and encumbrances. Carpenter began operation of the motel on February 15, 1977 and at the time of trial was still run- ning the Marcus Daly Motel. Between April 6, 1977 and August 11, 1977, Higgins and Carpenter made expenditures totaling $33,840.66 which, for pur- poses of this decision, will be assumed to be expenses incurred in maintaining and improving the motel property. On August 18, 1977, Higgins filed his complaint in two counts seeking to quiet title in the hotel property (Count I) and to procure a tax deed to and quiet title in the motel prop- erty (Count 11). A show cause hearing was subsequently held and the court ordered that a payment of $56,756.32 was necessary to redeem the motel buildings and improvements. Lutey deposited this amount with the clerk of court on October 6, 1977 and filed his answer to the complaint. He asserted that he was, by the filing of his mechanic's lien and the foreclosure thereon which has remained unsatisfied, a lienholder and therefor a proper redemptioner. Lutey did not assert an interest in the hotel property. The trial court adopted Higgins' findings of fact and conclusions of law. Count I of the action is not included in this appeal. With regard to Count 11, the District Court held that Kiggins was entitled to a certificate of tax assignment under section 84-4138, R . C . M . 1947, now section 15-17-303 MCA, and that because of laches, Lutey was estopped from redeeming the property. The court ordered that Lutey's deposit be return- ed to him and that a tax deed to the motel buildings and improve- ments be issued to Higgins. Although the complaint prayed for attorney fees, no evidence was produced at trial upon which to base an award and none were awarded. The following issues are raised on appeal: (1) Whether laches will apply to bar a redemptioner in an action to procure a tax deed. (2) Whether in an action to procure a tax deed a redemp- tioner must reimburse the plaintiff for improvement and mainten- ance expenses incurred in addition to the taxes, penalties and interest paid by the plaintiff. (3) Whether attorney fees are available when the issue is pleaded but not raised at trial or made part of the trial court's judgment. Under Montana law, when property taxes are not paid, the property is sold at a tax sale pursuant to the procedure set forth in section 84-4117 et seq., R . C . M . 1947, now section 15-17- 101 et seq. MCA. When there is no purchaser at the saletthe prop- erty is sold or struck off to the county for the amount of tax due. Section 84-4124, R . C . M . 1947, now section 15-17-207 MCA. After this has occurred the county may assign its interest to anyone who pays the taxes due on the property plus penalties, costs and interest. It then issues the assignee a certificate of tax assignment. Section 84-4138, R . C . M . 1947, now section 15- 17-303 MCA. In this case no certificate was issued but it was agreed by the parties that Higgins, upon his payment of the amounts due was entitled to one and we shall proceed as if it had in fact been issued. The assignee does not have title to the property; rather he has an inchoate right which can ripen into a title which is free from all encumbrances. Johnson v . Silver- bow County (1968), 151 Mont. 283, 287, 443 P.2d 6; Jensen Live- stock Co. v. Custer County (1942), 113 Mont. 285, 295, 124 P.2d 1013. Title to the property in the form of a tax deed may be obtained in either of two ways. The purchaser or his assignee may employ the statutory method as outlined in section 84-4151 et seq., R . C . M . 1947, now section 15-18-~&cA, whereby notice of the intention to procure a tax deed must be given to all potential redemptioners. The second method is to bring a civil action in the county where the property is located. Section 84-4162 et seq., R.C.M. 1947, now section 15-18-301 et seq. MCA. Respondents used the judicial method and the code sections per- to tinent thereto /govern our decision. In judicial proceedings to procure a tax deed all parties who have a recorded interest in the property are to be made de- R.C.M. 1947 fendants. Section 84-4163 et s e q . / , now section 15-18-302 MCA. It is also provided that: " . . . Any defendant to the action may make re- demption of the lands from the tax sale by paying the total amount of delinquent taxes and penalties which plaintiff has paid, with interest thereon at 8% a year from date of payment, together with costs of the action. Upon such payment, a certificate of redemption shall be issued by the county trea- surer to the defendant so paying, and thereupon the action shall be dismissed . . ." Section 84- 4166, R . C . M . 1947, now section 15-18-305 MCA. Respondents' contention that Lutey is barred by laches from redeeming the property is premised on two sets of circum- stances. They first assert that the delay between the filing of Lutey's mechanic's lien in 1965 and its foreclosure in 1977 constitutes laches. In effect, they urge this Court to ignore Lutey's "valid and subsisting lien" and would have us set aside the default judgment which foreclosed that lien. ~espondent Higgins' interest in the motel property was obtained in May 1976 when the Montana Hotel Corporation assigned its lease to him. He was thus in privity with a party to the foreclosure action, In re Smith's Estate (1921), 60 Mont. 276, 299, 199 P. 696, and because his interest was obtained after the commencement of the foreclosure action but before final judgment was rendered therein, the proper mode of attack is by appeal. Wight v. Chandler (10th Cir. 1959), 264 F.2d 249, 253; Teisinger v. Hardy (1929), 86 Mont. 180, 190, 282 P. 1050. A collateral attack on a judgment, such as undertaken here, is possible only if it is "void on its face and it appears affirmatively from the judgment role (sic) that the court did not have jurisdiction or committed an act in excess of jurisdiction." Moxley v. Vaughn (1966), 148 Mont. 30, 34, 416 P.2d 536. No such showing has been made herein. The fact that this foreclos- ure was decreed by default is of little consequence; it "is as conclusive against collateral impeachment as any other form of judgment." 49 C.J.S. Judgments S404. Respondents' second argument with regard to laches is that once Lutey was notified of Higgins' intent to procure a tax deed for the hotel property he delayed his attempt to redeem the motel property and thereby induced respondents to make expenditures. Notice of intent to apply for a tax deed to the hotel property was just that; it was not notice of intent as to the motel prop- erty. Once Lutey was notified of the judicial proceeding as to the motel property he did not delay in asserting his statutory right of redemption. Having determined that Lutey may redeem the property, we now turn to the question of the amount necessary to accomplish the redemption. Respondents argue that since this is an action to quiet title, section 81-4158, R . C . M . 1947, now section 15-18- 401 MCA, applies and Lutey must pay not only the delinquent taxes, penalties and interest, but also the maintenance and improvement expenses incurred. The respondents in this action have a certificate of tax assignment; this is not title to the property. Johnson v. Silver Bow County (1968), 151 Mont. 283, 287, 443 P.2d 6. None of the expenses they incurred were under color of title and no reimbursement is necessary. This is a judicial proceeding to procure, not to protect, a tax deed. Thus, section 84-4166, R.C.M. 1947, now section 15-18-305 MCA, governs and Lutey, as redemptioner must pay "the total amount of delinquent taxes and penalties which plaintiff has paid, with interest thereon at 8% a year from date of payment together with costs of the action." When a tax deed is sought through civil action, "the court shall allow the successful party his costs, to be fixed by the court including a reasonable attorney's fee." Section 84- 4167, R.C.M. 1947, now section 15-18-306 MCA. Lutey is the suc- cessful party in this action. Niles v. Carbon County (1977), Mont . , 568 P.2d 524, 527, 34 St.Rep. 827. Respondents, as the parties from whom redemption is made, are entitled to "costs of the action". Section 84-4166, R . C . M . 1947, now section 15-18- 305 MCA. Because costs do not include attorney fees, Tomten v . Thomas (1951), 125 Mont. 159, 165, 232 P.2d 723, and because respondents were not successful parties, any award of attorney fees to them would be improper. Since no evidence was offered on attorney fees at trial, we remand the case for a determination of Lutey's costs and attor- ney fees under section 84-4167, R . C . M . 1947, now section 15-18- 306 MCA, and also respondents' costs up until October 7, 1977, the date Lutey redeemed. Section &-4166, R.C.M. 1947, now 4 0 C section 15-18-3436 MCA. R e v e r s e d and r e m a n d e d . C h i e f Justice	March 18, 1979
fef65c98-5d75-4f9d-aaae-d8da433f944f	JERKE v STATE DEPT OF LANDS	N/A	14366	Montana	Montana Supreme Court	No. 14366 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 ALBERT JERKE , Plaintiff and Appellant, THE STATE DEPARTMENT OF LANDS, et al., Defendants and Respondents. Appeal from: District Court of the First Judicial District, Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Appellant: Scribner, Huss & Mulroney, Helena, Montana Lawrence D. Huss argued, Helena, Montana For Respondent: John North argued, Helena, Montana Charles W. Jardine argued, Miles City, Montana For Amicus Curiae: Carl M . Davis, Dillon, Montana Filed: MAR - . ' 199" Submitted: February 6, 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Plaintiff appeals from an adverse judgment in an action to cancel a lease following a nonjury trial in the District Court of Lewis and Clark County. The Prairie County State Grazing District was created pursuant to the Grass Conservation Act, section 46-2301 et seq. R . C . M . 1947, now section 76-16-101 et seq. MCA. In conserving Montana's rangeland resources, the Grazing District procures available land and allocates it to its members for use in their individual farming or ranching businesses. It does not use the land itself. Under a 1965 lease, the Grazing District was the lessee of a tract of state land lying within Prairie County. This land was allocated to David Hess and two other individuals who used it for their personal ranching enterprises. In early 1975 with the termination of the lease, the Department of State Lands, acting on behalf of the Montana Board of Land Commissioners, requested competitive bids for the lease of the tract. Appellant submitted the only bid. It was based on a 26% crop share with a guaranteed minimum of $2,000 per year. After appellant's bid was opened, an administrative hearing was held where the Grazing District challenged it as unreasonable. The Department determined the bid to be bona fide and the highest bid received. The Grazing District, as the existing lessee, was holder of a preference right under section 81-405(1), R . C . M . 1947, now section 77-6-205(1) MCA which provides: "I£ other applications have been received, the holder of the lease has the preference right to lease the land covered by his former lease by meeting the highest bid made by any other appli- cant. " The right was exercised and the new lease was awarded to the Grazing - 2 - District. In the summer of 1975 the land was subleased to David Hess. Appellant sought to have the lease and sublease set aside and to have the District Court order the Department of State Lands to award the lease to him. His basic argument, both at trial and on appeal, is that the preference right unconstitu- tionally prevents the State from obtaining full market value for the land. We limit our decision to the facts of this case and hold the preference statute to have been unconstitutionally applied. The proposition that public land is held in trust for the people is well settled. State ex rel. Thompson v . Babcock (1966), 147 Mont. 46, 54, 409 P.2d 808; Toomey v . State Board of Land Commissioners (1938), 106 Mont. 547, 559, 81 P.2d 407. The State Board of Land Commissioners, acting through the Department of State Lands must adhere to a fiduciary standard somewhat higher than that of the ordinary businessman. State ex rel. Babcock v. Thompson, at 54. In addition, this "trust-like" standard is constitutionally defined. "No land or any estate or interest therein shall ever be disposed of except in pursuance of general laws providing for such disposition, or until the full market value of the estate or interest disposed of, to be ascertained in such manner as may be provided by law, has been paid or safely secured to the state. " 1972 Mont. Const., Art. X, 511 (2) . See also 1889 Mont. Const., Art. XVII, 51. (knphasis supplied.) The legislature is thus given authority to determine the method by which full market value is ascertained. The statutes dealing with the leasing of state land will pass constitutional muster as long as the concept of full market value is not abro- gated. Rider v . Cooney (1933), 94 Mont. 295, 310, 23 P.2d 261. In exercising its constitutional authority, the legis- lature has provided that full market value shall encompass the concept of sustained yield. Section 81-401, R . C . M . 1947, now section 77-6-101 MCA. Sustained yield is the policy which favors the long term productivity of the land over the short term return of income. State ex rel. Thompson v, Babcock, supra. The preference right seeks to further this policy by inducing the State's lessees to follow good agricultural practices and make improvements on the land. This is accomplished by guaran,teeing that the lessees will not lose the benefits of their endeavors by being outbid when their leases terminate. They are preferred and may renew their leases by meeting the highest bid submitted. Where the preference right does not further the policy of sustained yield, it cannot be given effect. In such a situation, full market value can be obtained only by pure competitive bidding, Here, the Grazing District, the holder of the preference right, does not even use the land; it cannot use good agricultural prac- tices or make improvements thereon. Likewise, the actual user of the land, who as a member of the Grazing District is prevented from bidding on the lease, is not motivated to further the policy of sustained yield. There is no guarantee the Grazing District will exercise its preference right and moreover, if it does, the actual user is not assured the land will be allocated to him. To allow the preference right to be exercised in this case would be to install the Grazing District as the trustee of the land. It, rather than the Department of State Lands, would decide who will occupy the land but it would not be bound by a constitutional or fiduciary duty. Under such a scheme, the policy of sustained yield would have no place. To allow an existing lessee who does not use the land to exercise a preference right constitutes an unconstitutional appli- cation of the preference right statute, section 81-405(1), R.C.M. 1947, now section 77-6-205(1) MCA. The only way full market value can be obtained in such a situation is by pure competitive bidding. ~ccordingly, the judgment of the District Court is reversed. c h i e f J u s t i c e W e concur:	March 2, 1979
67b3c7b0-4c8e-4ba6-8741-5f0b42fdbf42	WALTER v PUBLIC AUCTION YARDS	N/A	14323	Montana	Montana Supreme Court	No. 14323 I N THE S U P I i E M E COUIiT OF THE STATE: OF MONTANA 1978 c l m u m J 2 L . BOICHERS, Petitioner ard Respondent, -VS- JOHN R A Y M O N D McCARTEFt, J R . , Respondent and Appellant. m a 1 frm: 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: m d e n , Walterskirchen & Christiansen, Kalispell, bbntana Richard DeJana argued, Kalispell, Montana For Respondent: Patrick Springer, County Attorney, Kalispell, Wntana Russell K. Jones argued, Deputy County Attorney, Kalispell, Montana Fbbert Allison, Kalispell, Montana Filed : Submitted: November 17, 1978 Decided: MAR 2 . 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. On September 14, 1976, p e t i t i o n e r , Charlene L. Borchers, f i l e d a p e t i t i o n and o r d e r i n t h e D i s t r i c t Court of t h e Eleventh J u d i c i a l District, Flathead County, pursuant t o t h e p r o v i s i o n s of t h e "Revised Uniform Reciprocal Enforcement of Support A c t (1968)" [URESA], s e c t i o n s 93-2601-41 through 93- 2601-82, R.C.M. 1947, now s e c t i o n s 40-5-101 through 40-5-142 MCA. On December 1 3 t h e D i s t r i c t Court ordered t h a t t h e matter be h e l d i n abeyance pending a n a d j u d i c a t i o n of t h e p a t e r n i t y i s s u e . Respondent, John Raymond McCarter, Jr., was subsequently found t o be t h e n a t u r a l f a t h e r of p e t i - t i o n e r ' s daughter following a jury t r i a l commencing March 6, 1978. H e appeals. P e t i t i o n e r and respondent m e t i n June 1965 w h i l e work- i n g a t a r e t i r e m e n t home i n t h e S t a t e of Oregon. A t t h e t i m e they m e t , p e t i t i o n e r was married t o C a r l Borchers, b u t they p a r t e d i n December 1965. H e r r e l a t i o n s h i p w i t h respon- d e n t then developed r a p i d l y , and s h e became pregnant. I n June 1966, respondent moved t o D e t r o i t , Michigan, b u t con- t i n u e d t o correspond w i t h p e t i t i o n e r . On November 1, 1966, p e t i t i o n e r gave b i r t h t o a baby g i r l . A t t h e t i m e of t h e b i r t h , p e t i t i o n e r w a s l a w f u l l y married t o C a r l Borchers. H i s name appears on t h e c h i l d ' s b i r t h c e r t i f i c a t e as t h e f a t h e r . P e t i t i o n e r subsequently obtained a d i v o r c e from him on November 30, 1966, having waited u n t i l a f t e r t h e baby's b i r t h t o f a c i l i t a t e t h e d i v o r c e proceedings. Over t h e course of t h e n e x t s e v e r a l y e a r s , p e t i t i o n e r made a number of a t t e m p t s t o o b t a i n c h i l d support payments from respondent pursuant t o URESA. I n 1967, she f i l e d a p e t i t i o n f o r support i n Marion County, Oregon. I t was forwarded t o Lake County, Montana, b u t never prosecuted. A second U R E S A p e t i t i o n w a s f i l e d i n Oklahoma County, Okla- homa, and forwarded t o Lake County, Montana, i n 1969. Again, no a c t i o n w a s taken on t h e p e t i t i o n . After 1969 p e t i t i o n e r t e s t i f i e d t h a t she l o s t t r a c k of respondent f o r some years. During t h i s t i m e she was remar- r i e d , i n 1971, and l a t e r divorced, i n 1973. The next U R E S A p e t i t i o n was f i l e d i n Benton County, Oregon, i n 1975, and forwarded t o Denver County, Colorado. A l i t t l e more than a year l a t e r a f o u r t h p e t i t i o n was f i l e d i n Benton County, Oregon, and forwarded t o Boulder County, Colorado. Then, on September 3, 1976, a f i f t h p e t i t i o n was f i l e d i n Benton County, Oregon, and forwarded t o Flathead County, Montana. This l a s t p e t i t i o n forms t h e b a s i s of t h e i n s t a n t case. N o evidence was introduced t o show t h a t respondent was served with process u n t i l 1976. After he had been served i n 1976, a hearing was held a t which time respondent moved t o dismiss t h e c i t a t i o n and a s s e r t e d a s a defense t h a t he was n o t t h e f a t h e r of t h e c h i l d named i n t h e p e t i t i o n . On December 13, 1976, t h e Honorable James M. Salansky ordered: "1. That t h i s matter be held i n abeyance u n t i l P e t i t i o n e r , through her own counsel, b r i n g s an a c t i o n f o r p a t e r n i t y a g a i n s t Respondent. "2. That upon judgment being entered i n any ac- t i o n f o r p a t e r n i t y brought by P e t i t i o n e r a g a i n s t Respondent t h e Court w i l l again consider t h e above matter." O n August 2 4 , 1977, t h e deputy county a t t o r n e y f o r Flathead County f i l e d a " P e t i t i o n f o r Determination of P a t e r n i t y " i n t h e same c o u r t and under t h e same cause number a s t h e a c t i o n which had previously been held i n abeyance. Following a f l u r r y of p r e t r i a l motions, t h e t r i a l began on March 6, 1978, and r e s u l t e d i n a jury v e r d i c t finding: "1. The presumption t h a t Carl H. Borchers i s t h e n a t u r a l f a t h e r of Jayne Eliazabeth [ s i c ] Borchers has been rebutted. - "2. John Raymond McCarter, Jr., i s t h e n a t u r a l f a t h e r of Jayne Elizabeth ~ o r c h e r s . " Respondent appeals from t h i s jury v e r d i c t , and p e t i - t i o n e r has moved t o dismiss t h e appeal a s premature. A number of i s s u e s a r e presented f o r review b u t w e f i n d two i s s u e s t o be d i s p o s i t i v e of t h i s case: 1. Whether t h e appeal should be dismissed f o r absence of a f i n a l determination from which an appeal may be taken. 2. Whether f a i l u r e t o r e b u t t h e presumption t h a t C a r l Borchers was 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 w i t h i n f i v e years of t h e c h i l d ' s b i r t h b a r s a p a t e r n i t y a c t i o n a g a i n s t a nonpresumed person. On May 4 , 1978, respondent f i l e d h i s n o t i c e of appeal i n t h e D i s t r i c t Court. On May 23, p e t i t i o n e r moved t h i s Court t o dismiss t h e appeal on t h e grounds t h a t ". . . no f i n a l , appealable judgment and order of support [had] been entered i n t h i s a c t i o n . . ." The motion was submitted without b r i e f . Respondent argued i n opposition t o t h e motion t o dismiss t h a t t h e p a t e r n i t y determination and t h e support determination a r e , i n e f f e c t , s e p a r a t e a c t i o n s and t h a t t h e jury v e r d i c t i n t h e i n s t a n t c a s e i s an appealable f i n a l judgment under Rule 1, M.R.App.Civ.P. Section 93-2601-67, R.C.M. 1947, now s e c t i o n 40-5-128 MCA, provides: " I f t h e o b l i g o r asserts a s a defense t h a t he i s n o t t h e f a t h e r of t h e c h i l d f o r whom support i s sought and it appears t o t h e c o u r t t h a t t h e defense i s n o t f r i v o l o u s , and i f both of t h e p a r t i e s a r e p r e s e n t a t t h e hearing o r t h e proof required i n t h e c a s e i n d i c a t e s t h a t t h e presence of e i t h e r o r b o t h of t h e p a r t i e s i s n o t neces- s a r y , t h e c o u r t may a d j u d i c a t e t h e p a t e r n i t y i s s u e . Otherwise t h e c o u r t may adjourn t h e hearing u n t i l t h e p a t e r n i t y i s s u e has been ad- judicated." C i t i n g B l a c k ' s Law Dictionary (Rev. 4 t h Ed. 1968), t h e Oregon Supreme Court found a n " a d j u d i c a t i o n " t o be " t h e g i v i n g o r pronouncing a judgment o r decree i n a cause." Vasquez v. Courtney (1975), 272 O r . 477, 537 P.2d 536, 537. See a l s o , Leonard v. Leonard (1965), 88 Idaho 485, 401 P.2d 541, 545; and, S t a t e v. Hoffman (1963), 230 O r . 98, 385 P.2d 741, 743-44. The District C o u r t ' s o r d e r of December 13, 1976, i s c o n s i s t e n t w i t h t h i s d e f i n i t i o n i n providing " [ t l h a t upon judgment being e n t e r e d - i n any a c t i o n f o r p a t e r n i t y brought by P e t i t i o n e r a g a i n s t Respondent t h e Court w i l l a g a i n con- s i d e r t h e above m a t t e r . " (Emphasis added.) Therefore, w e f i n d t h a t t h e j u r y v e r d i c t r e t u r n e d March 7, 1978, amounted, i n substance, t o a f i n a l judgment from which a n appeal may be taken pursuant t o Rule 1, M.R.App.Civ.P. W e a r e l e f t , then, w i t h t h e t a s k of determining whether f a i l u r e t o r e b u t t h e presumption t h a t C a r l Borchers w a s 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 w i t h i n f i v e y e a r s of t h e c h i l d ' s b i r t h should have b a r r e d t h i s p a t e r n i t y a c t i o n a g a i n s t a nonpresumed person. W e f i n d t h a t it should have. I n 1950 t h e National Conference of Commissioners on Uniform S t a t e Laws approved t h e Uniform Reciprocal Enforce- ment of Support A c t . The A c t was subsequently amended i n 1952, 1958, and 1968. Montana f i r s t adopted URESA i n 1951, Ch. 222, Laws of Montana (1951). That a c t w a s replaced i n 1961 when Montana adopted t h e 1958 v e r s i o n of URESA, Ch. 208, Laws of Montana (1961). Then, i n 1969, Montana adopted t h e ~ e v i s e d Uniform Reciprocal Enforcement of Support A c t , ~ h . 237, Laws of Montana (1969). W e n o t e s e c t i o n 93-2601- 81, R.C.M. 1947, now s e c t i o n 40-5-142 MCA, provides t h a t " [ t l h i s act s h a l l be s o construed a s t o e f f e c t u a t e i t s g e n e r a l purpose t o make uniform t h e law of t h o s e s t a t e s which e n a c t i t . " A number of r e c e n t c a s e s , a r i s i n g i n j u r i s d i c t i o n s which have n o t adopted t h e 1968 r e v i s e d a c t , have affirma- t i v e l y answered t h e i s s u e of whether URESA, a b s e n t t h e 1968 amendment e x p r e s s l y providing f o r p a t e r n i t y determination, i m p l i c i t l y a u t h o r i z e s c o u r t s t o determine p a t e r n i t y . See G r e e n s t r e e t v . Clark (Iowa 1976), 239 N.W.2d 143; Clarkston v. Bride (1975), 273 O r . 68, 539 P.2d 1094; and, Yetter v. Comrneau (1974), 84 Wash.2d 155, 524 P.2d 901. Montana has adopted t h e c l e a r s t a t u t o r y language of s e c t i o n 27 of t h e Revised Uniform A c t , l e a v i n g no q u e s t i o n a s t o whether a c o u r t can determine p a t e r n i t y a s p a r t of a URESA a c t i o n i n t h i s s t a t e , s e c t i o n 93-2601-67, R.C.M. 1947, now s e c t i o n 40- 5-128 MCA. However, s p e c i f i c procedures f o r addressing t h e p a t e r n i t y i s s u e are n o t set f o r t h i n t h e r e v i s e d uniform a c t . Our l e g i s l a t u r e has, though, provided a s t a t u t o r y method of determining p a t e r n i t y under t h e Uniform Parentage A c t , s e c t i o n 61-301 e t s e q . , R.C.M. 1947, now s e c t i o n 40-6- 101 e t seq. MCA. When faced w i t h s t a t u t e s which a d d r e s s t h e same s u b j e c t , w e "must harmonize [them], i f p o s s i b l e , and g i v e e f f e c t t o each." S t a t e ex rel. I r v i n v. Anderson (1974), 164 Mont. 513, 524, 525 P.2d 564, 570. "where s t a t u t e s r e l a t e t o t h e s a m e g e n e r a l s u b j e c t they should be s o construed t o g e t h e r , where t h e r e i s no i n c o n s i s t e n c y between them, s o as t o g i v e e f f e c t t o both where p o s s i b l e . " City of B i l l i n g s v. Smith (1971), 158 Mont. 197, 212, 490 The c o u r t i n Clarkston, supra, noting s i m i l a r circum- s t a n c e s , s t a t e d : "Since t h e i s s u e s involved i n e s t a b l i s h i n g pater- n i t y i n a U R E S A proceeding p r e c i s e l y p a r a l l e l those r a i s e d i n a f i l i a t i o n proceeding, w e b e l i e v e t h a t , a b s e n t some d i s t i n g u i s h i n g p o l i c y , p a r a l l e l proce- dures should be followed. "The U R E S A i s a remedial s t a t u t e designed t o equal- i z e t h e r e l a t i v e p o s i t i o n s of residence and non- r e s i d e n t p l a i n t i f f s i n support proceedings. While it r e f l e c t s a l e g i s l a t i v e i n t e r e s t i n minimizing t h e a d d i t i o n a l burdens and expenses which would otherwise be incurred by nonresident p l a i n t i f f s , t h i s i n t e r e s t must be balanced a g a i n s t a l e g i s l a t i v e concern f o r t h e s e n s i t i v i t y of p a t e r n i t y adjudica- t i o n s and t h e corresponding l e g i s l a t i v e policy of providing procedural p r o t e c t i o n s f o r such determina- t i o n s . . ." Clarkston, 539 P.2d a t 1099. The Uniform Parentage A c t recognizes t h i s connection i n s e c t i o n 61-309(1), R.C.M. 1947, now s e c t i o n 40-6-109 (1) MCA, which provides: "The d i s t r i c t c o u r t has j u r s i d i c t i o n of an a c t i o n brought under t h i s a c t . The a c t i o n may be joined with an a c t i o n f o r d i s s o l u t i o n , annulment, s e p a r a t e maintenance, support, o r adoption." (Emphasis added. ) W e hold then t h a t t h e i s s u e of p a t e r n i t y i n a U R E S A a c t i o n s h a l l be determined according t o t h e provisions of t h e "Uniform Parentage Act," s e c t i o n 61-301 e t seq., R.C.M. 1947, now s e c t i o n 40-6-101 e t seq. MCA. See Matter of Marriage of Gridley (1977), 28 Or-App. 145, 558 P.2d 1277, I n applying t h e Uniform Parentage Act a s adopted i n Montana, t o t h e f a c t s of t h e i n s t a n t case, w e f i r s t note t h a t s e c t i o n 61-305, R.C.M. 1947, now s e c t i o n 40-6-105 MCA, provides i n p e r t i n e n t p a r t : " ( 1 ) A man i s presumed t o be t h e n a t u r a l f a t h e r of a c h i l d i f : " ( a ) he and t h e c h i l d ' s n a t u r a l mother a r e o r have been married t o each o t h e r and t h e c h i l d i s born during t h e marriage, o r within t h r e e hundred (300) days a f t e r t h e marriage i s terminated by death, annulment, d e c l a r a t i o n of i n v a l i d i t y , o r divorce, o r a f t e r a decree of separation i s entered by a c o u r t ; " ( 2 ) A presumption under t h i s s e c t i o n may be r e b u t t e d i n an appropriate a c t i o n by a preponder- ance of t h e evidence." Thus, according t o our s t a t u t e , C a r l Borchers i s t h e presumed f a t h e r of t h e c h i l d . Section 61-307, R.C.M. 1947, now s e c t i o n 40-6-107 MCA, addresses who may bring an a c t i o n t o determine a f a t h e r and c h i l d r e l a t i o n s h i p . " ( 1 ) Any i n t e r e s t e d p a r t y may bring an a c t i o n f o r t h e purpose of determining t h e e x i s t e n c e o r non- e x i s t e n c e of t h e f a t h e r and c h i l d r e l a t i o n s h i p presumed pursuant - t o s e c t i o n 61-305. " ( 2 ) A n a c t i o n t o determine t h e e x i s t e n c e of t h e f a t h e r and c h i l d r e l a t i o n s h i p with r e s p e c t t o a c h i l d who has no presumed f a t h e r under s e c t i o n 61-305 may be brought by t h e c h i l d , t h e mother o r personal r e p r e s e n t a t i v e of t h e c h i l d , 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 ser- v i c e s o r its appropriate l o c a l a f f i l i a t e , t h e personal r e p r e s e n t a t i v e o r a p a r e n t of t h e mother i f t h e mother has died, a man a l l e g e d o r a l l e g i n g himself t o be t h e f a t h e r , o r t h e personal repre- s e n t a t i v e o r a p a r e n t of t h e a l l e g e d f a t h e r i f t h e a l l e g e d f a t h e r has died o r is a minor." (Emphasis added.) Therefore, i n Montana, a person wishing t o e s t a b l i s h t h e e x i s t e n c e of t h e f a t h e r and c h i l d r e l a t i o n s h i p between a c h i l d and a nonpresumed person, where t h e c h i l d has a pre- sumed f a t h e r pursuant t o s e c t i o n 61-305, X.C.M. 1947, now s e c t i o n 40-6-105 MCA, must f i r s t r e b u t t h e s t a t u t o r y pre- sumption of p a t e r n i t y i n another. A s a r e s u l t , s e c t i o n 61-308(1), R.C.M. 1947, now sec- t i o n 40-6-108(1) MCA, a p p l i e s t o t h e i n s t a n t case and b a r s an a c t i o n t o e s t a b l i s h t h e f a t h e r and c h i l d r e l a t i o n s h i p between respondent and t h e minor daughter. " ( 1 ) Limitation when f a t h e r and c h i l d r e l a t i o n s h i p i s presumed. " (a) A n a c t i o n may be commenced a t any t i m e f o r t h e purpose of d e c l a r i n g t h e e x i s t e n c e of t h e f a t h e r and c h i l d r e l a t i o n s h i p presumed under paragraph ( a ) , ( b ) , o r ( c ) of s e c t i o n 61-305(1); o r I " ( b ) For t h e purpose of d e c l a r i n g t h e nonexistence -- of -- t h e f a t h e r and c h i l d r e l a t i o n s h i p presumed under paragraph (a), (b), o r (c) of s e c t i o n 61-305(1) only i f t h e a c t i o n i s brought w i t h i n a reasonable --- t i m e a f t e r ~ b t a i n i n g k n o w l e d ~ e of r e l e v a n t f a c t s , b u t i n no event l a t e r than f i v e (5) y e a r s a f t e r - - --- t h e c h i l d ' s b i r t h . A f t e r t h e ~ r e s u m ~ t i o n has been rebutted, p a t e r n i t y of t h e c h i l d by another man may be determined i n t h e same a c t i o n , i f he has been made a party." (Emphasis added.) Reversed and remanded with d i r e c t i o n s t o e n t e r an o r d e r dismissing t h e a c t i o n . W e concur: J u s t i c e s	March 26, 1979
cfcd27a3-bbcd-40d0-ad96-a30a4aa76cf4	STENSVAD v MUSSELSHELL COUNTY	N/A	13492	Montana	Montana Supreme Court	No. 13492 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 LARRY D. STENSVAD and MARGARET STENSVAD, M-V ENTERPRISES, INC., a Montana corporation, and FAUNCO, INC., a Montana corporation, Plaintiffs and Appellants, MUSSELSHELL COUNTY, GENO MINNIE, O.S. ELLIS and R . JORGENSON, County Commissioners, ROBERT L. HAGSTROM, County Assessor, and MARGARET A. REIGHARD, County Treasurer, Defendants and Respondents. Appeal from: District Court of the Fourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellants: Moses, Tolliver and Wright, Billings, Montana Towe, Ball, Enright and Mackey, Billings, Montana Thomas Towe argued, Billings, Montana For Respondents: John L. Pratt, County Attorney, argued, Roundup, Montana Submitted: November 27, 1978 Decided: lVlAj? - ; q 7 o M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. P l a i n t i f f s appeal from a judgment of t h e D i s t r i c t Court, Musselshell County, denying t h e i r prayer f o r an order permanently enjoining defendants from i s s u i n g a t a x deed t o c e r t a i n r e a l property f o r f a i l u r e t o pay a portion of a 1971 assessment representing taxes on c a t t l e under the c o n t r o l and i n t h e possession of M-V Enterprises. The c o u r t entered i t s amended findings of f a c t , conclusions of law, judgment and order on June 30, 1976, d i r e c t i n g defendants t o proceed forthwith t o take t a x deed t o t h e r e a l property, now owned by p l a i n t i f f Faunco, Inc. P l a i n t i f f s contend t h a t c e r t a i n of t h e c o u r t ' s findings of f a c t and conclusions of law a r e erroneous and unsupported by t h e evidence, and t h a t , there- f o r e , t h e judgment should be reversed. I n 1971, Larry D. Stensvad w a s a stockholder i n and/or manager of c e r t a i n corporations involved i n various aspects of t h e livestock industry. One of those corporations, M-V Enterprises, among whose p r i n c i p l e shareholders w a s Stens- vad, owned r e a l property i n Musselshell County upon which t h e corporation operated a feedlot. Pursuant t o an agree- ment between M-V Enterprises and t h e L. D. Stensvad C a t t l e Company, c a t t l e belonging t o other individuals w e r e l e f t i n t h e possession and c o n t r o l of M-V Enterprises t o be fed and cared f o r i n preparation f o r marketing. These c a t t l e had been purchased by a separate Stensvad corporation, t h e L. D. Stensvad C a t t l e Company, whose only shareholders w e r e Stens- vad and h i s wife, Margaret. The arrangement was such t h a t L. D. Stensvad C a t t l e Company would buy c a t t l e f o r i n d i v i - dual out-of-state i n v e s t o r s who had contracted with t h e company t o make t h e purchases f o r them. The c a t t l e s o purchased were delivered t o t h e f e e d l o t s of M-V Enterprises f o r c a r e and feeding; t h e L. D. Stensvad C a t t l e Company b i l l e d t h e individual investors f o r t h e i r respective shares of the expenses incurred. Each of t h e cattle involved i n t h i s arrangement c a r r i e d on i t s r i g h t h i p a pitchfork o r "turkey track" brand owned by and r e g i s t e r e d t o t h e L. D. Stensvad C a t t l e Company; on i t s r i g h t shoulder, each bore an unregistered brand, a number, designating i t s individual owner. I n May, 1971, t h e Musselshell County assessor, i n t h e process of compiling d a t a f o r the upcoming t a x assessment, supplied M-V Enterprises with a form which, when completed, i s a record of t h e number of c a t t l e which have been fed during each month of t h e preceding year. The form i s pro- vided i n compliance with s e c t i o n 84-409, R.C.M. 1947, i n e f f e c t a t t h e t i m e of t h e events, which r e q u i r e s t h e county assessor t o obtain from each person a w r i t t e n statement, made under oath, which sets f o r t h a l l t h e taxable property owned by t h a t person o r i n h i s possession o r under h i s c o n t r o l as of a s p e c i f i c t i m e . Each such form contains an a f f i d a v i t which d e c l a r e s t h a t the l i s t i s a f u l l and c o r r e c t statement of t h e property subject t o t a x a t i o n which i s owned, claimed, possessed o r controlled by t h e individual o r business e n t i t y . See s e c t i o n 84-410, R.C.M. 1947. M-V Enterprises returned t o t h e county assessor t h e completed form, which had been signed by Dona McCleary, a s e c r e t a r y employed by t h e corporation. The form showed nothing a s t o t h e ownership of t h e c a t t l e . The assessor, following s t a t u t o r y mandate, s e c t i o n 84- 406(1) and (3), R.C.M. 1947 (Supp. 1971), assessed taxes on 1 / 1 2 of t h e t o t a l number of c a t t l e a g a i n s t M-V Enterprises, t h e p a r t y i n whose possession and under whose c o n t r o l t h e c a t t l e w e r e . The corporation, maintaining t h a t it could n o t be taxed f o r c a t t l e which it d i d n o t own, refused t o pay. either t h e personal property taxes nor t h e r e a l property taxes assessed f o r 1971 a g a i n s t M-V Enterprises w e r e paid, and t h e county, i n 1976, f i n a l l y i n s t i t u t e d proceedings f o r a t a x deed. O n February 18, 1976, p l a i n t i f f s , a l l e g i n g t h a t no s t a t u t o r y a u t h o r i t y e x i s t e d under which t h e county le- g a l l y could assess a g a i n s t them taxes on c a t t l e owned by o t h e r individuals, petitioned the D i s t r i c t Court f o r an order enjoining t h e defendants from taking t a x deed unless t h e t o t a l amount, $27,990.39, w a s paid by March 10, 1976. Faunco, Inc. has joined a s a p a r t y p l a i n t i f f , because it i s t h e present owner of t h e r e a l property s u b j e c t of t h i s a c t i o n , I n November, 1971, M-V Enterprises, by v i r t u e of an unrecorded assignment from L. D. and Margaret Stensvad, owned t h e r e a l property s u b j e c t of these t a x deed proceed- ings. A t t h a t t i m e , a Roundup bank declared L. D. Stensvad and M-V Enterprises i n d e f a u l t on c e r t a i n o b l i g a t i o n s and foreclosed on t h e property. Roundup C a t t l e Feeders, a corporation uninvolved i n t h i s l i t i g a t i o n and i n which none of t h e p a r t i e s hereto appears t o have an i n t e r e s t , bought t h e property a t a foreclosure s a l e . Subsequently, i n June, 1975, Faunco, Inc., purchased t h e property from Roundup C a t t l e Feeders. Although apparently n o t a shareholder i n Faunco, Inc., L. D. Stensvad i s i t s general manager and i t s r e g i s t e r e d agent. Faunco, Inc,, has tendered payment of t h e outstanding taxes owed on t h e r e a l property, exclusive of t h e amounts levied f o r t h e c a t t l e owned by t h e individual investors; t h e county twice r e j e c t e d t h e o f f e r of t h a t payment. Faunco r e q u e s t s t h a t t h e county be ordered t o make an assessment which does not include taxes on t h e c a t t l e , s o t h a t t h e corporation may pay t h a t amount and thereby c l e a r i t s t i t l e of t h e t a x l i e n . O n A p r i l 16, 1976, t h e Honorable Nat Allen presided over a hearing on t h e m e r i t s of t h e case. I n its amended f i n d i n g s of f a c t , conclusions of law, and judgment, t h e c o u r t concluded t h a t t h e t a x e s w e r e lawfully assessed and denied p l a i n t i f f s any r e l i e f . Notice of appeal w a s timely f i l e d and o r a l argument heard by t h i s Court. Although t h e D i s t r i c t Court properly decided t h a t t h e county a s s e s s o r c o r r e c t l y assessed t h e taxes due on t h e c a t t l e t o M-V Enter- p r i s e s , i n whose possession and c o n t r o l t h e c a t t l e w e r e a t t h e t i m e of assessment, w e r e v e r s e t h a t p o r t i o n of t h e determination which, i n e f f e c t , precludes Faunco from paying a l l taxes and p e n a l t i e s due, exclusive of those assessed a g a i n s t t h e c a t t l e . P l a i n t i f f s a l l e g e t h a t numerous e r r o r s a r e t o be found i n t h e c o u r t ' s f i n d i n g s and conclusions, b u t only one of those, whether t h e county a s s e s s o r acted properly, i n con- formity with s e c t i o n 84-406, R.C.M. 1947 (Supp. 1971), i n assessing t h e t a x e s due on t h e cattle t o M-V E n t e r p r i s e s , m e r i t s consideration. Section 84-406, R.C.M. 1947 (Supp. 1971), c o n t r o l l i n g a t t h e time of t h e events complained of by p l a i n t i f f s , reads i n p e r t i n e n t p a r t : " (1) The assessor must, between t h e f i r s t Monday of March and t h e second Monday of J u l y i n each year, a s c e r t a i n t h e names of a l l t a x a b l e inhabi- t a n t s , and a s s e s s a l l property i n h i s county sub- j e c t t o taxation, except such a s i s required t o be assessed by t h e s t a t e board of e q u a l i z a t i o n , and must a s s e s s such property t o t h e persons by whom it was owned o r claimed, o r i n whose posses- s i o n o r c o n t r o l it w a s a t 12 midnight of t h e f i r s t Monday of March next preceding. . . The procedure provided by t h i s s e c t i o n s h a l l not apply to: " (b) Livestock being -- fed i n feeding pens o r -- enclosures which may -- by subdivision (3) of t h i s --- s e c t i o n be assessed on -- an average inventory basis. C r e d i t s =st be assessed a s provided i n s e c t i o n 84-101, subdivision 6." Subdivision ( 3 ) s t a t e s how such livestock s h a l l be assessed: " ( 3 ) The assessed value of livestock being fed i n feeding pens o r enclosures on t h e f i r s t Monday i n March may be computed by adding t h e value of l i v e s t o c k more than s i x (6) months of age being fed on t h e l a s t day of each month s i n c e t h e l a s t assessment d a t e and dividing t h e s u m by twelve ( 1 2 ) ." The s t a t u t e i s w r i t t e n i n t h e d i s j u n c t i v e , mandating t h e assessor t o assess a l l taxable property i n h i s county e i t h e r t o t h e persons by whom it w a s owned o r claimed -- o r i n whose possession - o r c o n t r o l -- it was a s of midnight of t h e f i r s t Monday of March. It i s c l e a r t h a t t h e assessor acted prop- e r l y i n assessing t o M-V Enterprises, i n whose possession and c o n t r o l t h e cattle w e r e , taxes on t h e c a t t l e . P l a i n t i f f s have sought an injunction pursuant t o s e c t i o n 84-4505, R.C.M. 1947, now s e c t i o n 15-1-405 MCA. That s t a t - u t e s t a t e s : "No injunction must be granted by any c o u r t o r judge t o r e s t r a i n t h e c o l l e c t i o n of any t a x o r any p a r t thereof, nor t o r e s t r a i n t h e s a l e of any property f o r t h e nonpayment of taxes, except: "1. Where t h e t a x , o r t h e p a r t thereof sought t o be enjoined, i s i l l e g a l , o r i s n o t authorized by law. I f t h e payment of a p a r t of a t a x i s sought t o be enjoined, t h e o t h e r p a r t must be paid be- f o r e an a c t i o n can be commenced. "2. Where t h e property i s exempt from taxation." Although they a l l e g e a t various t i m e s t h a t t h e tax assess- ment here i s both i l l e g a l and not authorized by law, plain- t i f f s o f f e r no l e g a l arguments i n support of t h a t position. Obviously t h e tax i s authorized by l a w . The s t a t u t e , sec- t i o n 84-406, R.C.M. 1947 (Supp. 1971), speaks f o r itself. W e p o i n t o u t i n passing t h a t such s t a t u t e s have long s i n c e passed c o n s t i t u t i o n a l muster. A s a leading a u t h o r i t y observed over f i f t y years ago: " S t a t u t e s sometimes provide t h a t t a n g i b l e per- sonal property s h a l l be assessed wherever i n t h e s t a t e it may be, e i t h e r t o t h e owner himself o r t o t h e agent o r o t h e r person having it i n charge; and t h e r e i s no doubt of t h e r i g h t t o do t h i s , whether t h e owner i s r e s i d e n t i n t h e s t a t e o r not. [ C l a t t l e and sheep may be required by t h e s t a t u t e t o be assessed where they a r e kept o r where they have been taken t o graze o r t o be fed . . ." 3 T. Cooley, --- The Law of Taxation §lo71 (4th ed. 1924). I t has been the general r u l e since t h e t u r n of t h e century t h a t t h e l e g i s l a t u r e has t h e power t o adopt a mode of assessment such t h a t property may be assessed t o t h e p a r t y i n possession of it. The North Dakota Supreme Court declared: "Indeed, t h e necessity f o r speedy and c e r t a i n methods of producing revenue f o r governmental support i s s o g r e a t t h a t t h e l e g i s l a t u r e s of many s t a t e s have declined t o e n t e r i n t o an inves- t i g a t i o n of t i t l e s f o r t h e purpose of taxation, p a r t i c u l a r l y i n reference t o property of a s h i f t - ing nature, and have, accordingly, provided f o r assessments a g a i n s t t h e p a r t y having t h e posses- s i o n and c o n t r o l upon some s p e c i f i e d date. Such enactments have been repeatedly before t h e c o u r t s , and have been uniformly upheld. Indeed, we a r e c i t e d t o no case which has denied t h e r i g h t of a s t a t e t o enforce t h i s method of assessment." Minneapolis & Northern Elevator Co. v. T r a i l 1 County (1900), 9 N.D. 213, , 82 N.W. 727, 728, and cases subsequently c i t e d . W e , too, have been c i t e d t o no case which has denied t h e r i g h t of a state t o enforce t h e method of assessment which our l e g i s l a t u r e has seen f i t t o adopt. We, too, a r e of t h e opinion t h a t "'"possessory c o n t r o l of property i s s u f f i c i e n t t o a u t h o r i z e i t s assessment t o t h e possessor o r keeper of i t . " ' " Minneapolis & Northern Elevator Co. v. ~ r a i l l County, 82 N.W. a t 729. Furthermore, "[wle a r e convinced t h a t t h e l e g i s l a t u r e had t h e r i g h t t o a c t upon evidence of ownership afforded by possession, and f o r t h e purposes of t a x a t i o n t o make t h e presumption a r i s i n g there- from conclusive, and t o provide, t h e r e f o r e , f o r t h e assess- ment and t a x a t i o n of [ c a t t l e ] t o t h e p a r t y i n possession i n t h e manner and form a s provided by t h e a c t i n question." 82 N.W. a t 731. Because t h e t a x i s both authorized and l e g a l , injunc- t i o n w i l l n o t lie. The D i s t r i c t Court properly refused t o g r a n t an i n j u n c t i o n on t h a t b a s i s . I n passing, w e note t h a t i n a previous year, M-V Enter- p r i s e s gave t h e county a s s e s s o r ' s o f f i c e a list of t h e i n d i v i d u a l s who owned t h e c a t t l e . The assessments i n t h a t year apparently were made t o t h e i n d i v i d u a l s and n o t t o M-V Enterprises. There i s c o n f l i c t i n g testimony a s t o whether t h a t information was provided i n 1971. The county o f f i c i a l s claim t h a t t h e corporation d i d n o t f u r n i s h t h e information, s o t h e a s s e s s o r , a c t i n g i n a reasonable and l e g a l manner, assessed t h e t a x a g a i n s t M-V ~ n t e r p r i s e s , i n whose posses- s i o n and c o n t r o l t h e c a t t l e w e r e . The assessment was n o t made t o t h e L. D. Stensvad C a t t l e Company, whose r e g i s t e r e d brand was worn by each of t h e c a t t l e , even though it is prima f a c i e evidence t h a t t h e person o r corporation, i n whose name a brand i s of record, i s t h e owner of a l l animals bearing t h e brand i n t h e p o s i t i o n and on t h e species s t a t e d i n the c e r t i f i c a t e of record. Section 46-606, R.C.M. 1947, now s e c t i o n 81-3-105 MCA. The a s s e s s o r , of course, could n o t r e l y on t h e numerical brand, which was n o t r e g i s t e r e d . N o o b l i g a t i o n i s imposed on t h e a s s e s s o r t o t r a c k down t h e "true" owner of t h e c a t t l e . The o b l i g a t i o n of s e c t i o n 84- 406, R.C.M. 1947 (Supp. 1971), t o a s s e s s t o t h e person i n whose possession o r c o n t r o l t h e property was, had been f u l f i l l e d . Having cracked t h e s h e l l , w e t u r n now t o t h e n u t of t h e problem, determination of whether Faunco, I n c . , i s obliged t o pay t a x e s assessed on t h e c a t t l e . C e r t a i n s t a t u t e s which a r e determinative of t h i s i s s u e , have been overlooked. Those s t a t u t e s a r e s e c t i o n s 84-3807 and 84-3808(a), R.C.M. 1947, now r e s p e c t i v e l y s e c t i o n s 15-16-401 and 15-16-402(1) MCA: "84-3807. Tax o p e r a t e s a s judgment -- o r l i e n . Every t a x has t h e e f f e c t o f a judgment a g a i n s t t h e person, and every l i e n c r e a t e d by t h i s t i t l e -- has t h e f o r c e and e f f e c t of an execution duly -- -- l e v i e d a g a i n s t a l l personal property -- i n t h e possession of -- t h e person assessed -- from and a f t e r t h e d a t e t h e assessment i s made. . ." --- -- "84-3808. -- Tax on personal property -- l i e n on r e a l t y --separate assessment. (a) Every --- t a x due upon personal property - - i s a p r i o r l i e n upon any o r a l l ----- of -- such property, which l i e n s h a l l have precedence over any o t h e r l i e n , claim o r demand upon such property, and except a s h e r e i n a f t e r provided, every t a x upon personal property i s a l s o 5 l i e n -- upon t h e real property of t h e owner t h e r e o f , from -- --- and a f t e r 1 2 m. of t h e f i r s t Monday i n March i n each year." Thus, t h e t a x due on t h e personal property, t h e c a t t l e , i s a l i e n on t h a t property, s e c t i o n 84-3807, R.C.M. 1947, and t h e t a x upon t h a t personal property i s a l i e n upon t h e real property of t h e owner t h e r e o f , s e c t i o n 84-3808, R.C.M. 1947. Because t h e c a t t l e have long s i n c e gone t o t h a t g r e a t roundup i n t h e sky, t h e l i e n on t h e c a t t l e per - se has evap- orated. I t has n o t evaporated a s a g a i n s t t h e r e a l property of t h e owners of t h e c a t t l e , however. I t does not appear of record t h a t Faunco, Inc., w a s owner of any of t h e c a t t l e . Therefore, a t a x upon t h e c a t t l e would n o t o p e r a t e a s a l i e n on t h e r e a l property of Faunco, and Faunco i s n o t o b l i g a t e d t o pay t h e personal property t a x e s assessed a g a i n s t t h e c a t t l e . Faunco's demand t h a t t h e county accept payment of t h e t a x e s and p e n a l t i e s due, exclusive only of those assessed a g a i n s t t h e cattle, i s a p p r o p r i a t e l y made. The county may n o t look t o Faunco, Inc., f o r payment of t h e taxes and p e n a l t i e s due on t h e cattle, b u t must seek payment, under t h e t e r m s of t h e s t a t u t e , from those who w e r e owners of t h e c a t t l e . To t h a t e x t e n t t h e judgment i s reversed and t h e county enjoined from taking t a x deed t o t h e real property owned now by Faunco, Inc., upon i t s payment of a l l moneys, exclusive of t h e t a x e s on t h e c a t t l e , due t h e county. W e concur:	March 1, 1979
3290b7c7-fc80-45d9-a99a-bcae0efedc40	MATTER OF LATRAY	N/A	14669	Montana	Montana Supreme Court	No. 14669 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN THE MATTER OF THE ESTATE OF GRACE LaTRAY Appeal from: District Court of the Tenth Judicial District, Honorable 'r , Judge presiding. Counsel of Record: For Appellant: Robert L.Stephens, Jr., Billings, Montana For Respondent: Robert L. Johnson, Lewistown, Montana - Submitted on briefs: June 29, 1979 Decided: 1 3 1 9 7 9 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. his is an appeal by t h e c o n t e s t a n t s of a w i l l of Grace LaTray from two i n t e r r e l a t e d o r d e r s of t h e D i s t r i c t Court of t h e Tenth J u d i c i a l D i s t r i c t , Fergus County, t h e Honorable Ronald D. McPhillips presiding. Appellants o b j e c t t o find- i n g s of f a c t , conclusions o f law and an o r d e r d e c l a r i n g t h a t t h e deceased w a s competent and executed a v a l i d w i l l on November 26, 1977, naming Travis Jaynes as h e r personal r e p r e s e n t a t i v e . They a l s o o b j e c t t o a second o r d e r appoint- i n g Travis Jaynes a s successor personal r e p r e s e n t a t i v e i n t h e e s t a t e of J o e LaTray, Grace LaTray's deceased husband, f o r t h e e s t a t e of whom s h e was personal r e p r e s e n t a t i v e up u n t i l h e r death. Grace LaTray, a l i f e t i m e r e s i d e n t of Fergus County, d i e d i n Lewistown, Montana, on January 16, 1978, a t t h e age of 79. H e r husband, J o e LaTray, had d i e d t h e previous y e a r , and a t t h e time of h e r d e a t h Grace LaTray was serving a s personal r e p r e s e n t a t i v e of h e r husband's e s t a t e . Decedent was survived by t h r e e n a t u r a l c h i l d r e n : Leonard LaTray, L e s l i e LaTray and Thelma LaTray Fordyce, a p p e l l a n t s herein. I n a d d i t i o n t o h e r t h r e e n a t u r a l c h i l - dren, t h e r e were s i x orphaned c h i l d r e n of two deceased daughters, a l l of whom s h e and h e r deceased husband had l e g a l l y adopted. The adopted grandchildren a r e Kenneth Putro, Judy P u t r o Wells, Travis Jaynes (respondent h e r e i n ) , Deanna (Jaynes) Vogl, Eddie Jaynes and Vanessa Dawn Jaynes. During t h e l a s t y e a r s of her l i f e decedent was chron- i c a l l y ill, having s u f f e r e d from a number of d i f f e r e n t p h y s i c a l ailments including a severe s t r o k e s u f f e r e d on September 1 4 , 1977, which r e s u l t e d i n p a r a l y s i s of h e r l e f t s i d e . By ~ c t o b e r 5, 1977, her c o n d i t i o n had s t a b i l i z e d , and s h e w a s t r a n s f e r r e d t o t h e C e n t r a l Montana Nursing Home i n ~ e w i s t o w n . Subsequently, on October 11, 1977, a t t h e re- q u e s t of family members, decedent w a s t r a n s f e r r e d t o Colum- bus H o s p i t a l i n G r e a t F a l l s f o r f u r t h e r i n t e n s i v e p h y s i c a l therapy. She remained a t Columbus H o s p i t a l u n t i l November 3 , 1977, when s h e was t r a n s f e r r e d t o t h e C e n t r a l Montana H o s p i t a l a t Lewistown, Montana. Decedent remained hospi- t a l i z e d i n Lewistown u n t i l t h e t i m e of her death. The w i l l i n q u e s t i o n was executed by t h e decedent on November 26, 1977, i n h e r h o s p i t a l room. I t was witnessed by Charles B. Vogl, t h e f u t u r e husband of one of t h e dece- d e n t ' s adopted grandchildren, Nancy A. Ridgeway, one of t h e h o s p i t a l nurses, and Robert L. Johnson, t h e a t t o r n e y of decedent and now f o r T r a v i s Jaynes, respondent h e r e i n . On January 25, 1978, t h e w i l l was f i l e d f o r p r o b a t e by respondent, t h e p r i n c i p a l b e n e f i c i a r y and named p e r s o n a l r e p r e s e n t a t i v e thereunder. O n February 10, 1978, a p p e l l a n t s brought t h i s a c t i o n t o c o n t e s t t h e w i l l based upon t h e ground of l a c k of testamentary c a p a c i t y . The m a t t e r was t r i e d before t h e c o u r t s i t t i n g without a jury on August 28, 1978. On October 25, 1978, t h e D i s t r i c t Court e n t e r e d i t s f i n d i n g s of f a c t , conclusions of law and o r d e r a d m i t t i n g t h e w i l l t o probate. I t i s from t h e s e f i n d i n g s , conclusions and o r d e r t h a t c o n t e s t a n t s appeal. Evidence presented a t t h e w i l l c o n t e s t included testi- mony from decedent's a t t e n d i n g physician, D r . E. ~ o n n a l l Thomas, who t e s t i f i e d t h a t i n t h e weeks preceding t h e exe- c u t i o n decedent was incapable of a b s t r a c t c o n c e p t u a l i z a t i o n and t h a t she was prone t o confusion and d i s o r i e n t a t i o n i n d e a l i n g with her business a f f a i r s . Thomas i n d i c a t e d , how- ever, t h a t decedent's condition was improving, and he char- a c t e r i z e d h e r mental a t t i t u d e a s "cheerful" and " a l e r t " on November 16, 1977, only t e n days before t h e execution of t h e w i l l . There was a l s o testimony of t h e c o n t e s t a n t s h e r e i n i n d i c a t i n g t h a t on t h e i r v i s i t s with decedent i n t h e hos- p i t a l they found her t o be d i s o r i e n t e d and behaving i n an e r r a t i c and inappropriate manner. The witnesses t o t h e w i l l t e s t i f i e d t h a t a t t h e time of execution decedent named her r e l a t i v e s , knew t h e n a t u r e and e x t e n t of h e r property and understood how she w a s disposing of it. Testimony by one of decedent's adopted daughters, Judy Wells, concerning t h e circumstances surrounding t h e execution of t h e w i l l was corroborative of t h e a t t e s t i n g witnesses' testimony. The s o l e i s s u e presented on appeal i s whether t h e r e was 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 find- i n g s and conclusions of t h e D i s t r i c t Court t h a t decedent w a s competent a t t h e t i m e of t h e execution of t h e w i l l i n question. O n appeal t h i s Court's review is l i m i t e d t o whether 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 judgment. Big Sky Livestock, Inc. v. Herzog (1976), 171 Mont. 409, 4 1 4 , 558 P.2d 1107, 1 1 1 0 . "We review t h e evidence i n a l i g h t most favorable t o t h e p r e v a i l i n g p a r t y , and w e w i l l r e v e r s e only when t h e r e i s a l a c k of s u b s t a n t i a l evidence introduced t o sup- p o r t t h e r e s u l t s . " Matter of E s t a t e of Holm (1979), - Mont. , 588 P.2d 531, 534, 36 St.Rep. 11, 1 4 . " ' S u b s t a n t i a l evidence' i s evidence such ' a s w i l l convince reasonable men and on which such men may n o t reasonably d i f f e r a s t o whether it e s t a b l i s h e s t h e [ p r e v a i l i n g p a r t y ' s ] c a s e . . . The evidence may be i n h e r e n t l y weak and s t i l l be deemed ' s u b s t a n t i a l ' and s u b s t a n t i a l evi- dence may c o n f l i c t with o t h e r evidence pre- sented." Cameron v. Cameron (1978), p Mont. , 587 P.2d 939, 944, 945, 35 St.Rep. 1723, - 1729. Respondent presented testimony from t h e a t t e s t i n g witnesses of t h e w i l l i n question. A l l t e s t i f i e d t h a t decedent, i n responding t o questions a t t h e t i m e of execu- t i o n , named a l l her r e l a t i v e s , t h e nature and e x t e n t of her property, and t h a t she understood how she was disposing of it. This testimony was corroborated by Judy Wells, an adopted c h i l d of decedent, who was p r e s e n t during t h e pre- execution interview. Though decedent s u f f e r e d from various physical ailments and a t t i m e s exhibited s i g n s of confusion and d i s o r i e n t a t i o n , t h e above evidence i n d i c a t e d she was n o t confused o r d i s - o r i e n t e d on t h e day she executed t h e w i l l . The evidence a l s o indicated t h a t t h e contested w i l l i s s u b s t a n t i a l l y s i m i l a r t o an e a r l i e r d r a f t made i n 1974 when t h e r e was no question of competency. W e f i n d t h i s evidence meets t h e requirements of substan- t i a l i t y and i s s u f f i c i e n t t o support t h e conclusions and o r d e r s of t h e D i s t r i c t Court. The judgment of t h e D i s t r i c t Court i s affirmed. / J u s t i c e W e concur: I Chief J u s t i c e I WfLIL u s t i c e s f2~~S-y	August 13, 1979
af24b189-137b-42fe-8e14-89f60157ee7b	STATE v DISTRICT COURT	N/A	14478	Montana	Montana Supreme Court	N o . 1 4 4 7 8 I N THE SUPREME COURT O F THE STATE O F MONTANA 1 9 7 9 THE STATE O F MONTANA, UPON THE RELATION O F MIKE GREELY, ATTORNEY GENERAL O F THE STATE O F MONTANA, AND ROBERT L . DESCHAMPS 111, COUNTY ATTORNEY O F MISSOULA COUNTY, R e l a t o r s , -vs- THE D I S T R I C T COURT O F THE FOURTH J U D I C I A L D I S T R I C T , THE HONORABLES E . GARDNER BROWNLEE, AND JACK L . GREEN, D I S T R I C T JUDGES: THE D I S T R I C T COURT O F THE EIGHTH J U D I C I A L D I S T R I C T , THE HONORABLES TRUMAN BRADFORD, J O E L ROTH AND WILLIAM CODER, D I S T R I C T JUDGES: AND THE D I S T R I C T COURT O F THE THIRTEENTH J U D I C I A L D I S T R I C T , THE HONORABLES C. B. SANDE, ROBERT WILSON AND CHARLES LUEDKE, D I S T R I C T JUDGES, R e s p o n d e n t s . O R I G I N A L PROCEEDING : For A p p e l l a n t s : H o n . M i k e G r e e l y argued, 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 M i k e M c C a r t e r argued, A s s i s t a n t 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 For R e s p o n d e n t s : H o n . E . G a r d n e r B r o w n l e e , M i s s o u l a , M o n t a n a H o n . J a m e s B. W h e e l i s argued, M i s s o u l a , M o n t a n a H o n . Jack L . G r e e n argued, M i s s o u l a , M o n t a n a D e x t e r D e l a n e y argued, M i s s o u l a , M o n t a n a H o n . H. W i l l i a m C o d e r argued, G r e a t Falls, M o n t a n a H o n . Joel G. R o t h , G r e a t F a l l s , M o n t a n a H o n . C h a r l e s L u e d k e argued, B i l l i n g s , M o n t a n a H o n . R o b e r t W i l s o n , B i l l i n g s , M o n t a n a H o n . C. B. Sande, B i l l i n g s , M o n t a n a H o n . N a t A l l e n , R o u n d u p , M o n t a n a For A m i c u s C u r i a e : H o n . M. J a m e s Sorte argued, W o l f P o i n t , M o n t a n a E d C u m r n i n g s argued, M i s s o u l a , M o n t a n a H o w a r d Strause argued, G r e a t F a l l s , M o n t a n a C . W. L e a p h a r t , Jr. argued, H e l e n a , M o n t a n a G u s t a f s o n and K e i l , C o n r a d , M o n t a n a Shelton C. W i l l i a m s argued, M i s s o u l a , M o n t a n a S u b m i t t e d : N o v e m b e r 2 8 , 1 9 7 8 D e c i d e d : J A N I ; i979 F i l e d : EAbl <m C l e r k Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This is an amended application for supervisory control filed in this Court by the Attorney General and County Attorney of Missoula County seeking generally to insure prompt and speedy trials of criminal cases and more particularly seeking specific remedial action in various particulars relating thereto. Following the filing of the amended application, this Court ordered notice to be given to the 56 county attorneys in this state, to the 29 district judges then serving this state, to the President and Executive Director of the State Bar of Montana, to the President of the Montana Trial Lawyers Associa- tion, to all public defenders of this state, to the presidents of all statewide organized Defense Attorneys Associations, and to the President of the Montana Judges Association. Answers, statements, memoranda of authorities and briefs were filed by the individual respondents and by numerous amici curiae. On December 7, 1978, a hearing was held before this Court and oral arguments were presented in favor of and in opposition to said application for supervisory control at which time all parties and a r n i c i were given the opportunity for oral argument. Following the-hearing, the application was taken under advisement by the Court. This opinion constitutes the decision of this Court on said application. This Court's authority to entertain this application is found in the Judicial Article of the 1972 Montana Constitution. This Court is granted "general supervisory control over all other courts". Art. VII, section 2(2), 1972 Montana Constitution. The Supreme Court is empowered "to make rules governing . . . practice and procedure for all other courts . . ." subject to disapproval by the legislature of procedural rules so promulgated in either of the two sessions following promulgation. Art. VII, Section 2(3), 1972 Montana Constitution. ~t the outset we note that the application for super- visory control is limited to criminal cases and court rules, practices and procedures of prosecutors, defense attorneys and judges relating thereto. However, many of the remedies sought directly affect the operation of the district courts in all areas of their operation including civil cases and administra- tive functions as well. The first remedial action requested by relators is that this Court require employment of a court administrator in each of the Fourth, Eighth and Thirteenth Judicial Districts of this state and in any other judicial district where appropriate, grant- ing such administrator authority to assign cases and control court business, trials and hearings. Relators complain that in these three judicial districts illnesses of district judges, cur- rent court rules, procedures and practices, and practices of de- fendants and their attorneys are causing significant delays in criminal cases; that many of the speedy trial problems are beyond the control of the individual judges; and that one of the district judges in each district is overburdened with disproportionate criminal and civil caseloads. Relators further contend that in the Eighth Judicial District there are approximately 24 cases which have not been or will not be tried within six months of arrest or filing; in the Thirteenth Judicial District, 10 such cases; in the Fourth Judicial District, Missoula County, 17 such cases. Re- lators identify and attribute these delays to independent control of trial schedules by district judges and resulting scheduling conflicts, including the scheduling of several different criminal trials on the same day; lack of summer trials in the Fourth and Eighth Judicial Districts and in Yellowstone County of the Thir- teenth Judicial District; peremptory disqualification of district judges by defense attorneys; preselection of particular district judges by prosecutors creating disproportionate distribution of criminal and civil caseloads among district judges; illness of district judges; granting continuances in criminal cases ex parte, without advance notice, and without date by many district judges throughout the state; and the inclusion of rural counties in districts having large Montana cities, spec- ifically the Fourth, Eighth and Thirteenth Judicial Districts, resulting in speedy trial problems in the rural counties. Many of these allegations and complaints are denied by respondents and amici. We identify the problem areas in this manner: (1) an imbalance in caseloads among individual judges in multiple judge judicial districts, (2) independent and uncoordinated operation of their own courts by individual district judges in some mul- tiple judge judicial districts, (3) archaic and unrealistic dis- trict court rules, practices and procedures in some district courts throughout the state, (4) illnesses of district judges, (5) peremptory disqualifications of district judges by prosecu- tors and defense attorneys, (6) preselection of district judges by prosecutors, (7) scheduling conflicts, (8) ex parte continuances without date in criminal cases, and (9) difficulties in furnish- ing satisfactory services in rural counties in some judicial districts. In our view district judges in multiple judge judicial districts should first be given the opportunity to address and correct such of these problems as exist in their own districts under direction of this Court before resorting to the more drastic and expensive remedy of employment of local court administrators. This method has several advantages as we see it: (1) it enables elected judges to discharge their duties by putting their own houses in order, (2) it is considerably cheaper for the taxpayers, (3) it places authority, responsibility and accountability in those individuals elected to operate the system, and (4) it minimizes the resistance of district judges to an appointed functionary controlling their operations and affairs. Accordingly, we direct the appointment of a chief dis- trict judge in each multiple judge judicial district in this state. The purpose of this order is to centralize authority, responsibility and accountability in one individual. The duties of such chief district judge are as follows: (1) In cooperation with the other district judges, to prepare and submit budgets for operation of the district court to the appropriate public officials. (2) To equalize the workload of all district judges with- in the judicial district. (3) To establish appropriate schedules and administrative rules to insure prompt and efficient servicing of all judicial business in the district. ( 4 ) To employ and assign staff and secretarial personnel where appropriate. (5) To perform such miscellaneous administrative duties as may be necessary or advisable in his discretion to insure a unitary and functioning district court operation in the judicial district. (6) To submit an annual report to this Court on or before March 1 of each year commencing in 1980 covering the status and condition of the district court in the judicial district, its needs, and problem areas. Cf. Standard 9.2, pages 121-123, Courts Task Force, Montana Justice Project. The chief district judge shall be selected by the district judges within each multiple judge judicial district of this state from among themselves by unanimous vote on or before April 1, 1979. The selection shall be certified in writing to the Clerk of the Montana Supreme Court by a written order signed by all district judges in each multiple judge judicial district on or before said date. Whenever the district judges fail to make a selection on or before said date or certify such selection to the Clerk of the Supreme Court as provided herein, the Chief Justice of the Montana Supreme Court shall appoint one of the district judges as chief district judge and shall certify such appointment by written order filed with the clerk of this Court and of the district court in each county within the judicial district. The district judge selected or appointed as chief dis- trict judge shall serve in that capacity until he resigns, ceases to be a district judge in the judicial district, or is terminated, whichever occurs first. In judicial districts served by three or more district judges, such termination shall occur when the other district judges unanimously agree to such termination in writing and notify the Chief Justice; in judicial districts con- taining two district judges such termination shall occur where both district judges agree to such termination in writing and notify the Chief Justice. Whenever a vacancy occurs from any cause, the district judges in each multiple judge judicial district shall select one of their number to be chief district judge within 30 days of the occurrence of the vacancy. If they fail to make such selection within 30 days, the Chief Justice of the Montana Supreme Court shall appoint a chief district judge. The provisions on certifi- cation and filing applicable to the initial selection of a chief district judge shall apply to any subsequent vacancy. The second remedy sought by relators is the elimination of peremptory disqualification of district judges, the limiting of disqualifications of district judges for cause, and the preven- tion of preselection of district judges by prosecutors. We decline to eliminate peremptory disqualification of district judges or to limit disqualification of district judges for cause at this time. The present Montana Court Rule on dis- qualification and substitution of district judges was promul- gated by the Montana Supreme Court and became effective on March 1, 1978. This rule amended and superseded section 93-901, R.C.M. 1947, the former procedure. It provides for one peremptory dis- qualification or substitution of judge by the prosecution and one by the defendant in a criminal case with an unlimited right of disqualification for cause. For text of rule, see 34 St.Rep. 26. The purpose of the rule is to guarantee both the prosecution and the defendant a fair trial before an impartial district judge. The rule also covers disqualifications in civil cases. See the following cases for the purpose, history and development of the disqualification rule in Montana: State ex rel. Anaconda Copper Mining Co. v . Clancy (1904), 30 Mont. 529, 77 P. 312; In re Wood- side-Florence Irr. Dist. (1948), 121 Mont. 346, 194 P.2d 241; State ex rel. Peery v . Dist. Ct. (1965), 145 Mont. 287, 400 P.2d 648; State ex rel. OB-GYN Group v. Dist. Ct. (1972), 159 Mont. 1, 494 P.2d 931; State ex rel. Lane v. Dist. Ct. (1975), 167 Mont. 53, 535 P.2d 174. We recognize that the right of peremptory disqualification of district judges creates delays in the trial of both criminal and civil cases in Montana. It causes calendaring and scheduling problems for district judges, the parties and their attorneys. It interferes with the normal and routine operation of the district courts. Nonetheless we hold that the paramount and overriding consideration is the right to a fair trial before an impartial district judge. We consider that improvements in the present system lie in the area of correction of abuses in the exercise of peremptory disqualifications rather than elimination of the right. A principal area of abuse in the exercise of the right of peremptory disqualifications concerns mass disqualifications of an individual district judge in every criminal case by an individual attorney, law firm or staff. Such practice is not confined to defense attorneys but encompasses some county attorneys and their staffs as well. We are aware of instances where this has occurred, but we are unclear concerning how widespread the practice is and its impact on the operation of the district courts. Accordingly, we direct the Attorney General to document the extent of this practice in criminal cases by both county attorneys and defense attorneys in every district court in Montana over the last five years, 1974 through 1978, and certify the results of this documentation to this Court, together with his recommendations on appropriate remedial action. We find no basis whatever to limit or restrict the right of either the prosecution or defense to disqualify a district judge for cause in any case. The right to a fair trial before an impartial judge is the cornerstone of the American and Montana court systems. Its values transcend operational problems in the court system. Prosecutors' preselection of district judges in multiple judge judicial districts is as old as the hills both in Montana and nationwide. Any rotation system for case filings in such district courts can easily be circumvented to enable filing be- fore a particular judge. The prosecutor controls the time of filing a criminal charge and thus controls selection of the dis- trict judge before whom the criminal case is filed. Disqualifi- cation rights, both peremptory and for cause, constitute an ade- quate remedy whereby defendant can insure himself a fair trial before an impartial judge. Relators request this Court to establish a uniform rule for all district courts in Montana providing that no hearing or trial date in a criminal case be vacated or continued without notice to the county attorney and without providing a new date for hearing or trial. This matter is under study at the present time but no determination has yet been made due to limitations of time and resources of this Court. In the meantime we recom- mend that district judges decline to grant continuances in criminal cases to either defense attorneys or prosecutors ex parte and without notice to opposing counsel in the absence of exigent and compelling circumstances. Relators further request this Court to provide for the adoption of pretrial omnibus procedures similar to those used by the federal courts in the state district courts of Montana. We observe that there are substantial differences in the structure, organization, operation, types of cases, personnel, and resources of federal district courts vis-a-vis Montana district courts. We likewise observe a need in Montana district courts for a formalized rule detailing a practice and procedure for an omnibus hearing or hearings to schedule, resolve and determine pretrial motions, applications and requests, including the calendaring and scheduling of the trial. Accordingly, we order and direct each district court in each judicial district to establish by court rule an omnibus hearing in all criminal cases and provide a formalized practice and procedure relating thereto as indicated above. Such court rule shall provide for omnibus hearings in all counties within each judicial district. Such omnibus hearing rule shall be promulgated and established by the district court in each of Montana's 19 judicial districts on or before April 1, 1979, and a copy of the same filed with the Clerk of the Supreme Court. We request the Montana Judges Association at their next meeting to address the advisability or nonadvisability of establishing a uniform rule of statewide application on this subject, their reasons therefor, and their recommendations. Relators further request the assistance of this Court in recommending and supporting legislation rearranging and realign- ing the Fourth, Eighth and Thirteenth Judicial Districts. his Court has already recommended and will support legislation treat- ing a joint legislative committee to study the number and compo- sition of Montana's judicial districts and the number of district judges required and necessary to service the judicial needs of the State of Montana. This is a legislative prerogative under the Constitution and statutes of this state. We stand ready to assist the legislature in this task, if and when called upon. Relators next request this Court to establish rules and procedures for interim assignment of district judges to deal with heavy caseloads in individual judicial districts. We consider present statutes, procedures and practices sufficient in this area without further revision except in one area. Present statutes empower the Chief Justice, upon request of the district judge or judges involved, to call a consenting retired judge to active service but make no provision for compen- sation for his services. This Court has recommended to the 46th Legislative Session an amendment providing for the payment to a retired judge called to active service in the amount of the dif- ference between his retirement benefits and the salary of an active district judge for the period of such retired judge's active service. Relators also request this Court to establish Sentencing Panels in multiple judge judicial districts to eliminate disparity of sentences imposed on convicted defendants. We consider this request impractical and unworkable; that it holds no promise of significant improvement in the sentencing of convicted criminals; and that it invades the independence and statutory prerogatives of the sentencing judge. At the outset we observe that Montana statutes provide for criminal sentencing by a single district judge. Section 95- 2212, R.C.M. 1947, now section 46-18-103, MCA. Prior to pronounc- ing sentence, the sentencing judge studies the presentence report compiled by a probation officer. Section 95-2203, R.C.M. 1947, now section 46-18-111, MCA. The sentencing judge usually conducts a presentence hearing. The sentencing judge cannot sentence on the basis of private out-of-court information, com- munications, or investigation. State v . Kuhl (1961), 139 Mont. 536, 366 P.2d 347; State v . Simtob (1969), 154 Mont. 286, 462 P.2d 873; State v . Stewart (1977), Mont . , 573 P.2d 1138, 34 St.Rep. 1475. The defendant has the right to have his sentence reviewed for equity, disparity or considerations of justice by the Sentence Review Board. Sections 95-2501 to 95-2504, R . C . M . 1947, now sec- tions 46-18-901 to 46-18-905, MCA; State v. Simtob, supra. He has the right to appeal his sentence to the Montana Supreme Court to determine its legality. State v. Simtob, supra. We consider this system sufficient to provide a reasonable approach to any problem of disparity in criminal sentences. We observe that criminal sentences depend as much on considerations relating to the criminal being sentenced as to the crime of which he was convicted. Each individual's background, attitude, past criminal record and many other factors must be weighed and assessed. To require a Sentencing Panel of two or more district judges to do this, in or out of court, appears to us to require much more than is needed; to unreasonably trespass on the opera- tion of the district courts and the district judges; and to raise manifold constitutional and statutory issues that might well take years to resolve at the expense of the taxpayers. We decline the requested relief. Finally, relators request such other and further relief as this Court may deem advisable. None is suggested. Until such time as the statewide information system of this Court is fully perfected or other situations come to this Court's attention that require immediate remedial action, no further relief will be granted. Chief Justice	January 24, 1979
1bc292c1-e632-474c-ac4c-aeec88562043	O NEILL v FERRARO JONES LAVAN	N/A	14238	Montana	Montana Supreme Court	No. 14238 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 PATRICK O'NEILL, Plaintiff and Appellant, RALPH FERRARO, NIGEL JONES, JOHN R. LAVAN and BLAIR CULTER, Defendants and Respondents. Appeal from: District Court of the Eighteenth Judicial District, Honorable W . W. Lessley, Judge presiding. c o m e 1 of Record: For Appellant: Heath, Kirwan and Duckworth, Bozeman, Montana Peter Kirwan argued, Bozeman, Montana For Respondents: Drysdale, McLean & Screnar, Bozeman, Montana James McLean argued, Bozeman, Montana For Amicus Curiae: Hon. Mike Greely, Attorney General, Helena, Montana Charles Erdmann appeared, Assistant Attorney General, Helena, Montana Filed: L'E6 2 7 -$,z- Submitted: December 18, 1978 Decided: FEE 2 797% Mr. Justice John C. Sheehy delivered the Opinion of the Court. Appellant O'Neill appeals from a declaratory judgment dated February 7, 1978, entered by the District Court of the Eighteenth Judicial District, Gallatin County. Appellant brought the action to determine the meaning and validity of a restrictive covenant in the respondents' lease. The District Court sitting without a jury found the covenant prevented appellant from operating a Mexican food restaurant on the same premises where respondents operated their restaurant. The court also found the covenant to be valid. Respondents have been operating a restaurant, the Overland Express since 1973 in a portion of the first floor of the Bozeman Hotel, Bozeman, Montana. This operation was pursuant to a lease between respondents as tenants and the owner of the hotel as landlord dated February 13, 1973. The Bozeman Hotel no longer functions as a hotel, rather it now contains a collection of stores and shops. Paragraph 24 of the lease between respondent and the landlord-owner provides: "The Landlord will not permit a competing full restaurant service to be maintained at the Bozeman Hotel, without the express consent of Tenant, but it is agreed Landlord may maintain a breakfast-lunch type of food service at the hotel, which service may be supplied up to 24 hours per day, and it is agreed that Landlord may provide limited or irregular food service, either by itself or catered, to the downstairs facility, now known as 'The Underground'." Appellant sublet from Dark Horse, Inc., a portion of the basement of the Bozeman Hotel for use as a Mexican food restaurant known as Rose's Cantina. Dark Horse, Inc., leases the basement of the Bozeman Hotel known as The Underground from the landlord. The lease between Dark Horse, Inc. and the landlord noted that Dark Horse, Inc. intended to operate a Mexican food restaurant on the premises, and noted that respondents had indicated such an operation would violate its lease with the landlord. The lease between Dark Horse, Inc. and the landlord provided that no food service may be conducted by the tenant without the written consent of respondents. The sublease between appellant and Dark Horse recited the above provisions of the lease between Dark Horse and landlord and the pertinent provisions of the lease between respondents and landlord. The lease then indicated Rose's Cantina could operate a Mexican food service between the hours of 11:OO a.m. and 3:00 p.m. so long as respondents' restaurant was not open to the public during the same hours. In the event appellant wished to operate at other times, it had to obtain written consent from respondents or seek a declaratory judgment pursuant to the landlord-Dark Horse, Inc. lease. Appellant filed his complaint for a declaratory judgment and a trial without a jury was held. Testimony at the trial produced the following relevant facts. Both establishments have or would have a nice, casual decor and patrons of each are or would be served at tables by waitresses or waiters. The food in each establishment is or would be prepared out of sight of the customers. The two establishments would share the same parking facilities at the Bozeman Hotel. Appellant's business would be open from 11:OO a.m. to 11:OO p.m. Monday through Saturday. Respondents' restaurant is open from either 5:00 or 5:30 p.m. until 10:OO or 11:30 p.m. every day of the week. The menus and price range of the menu items are different for each establishment. Appellant would serve only Mexican food items and the most expensive item would cost about $4.00. Respondents serve steak and seafood, none of which appears on appellant's proposed menu, and which range in price from $5.00 to $13.95; respondents testified the average diner would spend $6.50 in the Overland Express excluding bar items. The landlord testified his impression of the drafting of paragraph 24 was to prevent another restaurant similar to the Overland Express from opening in the Bozeman Hotel. Respondent testified upon cross-examination his intent in negotiating the lease and the particular paragraph in question was to prevent competition with him in the Bozeman Hotel. The District Court upon conclusion of the trial found: "That the object of paragraph 24 between the [respondents] and [the landlord] was to prevent [the landlord] from permitting a restaurant service at the Bozeman Hotel of the same type as provided by [respondents] at the Overland Express, and to limit competition in such a restaurant service, but [the landlord] was to be allowed to operate a breakfast-lunch food service and the limited or irregular food service which it was providing in the downstairs facility, that is, Sunday buffets and irregular banquets." The validity of the covenant itself was raised by the appellant in his trial brief and appellate brief. The District Court memorandum supporting its findings and conclusions upheld the validity of the covenant. Two issues are presented to this Court on appeal. First, whether the restrictive covenant contained in paragraph 24 of respondents' lease is valid. Second, if the covenant is valid, whether it is applicable to the restaurant appellant seeks to open in the Bozeman Hotel. We conclude, for the reasons set forth below, the District Court was correct in holding the covenant valid and in holding appellant's restaurant was barred by that covenant. Appellant has argued the covenant contained in paragraph 24 of the lease is a violation of section 13-807, R.C.M. 1947, now section 28-2-703 MCA which declares void those contracts restraining anyone from "exercising a lawful profession, trade, or business of any kind," subject to certain exceptions not relevant here. However, the general rule appears otherwise. The Supreme Court of Oklahoma when faced with a lease agreement limiting competition as to one particular tenant and with the argument the agreement violated a statute identical to section 28-2-703, held the lease valid and stated: "'The modern trend of authorities . . . is to construe such statutes . . . and contracts between individuals intended to promote rather than restrict a particular business, "In the light of reason and common sense," so as to uphold reasonable limited restrictions. [It is a] general rule that courts will not hold to be a restraint of trade a contract between individuals, the main purpose and effect of which are to promote and increase business in the line affected merely because its operations might possibly in some theoretical way incidentally and indirectly restrict trade in such line. ' " Utica Square, Inc. v. Renberg's Inc. (Okla. 1964), 390 P.2d 876, 881 (quoting from Keating v. Preston (1940), 42 Cal.App.2d 110, 108 P.2d 479, 486.) Ruling a similar lease to be valid, Texas has said "[clourts are generally agreed that [the] lessor of land may, by a reasonably limited restrictive covenant, agree not to use, or allow his property to be used by others, in a way which would result in competition with his . . . lessee . . ." Karam v. H. E. Butt Grocery Company (Tex. 1975), 527 S.W.2d 481, 484. For other jurisdictions supporting this rule see The above authorities indicate a reasonable and limited covenant restraining trade will be considered valid. Three things are essential to such a covenant: " (1) it must be partial or restricted in its operation in respect either to time or place; (2) it must be on some good consideration; and (3) it must be reasonable, that is it should only afford a fair protection to the interests of the party in whose favor it is made, and must not be so large in its operation as to interfere with the interests of the public." Eldridge v. Johnston (19521, 195 Or. 379, 245 P.2d 239, 250. The covenant in the present case satisfies these requirements. It is limited to the Bozeman Hotel; the consideration is apparently good as no question to it has been raised; and the covenant is not so large in operation as to affect the interests of the public in any way other than to limit the type of restaurant facility in the Bozeman Hotel. Because such covenants are as a general rule valid, and because this covenant is limited and reasonable, we affirm the decision of the District Court upholding its validity. The second issue we are asked to consider is whether this covenant, if valid, is applicable to the restaurant appellant seeks to open in the Bozeman Hotel. Appellant has argued his proposed restaurant does not fit the definition provided in paragraph 24 prohibiting a "competing full restaurant service". Courts have generally recognized the term "restaurant" is frequently used indiscriminately for all places where food and refreshments can be had. ~ichards v. Washington Fire and Marine Ins. Co. (1886), 60 ~ich. 420, 27 N.W. 286; Wheelmakers, Inc. v. City of Flint (1973), 47 ~ i c h . App. 434, 209 N.W.2d 444; Annot. 122 A.L.R. 1399. The phrase, "competing full restaurant service", - is ambiguous and we are mindful of the deference given to the trial court's findings and conclusions because it listened to and viewed witness testimony as to what was intended by a particular statement. Rule 52 (a), M0nt.R.Civ.P. Upon conflicting testimony concerning the scope of the phrase, the District Court found and concluded the intent of paragraph 24 of the lease was to prevent the landlord from permitting a food service which would compete with respondents - 6- on a full-time basis. The District Court found and concluded appellant's contemplated restaurant service would be contrary to and in violation of paragraph 24 of the lease. A review of the record does not warrant disturbing these findings and conclusions and we therefore affirm the District Court on this issue. Arguments have been made in this appeal by the State of Montana as amicus curiae that the covenant in paragraph 24 is illegal for anti-trust reasons. Our affirmance of the District Court in this decision should not be construed as a rejection of those arguments in any context but the one presented by this appeal. In a factual situation more similar to the situations of the case authorities discussed by amicus the arguments relating to anti-trust would be more persuasive. Judgment affirmed. Q. J --- .................... 9 " - Justice +- We Concur: /fhief Justice r\ ces	February 28, 1979
e7664097-1a5e-44e5-ac59-856e849fafcf	WALTER v PUBLIC AUCTION YARDS	N/A	13456	Montana	Montana Supreme Court	N o . 13456 IN THE SUP= COUE O F THE STATE O F MONTANA 1978 RON PALTER, Claimant a n d Respondent, VS. PUBLIC AUCTION YARDS, Ehployer, and NATIONAL A U T O E 4 3 B I L E & CASUALTY INSURANCE CO . , Defendant and Appellant. Appeal from: Workers' Compensation Court Honorable William Hunt, Judge presiding. Counsel of Record: For Appellant: Andrew J. Utick, Helena, Montana For Respondent: Pbulton, Bellingham, Longo & Mather, Billings, Montana 4 ,979 Filed : Submitted on briefs: August 10, 1978 Decided : ! ! h R 2 1 197!3 M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. ~ h r o u g h hearings before t h e Workers' Compensation Court i n Helena, Montana, on October 2 4 , 1975, and i n B i l l i n g s , Montana, on February 4, 1976, claimant sought workers' compensation b e n e f i t s f o r an i n j u r y t o h i s r i g h t knee which occurred on February 16, 1973. On A p r i l 5, 1976, t h e Workers' Compensation Court entered f i n d i n g s of f a c t and conclusions of law ordering t h e i n s u r e r t o pay permanent p a r t i a l d i s - a b i l i t y b e n e f i t s t o t h e claimant based upon a weekly wage of $87.50 from t h e d a t e of t h e claimant's l a s t payment, such payments t o be made i n d e f i n i t e l y , u n t i l changed by order of t h e court. On A p r i l 26, 1976, t h e i n s u r e r f i l e d a p e t i t i o n f o r rehearing and an a l t e r n a t i v e motion t o amend and supplement t h e f i n d i n g s of f a c t and conclusions of law. The i n s u r e r objected t o t h e computation of c l a i m a n t ' s compensation b e n e f i t s based upon a weekly wage of $87.50 r a t h e r than upon a weekly wage of $18.36; it objected t o payment of b e n e f i t s f o r an i n d e f i n i t e period of t i m e r a t h e r than l i m i t i n g such b e n e f i t s t o t h e s t a t u t o r y maximum set f o r t h i n s e c t i o n 92- 709, R.C.M. 1947, now s e c t i o n 39-71-705 MCA; and it sub- mitted f i n d i n g s and conclusions designed t o r e t a i n j u r i s - d i c t i o n of t h e matter i n t h e Workers' Compensation Court u n t i l a l l medical testimony was completed and t h e f u l l e x t e n t of c l a i m a n t ' s permanent p a r t i a l d i s a b i l i t y could be determined. By order dated June 30, 1976, t h e Workers' Compensation Court denied t h e i n s u r e r ' s p e t i t i o n and motion and summarily returned t h e f i l e t o t h e administrator of t h e Workers' Compensation Division. The i n s u r e r appeals. There i s no d i s p u t e t h a t claimant Ron Walter s u f f e r e d a compensable i n d u s t r i a l accident. On February 1 6 , 1973, while i n t h e employ of Western Livestock Reporter, d/b/a Public Auction Yards, claimant sustained an a c c i d e n t a l i n j u r y t o h i s r i g h t knee when he was kicked by a cow. He w a s f i r s t t r e a t e d by D r . L.C. Allard who diagnosed a r u p t u r e of t h e t i b i a 1 c o l l a t e r a l ligament of t h e r i g h t knee. D r . A l l a r d r e f e r r e d claimant t o D r . P e t e r V. Teal f o r p o s s i b l e surgery. That same day, February 16, 1973, claimant was seen by D r . Teal. D r . Teal f e l t t h a t claimant had s u f f e r e d a p a r t i a l t e a r of t h e medial c o l l a t e r a l ligament of t h e r i g h t knee. He placed claimant's r i g h t l e g i n a cylinder c a s t . O n March 6 , 1973, claimant f i l e d a timely claim f o r compensation b e n e f i t s f o r i n j u r y t o h i s r i g h t l e g . Subsequent t o h i s treatment by D r . Teal, claimant returned t o h i s primary occupation of operating h i s farm where he continued t o experience d i f f i c u l t y with h i s r i g h t knee. I n January 1974, claimant, a f t e r consulting with D r . Ronald Losee, decided t o undergo surgery. On January 15, D r . Losee performed a l a t e r a l meniscectomy on c l a i m a n t ' s r i g h t knee. A t t h a t t i m e D r . Losee estimated claimant would be o f f work f o r s i x weeks and f e l t t h e r e would be no per- manent impairment o t h e r than a l i t t l e j o i n t looseness. A f t e r surgery, claimant continued t o s e e D r . Losee. However, upon t h e l a t t e r ' s r e f u s a l t o submit an impair- ment evaluation claimant was s e n t by t h e i n s u r e r t o D r . Frank Humberger of Bozeman f o r evaluation. D r . Humberger f e l t t h a t because claimant continued t o complain of prob- l e m s with h i s r i g h t knee, another arthrogram ( t h e f i r s t one having been done a t D r . T e a l ' s d i r e c t i o n ) should be done. A f t e r consulting with D r . Losee, claimant refused t o undergo t h i s procedure. D r . Losee advised t h a t healing was completed; that he would not recommend a repeat arthro- gram; that compensation benefits should be discontinued; and that the claimant would be reexamined in the spring. The next medical report from Dr. Losee is a handwritten report, dated March 10, 1975, which states: "Diagnosis on Ron Walter: "Medial Capsular Insufficiency and Arthrosis Rt Knee. "Accounts for his pain and instability. "R. E . L o s e e ' ! ' There is no further medical information contained in the file. At the hearings before the Workers1 Compensation Court, it was brought out that the claimant's principal occupation was that of a farmer and he regularly supplemented his farm income by outside employment during the winter months. At the time of his injury, he was employed part-time by Public Auction Yards helping with livestock sales. Claimant stated he had been similarly employed the year before his injury and had earned over the course of the previous year $954.30 from such employment. These 1972 wages were broken down by calendar quarters: First quarter, $824.74; second quarter, $90.78; third quarter, $0; and fourth quarter, $36.78. Claimant further testified that his average weekly wage at the time of injury was roughly $75.00; and that he expected to work approximately the same schedule in 1973 as he had in 1972 at an hourly rate of $2.00. Additionally, the Court had before it the employer's first report of injury which showed claimant's weekly wage to be $80.00; the claim for compensation which showed that claimant worked 12 1/2 hours per day for three to four days per week for $75.00; and the fact that the defendant-insurer had made payments based upon a weekly wage of $45.00. The Workers' Compensation Court entered the following findings of fact and conclusions of law: "1. The uncontradictory (sic) testimony of Ron Walter was that he would expect to work an average of 43-3/4 hours per week in 1973. "2. His average earnings in 1973 were $2 per hour. "3. His average weekly wage for 1973 was $87.50. "4. Compensation should be determined based upon the average weekly earnings of Ron Walter. "That Ron Walter is entitled to receive benefits for permanent partial disability based upon his average anticipated earnings of $87.50 per week from the date of his last payment until changed by order of this court." The issues before us are: (1) Whether the Workers' Compensation Court correctly computed the average weekly wage of claimant at $87.50; (2) Whether the payment of permanent partial disability benefi'ts for an indefinite period of time was proper; and (3) Whether the Workers' Compensation Court erred in returning the files of the Workers' Compensation Court without receiving additional medical testimony. We shall discuss each issue in turn. This accident occurred in February 1973. Therefore, the applicable statute (since repealed) in effect was section 92-703, R.C.M. 1947, as amended by Ch. 207, Sec. 3, Laws of Montana (1967). That section fixed the amount of weekly compensation to be paid for partial disability at a percentage between 50% and 66 2/3 of "the difference between the wages received at the time of the injury and the wages that such injured employee is able to earn thereafter." This exact percentage depends upon claimant's marital status and the number of dependents. "Wages" as used in then section 92-703, R.C.M. 1947, was defined in then section 92-423, R.C.M. 1947, as follows: "'Wages' mean the average daily wages received by the employee at the time of the injury for the usual hours of employment in a day, and overtime is not to be considered." We considered the term "average daily wage" in Mahlum v. Broeder (1966), 147 Mont. 386, 412 P.2d 572, where we stated: ". . . [Tlhat the first step in the formula for compensation is to determine the average daily wage. This is a simple arithmetical computation of dividing a man's earnings over a reasonable period of time by the total number of days he worked, excluding all overtime. What is a reasonable period of time, of course, - - -- - depends on the circumstances of each case. -- --- The period must be sufficiently long to take -- --- into account seasonal fluctuations - for hours, wage rates, vacations, - and any other factors which may materially affect the average daily wage." 147 Mont. at 394-95, 412 P.2d at 576-77. (Emphasis added. ) The insurer contends that, under the foregoing case, and the decision in Infelt v. Horen (1959), 136 Mont. 217, 346 P.2d 556, that the Workers' Compensation Court in this case was required to take the full earnings of the claimant for the previous year, $954.30, and divide the same by 52 weeks, to arrive at an average of $18.36 per week. The result to the claimant would be that instead of receiving a percentage of $87.50 per week as found by the Workers' Compensation Court, he would receive a percentage of $18.36. Whatever we may have said in previous cases, it appears clear that the intent of former section 92-703, R.C.M. 1947, with respect to partial disability, was to compensate the injured employee by a percentage of the "difference between the wages received at the time of the injury and the wages that such injured employee is able to earn thereafter". In reality, the section sets up a test of loss of earning capacity. It is apparent here that the claimant did in fact lose earning capacity by virtue of his compensable accident. Not only was he unable to work fully at his job in the sales yard, but in the operation of his farm, he found himself in a situation where he could not lift weights in excess of 25 to 30 pounds and had to pay other help to perform jobs that he usually performed. He definitely suffered a loss of ability to earn wages. As we said in Mahlum, supra, the determination of his average daily wage depends upon the circumstances of each case. We agree with the Workers' Compensation Court that in this case a determination that his average daily wage would result in earnings of $87.50 per week was fairly computed and is within the objective of such Workers' Compensation statutes. The ultimate objective of such statutes is to reflect fairly the claimant's probable future earning loss. 2 Larson, Workmen's Compensation Law, S60.11 at 10-363. - When it is considered that the claimant's injury adversely affected not only his ability to work in the salesyard, but his ability to be an effective farmer as well, the contention that the Workers' Compensation Court awarded claimant a "windfall" must be rejected. His working capacity was certainly reduced and his former ability to earn $87.50 per week is established in the evidence. -6- The second issue brought by this appeal is the ruling by the Workers' Compensation Court that compensation is to be paid to the claimant "from the date of his last payment until changed by order of this court." This is error and must be corrected on remand. The Workers' Compensation Court concluded the claimant was "entitled to receive benefits for permanent partial disability." Neither section 92-703 nor section 92-709, R.C.M. 1947, of the Workers' Compensation Act relating to partial disability as they read at the time of claimant's injury contain any authorization for an open-ended award of compensation. Section 92-703 provided that compensation be paid not longer than 500 weeks subject to the proviso that "compensation for partial disability resulting from the loss of or injury to any member shall not be payable for a greater number of weeks than is specified in section 92-709 for the loss of such member." Under section 92-709 claimant's injury to his right knee entitles him to no more than 200 weeks of compensation. Jensen v. Zook Brothers (1978) , Mont . , 582 P.2d 1191, 1194, 35 St.Rep. 1066, 1070; Johnson v. Industrial Accident Board (1971), 157 Mont. 221, 224, 483 P.2d 918, 920. The third issue relates to insurer's contention that the Workers' Compensation Court should have received additional medical evidence which would assign a percentage of disability based on the injury of claimant's knee. The Workers' Compensation Court stated at the close of the evidence that, "I think there has been some pretty convincing testimony here." The trial judge was obviously referring to the evidence before him that claimant was unable to handle the work in the salesyard or the work he had performed on his farm; the evidence of claimant's wife as to his inability to perform his usual farm work and the pain he suffered; and the medical evidence that was in fact before the court. It is not necessary that in determining disability, the Workers' Compensation Court resort solely to medical evidence. We held in Robins v. Anaconda Aluminum Co. (1978) , Mont . "We are of the opinion that the question of disability is not a purely medical question. In 3 Larson, Workmen's Compensation Law, S79.53, it is pointed out : " I . . . Disability is not a purely medical question: it is a hybrid quasi-medical concept, in which are commingled in many complex combinations the inability to perform, and the inability to get, suitable work . . . 1 II There was sufficient evidence before the Workers' Compensation Court to support its finding of disability. It should be remembered there are safeguards built into the Workers' Compensation Law in Montana. In cases of enumerated or scheduled injuries under section 92-709, a loss such as here is subject to the limitations set forth in the schedule in section 92-709; further, the Workers' Com- pensation Court retains jurisdiction to reduce or terminate disability payments to meet changing conditions under section 92-713, R.C.M. 1947, now section 39-71-739 MCA. The order of the Workers' Compensation Court is modified to limit claimant's payments for permanent partial disability to a maximum of 200 weeks. In all other respects, the We Concur: .............................. Chief Justice yE-&-L&e9 Justices ------ Mr. Chief Justice Frank I. Haswell did not participate in this cause.	March 20, 1979
0833e2f4-da4a-4211-8754-3209c167a759	JACQUES v NELSON	N/A	14311	Montana	Montana Supreme Court	NO. 14311 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 MICHAEL R . JACQUES, Plaintiff and Appellant, THEODORE R. NELSON, THE ANACONDA COMPANY, THE MONTANA NATIONAL GUARD, DEPARTMENT OF MILITARY AFFAIRS OF THE STATE OF MONTANA, and STATE OF MONTANA, Defendants and Respondents. Appeal from: District Court of the Third Judicial District, Honorable Robert Boyd, Judge presiding. Counsel of Record: For Appellant: Greg Skakles argued, Anaconda, Montana For Respondents: D. L. Holland argued, Butte, Montana Submitted: December 18, 1978 Decided: F F r 7 - & - I 9 7 9 Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiff appeals from a judgment of the District Court of Deer Lodge County dismissing his damage action for personal injuries. Plaintiff was injured at his employer's Anaconda Reduc- tion Works on February 6, 1977. The accident occurred when Larry Raver, a fellow employee of defendant Anaconda Company, dropped a warhead which exploded, killing Raver and seriously injuring plaintiff. On March 7 plaintiff filed a claim for compensation with the State Workers' Compensation Division. Defendant Anaconda Company did not file an employee's first report of injury. On April 5 Anaconda Company notified the Division it was denying plaintiff's claim. Plaintiff alleges that he never received notice of this denial. On April 7 plaintiff filed a common law tort action for damages against his employer (the Anaconda Company) and the per- sonal representatives of the estate of his fellow employee, Larry Raver (Theodore R . Nelson). The Anaconda Company filed a motion to dismiss the complaint on the grounds that plaintiff's exclu- sive remedy was under the Workmen's Compensation Act. The District Court granted Anaconda's motion, dismissed plaintiff's complaint, but no judgment was entered thereon. This Court dismissed plaintiff's appeal without prejudice on the ground that the appeal was premature where no judgment had been entered. Thereafter plaintiff filed an amended complaint in the District Court. On April 26 the District Court dismissed the amended complaint and entered final judgment for defendant Anaconda Company. Plaintiff appeals from this judgment. The underlying issue is whether plaintiff's exclusive remedy for his injuries is under the Workmen's Compensation Act. Plaintiff contends that the Workmen's Compensation Act is not his exclusive remedy because his employer elected not to be bound by the Act by (1) failing to file the employer's first report of injury, and (2) failing to notify him that they were denying his claim under the Act. Defendant Anaconda Company argues that the Act consti- tutes plaintiff's exclusive remedy for his injuries. The Company claims it was not required to file an employer's first report of injury since the explosion occurred outside the course and scope of plaintiff's employment and to do so would be admitting this defense. The Company further contends that any failure on its part to give plaintiff employee notice of rejection of his claim under the Act did not eliminate plaintiff's exclusive remedy under the Act. All Montana employments are covered by the Workmen's Compensation Act unless excluded by statute. At the time of plaintiff's injury the controlling statute provided in pertinent part : "This Act applies . . . to all private employment not expressly exempted by section 92-202.1 . . ." Section 92-207.1, R.C.M. 1947, since repealed by Chapter 550, Section 9, 1977 Session Laws. NO eremption of plaintiff's employment is contained in section 92-202.1, R.C.M. 1947. It is conceded that plaintiff's employer was covered by the Act. The Act requires the employer to file a first report of injury. Section 92-808, R.C.M. 1947, now section 39-71-307(1) MCA. Here, plaintiff's employer failed to do so. The Act pro- vides a civil penalty of not more than $1,000 against the employer for failure to file the first report of injury. Section 41-1718(3), R.C.M. 1947, now section 50-71-325(3) MCA. Nowhere in the Act does such failure constitute an election by the employer not to be bound by the Act or subject him to a common law tort action. The mandatory coverage of all private employment not expressly exempted under the Act would be nullified were we to hold that such failure removes Workmen's Compensation coverage. The Act further requires the employer to give written notice to the employee of denial of his claim. Section 92- 615, R.C.M. 1947, now section 39-71-606 MCA. Plaintiff alleges he never received such notice. The Act provides for the im- position of a 10% penalty if compensation is awarded by the Workers' Compensation Court. Section 92-849, R.C.M. 1947, now section 39-71-2907 MCA. Nowhere in the Act does failure to give such notice remove the employee from coverage under the Act or subject him to a common law tort action. If the law were otherwise, the purpose and intent of the mandatory coverage of the Act would be effectively subverted. The employer could eliminate the coverage of the Act over a particular employee or a particular accident at will simply by refusing to file an accident report or failing to notify its employee of denial of his claim. This would indeed be a unique and unparalleled kind of Workmen's Compensation coverage. In summary, we hold that on the record before us the pro- visions of the Workmen's Compensation provides the exclusive remedy for plaintiff's injuries and that plaintiff's common law tort action for damages is barred by reason thereof. We retain continuing jurisdiction of this judgment for the purpose of amendment, modification or alteration thereof to prevent plain- tiff from being left without remedy for his injuries should the Workers' Compensation Court hereafter determine that the acci- dent did not occur within the course and scope of plaintiff's employment. Affirmed. Chief J u s t i c e J u s t i c e s	February 15, 1979
8e83a845-0a6b-4999-b78b-e49fb691739c	MCGEE v BECHTEL CORPORATION	N/A	14248	Montana	Montana Supreme Court	No. 14248 IN THE SUPREME CCURT QF THE S T A T E OF MONTANA 1978 Claimant and Appellant, BECHTEL C O R P O R A T I O N , Einployer, a I f i INDUSTFIX, INDEMNITY CQMPANY, Defendant and Respondent. Appeal frcnn: hbrkers' Ccanpensation Court Honorable William E. Hunt, Judge presiding. Counsel of Record: For Appllant : Burgess, Joyce, Prothero and Whelan, Butte, Mntana For Respondent: Marra, Wenz, Iwen and Johnson, Great Falls, Wntana Sutmitted on briefs: November 3, 1978 JAh J *. 1379 Decided. Filed: 1 % ~ - "9% Mr. Justice John C. Sheehy delivered the Opinion of the Court. Charles E . McGee, claimant, appeals from the amended findings of fact, conclusions of law and judgment dated March 6, 1978, entered by the Workers' Compensation Court, sitting in the Butte area, county of Deer Lodge. McGee's employer at the time of the industrial accident was Bechtel Corporation, and Industrial Indemnity Company was the industrial accident insurer for Bechtel. The Workers' Compensation Court by its judgment decided that McGee was not entitled to permanent total disability benefits under the Workers' Compensation law and limited his recovery to the benefits recoverable under the specific injury statute (section 92-709, R.C.M. 1947) and to such temporary total disability compensation benefits as he had received while convalescing. We sustain the decision of the Workers' Compensation Court. McGee, then 35 years old, married and the father of four minor children, was employed as a pipefitter-plumber foreman in 1974 by Bechtel Corporation in the construction of the Arbiter Plant in Anaconda. About June 26, 1974, McGee's vision became blurred at work, not the result of any traumatic injury. That evening he consulted Dr. Burton, a Butte eye specialist, who diagnosed a detached retina in the right eye. On arrangements made by Dr. Burton, McGee was examined by Dr. F. Tempe1 Riekhof, a Salt Lake City ophthalmologist, who specialized in ophthalmologic surgery. Dr. Riekhof found a giant tear in the retina of the right eye (a "giant tear" is one which extends more than 90 degrees around the peripheral part of the retina, in this case a tear extending 150 to 160 degrees). He also found two areas of retinal degeneration and beginning detachment in the left eye, resulting from a genetic condition. The condition in the left eye was described as "lattice degeneration". The patient had no complaints regarding his left eye at the time of his initial examination. On July 2, 1974, Dr. Reikhof performed surgery to reattach the retina of the claimant's right eye and during the same procedure also performed surgery on the left eye which he termed a "cryopexy", a procedure consisting of spot welding the two small areas where holes appeared in the lattice degeneration of the left eye. Following his surgery, McGee returned home to recover. Sometime in July 1974, his vision had improved and he was released to work in a supervisory capacity. He returned to work as foreman on July 27, 1974. The apparent return to normality of the claimant's vision was an encouraging indication of the successful reattachment of the retina, according to Dr. Reikhof. On July 27, 1974, while at work reading a blueprint, claimant was soundly slapped on the back by a well-wishing fellow employee. McGee immediately noticed the deterioration of the sight in his right eye and again sought medical treatment in Butte, Salt Lake City (Dr. Reikhof was not available), and finally in San Francisco, where Dr. Roger E. Atkins, attempted in surgical procedure to reattach the retina of the right eye. The attempt was unsuccessful. Dr. Atkins contemplated a second operation once the vitreous fluids cleared and the optic nerve became visible, and meanwhile advised McGee to return to Butte and consult his local eye specialist, Dr. Francis P. Nicholson, a Butte ophthalmologist. In August 1974, McGee returned to San Francisco, where Dr. Atkins concluded the right eye retina could not be reattached. A vitreous fluid transplant was performed to avoid enucleating the right eye. However, vision in the eye was completely and permanently lost. Before the Workers' Compensation Court, the employer- insurer contested whether an industrial accident had occurred here. The Workers' Compensation Court found that the injury did arise out of and in the course of his employment and was compensable. No appeal is taken by the employer-insurer on that point. The main thrust of the proceedings before the Workers' Compensation Court was to determine whether McGee was permanently and totally disabled as a result of the loss of vision in his right eye, under the particular circumstances of this case. McGee was advised by Dr. Atkins, Dr. Nicholson, and also by Dr. George Sale, a Missoula ophthalmologist, that he should never return to work as a plumber, or any other work requiring rapid movement and physical strain because of the danger of a further detachment of the retina of his left eye with resulting total blindness, this being considered by the doctors a risk too great to take. The letter from Dr. Atkins, dated March 31, 1976, states he did not feel that McGee was "in any way qualified from a physical standpoint to continue with this sort of heavy physical labor he had previously done. The only way in which he could become employable would be through a deep rehabilitative process which took him into a sedentary occupation requiring rather little in the way of reliance of good vision." Dr. Nicholson's letter of March 23, 1976, stated: ". . . It is reasonable to expect further visual deterioration in Mr. McGee's left eye in the future, and with this in mind, - regardless of visual efficiency charts or complex computative formulae, - in my opinion, Mr. McGee has sustained almost 100% visual disability. "There is no question in my mind that he should be proscribed from working for the rest of his life." Dr. Sale's letter of March 22, 1976, stated: "Mr. McGee's occupation is that of a pipefitter, which is entirely unsuitable for a person who has had bilateral retinal detachments . , - " The condition of McGee at the time of the hearing was that he had total and permanent loss of vision of his right eye, and his left eye was correctable to 20/25, which according to the A.M.A. evaluation of permanent visual impairment comes to five percent loss of central vision in his left eye. His visual field in the left eye is normal. Dr. Reikhof's opinion is completely contradictory to that of the other doctors. Dr. Reikhof testified, in essence, that assuming that the retina in the left eye were successfully repaired by the cryosurgery which he performed, he would have no objection to Mr. McGee "going back to any type of employment which did not carry a significance of a direct blow to his head. I believe that the reading of the morning paper, if you will, is as potentially as traumatic to the vitreous and the retina inside the eye, as anything he will do on the job, any job. . ." Dr. Reikhof would have no objection to McGee picking up a 150 pound bale of hay, or straining to have a bowel movement or any such thing that might involve physical strain. His opinion was that there was no way that those kinds of things could result in a retinal tear or a retinal detachment of the left eye. He further discounted the possibility of an adverse influence on the good eye from a physiological interference arising out of the loss of the right eye. The Workers' Compensation Court specifically found that the lattice degeneration of the left eye of McGee and the small area of detachment found there originally did not result from an industrial accident, nor was the condition one that arose out of his employment. It further found that there was no evidence to sustain a finding that the claimant lost the sight of his left eye or that there was any causal connection between the deficiencies sustained by the claimant in the use of his left eye and any injury arising out of his work. Thus, the net effect of the findings by the Workers' Compensation Court is that the claimant McGee lost the sight of his right eye in an industrial accident, but that the present condition of his left eye is genetically induced and is not the result of an industrial accident. McGee further contends on appeal that he is in fact totally disabled because he has not engaged in any gainful employment since July 27, 1974 and that he dare not engage in work because of the danger of a further retinal detachment of his left eye. In its amended finding of fact No. 15, the Workers' Compensation Court noted the disagreement of Dr. Reikhof and Dr. Nicholson as to whether a person who has had a detachment of the retina in one eye is more susceptible to a detachment of the other eye. While the court did not specifically indicate which doctor it agreed with, impliedly it accepted the testimony of Dr. Reikhof that further detachment of the retina in the good eye is uncommon, where the lattice degeneration in the good eye has been arrested by cryopexy. The Workers' Compensation Court awarded claimant benefits under the specified injury statute allowing him 140 weeks of compensation for total blindness of one eye, in addition to the 26 weeks of convalescent disability benefits he had already received. -6- The issue confronting us in this case is clear. On the one hand the claimant McGee claims he is totally disabled, and has not worked since the industrial accident. Three doctors, including the surgeon who last operated on him, indicate he cannot do heavy physical work. On the other hand, the surgeon who performed the cryopexy and the first reattachment of the retina on his right eye maintains that the danger of bilateral detachment in his case is remote and commends him for any kind of physical labor, where he is not in danger of receiving a direct blow on the head. The Workers' Compensation Court found in accordance with the latter opinion. Whether this Court agrees is of no moment. Since credible and substantial evidence appears in the record in support of the Workers' Compensation Court, we are bound by its decision on the facts. Rule 52(a), Mont.R.Civ.P.; Smith v. Pierce Packing Co. and Pacific Insurance Co. (19781, Mont. , 581 P.2d 834, 35 St.Rep. 979; Robins v. Anaconda Aluminum Company (1978), Mont . , 575 P.2d 67, 35 St.Rep. 213; Bond v. St. Regis Paper Company (1977), Mont . , 571 P.2d 372, 34 St.Rep. 1227, 1238. The decision of the Workers' Compensation Court is affirmed. - ! J Justice / We Concur: Wief Justice <. W L P - - & Jus es	January 30, 1979
417cbd57-d420-40ab-8bce-f5654f09ca61	BORKOSKI v YOST GOUAX ST PATR	N/A	14265	Montana	Montana Supreme Court	No. 14265 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 JEROME F. BORKOSKI, individually, and as the Administrator of the Estate of MARY J. BORKOSKI, deceased, Plaintiff and Appellant, ROBERT P. YOST, JAMES E. GOUAX and ST. PATRICK'S HOSPITAL, Defendants and Respondents. Appeal from: District Court of the Fourth Judicial District, Honorable Peter G. Meloy, Judge presiding. Counsel of Record: For Appellant: Knight, Dahood, Mackay and McLean, Anaconda, Montana David M. McLean argued, Anaconda, Montana For Respondents: Garlington, Lohn and Robinson, Missoula, Montana Sherman V. Lohn argued, Missoula, Montana Submitted: February 9, 1979 Decided: ~ P R 2 4 1979 M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. P l a i n t i f f and appellant Jerome Borkoski f i l e d t h i s medical malpractice and wrongful death a c t i o n on June 17, 1975, i n 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, following t h e death of h i s wife, Mary Jane Borkoski, a s a r e s u l t of an automobile accident. Defendants i n t h e a c t i o n o r i g i n a l l y w e r e S t . P a t r i c k ' s Hospital and D r s . Robert Yost and James Gouax. P r i o r t o t r i a l , however, Borkoski s e t t l e d with S t . P a t r i c k ' s Hospital f o r $90,000. The h o s p i t a l i s not involved i n t h i s appeal. T r i a l commenced on December 12, 1977. On t h a t day, Borkoski argued h i s motion t o permit v o i r d i r e examination of prospective jurors a s t o t h e influence of a national campaign by leading insurance companies with regard t o jury awards. During discovery, it had been determined t h a t t h e insurance companies through which Yost and Gouax c a r r i e d t h e i r malpractice insurance had been very a c t i v e l y involved i n t h i s campaign. The g i s t of t h e advertisements was t h a t l a r g e jury awards would r e s u l t i n everyone paying higher insurance premiums. A f a i r example of these advertisements d e p i c t s a holding jury i n s t r u c t i o n " which states : "When awarding damages i n l i a b i l i t y cases, t h e jury i s cautioned t o be f a i r and t o bear i n mind t h a t money does n o t grow on t r e e s . I t must be paid through insurance premiums from uninvolved p a r t i e s , such a s yourselves." Beneath t h i s p i c t u r e i n l a r g e type i s t h e statement: "Too bad judges can' t read t h i s t o a jury." The advertise- ment then describes several cases which t h e sponsoring insurance company points o u t a s i l l u s t r a t i v e of "windfall" jury awards. The two-page ad then lists s e v e r a l suggestions t o clean up t h e "mess" concluding: "We can ask j u r i e s t o take i n t o account a vic- t i m ' s own r e s p o n s i b i l i t y f o r h i s losses. And w e can urge t h a t awards r e a l i s t i c a l l y r e f l e c t t h e a c t u a l l o s s suffered--that they be a f a i r compen- s a t i o n , b u t n o t a reward. "Insurers, lawyers, judges--each of us shares some blame f o r t h i s m e s s . But it i s you, t h e public, who can b e s t begin t o clean it up. Don't underestimate your own influence. U s e it, a s w e a r e t r y i n g t o use ours." The sponsor of t h i s p a r t i c u l a r ad w a s Aetna L i f e and Casualty. D r . Gouax c a r r i e d h i s malpractice insurance with Aetna L i f e and Casualty. Borkoski has presented copies of t h i s and other s i m i l a r ads which appeared i n Time, Newsweek, Sports I l l u s t r a t e d , and Reader's Digest magazines during t h e approximate time of t h e impaneling of t h e jury. I n h i s motion Borkoski asked: "For permission t o examine prospective jurors with a l i n e of inquiry t o determine whether any prospective jurors have been exposed t o , have observed, o r a r e aware of t h e national campaign by leading insurance companies, d i r e c t e d p a r t i - c u l a r l y a t prospective jurors, t o t h e e f f e c t t h a t l a r g e jury v e r d i c t s a r e i n f a c t paid by t h e general public a t l a r g e and c o n s t i t u t e d 'wind- f a l l s ' t o t h e r e c i p i e n t s . " The D i s t r i c t Court denied t h i s motion. According t o t h e t r a n s c r i p t of t h e argument on t h i s motion, however, t h e D i s t r i c t Court d i d allow Borkoski t o "inquire a s t o each juror whether o r not they f e e l t h a t doctors a r e unneces- s a r i l y o r professional people a r e unnecessarily oppressed by s u i t s o r l a r g e v e r d i c t s . . ." Further, according t o an a f f i d a v i t f i l e d by t h e attorney f o r defendant doctors, Borkoski d i d i n q u i r e a s t o whether each juror was prejudiced a g a i n s t t h i s type of case and whether prospective jurors had read any a r t i c l e s o r advertisements about t h i s type of case which would a f f e c t t h e i r determination of t h e case. The exact questions asked during v o i r d i r e a r e n o t a v a i l a b l e due t o lack of t r a n s c r i p t . The t r i a l l a s t e d from December 1 2 t o December 19, 1977. ~ f t e r receiving t h e case, t h e jury d e l i b e r a t e d approximately f o r t y minutes before r e t u r n i n g a v e r d i c t i n favor of defen- dants. ~ o r k o s k i moved f o r a new t r i a l on t h e grounds t h a t he had been denied a f a i r and i m p a r t i a l jury when h i s v o i r d i r e motion had been denied and t h a t t h e v e r d i c t w a s n o t sup- ported by t h e evidence. The c o u r t denied h i s motion, and Borkoski appeals. On appeal Borkoski raises two r e l a t e d i s s u e s concerning t h e d e n i a l of h i s v o i r d i r e motion. These may be consoli- dated as follows: Whether t h e t r i a l c o u r t committed r e v e r s i b l e e r r o r and denied Borkoski h i s r i g h t t o a f a i r and i m p a r t i a l jury when it refused t o allow Borkoski t o pursue a l i n e of i n q u i r y on v o i r d i r e t o determine whether any prospective j u r o r s w e r e biased a g a i n s t Borkoski a s t h e d i r e c t r e s u l t of t h e n a t i o n a l a d v e r t i s i n g campaigns by leading insurance c a r r i e r s t o t h e e f f e c t t h a t l a r g e jury awards a r e i n f a c t paid by t h e gen- e r a l public and c o n s t i t u t e "windfalls" t o t h e r e c i p i e n t s . By t h i s appeal, Borkoski brings t o t h e a t t e n t i o n of t h i s Court a matter of increasing concern t o both l a y per- sons and lawyers. See e.g., Time, February 2 0 , 1978, a t 65; Business Week, J u l y 31, 1978, a t 39; 6 4 A.B.A.J. 531 (1978). The p o s s i b i l i t y of s e r i o u s p r e j u d i c e r e s u l t i n g t o personal i n j u r y p l a i n t i f f s as a r e s u l t of t h e a d v e r t i s i n g cam2aign being waged by t h e insurance companies c o n s t r a i n s t h i s Court t o reexamine i t s r u l e s on t h e p r o p r i e t y of t h e mention of insurance by a t t o r n e y s on v o i r d i r e . A s evidence of t h e p o s s i b i l i t y of prejudice, see t h e psychological study reported a t 65 A.B.A.J. 68 (1979) which concludes t h a t "even a s i n g l e exposure t o one of t h e s e ads can dramatically lower t h e amount of award a juror i s w i l l i n g t o give." 65 A.B.A.J. I n i t i a l l y , w e agree with Borkoski as t o t h e purpose of v o i r d i r e examination: "The purpose of v o i r d i r e i s simply t o enable counsel t o determine t h e existence of b i a s and p r e j u d i c e on t h e p a r t of prospective j u r o r s and t o enable counsel t o e x e r c i s e i n t e l l i g e n t l y h i s peremptory challenges." S t a t e ex rel. Stephens v. D i s t r i c t Court (1976), 170 Mont. 22, 27, 550 P.2d 385, 388. "Although t h e t r i a l judge may set reasonable l i m i t s on t h e examination, he should permit ' l i b e r a l and probing examination c a l c u l a t e d t o discover p o s s i b l e b i a s o r preju- d i c e . . . I 1 1 Barton v. Owen (1977), 71 Cal.App.3d 484, 508, 139 Cal.Rptr. 494, 508 ( c i t a t i o n omitted). The reasonable l i m i t s t o be set must have due regard f o r t h e i n t e r e s t s of f a i r n e s s t o both p a r t i e s . Kiernan v. Van Schaik (3rd C i r . 1965)) 347 F.2d 775, 778; Langley v. Turner's Express, I n c . ( 4 t h C i r . 1967), 375 F.2d 296, 297. With t h e s e p r i n c i p l e s i n mind, we t u r n t o an examina- t i o n of t h i s C o u r t ' s treatment of t h e mention of insurance during v o i r d i r e . This Court's opinion t h e p r o p r i e t y of i n q u i r y by an a t t o r n e y i n t o a prospective j u r o r ' s r e l a t i o n s h i p t o t h e i n - surance i n d u s t r y has varied over time. The f i r s t case i n which t h e i s s u e w a s presented w a s Beeler v. Butte & London Copper Development Co. (1910), 4 1 Mont. 465, 1 1 0 P. 528. I n t h a t case, t h e respondents w e r e permitted t o ask each of t h e prospective j u r o r s whether they had any business rela- t i o n s with t h e Casualty Company of America. The Court con- cluded : ". . . Apparently respondents deemed t h i s i n f o r - mation necessary a s an a i d t o t h e i n t e l l i g e n t e x e r c i s e of t h e i r peremptory challenges. It does n o t appear t h a t e i t h e r t h e purpose o r ten- dency of t h e s e questions was t o inform t h e jury t h a t t h e burden of a judgment, i f obtained, would f a l l on an insurance company i n s t e a d of t h e defendant, and t h e company w a s n o t afterward mentioned i n t h e case. The f i r s t time t h e ques- t i o n was asked, no o b j e c t i o n whatever was made, and w e a r e unable t o see how t h e a p p e l l a n t could have been prejudiced by t h e examination." 4 1 Mont. a t 473, 110 P. a t 530. Beginning with t h e very next c a s e on t h e i s s u e , how- ever, t h i s d e c i s i o n began t o be eroded, primarily on t h e b a s i s of t h e timeliness of o b j e c t i o n t o t h e f i r s t question concerning a prospective j u r o r ' s business r e l a t i o n s with an insurance company. Robinson v. F.W. Woolworth Co. (1927), 80 Mont. 431, 261 P. 253, overruled on - o t h e r grounds, Hayward v. Richardson Construction Co. (1959), 136 Mont. 2 4 1 , 347 P.2d 475; Thomas v. Whiteside (1966), 148 Mont. 394, 421 P.2d 449. Beeler was distinguished: ". . . t h e opinion i n t h a t c a s e does n o t say what should have been t h e r u l i n g of t h e t r i a l c o u r t if o b j e c t i o n had been made t h e f i r s t t i m e t h e question w a s asked and w e say now had t h a t been done i n t h i s c a s e t h e o b j e c t i o n would have been v a l i d and, i n t h a t event, should have been sustained; t o have done otherwise, i n such event, would have c o n s t i t u t e d p r e j u d i c i a l e r r o r . On t h a t p o i n t , t h e a u t h o r i t i e s a r e divided b u t t h e weight of a u t h o r i t y and, w e b e l i e v e , sound reason a r e a g a i n s t t h e p r i v i l e g e of asking such questions. A venireman's business, occupation and connections can be learned, i n a proper way, on v o i r -- d i r e examination, without bringing i n t o t h e t r i a l such incompetent matter a s t h e carrying by defendant of indemnity insurance." 80 Mont. a t 443, 261 P. a t 257. Although Robinson w a s a c t u a l l y decided t h e same a s B e e l e r because of t h e f a i l u r e t o i n t e r p o s e an o b j e c t i o n t h e f i r s t time t h e question w a s asked, t h e penalty suggested i n Robinson w a s imposed one year l a t e r i n Wilson v. Thurston Co. (1928), 82 Mont. 492, 495-96, 267 P. 801, 801-02. This Court ordered a new t r i a l because of t h e prejudice caused when, over seasonable objection, t h e prospective j u r o r s w e r e asked whether they had any immediate r e l a t i v e s employed by any insurance company. By 1967, t h e type of question permitted i n Beeler w a s completely prohibited: "The f i r s t prospective juror examined by counsel f o r M r s . Avery w a s M r s . Anna Berry. Counsel f o r M r s . Avery inquired: "'Q. Now, I a m going t o ask you i f you o r your husband a r e t h e i n v e s t o r s i n any insurance companies? ' "At t h a t time an o b j e c t i o n was interposed by t h e C i t y and a motion f o r m i s t r i a l presented. The motion was denied and t h e v o i r d i r e continued. "This same question w a s asked of each of t h e twenty prospective jurors. I n some i n s t a n c e s , c o u n s e l ~ f o r ~ ~ r s . ~ v e r ~ would ask t h e question a s t h e l a s t question -- of t h e prospective j u r o r . The purpose of such questioning was obvious, improper and- completely p r e j u d i c i a l . "The law i s 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 t h e a c t i o n of t h e lower c o u r t i n permitting t h i s type of questioning on v o i r d i r e w a s p r e j u d i c i a l and r e v e r s i b l e e r r o r . " Avery v. C i t y of Anaconda (1967), 149 Mont. 495, 497, 428 P.2d 465, 466. (Emphasis i n o r i g i n a l . ) Despite t h i s f o r c e f u l pronouncement i n 1967, t h e Court, i n 1973, i n e f f e c t reversed i t s p o s i t i o n , explaining: "As a general r u l e i f counsel a c t s i n good f a i t h , he may question prospective j u r o r s on v o i r d i r e respecting t h e i r i n t e r e s t i n , o r connection with l i a b i l i t y insurance companies. See: Anno. 4 A.L.R.2d 761, 792, e t seq. f o r an exhaustive l i s t i n g of a u t h o r i t i e s i n support. The r a t i o n a l e behind t h i s g e n e r a l r u l e a s i n d i c a t e d by t h e s e c a s e s i s t h a t every l i t i g a n t i s e n t i t l e d t o a f a i r and i m p a r t i a l jury; t h a t t o secure t h i s r i g h t , counsel f o r a l i t i g a n t i s e n t i t l e d t o question prospective jurors f o r t h e purpose of determining any b i a s o r prejudice on t h e i r p a r t ; t h a t one of t h e s e n s i t i v e areas of juror b i a s and prejudice relates t o t h e e x i s t e n c e o r non- e x i s t e n c e of insurance, p a r t i c u l a r l y l i a b i l i t y insurance; and accordingly counsel f o r a liti- g a n t i s e n t i t l e d t o a reasonable l a t i t u d e i n v o i r d i r e examination t o expose any such b i a s o r p r e j u d i c e on t h e p a r t of a prospective juror and t o enable a l i t i g a n t i n t e l l i g e n t l y t o exer- cise h i s challenges, l i m i t e d only by considera- t i o n s of good f a i t h . " Haynes v. County of M i s - soula (1973)t 163 Mont. 270, 287-88, 517 P.2d 370, 380. The r u l e t h u s adopted enjoys wide, although n o t unani- mous, support among o t h e r j u r i s d i c t i o n s which have considered t h e q u e s t i o n , Annot., 4 ALR2d 761 and cases c i t e d t h e r e i n . A s l i g h t expansion of t h i s r u l e which a l s o enjoys f a i r l y wide support involves asking n o t only whether prospective j u r o r s have a f i n a n c i a l i n t e r e s t o r connection i n t h e i n s u r - ance business a s stockholders o r employees, b u t a l s o whether they are insurance policyholders i n a p a r t i c u l a r company themselves. E.g., Fowler v. Burks (1974), 52 Ala.App. 14, 288 So.2d 798, 799; Kath v. Brodie (1955), 132 Colo. 338, 287 P.2d 957, 958; Haston v . Hightower (1965), 1 1 1 Ga.App. 87, 140 S.E.2d 525, 526; B a r r e t t v . Morris (Mo. App. 1973), 495 S.W.2d 100, 103. This latter expansion g e n e r a l l y ap- p l i e s only i f t h e insurance company i s a named p a r t y o r i s a mutual insurance company i n which member p o l i c y h o l d e r s ' premiums a r e determined d i r e c t l y by t h e amount of damages paid. The r a t i o n a l e f o r t h e r u l e i n t h e former circumstance i s t h a t i f t h e insurance company i s a named defendant, t h e need t o keep information about insurance coverage from t h e jury disappears; i n t h e l a t t e r circumstance, where t h e insurance premium paid by a prospective j u r o r may be d i r e c t l y determined by t h e amount of damages awarded, t h e p l a i n t i f f i s e n t i t l e d t o l e a r n of t h e j u r o r ' s d i r e c t f i n a n c i a l i n t e r e s t i n t h e outcome. On t h e more s p e c i f i c i s s u e presented by Borkoski of whether an a t t o r n e y may i n q u i r e on v o i r d i r e i n t o t h e pro- s p e c t i v e j u r o r s ' p o s s i b l e b e l i e f , formed by reading o r hearing insurance company a d v e r t i s i n g , news a r t i c l e s , o r o t h e r o u t s i d e m a t e r i a l , t h a t l a r g e jury v e r d i c t s w i l l r e s u l t i n l a r g e r insurance premiums f o r them, t h e c a s e s are f a r fewer i n number. The c a s e s addressing t h i s i s s u e are a l s o f a r from any s o r t of agreement. The j u r i s d i c t i o n s of C a l i f o r n i a , Kentucky, Hissouri, North Carolina, Texas, and t h e Court of Appeals f o r t h e Third C i r c u i t hold t h a t such i n q u i r y is p r e j u d i c i a l and i f allowed 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 . Barton v. Owen (1977), 71 Cal.App.3d 484, 508, 139 Cal.Rptr. 494, 508; Murrell v. Spillman (Ky. 1969), 442 S.W.2d 590, 591; Butcher v. Main 19 M.C.App. 386, 198 S.E.2d 752, 753; Brockett v. ice (Tex.Civ.App. 1969), 445 S.W.2d 20, 22; Kiernan v. Van Schaik (3d C i r . 1965), 347 F.2d 775, 782-83. The r a t i o n a l e f o r t h e s e d e c i s i o n s v a r i e s . I n t h e North Carolina, C a l i f o r n i a and Texas cases, t h e r e s p e c t i v e c o u r t s held t h a t t h i s type of i n q u i r y improperly conveyed t h e impression t h a t t h e defendant was covered by l i a b i l i t y insurance. Exemplary of t h e i r reasoning i s t h a t of t h e Texas Court of C i v i l Appeals i n Brockett: ". . . counsel then asked t h e whole panel 'whe- t h e r any of them thought t h a t a v e r d i c t i n t h e c a s e would a f f e c t t h e i r insurance r a t e s . ' The necessary e f f e c t of t h i s w a s t o i n f e r t h a t a p p e l l a n t had insurance because a v e r d i c t could n o t possibly a f f e c t t h e i r r a t e s u n l e s s he had insurance. This was e r r o r . " 445 S.W.2d a t 22. Accord, Maness, 198 S.E.2d a t 753; Barton, 139 Cal.Rptr. a t I n t h e Missouri, Kentucky and Third C i r c u i t Court of Appeals cases, t h e r e s p e c t i v e c o u r t s merely held t h a t exclu- s i o n of t h i s type of questioning lies 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 court. ( P a r e n t h e t i c a l l y , w e note t h a t t h e o t h e r Federal Courts of Appeal which have considered t h e mention of insurance during v o i r d i r e disagree. See, Annot., 40 A.L.R.Fed. 541 (1978); cf.Langley v. Turner's Express, Inc. ( 4 t h C i r . 1967), 375 F.2d 296 (any mention of insurance held p r e j u d i c i a l ) with Wichman v. United Disposal, Inc. ( 8 t h C i r . 1977), 553 F.2d 1104 (inquiry only as t o business involvement with an insurance company is p e r m i s s i b l e ) . Kiernan, supra, r e l i e d on heavily by Borkoski, does support t h i s l a t t e r view. 347 F.2d a t 782.) A t t h e o t h e r extreme, t h e Supreme Court of Arkansas, i n a very r e c e n t case v i r t u a l l y i d e n t i c a l t o t h e i n s t a n t appeal, has held such i n q u i r y i s proper, s o long a s it is conducted i n good f a i t h . King v. Westlake (1978), Ark. , 572 S.W.2d 841. The s i m i l a r i t y t o t h e i n s t a n t c a s e a s well a s t h e d e c i s i o n by t h e Arkansas c o u r t i s contained i n t h e following excerpt: "The record shows t h a t f o r sometime preceding t h e t r i a l d a t e a number of l i a b i l i t y insurance com- panies had run advertisements i n T i m e , The Wall S t r e e t Journal and t h e Smithsonian I n s t i t u t e maga- z i n e aimed a t j u r o r s i n general t o t h e e f f e c t t h a t j u r o r s themselves w e r e a f f e c t e d by t h e v e r d i c t s they rendered i n t h a t such v e r d i c t s r e s u l t e d i n increased premiums. "On v o i r d i r e by a p p e l l e e ' s counsel and i n re- sponse t o questioning a number of p o t e n t i a l j u r o r s responded t h a t they had read - T i m e , -- The W a l l S t r e e t Journal, o r t h e Smithsonian I n s t i t u t e magazine. A l l b u t two of t h e j u r o r s i n d i c a t e d t h a t they had seen one o r more of t h e advertisements. There- a f t e r , a s a b s t r a c t e d by a p p e l l a n t t h e record shows: " ' M r . Eubanks continued: " ' I t i s improper f o r e i t h e r s i d e t o imply o r sug- g e s t t h a t t h e defendant does o r does n o t have i n - surance, and t h e questions I w i l l now d i r e c t t o you have nothing t o do with whether o r n o t t h e defendant has insurance. The questions I w i l l ask concern your insurance premiums, n o t insurance i n t h i s case. H o w many of you b e l i e v e t h a t jury ver- d i c t s a f f e c t insurance premiums? "'Your insurance premiums may n o t be a f f e c t e d g r e a t l y one way or t h e o t h e r , b u t w i l l n o t t h e v e r d i c t s t h a t you render have some e f f e c t on your insurance r a t e s ? "'Venireman Gerald Hudgens responded: Y e s . "'Mr. Eubanks continued: "'The question I have been building up t o i s t h i s : Assuming t h a t t h e v e r d i c t you render could c o s t you a l i t t l e more o r a l i t t l e less money on your insurance premiums, can you l i s t e n t o t h e testimony, t h e statements of counsel, and t h e i n s t r u c t i o n s and then p u t a s i d e t h e f i n a n c i a l i n t e r e s t you have i n t h i s c a s e because of your insurance premiums and render a v e r d i c t ? ( A l l j u r o r s r a i s e d t h e i r h a n d s . ) ' "The v o i r d i r e of t h e jury was obviously i n good f a i t h and a s such was proper. See Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W.2d 16 (1956), where w e held t h e purpose of v o i r d i r e examination i s t o enable counsel t o a s c e r t a i n whether t h e r e i s ground f o r a challenge of a juror f o r cause, o r f o r a peremptory challenge and t h a t s o long a s counsel a c t s i n good f a i t h , he may, i n one form o r another question prospective j u r o r s respecting t h e i r i n t e r e s t i n o r connection with l i a b i l i t y insurance companies." 572 S.W.2d a t 843-44. Approaching t h e i s s u e from a d i f f e r e n t angle, t h e Supreme Court of Queens County i n New York held t h a t t h e type of insurance company advertisements a t i s s u e h e r e i n v i o l a t e d a p l a i n t i f f ' s r i g h t t o an i m p a r t i a l jury and con- s t i t u t e d jury tampering and t h e r e f o r e could be r e s t r a i n e d . Quinn v. Aetna Insurance Co. (1978), N.Y.Misc.2d I 409 N.Y.S.2d 473. S i m i l a r l y , t h e Commissioners of Insurance i n Kansas and Connecticut have entered i n t o consent decrees with one insurance company whereby t h e company agreed t o s t o p publishing s i m i l a r advertisements i n those s t a t e s . I n re Crum and F o r s t e r Insurance Companies, Kan., Office of t h e Commissioner of Insurance, June 27, 1978; I n r e Crum and F o r s t e r Insurance Companies, Conn., Office of t h e S t a t e Insurance Commissioner, August 1 4 , 1978. Somewhere between t h e above extremes l i e t h e d e c i s i o n s of c o u r t s i n Connecticut, Maryland, and Oregon. Lowell v. Daly (1961)r 148 Conn. 266, 169 A.2d 888; Kujawa v. B a l t i - more T r a n s i t Co. (1961), 2 2 4 Md. 195, 167 A.2d 96; Johnson v. Hansen (1964), 237 Ore. 1, 389 P.2d 330. These t h r e e j u r i s d i c t i o n s held t h a t , on t h e record before t h e Court, t h e i n q u i r y was improper y e t i n d i c a t e t h a t had t h e proper founda- t i o n been l a i d f o r t h e inquiry, it would have been permis- s i b l e . I n t h e words of t h e Oregon Supreme Court: " I n t h e c a s e a t bar t h e r e w a s no preliminary ----- -- showing of any f a c t t h a t might have made r e l e - -- -- vant -- aninquiry concerning b i a s a r i s i n g o u t -- of t h e r e l a t i o n s h i p of v e r d i c t s and insurance pre- miums. Where a line of questioning obviously i s going t o open up p r e j u d i c i a l speculation, e.g., of a r a c i a l , r e l i g i o u s , p o l i t i c a l o r o t h e r emotionally charged nature, t h e exploration of which w i l l manifestly i n c i t e s i m i l a r speculation upon t h e p a r t of l i s t e n i n g jurors, counsel must be prepared t o show t h e need which might make such an inquiry r e l e v a n t , o r run t h e r i s k of an immediate m i s t r i a l . Insurance matters should be handled with t h e same safeguards. -- I n t h e case before us counsel d i d not advise t h e c o u r t -- - of -- t h e existence of recent i n s t i t u t i o n a l adver- t i s i n g , -- o r of o t h e r c u r r e n t propaganda calculated t o produce b i a s upon t h e p a r t of j u r o r s i n t h e - --- -- l o c a l court. Thus t h e r e w a s n o o c c a s i o n t o open up t h e matter of insurance, whether innocently o r with s c i e n t e r . W e hold t h a t t h e inquiry was improper." Johnson, 389 P.2d a t 331. (Emphasis added. ) Accord, Kujawa, 167 A.2d a t 98; Lowell, 169 A.2d a t 889. The holdings i n these cases a r e important i n our resolu- t i o n of t h e s i t u a t i o n such as t h e one presented i n t h e i n s t a n t appeal. The attorney f o r Borkoski d i d present t o t h e t r i a l court evidence of recent i n s t i t u t i o n a l advertising by t h e very insurance companies involved i n t h e case; adver- t i s i n g c a r r i e d i n popular national magazines a t about t h e t i m e of t h e drawing of t h e jury panel; advertising calcu- l a t e d t o produce b i a s upon t h e p a r t of jurors a g a i n s t award- i n g l a r g e amounts of damages t o personal i n j u r y p l a i n t i f f s such a s Borkoski. Under these circumstances, w e conclude t h a t a l i n e of inquiry designed t o uncover t h i s possible b i a s should be permitted. When insurance companies i n j e c t t h e i s s u e of insurance i n t o t h e consciousness of every p o t e n t i a l juror through a high priced advertising campaign, as has been i l l u s t r a t e d i n t h i s case, they t h r e a t e n every p l a i n t i f f ' s r i g h t t o an i m p a r t i a l jury. 1972 Mont. Const. A r t . 11, 526. I n such c a s e s , it is only f a i r t h a t a t t o r n e y s have some means t o s e c u r e t h i s r i g h t f o r t h e i r c l i e n t s . L i b e r a l v o i r d i r e i s t h e b e s t means t o t h i s end. S t a t e ex rel. Stephens v. D i s - t r i c t Court, 170 Mont. a t 27, 550 P.2d a t 388. See a l s o , comments of U n i v e r s i t y of I l l i n o i s Law P r o f e s s o r J e f f r e y O'Connell i n Time, February 20, 1978, a t 65. Therefore, w e hold t h a t i n a p p r o p r i a t e c a s e s a n a t t o r - ney upon v o i r d i r e may i n q u i r e of p r o s p e c t i v e j u r o r s whether they have any business r e l a t i o n s h i p w i t h insurance companies and whether they a r e p o l i c y h o l d e r s of an insurance company named a s a defendant o r o f a mutual insurance company i n - volved i n t h e case. W e f u r t h e r hold t h a t , upon a proper showing of p o s s i b l e p r e j u d i c e , an a t t o r n e y may i n q u i r e whether a p r o s p e c t i v e j u r o r has heard o r r e a d anything t o i n d i c a t e t h a t jury v e r d i c t s f o r p l a i n t i f f s i n personal i n j u r y c a s e s r e s u l t i n higher insurance premiums f o r every- one; i f s o , whether t h e p r o s p e c t i v e j u r o r b e l i e v e s such m a t e r i a l s ; and i f s o , whether t h a t b e l i e f w i l l i n t e r f e r e w i t h t h e j u r o r ' s a b i l i t y t o render a f a i r and i m p a r t i a l v e r d i c t . Depending upon t h e responses r e c e i v e d t o t h e s e i n q u i r i e s and s u b j e c t t o t h e d i s c r e t i o n of t h e t r i a l c o u r t , l i m i t e d follow-up i n q u i r i e s may be made. W e d e c l i n e t o hypothesize a s t o t h e p e r m i s s i b l e n a t u r e o r e x t e n t of t h e s e follow-up q u e s t i o n s a t t h i s t i m e . W e do conclude, however, t h a t t h e a l l e g e d p l a n of Borkoski's a t t o r n e y t o c i r c u l a t e among t h e jury panel c o p i e s of t h e insurance companies' advertisements would have been been improper and would have l e d t o t h e very p r e j u d i c e a g a i n s t which Borkoski i s now arguing. Liber v. F l o r (1966), 160 Colo. 7, 415 P.2d 332, 339. It i s n o t our i n t e n t t o ignore t h e equal r i g h t of a defendant t o a f a i r and i m p a r t i a l jury. Therefore, w e f u r t h e r hold t h a t , a s a prelude t o any questions concerning whether a p o t e n t i a l juror has read o r heard anything t o i n d i c a t e t h a t jury v e r d i c t s f o r p l a i n t i f f s i n personal i n j u r y cases r e s u l t i n higher insurance premiums f o r every- one, an a t t o r n e y must ask c e r t a i n g e n e r a l introductory ques- t i o n s . These i n i t i a l questions may be approached from two d i r e c t i o n s : (1) whether t h e prospective juror has heard of o r read anything ( n o t n e c e s s a r i l y r e l a t e d t o insurance) which might a f f e c t h i s a b i l i t y t o s i t a s an i m p a r t i a l juror ( a s was done by t h e t r i a l judge i n t h i s case); o r ( 2 ) whe- t h e r t h e prospective juror r e g u l a r l y reads any of t h e maga- zines o r newspapers i n which it has been demonstrated t h a t t h e insurance advertisements o r a r t i c l e s had appeared ( a s w a s done i n Westlake). A n a t t o r n e y may u t i l i z e e i t h e r o r both of t h e s e approaches. I f , however, no p o s i t i v e responses a r e received t o t h e s e introductory i n q u i r i e s , t h e r e i s no reason t o pursue f u r t h e r t h e l i n e of i n q u i r y w e have approved above. The foregoing r u l e s a r e a l l s u b j e c t t o a showing t h a t counsel i s a c t i n g i n good f a i t h and is n o t merely attempting t o impress on t h e jury t h e f a c t t h a t t h e defendant may be covered by insurance. Haynes v. County of Missoula, 163 Mont. a t 287, 517 P.2d a t 380. W e f u l l y subscribe t o t h e following procedure and statement adopted by t h e New Mexico Supreme Court i n Canter v. Lowry (1961), 69 N.M. 81, 364 ". . . t h e p r a c t i c e which has developed i n many j u r i s d i c t i o n s of advising t h e t r i a l c o u r t , i n t h e absence of t h e jury, of t h e questions pro- posed t o be asked, t h e purpose t h e r e o f , and making of a showing of good f a i t h , i s d e f i n i t e l y p r e f e r r e d . . . F a i l u r e t o follow such p r e f e r r e d p r a c t i c e has a tendency t o negative a claim of good f a i t h . Contrariwise, t h e following of such p r a c t i c e would minimize t h e p o s s i b i l i t y of any p r e j u d i c e o r i n j u s t i c e t o e i t h e r of t h e p a r t i e s i n many cases, a s well a s being a considerable saving of t r i a l t i m e . " ( C i t a t i o n omitted. ) The question of whether t h e v o i r d i r e i s i n f a c t being conducted i n good f a i t h i s thus l e f t t o t h e t r i a l c o u r t . S t a t e ex r e l . Stephens v. D i s t r i c t Court, 170 Mont. a t 27, 550 P.2d a t 388. For t h e guidance of t h e t r i a l c o u r t s i n t h e s e matters, w e commend t o t h e i r a t t e n t i o n t h e v o i r d i r e approved by t h e Arkansas Supreme Court i n King v. Westlake (1978) t Ark. , 572 S.W.2d 841, 843-44, and quoted above. Unfortunately, t h e foregoing conclusions do n o t a v a i l Borkoski on t h i s appeal. Even though w e accept Borkoski's arguments, it i s undeniable t h a t t h e purpose of t h e adver- tisements was t o reduce t h e amount of - damages awarded by a jury. A t no p o i n t i s it suggested, e i t h e r by Borkoski o r i n t h e advertisements themselves, t h a t j u r i e s should n o t f i n d a p a r t y negligent i n t h e f i r s t place. The ads speak only t o damages, n o t l i a b i l i t y . Here, t h e jury found defendant doctors n o t l i a b l e a t a l l . The jury d i d n o t even reach t h e question of damages. I n such a case, Borkoski's arguments l o s e t h e i r v i t a l i t y , and any e r r o r committed must be viewed as harmless and n o t grounds f o r r e v e r s a l . Rule 61, M . R . C ~ V . P . The judgment of t h e D i s t r i c t Court is affirmed. W e concur: 4 d % , g Chief J u s t i c e v e,- u s t i c e s V	April 23, 1979
776c94bb-0d82-4305-b798-af9c7e522cb6	STATE v SEITZINGER	N/A	13901	Montana	Montana Supreme Court		January 18, 1979
788a0d2f-a6f3-4edb-8fa7-4f84125ae523	MATTER OF GOEDERT	N/A	14560	Montana	Montana Supreme Court	N o . 14560 IN THE 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 M E N T A L HEALTH O F RICHARD W. GOEDERT, Appellant. 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 L. C. Gulbrandson, Judge p r e s i d i n g . Counsel of Record: For Appellant: McCarvel and Maltese, Glasgow, Montana Terry L. S e i f f e r t argued, B i l l i n g s , Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Mary B. Troland argued, A s s i s t a n t Attorney General, Helena, Montana James McCann County Attorney, Wolf P o i n t , Montana Submitted: February 5 , 1979 Decided: 1 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. Following a combined adjudicatory and d i s p o s i t i o n a l hearing on a p p e l l a n t ' s mental h e a l t h on September 28, 1978, i n t h e ~ 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 District, Roosevelt County, t h e Honorable L. C. Gulbrandson found a p p e l l a n t t o be s e r i o u s l y mentally ill a s defined i n s e c t i o n 38-1302(14), R.C.M. 1947, now s e c t i o n 53-21-102(14) MCA. A o r d e r of confinement w a s entered on October 1 2 , 1978, and a p p e l l a n t appeals. O n September 15, 1978, a p p e l l a n t threatened t o k i l l Ione Hughes when t h e two met i n a bar i n Poplar, Montana. Appellant l e f t t h e b a r a f t e r t h i s i n c i d e n t b u t returned i n a s h o r t t i m e and continued t o t h r e a t e n M r s . Hughes. Appellant was a r r e s t e d and a p e t i t i o n f o r commitment was f i l e d a g a i n s t him. Testimony adduced on September 28, 1978, and i n r e l a t e d depositions revealed t h a t a p p e l l a n t has s p e n t a s u b s t a n t i a l p o r t i o n of t h e l a s t twenty years i n i n s t i t u t i o n s . Medical testimony from two psychologists i n d i c a t e d t h a t a p p e l l a n t s u f f e r s from paranoid schizophrenia. Both psychologists i n d i c a t e d t h a t a p p e l l a n t should be placed i n a secured and s t r u c t u r e d environment, a t l e a s t temporarily, u n t i l h i s mental condition s t a b i l i z e s . Various witnesses, including D i s t r i c t Judge M. James S o r t e , t e s t i f i e d a s t o a p p e l l a n t ' s p a s t v i o l e n t behavior and a s t o t h e i r consequent f e a r of him. With r e s p e c t t o t h e i n c i d e n t of September 15, testimony revealed t h a t a p p e l l a n t had i n t h e p a s t accused M r s . Hughes of playing some p a r t i n t h e k i l l i n g of h i s brother Gene i n 1973. A f t e r h i s a r r e s t on t h e 15th, a p p e l l a n t repeated t h e t h r e a t s a g a i n s t M r s . Hughes t o t h e a r r e s t i n g o f f i c e r . Appellant himself s t a t e d a t t h e hearing t h a t t h e b e s t way t o "break even" o r g e t r i d of t h e people who bothered him was t o k i l l them. Based upon t h e evidence presented Judge Gulbrandson found a p p e l l a n t t o be s e r i o u s l y mentally ill. H e found t h a t t h e Warm Springs S t a t e Hospital w a s t h e l e a s t r e s t r i c t i v e a v a i l a b l e f a c i l i t y f o r providing necessary treatment and issued an a p p r o p r i a t e order of commitment. Appellant p r e s e n t s two i s s u e s f o r review: 1. Whether t h e r e was s u f f i c i e n t evidence t o support t h e D i s t r i c t C o u r t ' s f i n d i n g t h a t a p p e l l a n t was s e r i o u s l y mentally ill w i t h i n t h e meaning of s e c t i o n 38-1302(14), R.C.M. 1947, now s e c t i o n 53-21-102(14) M C A ? 2. Whether t h e D i s t r i c t Court e r r e d i n committing a p p e l l a n t t o Warm Springs S t a t e Hospital a s opposed t o a less r e s t r i c t i v e f a c i l i t y f o r treatment of h i s s e r i o u s mental i l l n e s s ? Section 38-1302(14), R.C.M. 1947, now s e c t i o n 53-21- 102(14) MCA, d e f i n e s t h e phrase " s e r i o u s l y mentally i l l " : " ' S e r i o u s l y mentally ill' means s u f f e r i n g from a mental d i s o r d e r which has r e s u l t e d i n s e l f - i n f l i c t e d i n j u r y o r i n j u r y t o o t h e r s o r t h e imminent t h r e a t thereof o r which has deprived t h e person a f f l i c t e d of t h e a b i l i t y t o p r o t e c t h i s l i f e o r health. N o person may be involun- t a r i l y committed t o a mental h e a l t h f a c i l i t y o r detained f o r evaluation and treatment because he i s a n e p i l e p t i c , mentally d e f i c i e n t , men- t a l l y r e t a r d e d , s e n i l e , o r s u f f e r i n g from a mental d i s o r d e r u n l e s s t h e condition causes him t o be s e r i o u s l y mentally ill w i t h i n t h e meaning of t h i s chapter." According t o t h i s d e f i n i t i o n and t h e f a c t s of t h e i n s t a n t c a s e , a p p e l l a n t must s u f f e r from a mental d i s o r d e r which has r e s u l t e d i n t h e imminent t h r e a t of s e l f - i n f l i c t e d i n j u r y o r i n j u r y t o o t h e r s i n order t o b e adjudged "seri- ously mentally i l l " . Section 38-1305(7), R.C.M. 1947, now s e c t i o n 53-21-126(2) MCA, provides i n p e r t i n e n t p a r t t h a t "imminent t h r e a t of s e l f - i n f l i c t e d i n j u r y o r i n j u r y t o o t h e r s s h a l l be evidenced by o v e r t a c t s , s u f f i c i e n t l y r e c e n t i n t i m e a s t o be m a t e r i a l and r e l e v a n t a s t o the respon- d e n t ' s present condition." The p i v o t a l question, then, with r e s p e c t t o a p p e l l a n t ' s f i r s t i s s u e , is whether a p p e l l a n t ' s a c t i o n s amounted t o t h e "overt a c t " required by s t a t u t e . Appellant argues t h a t h i s a c t i o n s over t h e p a s t twenty years have developed i n t o a p a t t e r n ; he raves and threatens b u t he has n o t followed up h i s words with action. Federal c o u r t s have discussed t h i s requirement of an o v e r t a c t i n some d e t a i l . I n Lessard v . Schmidt (E.D. W i s . 1972), 349 F.Supp. 1078, 1093, vacated and remanded on o t h e r grounds, (1974), 4 1 4 U.S. 473, 94 - - S.Ct. 713, 38 L Ed 2d 661, t h e Court s t a t e d : "A1 though attempts t o p r e d i c t f u t u r e conduct are always d i f f i c u l t , and confinement based upon such a prediction must always be viewed with suspicion, w e believe c i v i l confinement can be j u s t i f i e d i n some cases i f t h e proper burden of proof i s s a t i s f i e d and dangerousness i s based upon a finding of a r e c e n t o v e r t a c t , attempt o r t h r e a t t o do s u b s t a n t i a l harm t o oneself o r another." (Emphasis added.) I n another case, Lynch v. Baxley (D. Ala. 1974), 386 F.Supp. 378, 391, t h e c o u r t s t a t e d : "A finding of dangerousness i n d i c a t e s t h e like- lihood t h a t t h e person t o be committed w i l l i n f l i c t serious harm on himself o r on others. I n t h e case of dangerousness t o o t h e r s , t h i s t h r e a t of harm comprehends t h e p o s i t i v e i n f l i c - t i o n of i n j u r y -- o r d i n a r i l y physical i n j u r y , b u t possibly emotional i n j u r y a s well." (Em- phasis added. ) While n o t every t h r e a t can be considered an o v e r t act, t h e testimony and circumstances of t h i s c a s e i n d i c a t e t h a t a p p e l l a n t ' s t h r e a t s f u l f i l l e d t h e s t a t u t o r y requirement of an o v e r t a c t . A t h r e a t t o k i l l i s a verbal a c t t h a t f a l l s within t h e d e f i n i t i o n of an "overt Act" a s set f o r t h i n t h e s t a t u t e . Turning t o a p p e l l a n t ' s second i s s u e , s e c t i o n 38- 1306(1) ( c ) , R.C.M. 1947, now s e c t i o n 53-21-127(2) MCA, s t a t e s t h a t , i n determining t h e treatment t o be provided t o a s e r i o u s l y mentally ill person: ". . . t h e c o u r t s h a l l choose t h e l e a s t restric- t i v e a l t e r n a t i v e s necessary t o p r o t e c t t h e respondent and t h e public and t o permit effec- t i v e treatment. The c o u r t s h a l l consider and s h a l l describe i n its order what a l t e r n a t i v e s f o r treatment of t h e respondent a r e a v a i l a b l e , what a l t e r n a t i v e s were investigated, and why t h e investigated a l t e r n a t i v e s w e r e not deemed suitable." Along these l i n e s Judge Gulbrandson s t a t e d i n h i s findings of f a c t : "5. That respondent i s a f i t and proper person f o r commitment t o Warm Springs S t a t e Hospital f o r a period of t h r e e (3) months f o r treatment of h i s present acute state of h i s serious mental i l l n e s s . "6. That i f , during t h e commitment t o W a r m Springs S t a t e Hospital, it is determined t h a t extended treatment under detention i s unnecessary and t h a t a less r e s t r i c t i v e a l t e r n a t i v e i s warranted t h a t w i l l continue t h e protection of t h e respondent and t h e public then, i n t h a t event, t h e same s h a l l be ordered. "7. That, i n t h e p a s t twenty (20) years, respon- dent has been released from W a r m Springs S t a t e Hospital and t r a n s f e r r e d t o Veterans Hospitals a t Sheridan, Wyoming and a t American Lake, Washington. That t h e Court deems t h i s a l t e r n a t i v e unsuitable f o r t h i s respondent f o r t h e reason t h a t it i s not a s u f f i c i e n t l y secure environment t o p r o t e c t t h e public from t h i s respondent's outrages. "8. That t h e r e i s no mental h e a l t h f a c i l i t y , o t h e r than a s a t e l l i t e o f f i c e s t a f f e d by one professional person i n t h e county of respondent's residence, to-wit: Roosevelt County. "9. That t h e professional persons who gave testi- mony i n t h i s matter i n d i c a t e t h a t t h i s respondent r e q u i r e s an extended s t r u c t u r e d s e t t i n g . "10. These s a m e professional persons gave testi- mony t h a t t h e r e i s no other a l t e r n a t i v e a v a i l a b l e t o t h i s respondent t h a t w i l l provide some struc- t u r e o r some c o n t r o l over t h i s respondent, i.e.: Warm Springs S t a t e Hospital o r a veterans home. "11. The only appropriate order f o r treatment and extended c a r e of t h i s respondent t h a t would be s u i t a b l e t o h i s chronic s e r i o u s mental i l l n e s s pursuant t o Section 38-1306 (1) ( a ) ( i v ) , Revised Codes of Montana, i s t o confinement a t Warm Springs S t a t e Hospital, u n t i l a s u i t a b l e less r e s t r i c t i v e a l t e r n a t i v e i s made a v a i l a b l e t h a t w i l l provide respondent some measure of freedom and a t t h e s a m e t i m e a f f o r d protection of t h e public." These findings a r e based, i n l a r g e measure, upon t h e testimony of two psychologists and one p s y c h i a t r i s t . W e f i n d t h a t t h e D i s t r i c t Court adequately considered t h e a v a i l a b l e f a c i l i t i e s and, finding no appropriate less re- s t r i c t i v e f a c i l i t y , properly committed a p p e l l a n t t o t h e W a r m Springs S t a t e Hospital. Af firmed. W e concur: z&&%g&- Chief J u s t i c e J u s t i c e s v	March 1, 1979
eebe4551-2dee-4e49-a5fc-843b378684e8	KOSMERL v BARBOUR	N/A	14217	Montana	Montana Supreme Court	No. 14217 IN THE SUPREME COURT OF THE STATE OF MONTANA 1379 ALLAN J. KOSMERL, d/b/a AL I S ELECTRIC, Plaintiff and Appellant, TIMOTHY C . BARBOUR and JAMES E. NELSON, d/b/a T.J.'S POOL AND GAME ROOM, Defendant and Respondent. Appeal from: District Court of the Eighth Judicial District, Honorable Truman Bradford, Judge presiding. Counsel of Record: For Appellant: Graybill, Ostrem, Warner and Crotty, Great Falls, Montana For Respondent : Alexander, Kuenning, Miller and Ugrin, Great Falls, Montana Submitted on briefs: December 20, 1978 ~ecidedfAN 2 lgfg M r . J u s t i c e John Conway Harrison delivered the Opinion of the Court. This is an appeal from a judgment on a case t r i e d i n t h e Eighth J u d i c i a l D i s t r i c t Court, Cascade County, the Honorable Truman G. Bradford, s i t t i n g without a jury. P l a i n t i f f sued on a contract f o r c e r t a i n e l e c t r i c a l work done on premises belonging t o respondents i n the amount of $1,761.25. From a judgment i n favor of defendant-respondents, p l a i n t i f f appeals. Respondents Barbour and Nelson formed a partnership and leased a building t o house a business called T J ' s Pool & Game Room. They employed a contractor, Gordon Sayler, t o undertake remodeling necessary t o transform the leased premises i n t o space s u i t a b l e f o r a b i l l i a r d and game room business. Sayler was a general contractor who had done t h i s type of work i n several other establishments i n Great F a l l s . During h i s remodeling jobs, he h i r e s labor and subcontrac- t o r s t o a s s i s t him i n the necessary a l t e r a t i o n s . Appellant, Allan J. Kosmerl, doing business a s A l ' s E l e c t r i c , was hired by Sayler t o do the e l e c t r i c a l work a t T J ' s . Testimony indicated t h a t Sayler had previously worked with A l ' s Elec- t r i c i n other remodeling jobs and t h a t t h e i r way of doing business was t h a t Sayler would pay A l ' s a t the completion of the e l e c t r i c a l job. During the course of remodeling Barbour, who managed t h e business, learned t h a t Sayler,was not making payment t o h i s employees o r subcontractors. Some of these employees threatened t o walk off t h e job and some of the subcontrac- t o r s went d i r e c t l y t o Barbour and requested t h a t he make payments t o them. Arrangements were made t o f i n i s h the job under t h i s s o r t of a f i s c a l arrangement. U p t o t h a t time Barbour had paid d i r e c t l y t o Sayler a portion of the con- t r a c t price. Thereafter, a f t e r talking t o Sayler, Barbour made payments d i r e c t l y t o c e r t a i n individuals. Sayler stayed on the job u n t i l completion, the f i s c a l arrangements being made a s above set f o r t h with c e r t a i n of the employees and subcontractors. Appellant contends t h a t , a f t e r talking t o Barbour, he f e l t t h a t Sayler would pay him. However, he a l s o f e l t t h a t under the arrangements Barbour had made t o take over the job, t h a t he would be included a s other subcontractors w e r e and be paid by Barbour. Barbour, on the other hand, t e s t i - f i e d and took the position t h a t although he paid many of the subcontractors i n f u l l , appellant had agreed t o look only t o Sayler f o r payment. A s a r e s u l t , he did not f e e l responsible f o r work done by appellant. Additionally, one month a f t e r the completion of a l l the work and nearly two and one-half months a f t e r appellant s t a t e d t h a t he understood he would look t o Barbour f o r payment, appellant submitted a b i l l t o Sayler f o r h i s ser- vices. Sayler w a s unable t o pay t h i s and appellant now looks t o Barbour and the partnership f o r payment. The issues presented f o r review are: 1. Whether t h e D i s t r i c t Court was correct i n making i t s Finding of Fact No. 3, which read: "Gordon Sayler was paid a l l moneys he had coming under h i s contract with TJ's." 2. Whether the D i s t r i c t Court was correct i n making its Finding of Fact No. 4 , which read: "Gordon Sayler hired Allan Kosmerl t o do certain e l e c t r i c work on the premises." 3. Whether the D i s t r i c t Court was correct i n making i t s Finding of Fact No. 6 , which read: "That Gordon Sayler was not the agent of T J ' s but an independent contractor." 4. Whether t h e D i s t r i c t Court was c o r r e c t i n making i t s Finding of Fact No. 8, which read: "That Defendant Barbour did not enter i n t o any separate contract with Kosmerl, did not create any estoppel which would e n t i t l e him t o payment but merely advised Kosmerl on one occasion t h a t he ought t o look o u t f o r h i s own (Kosmerl's) i n t e r e s t i n h i s dealings with Gordon Sayler." 5. Whether the D i s t r i c t Court was c o r r e c t i n making Conclusions of Law Nos. 1, 2 and 3, based on the above findings of f a c t : "1. Nelson and Barbour, d/b/a T J ' s , do not owe any money t o Kosmerl f o r work performed under the orig- i n a l contract between Kosmerl and Gordon Sayler. "2. That there i s no basis i n law f o r holding t h a t Barbour and Nelson, d/b/a T J ' s , owes any money t o Kosmerl a s a r e s u l t of the work o r i g i n a l l y contem- plated and agreed t o be performed under the Kosmerl- Sayler contract. "3. Based on the testimony of the p a r t i e s , but p a r t i c u l a r l y t h a t of the defendant Barbour it is found t h a t Barbour and Nelson, d/b/a T J ' s , owes Kosmerl the sum of One Hundred Eighty and 60/100 Dollars ($180.60) based on a new and separate agreement with Kosmerl." While f i v e issues a r e set f o r t h , the actual i s s u e before t h i s Court i s whether the t r i a l c o u r t ' s findings of f a c t , conclusions of law, and judgment a r e supported by substantial evidence. Rule 5 2 ( a ) , M.R.Civ.P., s t a t e s i n p e r t i n e n t part: "Findings of f a c t s h a l l not be s e t aside unless c l e a r l y erroneous, and due regard s h a l l be given t o the opportunity of t h e t r i a l court t o judge the c r e d i b i l i t y of the witnesses." This Court, i n describing i t s function i n reviewing findings of f a c t and conclusions of law t r i e d by a D i s t r i c t Court without a jury, set f o r t h the following i n Montana Farm Service Co. v. Marquart (1978), Mont. , 578 P.2d 315, 316, 35 St-Rep. 631, 633-34: II I . . . W e have c o n s i s t e n t l y held under such circumstances t h a t t h i s Court cannot s u b s t i t u t e i t s weighing of t h e evidence f o r t h a t of the t r i a l court. When t h e r e is a c o n f l i c t i n t h e evidence, t h e findings of t h e t r i a l c o u r t a r e presumed t o be c o r r e c t i f supported by substan- t i a l evidence.' Sedlacek v. Ahrens (1974), 165 Mont. 479, 485, 530 P.2d 424. "We have a l s o held t h a t t h e findings of t h e t r i a l court, i n a nonjury t r i a l , w i l l n o t be reversed on appeal, unless t h e r e is a c l e a r preponderance of evidence a g a i n s t t h e findings. Keneco v. C a n t r e l l , (1977), Mont. I 568 P.2d 1225, 34 St.Rep. 1 0 6 3 . . " I n defining s u b s t a n t i a l evidence t h i s Court s t a t e d i n Olson v. Westfork P r o p e r t i e s , Inc. (1976) , Mont . "Substantial evidence has been defined by t h i s Court as such as w i l l convince reasonable men and on which such men may n o t reasonably d i f f e r a s t o whether it e s t a b l i s h e s t h e p l a i n t i f f ' s case, and, i f a l l reasonable men must conclude t h a t t h e evidence does not e s t a b l i s h such case, then it is n o t s u b s t a n t i a l evidence. The evi- dence may be inherently weak and s t i l l be deemed ' s u b s t a n t i a l ' , and one witness may be s u f f i c i e n t t o e s t a b l i s h t h e preponderance of a case. ( C i t a - t i o n s omitted.)" Appellant acknowledges t h e general presumption of correctness of t h e above s t a t e d r u l e s and case a u t h o r i t y b u t argues t h e r u l i n g s made by t h e c o u r t here w e r e n o t supported by t h e evidence. W e have c a r e f u l l y reviewed each finding of f a c t set f o r t h as an i s s u e i n t h i s case and f i n d no e r r o r . I s s u e 1 is d i r e c t e d a t Finding of F a c t No. 3, i n which t h e c o u r t found t h a t "Gordon Sayler was paid a l l moneys he had coming under h i s c o n t r a c t with TJ's." Here, t h e con- t r a c t w a s f o r t h e amount of $24,000 and t h e c o u r t c o r r e c t l y found Sayler had received t h e e n t i r e sum due under t h e c o n t r a c t . P a r t of t h e payment was i n t h e form of m a t e r i a l s purchased o r salaries paid d i r e c t l y by Barbour t o subcontrac- t o r s and employees, done with S a y l e r ' s knowledge and consent. This does n o t change t h e f a c t t h a t Sayler w a s f u l l y paid f o r t h e contract, a s t h i s was an arrangement made between Sayler and Barbour when Sayler g o t i n t o f i n a n c i a l d i f f i c u l t i e s and was threatened with a walkout by both employees and subcon- t r a c t o r s . Barbour f u l l y complied with h i s p a r t of the t e r m s of the valid contract and Sayler, having received a l l sums due h i m , was the s o l e responsible party f o r paying the e l e c t r i c a l contractor's claim. Issue 2 is directed t o Finding of Fact No. 4 which found t h a t Sayler hired Kosmerl t o do the e l e c t r i c a l work. The only dispute appellant has here concerns the conversa- t i o n between Barbour and appellant concerning S a y l e r f s i n a b i l i t y t o pay. Testimony indicates t h a t Barbour t o l d appellant t h a t he did not believe Sayler would pay him and t h a t he should make c e r t a i n t h a t he received h i s money. Appellant replied t h a t he was c e r t a i n he would g e t h i s money from Sayler and t h a t there would be no problem. Appellant now argues t h a t even i f Barbour's version of t h a t conversa- t i o n i s correct, the most t h a t could be expected was t h a t he would f i r s t t r y t o c o l l e c t from Sayler. A t the time of the conversation, however, appellant understood t h a t various people had not been paid and Barbour indicated t h a t he (Barbour) would not be making any more payments and t h a t appellant should make c e r t a i n t h a t he receive payment from Sayler. The evidence c l e a r l y indicates t h a t Kosmerl looked t o Sayler f o r payment i n i t i a l l y and the court chose t o believe Barbour's r e c i t a t i o n of the conversation t o show t h a t he did nothing t o incur responsibility f o r Sayler's obligations t o appellant. The finding of f a c t of the court i n t h i s issue i s c o r r e c t based on the evidence. Issue 3 is directed a t Finding of Fact No. 6 which found Sayler t o be an independent contractor, not an agent of T J ' s . Appellant argues there were c e r t a i n isolated incidents which established the f a c t t h a t the independent contractor s t a t u s of Sayler ceased t o e x i s t when he became involved i n the f i n a n c i a l d i f f i c u l t i e s hereinbefore referred to. Appellant a l l e g e s t h a t the element of control over the work shifted t o Barbour a t t h i s point. However, there is no evidence of control over Sayler, h i s employees, o r subcon- t r a c t o r s by e i t h e r Barbour o r Nelson. Nor does appellant s e t f o r t h any authority f o r h i s proposition t h a t the inde- pendent contractor s t a t u s of Sayler was destroyed o r a l t e r e d by the financial arrangements made during the construction period. This Court recently s e t f o r t h the f a c t o r s required i n establishing an independent contractor s t a t u s . I n Sharp v. Hoerner-Waldorf Corp. & Aetna Casualty Ins. Co. (1978), Mont. , 584 P.2d 1298, 1301, 35 St.Rep. 1430, 1434, the Court, i n construing the Workers' Compensation provision i n finding an independent s t a t u s , stated: "Section 92-438.1(1), R.C.M. 1947, r e i t e r a t e s the basic t e s t i n Montana f o r determining independent contractor s t a t u s , namely, the r i g h t of control over the person doing the work involved. 'The v i t a l test i n determining whether a person employed t o do a c e r t a i n piece of work is a contractor o r a mere servant, i s the control over t h e work which i s reserved by the employer.' Kimbal v. I n d u s t r i a l Accident Board (1960), 138 Mont. 445, 449, 357 P.2d 688. 'The test t o determine whether o r not an em- ployer-employee relationship e x i s t s . . . i s the so called control t e s t . Under t h a t t e s t an individual i s i n the service of another when t h a t other has the r i g h t t o control the d e t a i l s of the individual's work.' S t a t e ex r e l . Ferguson v. D i s t r i c t Court (1974), 164 Mont. 84, 88, 519 P. 2d 151. Respondent has argued an employer must control t h e d e t a i l s of a performance before the performer i s con- sidered an employee. However, the determinative t e s t is based on the r i g h t , not j u s t the exercise, of control. Larson, Workmen's Compensation Law, Vol. l A , Sec. 44.10, p. 8-19; Ferguson, supra." Here, appellant admits t h a t Barbour did not control the d e t a i l s o r manner of h i s work. There was no direction a s t o conduct of the work. It was Sayler who was i n charge of the work and remained i n charge u n t i l the completion of the job. under these circumstances there i s no question t h a t Sayler was an independent contractor. See Kimball v. I n d u s t r i a l ~ c c i d e n t Board (1960), 138 Mont. 445, 357 P.2d 688; S t . egis Paper Company v. U.C.C. of Montana (1971), 157 Mont. 548, 487 P.2d 524. Issue No. 4 concerns Finding of Fact No. 8. The court found t h a t Barbour did not enter i n t o a separate contract with Kosmerl, did not c r e a t e any estoppel which e n t i t l e d him t o payment, but merely t o l d appellant on one occassion t h a t he should look out f o r h i s i n t e r e s t s i n dealing with Sayler. Appellant's argument i s directed t o t h e f a c t t h a t Barbour induced appellant t o continue with the e l e c t r i c wiring and by t h a t conversation directed the conduct of appellant's work. A t best, the evidence indicates t h a t appellant asked Barbour where c e r t a i n o u t l e t s should be placed. This cer- t a i n l y i s not d i r e c t i n g the actual e l e c t r i c a l supervision f o r the remodeling job. From the time the f i s c a l problems began, the evidence is c l e a r t h a t appellant was aware t h a t Sayler was not making payments t o h i s workers and t h a t respondent would not make any more payments t o Sayler. Such evidence does not show inducement on the p a r t of Barbour t o have appellant continue t h e work. Issue 5 is directed a t Conclusions of Law 1, 2 and 3. Appellant argues t h a t he completed t h e e l e c t r i c a l work a f t e r h i s conversation with Barbour and while Barbour was paying others f o r t h e i r work and t h a t respondent agreed t h a t the e l e c t r i c a l work was w e l l done and t h a t the services and materials claimed on appellant's b i l l s were performed and i n s t a l l e d . This evidence, however, does not r e f l e c t an abuse of discretion on t h e p a r t of the ~ i s t r i c t Court. he court found t h a t respondents Barbour and Nelson had con- tracted with Sayler, t h a t Sayler employed appellant and t h a t t h e r e was no relationship o r l e g a l theory which j u s t i f i e d holding respondents responsible f o r a p p e l l a n t ' s loss. Appellant's contention t h a t he completed the work and t h a t respondent Barbour was making payments t o others has no bearing on the case. It ignores the f a c t t h a t he was warned about possible nonpayment and t h a t he t o l d Barbour he looked t o Sayler a s the responsible party i n paying f o r h i s ser- vices. I n addition, there is no evidence indicating t h a t Barbour ever took over the direction of the job a s appellant a s s e r t s . Those statements a r e not supported by the record. Appellant f a i l e d i n h i s attempt t o prove by controverted evidence t h a t t h e t r i a l court erred i n its findings of f a c t and conclusions of law a s previously s e t forth. The record amply supports the findings, conclusions, and judgment of t h e D i s t r i c t Court and the case is affirmed. W e Concur:	January 29, 1979
43ee0d5e-643e-458a-85f7-4060560df92c	STATE v BREITENSTEIN	N/A	14417	Montana	Montana Supreme Court	N o . 14417 IN THE supm COUHT OF THE STATE O F rnNTANA 1978 THE STATE O F JONTANA, Plaintiff a n d Respondent, -VS- KENNETH BREmSTEIN', S R . Defendant and Appellant. Appeal f r o a n : District Court of the Nineteenth Judicial District, Honorable Ibbert M . Holter, Judge presiding. Counsel of m r d : For Appellant: Frank B . bbrrison, S r . , Whitefish, Mntana For Respondent: Hon. Mike Greely, Attorney General, Helena, Mntana William A . Douglas, County Attorney, Libby, Mntana Submitted on briefs: N o - 8, 1978 MAR 2 - ! 9 7 9 Decided. M r . Chief J u s t i c e Frank I. Haswell delivered t h e Opinion of t h e Court. Defendant Kenneth Breitenstein, Sr., appeals from a judgment convicting him of t h e crime of aggravated a s s a u l t following a jury t r i a l i n t h e District Court of Lincoln County. O n J u l y 4 , 1977, appellant Kenneth B r e i t e n s t e i n , S r . , w a s a r r e s t e d i n Lincoln County, Montana, on t h e charge of aggravated a s s a u l t under s e c t i o n 94-5-202, R.C.M. 1947, now s e c t i o n 45-5-202 MCA. An information was f i l e d charging t h a t t h e defendant had purposely and knowingly placed W i l l i a m H. Heika i n reasonable apprehension of s e r i o u s bodily i n j u r y by use of a weapon, s p e c i f i c a l l y t h a t he had pointed a p i s t o l a t W i l l i a m Heika and threatened t o shoot him i f he moved. Defendant pleaded "not g u i l t y " . Later defendant f i l e d n o t i c e of h i s i n t e n t i o n t o r e l y on t h e defenses of i n s a n i t y , self-defense and a l i b i . Jury t r i a l w a s held March 1 4 and 15, 1978, and appel- l a n t w a s found g u i l t y of t h e crime of aggravated a s s a u l t . H e w a s sentenced t o four years i n t h e Montana S t a t e Prison. The sentence w a s suspended. On J u l y 4 , 1977, W i l l i a m Heika, E a r l Ballenger and J i m Tompkins w e r e on a spur road a s h o r t d i s t a n c e off t h e Long Meadow Road i n t h e Yaak Valley of Lincoln County, Montana, on t h e i r way t o c u t firewood a t Roderick Butte nearby. Heika held a Forest Service permit t o c u t firewood i n t h e a r e a . On t h e spur road they came upon a number of trees f e l l e d across t h e road blocking f u r t h e r progress. They proceeded t o c u t t h e trees i n t o blocks, loading them i n t o Heika's pickup t o clear passage f o r t h e i r t h r e e pickups. Appellant was d r i v i n g down Long Meadow Road on h i s way home from work. H e saw t h e t h r e e pickups on the spur road and recognized Heika's. Appellant t e s t i f i e d he proceeded t o h i s ranch nearby and washed up. H e then strapped on h i s . 2 2 c a l i b e r p i s t o l , t i e d a block of s a l t on h i s t r a i l bike and proceeded t o take t h e s a l t t o h i s c a t t l e . H e t e s t i f i e d t h a t he had f e l l e d t h e trees a c r o s s t h e spur road where Heika and h i s two companions w e r e sawing i n order t o contain h i s cows within a F o r e s t Service Grazing Permit located adjacent t o h i s ranch and upon which t h e i n c i d e n t occurred. He t e s t i f i e d t h a t a f t e r s a l t i n g h i s c a t t l e , he decided t o i n v e s t i g a t e t o see i f t h e trees had been removed, which would allow h i s cows t o walk away. Appellant t e s t i f i e d he was somewhat upset when he a r r i v e d a t t h e scene of t h e incident. H e apparently addressed himself t o Heika almost exclusively although Heika w a s t h e f u r t h e s t from him a s he a r r i v e d on t h e scene. H e t e s t i f i e d he inquired ". . . what t h e h e l l they w e r e doing t h e r e , c u t t i n g those t r e e s . " Heika's version w a s a p p e l l a n t ". . . came charging o u t of t h e woods . . . [ y e l l i n g a t us] 'What i n t h e h e l l are you doing on m y property'. That he had c u t down those t r e e s f o r a reason . . ." Appellant c a l l e d Heika some very profane and i n s u l t i n g names and ordered a l l of them o f f " h i s property". Heika w a s from 10 t o 25 f e e t from appellant. Appellant was standing about a t t h e rear of Heika' s pickup. Both agree Heika took several s t e p s forward i n appel- l a n t ' s d i r e c t i o n . Appellant a t t h i s p o i n t drew h i s auto- m a t i c p i s t o l and pointed it a t Heika. Heika t e s t i f i e d he had been ordered t o leave and was t r y i n g t o g e t t o h i s pickup t o do so. Appellant's version i s t h e s t e p s w e r e threatening, a s Heika had a beer can i n h i s hand and ~ e i k a "had a weird look on h i s face", " a twisted look l i k e he Was r e a l l y mad and going t o g e t revenge". Appellant t e s t i f i e d he s a i d , "Stop B i l l t t and B i l l stopped. Heika t e s t i f i e d he stopped b u t t h a t again appellant ordered him t o leave and again he took a s t e p toward h i s pickup whereupon a p p e l l a n t pulled t h e s l i d e t o cock t h e automatic p i s t o l and s a i d "All r i g h t you f a t son-of-a-bitch, another s t e p and I w i l l blow you f u l l of holes l i k e a s,i.eve." Heika turned away, walked t o t h e f a r t h e s t pickup, Tompkins', and l e f t . Appellant holstered t h e p i s t o l and allowed Tompkins t o take Heika's pickup. Heika made a complaint t o t h e s h e r i f f and a p p e l l a n t w a s a r r e s t e d . Some background i s necessary. Appellant Kenneth B r e i t e n s t e i n owned t h e family ranch of 150 acres along t h e South Fork of t h e Yaak River and had l i v e d t h e r e h i s whole l i f e , 44 years. H e worked i n t h e woods f e l l i n g trees and had some c a t t l e on h i s ranch. H e a l s o had, a s h i s family before him, a U. S. Forest Service Grazing Permit on some 70 odd a c r e s adjacent t o t h e ranch. The complaining witness, W i l l i a m Heika, had l i v e d i n t h e Yaak community f o r two o r two and one-half years before t h e incident. H e "thinned i n the woods" and ran a b a r c a l l e d The Cherokee S t r i p , located about two o r two and one-half m i l e s from t h e scene of t h e incident. Appellant and Heika had met four o r f i v e t i m e s i n t h e t i m e Heika had l i v e d i n t h e community. I n 1976 Heika owned t h r e e I r i s h S e t t e r s and intended t o raise s e t t e r s a t t h e Cherokee S t r i p . I n August 1976 appel- l a n t ' s son, Ken, Jr., s h o t two of Heika's dogs k i l l i n g one and wounding another. One dog, "Big M e l t ' , w a s r e g i s t e r e d and a champion, worth $350 according t o Heika. ~ c c o r d i n g t o appellant, t h e dogs were shot because they were chasing a p p e l l a n t ' s c a t t l e . I n e a r l y 1977 Heika discovered who had s h o t h i s dogs and f i l e d a lawsuit a g a i n s t appellant. Appellant a l s o t e s t i f i e d Heika had threatened him over t h e C i t i z e n Band r a d i o threatening t o g e t a p p e l l a n t and h i s son i f he could ever c a t c h them "alone o u t on t h e road". The i s s u e on appeal i s framed by a p p e l l a n t a s follows: Did t h e D i s t r i c t Court err i n excluding evidence of s p e c i f i c instances of p r i o r t h r e a t s made by t h e victim of t h e alleged a s s a u l t a g a i n s t appellant/defendant which w e r e known by a p p e l l a n t and which engendered i n him a reasonable b e l i e f t h a t he w a s i n danger of imminent bodily injury? It i s w e l l t o note t h a t the D i s t r i c t Court d i d allow defendant t o t e s t i f y f u l l y a s t o t h r e a t s made by Heika a g a i n s t himself and h i s son. Two s e p a r a t e o f f e r s of proof w e r e made by appellant. The f i r s t w a s when a p p e l l a n t ' s son w a s c a l l e d a s t h e f i r s t defense witness and before a p p e l l a n t had t e s t i f i e d . The o f f e r was t h a t t h e witness, Ken, Jr., would t e s t i f y t h a t Heika's mother-in-law s a i d she would blow Ken, Jr.'s head o f f with a shotgun and t h i s t h r e a t was r e l a t e d t o appellant. Further, he would t e s t i f y t h a t i n March 1977 t h e r e was a confrontation between Heika and Ken, Jr., a t t h e D i r t y Shame Saloon when Heika s a i d he was going t o knock t h e h e l l o u t of Ken, Jr. This t h r e a t was a l s o relayed t o appellant. The o f f e r of proof w a s r e j e c t e d by t h e c o u r t f o r lack of foundation. Appellant cites Rules 404- (a) ( 2 ) and 405 (b) , Mont.R.Evid., a s t o when s p e c i f i c instances of conduct may be used t o show character where character i s an e s s e n t i a l element of t h e defense. W e hold t h a t t h e t r i a l c o u r t w a s c o r r e c t i n i t s r u l i n g a t t h i s t i m e . The Commission Comment t o Rules 404 (a) (2) and 405 (b) s t a t e s i n e f f e c t t h a t t h e Montana r u l e s were modified from t h e Federal Rules s p e c i f i c a l l y t o be restatements of e x i s t - i n g Montana c a s e l a w . Appellant's argument recognizes t h e Montana r u l e i s t h a t " a f t e r t h e accused has l a i d h i s foundation f o r self-defense", such evidence m a y be admissible." H e argues t h a t by appel- l a n t giving n o t i c e of h i s i n t e n t i o n t o r e l y on self-defense t h a t no f u r t h e r foundation w a s necessary. This Court i n S t a t e v. Logan (1970), 156 Mont. 48, 64- 65, 473 P.2d 833, 842, s p e c i f i c a l l y r e j e c t e d t h i s argument: ". . . The existence of t h e i s s u e of self-defense and an i s s u e as t o t h e agressor i n t h e a l t e r c a t i o n i s necessary before corroboration by evidence of t h e deceased's reputation f o r turbulence and vio- lence i s admissible. "The n o t i c e of i n t e n t i o n t o r e l y on self-defense served by defendant on t h e s t a t e p r i o r t o t r i a l i s immaterial and does n o t place t h i s matter i n i s s u e a t t h e t r i a l . Defendant i s n o t bound t o r e l y on t h i s defense a t t h e t r i a l notwithstanding s e r v i c e of t h i s notice. Until such t i m e a s de- fendant took t h e stand and admitted t h e k i l l i n g , t h e i s s u e of self-defense w a s n o t joined a t t h e t r i a l . Thus no foundation e x i s t e d f o r t h e admis- s i o n of the testimony." (Emphasis added.) The Court then allowed a p p e l l a n t t o t e s t i f y t o h i s knowledge of p r i o r t h r e a t s Heika had made. H e t e s t i f i e d t h a t i n t h e middle of April, he, a p p e l l a n t , w a s t a l k i n g t o a neighbor on h i s C i t i z e n Band radio when Heika broke i n and s a i d " I ' l l g e t even with you and your son" i f he could ever c a t c h them alone somewhere on t h e road. H e a l s o t e s t i f i e d t h a t i n A p r i l o r May h i s daughter had t o l d him t h a t Heika had stopped where she w a s l i v i n g and made her go f o r a r i d e with Heika i n h i s pickup. Heika wanted a p p e l l a n t ' s daughter t o t e s t i f y a g a i n s t her f a t h e r i n t h e lawsuit over t h e dogs. Further, Heika had threatened t o c a t c h a p p e l l a n t o u t on t h e road and even things up. H e f u r t h e r t e s t i f i e d t h a t i n t h e spring of 1977 h i s son, Ken, Jr., came home and t o l d him he had had an encounter with Heika a t t h e D i r t y Shame Saloon where Heika had t h r e a t - ened t o g e t him f o r shooting t h e dogs. Under cross-examination Heika admitted t h e two i n c i d e n t s dealing with a p p e l l a n t ' s son and daughter. H e denied t h e C. B. t h r e a t . However, a l l t h e t h r e a t s w e r e t h e same, he would g e t a p p e l l a n t and h i s son o u t on t h e road alone and even things up. A second o f f e r of proof was made t o prove by t h e testi- mony of one David Lawson t h a t t h e C.B. t h r e a t was made. The testimony of Elizabeth Breitenstein, now Elizabeth J e t t o n , would provide corroboration of Heika's v i s i t t o her and h i s t h r e a t s t o her f a t h e r and brother. Further, Ken, Jr., would t e s t i f y a s t o t h r e a t s made by Heika a t t h e Dirty Shame Saloon. This o f f e r was r e j e c t e d by t h e c o u r t a f t e r s t a t i n g he had allowed a p p e l l a n t t o t e s t i f y concerning t h e t h r e a t s on h i s own s t a t e of mind, b u t found "under t h e Rules of Evi- dence t h a t it would exclude it because i t s probative value 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 preju- d i c e , confusion of t h e i s s u e and r e s u l t i n g i n misleading t h e jury . " The c o u r t a l s o refused t h e S t a t e through William Heika t o r e b u t t h e t h r e a t s t e s t i f i e d t o by appellant. The t r i a l judge made h i s assessment of t h e probative value of t h e t h r e a t evidence and h i s reasoning a s follows: "The very most that can be said is that with the beer can in his hand, if you take the Defendant's view of him moving toward his agressor, if you take the complaining witness's statement of standing there and I started to go to my car and a guy whipped out a pistol and then said I am going to blow you out of existence, or something to that effect, then it might have been admitted solely for the state of mind of the Defendant. I don't believe its of any great value to the Jury." Judge Brantly in State v. Hanlon (1909), 38 Mont. 557, 574, 580, 100 P. 1035, addressed the admissibility of such evidence as follows: ". . . But no hard-and-fast rule of exclusion may be laid down. A wise discretion should be the guide, and in all cases where the specific act, by reason of its proximity in time and place, would legitimately reflect upon the conduct or motives of the parties at the time of the affray . . . it should be admitted." Did the trial judge abuse his discretion? "As the admissibility of the evidence itself must rest largely in the sound discretion of the trial court, so must the extent to which the investigation of collateral issues arising thereon may so be lodged in its discretion, and its action will not be reviewed except where its discretionary power has been manifestly abused." Hanlon, 38 Mont. at 580. The trial judge stated that in his opinion, further testimony as to the threats would be excluded because its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue and result in misleading the jury. " Rule 403, Mont.R.Evid., states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury . . . or needless presenta- tion of cumulative evidence." The Commission Comment reads: "A key element of this rule is the discretion of the judge in deciding whether otherwise relevant evidence is to be excluded because of the factors listed in the rule." I n S t a t e v. Jennings (1934), 96 Mont. 80, 89, 28 P.2d 448, t h i s Court s t a t e d : "Such evidence i s admissible only when t h e defen- d a n t has interposed a p l e a of self-defense ( c i t i n g cases) and when a proper foundation i s l a i d by proof of some o v e r t a c t j u s t i f y i n g such defense. ( C i t i n g cases.) The t r i a l c o u r t should e x e r c i s e a sound l e g a l d i s c r e t i o n i n determining whether o r n o t t h e proper foundation has been l a i d f o r t h e i n t r o d u c t i o n of t h e o f f e r e d testimony. . . "'The t r u e s o l u t i o n i s t o e x e r c i s e a d i s c r e t i o n and t o admit such f a c t s when common sense tells t h a t they could l e g i t i m a t e l y a f f e c t a defendant's apprehension.' (1 Wigmore on Evidence, 2nd ed., 521.)" I n t h i s case t h e jury was informed of t h e t h r e a t s . From t h e t o t a l record of t h e case, t h e long-standing contro- versy between Heika and a p p e l l a n t and h i s family i s c l e a r and uncontradicted. The evidence by t h e witnesses t o t h e i n c i d e n t s u b s t a n t i a t e s t h a t even during t h e confrontation, t h e dog problem w a s argued. Under t h e s e ciroumstances w e hold t h a t t h e t r i a l judge d i d n o t abuse h i s d i s c r e t i o n by r u l i n g t h a t r e p e t i t i o u s testimony a s t o p r i o r t h r e a t s should be excluded a s l i k e l y t o d i s t r a c t and mislead t h e jury from t h e i s s u e s a c t u a l l y i n controversy. See S t a t e v. Heaston (1939), 1 0 9 Mont. 303, The judgment of conviction i s affirmed. - . - Chief J u s t i c e	March 2, 1979
c8026fdb-1b51-470e-a168-7eea5d43339c	WILSON v WILSON	N/A	14316	Montana	Montana Supreme Court	No. 14316 IN THE SUPRFME CXUHT OF THE STATE O F ' MONTANA 1978 IXlRLENE L . W I L S m , Petitioner and Appellant, -vs- WILLIAM A . WILSON, Respondent and Respondent. A p - 1 from: District Court of the Fifth Judicial D i s t r i c t , Homrable Frank E. Blair, Judge presiding. Counsel of Record: For Appllant: Schulz, Davis & Warren, Dillon, Mntana Thanas Dooling, Dillon, b5c)ntar-m For Respondent: W. G. G i l b e r t 1 1 1 , Dillon, I%ntana Suhnitted on briefs: October 30, 1978 Decided: FEF 37!3 - ? Filed : ke: ?-E- M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. This appeal i s brought by Darlene Wilson from a judg- ment of t h e District 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 , County of Beaverhead, i n which t h e c o u r t granted William Wilson, her former husband, custody of t h e i r t h r e e minor c h i l d r e n . M r s . Wilson (now Parks) contends t h e D i s t r i c t Court e r r e d i n two r e s p e c t s and its custody decree should be reversed and custody granted t o her. F i r s t she argues t h e D i s t r i c t Court gave t o o much weight i n its custody f i n d i n g s t o h e r r e l a t i o n s h i p with one ~ i c h a r d Parks during t h e period a f t e r her s e p a r a t i o n from her husband. Second she contends t h a t t h e D i s t r i c t Court committed r e v e r s i b l e e r r o r by con- ducting a p r i v a t e off-record interview i n chambers with her two o l d e s t c h i l d r e n , aged n i n e and t e n years, f o r t h e pur- pose of determining with which p a r e n t they p r e f e r r e d t o l i v e . The i s s u e s f o r t h i s Court's determination are: 1. Does a D i s t r i c t Court abuse its d i s c r e t i o n i n a c h i l d custody c a s e when it considers a p a r e n t ' s r e l a t i o n s h i p and conduct with another person i n determining t h e b e s t i n t e r e s t s of t h e children? 2. It i s r e v e r s i b l e e r r o r f o r a D i s t r i c t Court t o conduct a n off-record interview with t h e c h i l d r e n of a dissolved marriage t o determine with which p a r e n t they would p r e f e r t o l i v e ? W i l l i a m and Darlene Wilson w e r e married a t B i l l i n g s , Montana, i n 1963. They had t h r e e c h i l d r e n born i n 1967, 1968 and 1972. Darlene Wilson presented her p e t i t i o n f o r d i s s o l u t i o n t o t h e D i s t r i c t Court on September 27, 1977, a l l e g i n g t h a t her marriage with respondent was i r r e t r i e v a b l y broken and futher alleging t h a t it was i n the best i n t e r e s t of t h e three minor children t o be i n her custody. O n Octo- ber 4 , 1977, the D i s t r i c t Court granted p e t i t i o n e r temporary custody of the children and ordered respondent t o pay $75 per c h i l d per month f o r the support of t h e p a r t i e s ' children. The D i s t r i c t Court ordered t h e p a r t i e s t o attend con- c i l i a t i o n conferences with l o c a l clergy but these conferences proved unsuccessful. O n February 1 4 , 1978, t h e court granted a dissolution and ordered a hearing on child custody, child support and property division. Prior t o t h e custody hearing respondent f i l e d a counterclaim i n which he alleged t h a t t h e b e s t i n t e r e s t s of t h e minor children would be served i f he were granted custody. A t the hearing the d i s t r i c t judge, s i t t i n g without a jury, took testimony on t h e l i f e s t y l e s of respondent and p e t i t i o n e r and concluded t h a t respondent was b e t t e r suited t o r a i s e the children than was p e t i t i o n e r . I n a "Memo of t h e Court" dated March 2 4 , 1978, the judge summarized h i s view of the testimony r e l a t i n g t o M r s . Wilson's relationship with Parks and how t h a t relationship affected her a b i l i t y t o properly r a i s e her children: "We have r e c i t e d t h e foregoing t o show t h a t t h e p l a i n t i f f has been trapped i n a mad infatuation over a comparative male stranger, establishing intimate r e l a t i o n s with him, going so f a r a s t o scandalize her children of tender years by per- mitting her daughter t o see them i n bed together, breaking up her home and the home of her children, when a t the o u t s e t of her philandering she con- fessed her love f o r t h e father of her children. " I n short, M r s . Wilson is not a f i t and proper person t o e n t r u s t t h r e e innocent children t o her custody, care and control. " I n c o n t r a s t the judge concluded t h a t the children's needs f o r proper upbringing would be met i f custody were granted t o t h e i r father: "These children need a good moral atmosphere and surroundings t o mature i n . A l l of these things they w i l l have i n t h e home of t h e i r f a t h e r . . ." I n i t s findings and conclusions dated March 2 4 , 1978, t h e D i s t r i c t Court s t a t e d t h a t t h e children were disturbed by t h e i r mother's relationship with Parks and t h a t t h e i r b e s t i n t e r e s t s would be served by granting custody t o t h e i r f a t h e r . The court a l s o noted the r e s u l t s of its in-chambers interview with t h e two o l d e s t children, t h a t they preferred t o l i v e with t h e i r father. O n appeal petitioner contends t h e court abused i t s dis- c r e t i o n by placing emphasis on t h e moral atmosphere i n her home, especially the matter of her relationship with Parks. She argues t h a t the c o u r t ' s finding t h a t she is not a " f i t " parent i s not supported by competent evidence, but rather only by an "indiscretion" on her p a r t which " i n a s t r i c t l y r e l i g i o u s sense constitutes a s i n . . . " Petitioner c i t e s Love v. Love (1975), 1 6 6 Mont. 303, 533 P.2d 280, t o support her argument t h a t t h e mother should be given some degree of preference and t h e need t o show not only t h a t the mother i s u n f i t but a l s o t h a t the f a t h e r is f i t t o care f o r the children. This contention, however, must be viewed i n t h e l i g h t of two principles which t h i s Court has firmly established. F i r s t , t h i s Court does not s u b s t i t u t e its judgment f o r t h a t of the D i s t r i c t Court. The paramount consideration i n a c h i l d custody case i s the welfare of the children. The D i s t r i c t Court has a much b e t t e r opportunity than t h i s Court t o make t h e determination of how the children's welfare w i l l be b e s t served and thus the custody decision is l e f t largely t o t h a t c o u r t ' s discretion. Unless t h e D i s t r i c t Court has c l e a r l y abused i t s discretion, i t s custody decision w i l l not be overruled. I n r e Marriage of Brown (1978) , Mont. , 587 ~ , 2 d 361, 364, 35 St.Rep. 1733, 1738. Second, t h e presumption i n favor of g r a n t i n g custody t o t h e mother is never conclusive. Instead "each c h i l d custody case w i l l be decided on i t s own f a c t s r a t h e r than by t h e use of 'control- l i n g o r conclusive presumption.'" I n re Marriage of Tweeten (1977) I Mont. , 563 P.2d 1 1 4 1 , 1 1 4 4 , 34 St.Rep. 337, 341. The maternal preference presumption s t i l l e x i s t s , b u t i t s use i s l i m i t e d t o those cases i n which t h e f a t h e r has n o t overcome it by a preponderance of evidence showing him t o be t h e more f i t parent t o have custody. I n re Mar- r i a g e of I s l e r (1977), - Mont. , 566 P.2d 55, 58, 34 St.Rep. 545, 548. To overcome t h e presumption t h e f a t h e r need n o t show t h a t t h e mother is u n f i t b u t only t h a t t h e c h i l d r e n would be b e t t e r o f f with him. I n re Marriage of Brown , Mont. a t , 587 P.2d a t 366, 35 St.Rep. a t 1739; I n re Marriage of Isler, Mont. a t , 566 P.2d a t 58, 34 St.Rep. a t 548. To t h e e x t e n t t h a t Love holds otherwise, it is no longer followed. I n t h i s case t h e record shows s u f f i c i e n t evidence t o support t h e D i s t r i c t C o u r t ' s f i n d i n g t h a t t h e Wilson c h i l - dren would b e b e t t e r off with t h e i r f a t h e r . Section 48-332, R.C.M. 1947, now s e c t i o n 40-4-212 MCA, sets f o r t h f i v e c r i t e r i a upon which t h e D i s t r i c t Court i s d i r e c t e d t o make t h e determination of what c u s t o d i a l arrangement w i l l be i n t h e b e s t i n t e r e s t of t h e children. These are: t h e wishes of t h e p a r e n t s a s t o custody; t h e wishes of t h e children; t h e c h i l d r e n ' s i n t e r a c t i o n and i n t e r r e l a t i o n s h i p with t h e i r p a r e n t s , with each o t h e r , and with o t h e r s who may s i g n i - f i c a n t l y a f f e c t t h e i r b e s t i n t e r e s t s ; t h e c h i l d r e n ' s a d j u s t - ment t o home, school and community; and, t h e mental and physical h e a l t h of a l l i n d i v i d u a l s involved. From t h e evidence presented, it i s c l e a r t h a t both parents wish t o have custody of t h e t h r e e children. The two older c h i l d r e n t o l d t h e d i s t r i c t judge t h a t they would p r e f e r t o l i v e with t h e i r f a t h e r . There was testimony from t h e f a t h e r t h a t t h e c h i l d r e n w e r e n o t w i l l i n g t o r e t u r n t o t h e i r mother's trailer a f t e r weekend v i s i t s with him. The c o u r t a l s o heard testimony concerning t h e home l i f e t o which t h e children w e r e exposed during Darlene Wilson's temporary custody. The p a r t i e s argue about t h e e f f e c t s on t h e children of Darlene's permitting Richard Parks t o spend n i g h t s with her before they w e r e married. The District Court attached some significance t o t h i s r e l a t i o n s h i p as an i n d i c a t i o n of Darlene's f i t n e s s a s a parent. But t h e evi- dence does n o t s t o p with t h i s r e l a t i o n s h i p . The c o u r t took testimony on W i l l i a m Wilson's a b i l i t i e s t o care f o r t h e c h i l d r e n and h i s propensities t o provide them with a proper upbringing. W i l l i a m showed evidence of steady monthly income and adequate housing. H e t e s t i f i e d t h a t h i s job would n o t prevent him from keeping h i s youngest son with him during t h e day and t h a t t h e r e were o f t e n o t h e r children around a t t h e farms where he d e l i v e r s feed and f e r t i l i z e r . H e a l s o t e s t i f i e d t h a t he had experience i n preparing meals f o r t h e children and g e t t i n g them o f f t o school before t h e separation when h i s wife had t o leave e a r l y i n t h e morning f o r work. F i n a l l y , t h e c o u r t heard testimony of h i s regular church attendance and h i s willingness t o assist t h e children i n t h e i r moral and s p i r i t u a l development. The children w i l l have t o spend some t i m e i n day c a r e a t t h e end of each school day i f t h e i r f a t h e r has custody, which, from t h e record, would apparently n o t be necessary i f they stayed with t h e i r mother. I n balance, t h e c o u r t concluded t h a t t h e f a t h e r is b e t t e r suited t o provide f o r the b e s t i n t e r e s t s of the children. while a relationship such a s Darlene Wilson had with ~ i c h a r d Parks may not i n i t s e l f be adequate t o support a finding of her unfitness a s a parent, especially i n a change of custody proceeding, Foss v. Leifer (1976), 170 Mont. 97, 550 P.2d 1309, the D i s t r i c t Court should not be directed t o ignore a parent's a c t i v i t i e s i n the home. In any event, the scope of t h i s review remains limited and the issue is not whether the evidence shows the mother t o be u n f i t but only whether the evidence supports a conclusion t h a t the chil- dren's welfare would be b e s t served by granting custody t o t h e f a t h e r . In t h i s case it does. There is no showing by p e t i t i o n e r t h a t t h e D i s t r i c t Court manifestly abused its discretion by granting custody t o t h e f a t h e r , although it may not have been necessary t o characterize Darlene Wilson a s an u n f i t parent. P e t i t i o n e r ' s second i s s u e deals with the off-record interview which t h e judge held with the two o l d e s t Wilson children. A t t h e request of William Wilson during t h e custody hearing, t h e d i s t r i c t judge interviewed the children i n chambers. They were accompanied by T e r r i Stanisich, a guidance counselor a t t h e i r school. N o record was made, and neither parent was represented a t t h i s meeting. A t a separate hearing before a d i f f e r e n t d i s t r i c t judge, ~ e r r i Stanisich t e s t i f i e d t h a t she brought the children i n t o t h e chambers where t h e judge conducted the interview. She said t h a t the judge f i r s t asked a general question about school and teachers, then asked the children which parent they preferred t o l i v e with. "So then he asked them which parent, I don't remember j u s t how he worded it, but which parent they would prefer t o l i v e with, and they answered, t h e i r father. Both of them, and they both were nodding t h e i r head when they s a i d it. " Following t h e interview, the ~ i s t r i c t Court entered a finding t h a t the children preferred t o l i v e with t h e i r f a t h e r . Section 48-334 (1) , R.C.M. 1947, now section 40-4-214 (1) MCA, provides t h a t the court "may interview t h e child i n chambers t o ascertain the c h i l d ' s wishes a s t o h i s custodian and a s t o v i s i t a t i o n " . It leaves t h e court discretion t o permit counsel t o be present. However, it a l s o mandates t h a t when a court does interview children i n chambers, it " s h a l l cause a record of t h e interview t o be made and t o be p a r t of the record i n the case." Whether the f a i l u r e t o make a record i n t h i s case requires a remand is the question presented here. The lack of both a record of the interview and a s p e c i f i c finding a s t o the children's preference - necessitated a remand i n In re Marriage of Brown, - Mont . a t , 587 P.2d a t 366, 35 St.Rep. a t 1739. See a l s o , In r e Marriage of Kramer (1978), Mont. , 580 P.2d 439, 4 4 4 , 35 St.Rep. 700, 706. The r a t i o n a l e of the Court i n Brown was t h a t without these things, it was impossible t o determine the basis f o r the D i s t r i c t Court's custody ruling: "Without the record of the interview and without s p e c i f i c findings a s t o the wishes of t h e children, counsel and t h i s Court do not know with any degree of c e r t a i n t y the b a s i s f o r the D i s t r i c t Court's conclusion on custody . " - Mont. a t , 587 P.2d a t 366, 35 St.Rep. a t 1739. While t h e practice of conducting off-record interviews i s not desirable f o r t h e reason given i n Brown, the lack of a record alone has not always required reversal. The p a r t i e s t o the custody proceeding may even s t i p u l a t e t h a t no record w i l l be made and provided t h e wishes of t h e children as t o custody a r e followed, a remand may not be necessary. Counts v. Chapman (1979), Mont. - 1 - P.2d , 36 St.Rep. 89, 93-94. I n t h e present case, t h e D i s t r i c t Court d i d make a finding a s t o t h e c h i l d r e n ' s wishes and entered i t s decree according t o those wishes. The separate hearing i n which T e r r i S t a n i s i c h t e s t i f i e d provides a view of what happened during t h e interview, which supports t h e D i s t r i c t Court's findings. Thus, t h e p a r t i c u l a r problems with t h e lack of finding and record which required a remand i n Brown a r e n o t present here and i.t appears t h a t a remand f o r t h e purpose of an "on-record" interview would serve l i t t l e purpose. Under t h e circumstances of t h i s case, no remand is necessary. The decree of t h e D i s t r i c t Court granting custody t o W i l l i a m Wilson i s affirmed. / J u s t i c e W e concur: &a42 Chief j u s t i c e	February 21, 1979
dcac2490-dbfd-44be-94f0-7cd9e855b7c5	STATE v BIER	N/A	14307	Montana	Montana Supreme Court	No. 14307 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 THE STATE OF MONTANA, Plaintiff and Respondent, -vs- RICHARD LEE BIER, Defendant and Appellant. Appeal from: District Court of the Eighth Judicial District, Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Cameron Ferguson argued, Public Defender, Great Falls, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Mary B . Troland argued, Assistant Attorney General, Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana Submitted: November 27, 1978 Filed: MAR 1979 & @ . Clerk Mr. Justice Daniel J. Shea delivered the opinion of the Court. Defendant appeals from a conviction of negligent homicide, section 95-4-104, R.C.M. 1947, now section 45-5-104 MCA, following a jury trial in the Cascade County District Court. The facts show that in the early morning of June 25, 1977, Deputy Sheriff Donovan responded to a call concerning a possible suicide at the Red Wheel Trailer Court in Great Falls. He arrived at about 1:30 a.m. and noticed defendant Richard Bier wave and holler at him to hurry. Donovan entered the trailer and saw defendant's wife, Sharon Bier, on the floor in the doorway between the bed- room and hall of the trailer. She was bleeding from a neck wound. Defendant told Donovan that his wife shot herself. A .357 Magnum revolver lay on the bed in the bedroom. Moments later, an ambulance arrived. Temporary aid was administered and Sharon Bier was transported to the hospital accompanied by the defendant. Deputy Donovan stayed behind. He washed his hands in the trailer's bathroom and noticed bl~od in the basin and on a cabinet. He photographed the interior of the trailer, identified and took custody of the gun, bullets and spent casing, and saw that the two minor children present were cared for before proceeding to the hospital. When Deputy Donovan arrived at the hospital, he placed each of Mrs. Bier's hands in plastic bags and taped them shut to preserve any evidence of gun powder. He then located defendant for questioning. After being read his rights, defendant related the events leading up to the shooting. Defendant stated he and his wife had been at the st~ck car races all evening and consumed a total of three six-packs of beer. Mrs. Bier, normally a mild social drinker, -2- finished two six-packs. When the couple returned home, an argument ensued. Intent on leaving and avoiding further quarrel, defendant went into the bedroom to ready his departure. Mrs. Bier stood in the bedroom doorway, apparently to block his exit. Defendant reached into the closet, pulled a gun from its holster, cocked it and cast it on the bed stating words to the effect that to stop him she'd have to shoot him. Defendant turned away and his wife picked up the gun, held it with both thumbs on the trigger and pointed it at her head. Defendant shouted "that damn thing's loaded" and either grabbed or slapped at the gun to avert its aim. It discharged and Mrs. Bier collapsed on the floor. Pursuant to police procedure, Deputy Donovan took hand swabs of defendant and his wife for analysis of possible gun powder residue by the proper authorities. The test results sh~wed no appreciable level of residue from which to conclude either Mr. or Mrs. Bier was holding the gun when it discharged. Defendant had washed his hands while his wife was being ad- ministered medical aid at the trailer. Mrs. Bier never re- gained consciousness and died six days after the shcoting. About a month after the incident, defendant was questioned at the Cascade County Sheriff's Office. He essentially recounted the statement previously given except that he thought maybe he'd grabbed rather than slapped at the gun when it discharged, and that perhaps this had caused the gun to fire. On October 17,defendant was charged with negligent homicide and on October 19, he entered a plea of not guilty. The State's case consisted of Deputy Donovan, two expert witnesses from Washington, D.C., and the ambulance attendant who answered the emergency call at the Bier residence. One of the experts testified to the slight force necessary to discharge a cocked .357 magnum revolver and that the handgun fired at a distance of one foot produced a powder dispersal pattern of four to five inches in diameter. Exhibits revealed a four-inch dispersal pattern on Mrs. Bier's neck. The other expert witness reported the results of the hand swab analysis conducted in Washington, D.C. He could not determine who held the gun when it fired. Defendant testified on his own behalf. He was a career Air Force Sergeant and the father of three minor children by Mrs. Bier. He stated on direct examination, "I don't know if I made her hands squeeze the trigger or if she squeezed the trigger, or how it happened." On cross-examination he admitted that he was aware of his wife's intoxicated condition and should have realized the danger involved. During defendant's testimony, defense counsel attempted to s h ~ w through defendant's testimony and diagrams that the angle of the bullet's path was such as to preclude any possibility that defendant held the gun when it dis- charged. The County Attorney objected to this line of questioning on the ground that evidence relating to the bullet's angle was a technical subject requiring the testimony of an expert. Following an intense exchange between court and counsel, the court ruled that all evidence relating to bullet's angle would be excluded as a technical subject admissible only through expert testimony. Defendant raises five issues for our review: (1) Whether the facts presented preclude a finding of negligent homicide as a matter of law. (2) Whether the District Court abused its discretion by denying defendant's motion for a jury view of the mobile home in which the shooting occurred. ( 3 ) Whether the trial judge's statements to the jury that defendant's demonstrative evidence was "purely his say-so" and "purely his concoction" require reversal. (4) Whether defendant's testimony as to the angle of the bullet hole was properly excluded as a subject requiring expert testimony. (5) Whether the prosecutor's statement in closing argument that it "does not believe that Mrs. Bier shot herself" constitutes reversible error. Defendant contends the State failed to prove the required mental state and causation elements for a prima facie case of negligent homicide. Concerning the mental element, defendant argues that his conduct did not evidence a conscious disregard for his wife's life. Negligent homicide is defined by statute as fcllows: "(1) Criminal homicide constitutes negligent homicide when it is committed negligently. "(2) A person convicted of negligent homicide shall be imprisoned in the state prison for any term not to exceed ten (10) years." Section 95-4-104, R.C.M. 1947, now section 45-5-104 MCA. Negligence is defined as follows: ". . . [A] person acts negligently- with respect to a result or to a cir- cumstance described by a statute defining an offense when he consciously disregards a risk that the result will occur or that the circumstance exists or --- if he disregards a risk of which he should be aware that the --- result will occuror that the circumstance exists. The risk must be of such a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. Gross deviation means a deviation that is considerably greater than lack of ordinarv care. Relevant terms such - - . - . - - -- as 'negligent' a n d i t h negligence' have the same meaning." (Emphasis added.) Section 94-2-101(31), R.C.M. 1947, now section 45-2-101 (31) MCA. In State v . Kirkaldie (1978), Mont . , 587 P.2d 1298, 1304, 35 St-Rep. 1532, 1538, this Court explained that "[ulnlike deliberate homicide, which requires that the offense be committed purposely or knowingly, negligent homicide does not require such purpose or knowledge. Negligent homicide only requires a gross deviation from a reasonable standard of care." A gross deviation under the statutory definition is analogous to gross negligence in the law of torts. Although somewhat nebul~us in concept, gross negligence is generally considered to fall shcrt of a reckless disregard for consequences and is said to differ from ordinary negligence only in degree, not in kind. See, Prosser, -- Law of Torts, 183-84 (4th Ed. 1971). Here, defendant's conduct in pulling out, cocking and throwing a loaded gun within reach of his intoxicated wife clearly qualifies as a gross deviation giving rise to criminal culpability. Defendant also contends he should not be held responsible to have foreseen his wife's alleged suicide attempt. Generally, where a crime is based on sone form of negligence the State must show not only that defendant's negligent conduct was the "cause in fact" of the victim's death, but also that - 6- the victim was foreseeably endangered, in a manner which was foreseeable and to a degree of harm which was foreseeable. LaFave and Scott, Criminal Law S78, p. 588. Clearly, the risk created by defendant's conduct under the circumstances (that in a highly intoxicated state his wife would shoot either the defendant or herself), was a foreseeable risk. Indeed, he challenged her to use the gun. Next, defendant contends that it was an abuse and discretion for the court to deny his motion for a jury view of the trailer. Section 95-1912, R.C.M. 1947, now section 46-16-502 MCA, provides in part that a jury view is appropriate "[wlhen the court deems it proper." This Court will not interfere with the District Court's discretion in granting or refusing jury view except in a case of mani- fest abuse. State v. Allison (1948), 122 Mont. 120, 142, 199 P.2d 279, 292. Defendant argues that jury view was necessary due to the complexity and three dimensional quality of his bullet angle evidence. He claims prejudice in the deprivation of this opportunity to corroborate his testimony as to how the shcoting occurred. We find no such prejudice. Defendant's testimony as to how the gun fired was, with or without corroboration, sufficient credible evidence for the jury to find guilt of negligent homicide. The court's denial of a jury view was not, therefore, an abuse of discretion. Defendant alleges reversible error in the trial judge's statements to the jury that defendant's demonstrative evidence was "purely his say-so" and'purely his concoction." These statements should be examined in light of the context in which they were made. in developing the circumstances of the shooting, defendant testified that his wife was standing at a particular point in the room when the gun discharged. Defense counsel then elicited testimony from the defendant that Deputy Donovan located her at the same point in the room. The following exchange then took place: "THE COURT: . . . Now, how are you going to place her there? "COUNSEL: Based on defendant's recollection. "THE COURT: That's purely his say-so,is it not? "COUNSEL: NO, it's not purely his say-so,Your Honor. First of all, Deputy Sheriff Donovan has testified as to her location. "THE COURT: He didn't testify where she was standing, did he? "COUNSEL: Also, Your Honor, we have a photograph of the-- "THE COURT: Do you have a photograph of her standing someplace in that room? "COUNSEL: No, Your Honor, we have a photograph I believe as introduced by the State, showing the location of the blcod, Your Honor, of Mrs.-- "THE COURT: That's after she was laying down. "COUNSEL: Well, it shcws where she was, it approximates where she was standing. I indicate that she fell from-- "THE COURT: You don't know where she was standing. "COUNSEL: Well, he's testified to everything else to the best of his recollection. "THE COURT: That's correct. It's understood clearly that this is what he says. "COUNTY ATTORNEY: Well, I'll have a continuing objection, Your Honor. I think it's expertise testimony, and it needs expert testimony. "THE COURT: Yes, it's purely his concoction." Defendant contends the court's statements, "purely his say-so" and "purely his concoction" were in violation of Rule 614(b), Mont.R.Evid., which proscribes comment on the evidence by a trial judge, and that these statements effectively denied defendant's right to a fair trial. The State argues that defendant's failure to object at trial precludes the assertion of error on appeal. State v. Jensen (1969), 153 Mont. 233, 236, 455 P.2d 631, 632-33. We agree. We note moreover that the judge's statements were not directed at defendant's credibility. In the context in which the statements were made, it is clear they were intended to clarify that defendant's testimony on where his wife was standing was based exclusively upGn defendant's recollection. Although the words "concoction" and "say-so" were not a good choice of words, we do not see how the substantial rights of the defendant were affected by their.utterance. Defendant also takes issue with the ~istrict Court's ruling that all evidence relating to bullet angles should be excluded as a technical subject requiring expert testimony. Defendant believes the angle evidence was not too complex to be grasped by the average mind of a juror. The State maintains that it was too complex. Before the enactment of the Montana Rules of Evidence, effective July 1, 1977, the necessity for expe-rt testimony arose where the proffered evidence was beyond the ordinary range of normal intelligence or common knowledge. 31 Am.Jur.2d Expert and Opinion Evidence SS2-4; Wibaux Realty Co. v. N. Pac. Ry. Co. (1935), 101 Mont. 126, 139, 54 P.2d 1175, 1181. However, Rule 701, M0nt.R. Evid. changed this rule, and it applies to the instant case. Rule 701 permits lay opinion so long as rationally based on perceived facts and helpful to an understanding of testimony or facts. Cross-examination in the normal case is considered to sufficiently safeguard the testimony from infirmities. See, Clark, Montana Rules of Evidence, 39 Mont.L.Rev. 79, 126-28 (1978). In the context of this case, the court's exclusion of testimony on bullet angles was harmless error as it did not affect the substantial rights of the defendant. State v. Armstrong (19771, Mon t . , 562 P.2d 1129, 1132, 34 St.Rep. 213, 216; section 95-2425, R.C.M. 1947, now section 46-20-702 MCA . Here, defendant claims prejudice because he was not permitted to corroborate his testimony on how the gun discharged and thereby exclude the possibility that he might have pulled the trigger himself. Defendant was on trial for negligent homicide, not deliberate or mitigated deliberate homicide. The conceded fact that he threw the cocked, loaded firearm within reach of his intoxicated wife, challenged her to use it, and allowed her to take the gun off the bed was a sufficient basis for the jury to predicate guilt of negligent homicide. Defendant disregarded the risk of which he should have been aware, that his wife in her intoxicated state might shoot herself. This deviation was "considerably greater than [a] lack of ordinary care." Section 94-2-101(31), R.C.M. 1947, now section 45-1-101(31) MCA. Thus, defendant's own testimony was sufficient for conviction of negligent homicide. Accordingly, he was not prejudiced by any inference that he may have held the gun when it discharged. Last, the defendant contends the prosecutor made improper remarks during his closing arguments that could lead a jury to believe the State had even more evidence against the defendant than what was produced at trial. The prosecutor's statement was, "the State does not believe that Mrs. Bier shot herself. If the State believed that, it wouldn't be here." The inference which defendant wants this Court to adopt is far too speculative to constitute reversible error. This is not a case where the prosecutor expressed a personal opinion on the credibility of -10- a criminal defendant. See, State v. Musgrove (1978), Mont . , 582 P.2d 1246, 1252, 35 St.Rep. 1179, 1186. We note moreover, that defendant did not object to this statement when made, and under the facts of this case he is deemed to have waived any objection to the statement. Jensen, supra. The District Court judgment is affirmed. We Concur: C h i 9 , ' Justice [ ' Justices I	March 9, 1979
37f75544-891d-4809-9be6-694dd08702c7	TOWN PUMP INC v DISTRICT COURT	N/A	14648	Montana	Montana Supreme Court	IN THE SUPREME COURT OF THE STATE OF MONTANA No. 14648 TOWN PUMP, INC., and BOZEMAN TOWN PUMP, INC., and WALLACE DITEMAN, INC., a Montana Corporation, W-D CONSTRUCTION, a/k/a Diteman Construction, and Wallace Diteman, Individually, Relators, CLERK OF SUPREME c o U ~ ~ VS. OF MO$;TANA THE DISTRICT COURT OF THE EIGHTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF GALLATIN, AND THE HON. JACK D. SHANSTROM, JUDGE THEREOF, Respondents. The above named cause is amended as follows: "When Judge Shanstrom assumed jurisdiction in November 1976, relators and all other parties then in the action under section 93-401, now section 3-10-1 01 UCA had but three days, upon receiving notice, to file a disqualifying affidavit." Should read: "When Judge Shanstrom assumed jurisdiction in November 1976, relators and all other parties then in the action under section 93-901 had but three days, upon receiving notice, to file a disqualifying affidavit." DATED this &qL day of April, 1979. Chief Justice No. 14648 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 TOWN PUMP, INC., and BOZEMAN TOWN PUMP, INC., and WALLACE DITEMAN, INC., a Montana Corporation, W-D Construction, a/k/a DITEMAN CONSTRUCTION, and WALLACE DITEMAN, individually, Relators, THE DISTRICTCOURT OF THE EIGHTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF GALLATIN, AND THE HON. JACK D. SHANSTROM, JUDGE THEREOF, Respondents. ORIGINAL PROCEEDING: Counsel of Record: For Relators : Landoe, Brown, Planalp, Kommers & Lineberger, Bozeman, Montana Bolinger and Wellcome, Bozeman, Montana For Respondents: Goetz and Madden, Bozeman, Montana Submitted on briefs: January 19, 1979 Decided :i E$ A 4 1979 Filed: :EF ,LI @f9 IN THE SUPREME COURT OF THE STATE OF MONTANA No. 14648 TOWN PUMP, INC. and BOZEMAN TOWN PUMP, INC., and WALLACE DITEMAN, INC., a Montana Corporation, W-D CONSTRUCTION, a/k/a DITEMAN CONSTRUCTION, and WALLACE DITEMAN, individually, Relators, VS. THE DISTRICT COURT OF THE EIGHTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF GALLATIN, and THE HONORABLE JACK D. SHANSTROM, Judge thereof, Respondents. ORDER AND OPINION Mr. Justice John C. Sheehy delivered the Opinion of the Court. Application by relators for a writ of supervisory control. We accepted jurisdiction of the application, ordered briefs to be filed and now decide the issues without oral argument. After fully considering the application, the supporting and opposing briefs, the applicable law and the facts in this case, we determine that the application for writ of supervisory control should be denied for the following reasons : This application relates to cause no. 22478, now pending in the Eighteenth Judicial District, Gallatin County, entitled Stanley W. Ferguson et al. v. Town Pump, Inc., Bozeman Town Pump, Inc. v. Wallace Diteman, Inc., a/k/a Diteman Construction and Wallace Diteman. We had that cause before us on appeal, and entered a decision on June 13, 1978 ( Mont . , 580 P.2d 915, 35 St-Rep. 824). The original complaint charged negligent maintenance against defendants, and damages arising out of gasoline contamination of water wells. During the litigation, the Hon. W. W. Lessley was disqualified by affidavit of plaintiffs. The Hon. Edward Dussault thereupon assumed jurisdiction but he was subsequently disqualified by plaintiffs. The Hon. Jack D. Shanstrom assumed jurisdiction in November 1976. A jury trial was held before Judge Shanstrom beginning December 6, 1976 as a result of which the jury returned a verdict totaling $66,656.00, for which judgment was entered in favor of the plaintiffs. Plaintiffs sub- sequently moved the court either to substitute a higher damage award or to grant a new trial on the issue of damages. The District Court granted the motion for a new trial on the damages issue. Thereafter, defendants Town Pump and Diteman appealed from the order granting a new trial. Town Pump also appealed from the dismissal of its indemnification claim against Diteman. Plaintiffs cross-appealed from the denial of their motion to increase mathematically the damage award, and also from the denial of their offered instructions regarding punitive damages. In our decision of June 13, 1978, this Court affirmed the trial court's order granting a new trial on the damages issue; reversed the trial court's dismissal of Town Pump indemnification claim against Diteman, and ordered a new trial on that issue; and affirmed the trial court's denial of plaintiffs offered instructions regarding punitive damages. By remittitur dated June 26, 1978, this Court remanded the cause to the trial court for a new trial in accordance with our decision. On June 22, 1978, however, defendants filed a motion for substitution of a new judge. Thereafter, by order filed November 24, 1978, Judge Shanstrom denied defendants motion for substitution of judge and set a jury trial on the damages issue for January 8, 1979. At a pretrial conference in January 1979, defendants again raised the contention that Judge Shanstrom was without jurisdiction by virtue of the filing of the motion for substitution. Plaintiffs resisted the substitution of judge. Thereupon Judge Shanstrom advised counsel for both parties that he would continue the date of trial on the damages issue in order to give defendants time to apply to this Court for a writ of supervisory control. This decision turns on the determination by us of two issues: (1) Whether section 93-901, R.C.M. 1947, or our o~rder for Disqualification and Substitution of Judges (34 St.Rep. 26, Dated December 29, 1976) applies. (2) If section 93-901 applies, whether defendants complied with its provisions in seeking to disqualify Judge Shanstrom. Our order for Disqualification and Substitution of Judges was entered after a study had been undertaken with reference to that subject. The court saw a need to establish an orderly system of disqualification in both civil and criminal cases, and by the terms of that order, it supersedes, and is to be used to the exclusion of section 93-901, and other sections set forth in the rule relating to disqualification and substitution of judges. In paragraph 7b, we provided in that order that if a new trial had been ordered by the Supreme Court, within ten days after notice of receipt of the remittitur, a party to an action could file a motion for the substitution of a judge. However, we also provided in the order that: -3- "This rule shall be effective on March 1, 1977, it to apply to all actions filed on or after that date." The complaint in cause no. 22478, in the Eighteenth Judicial District, Gallatin County, was filed on September 22, 1975. It would seem clear therefore from the language of our order of December 26, 1978, that it would not apply to this cause, since the effective date of the order is subsequent to the date when the complaint was filed in the subject case. However, the relators claim that a remittitur for a new trial from the Supreme Court in effect means that the action has commenced anew, and that the order for Disqualification and Substitution of Judges should be given effect instead of section 93-901. Relators rely on section 93-5601, R.C.M. 1947, now section 25-11-101 MCA, which provides that "a new trial is a reexamination of an issue of fact in the same court after a trial and decision by a jury or court . . ." and upon several cases construing that section, principally including Waite v. Waite (19641, 143 Mont. 248, 389 P.2d 181. However, relators are confusing the "reexamination" of an issue of fact with the term "commencement of action". Our order applies to "all actions filed" on or after March 1, 1977. The grant of a new trial by a District Court or by this Court is not the "filing of a new action". Rather the action, although commenced fresh or anew, is nevertheless limited to the original pleadings. This Court said so in Waite, supra: ". . . Applying this definition to subject matter of section 93-5601, we believe the legislative intent is that when a new trial is granted, the new trial must be commenced fresh or new, with the parties limited to the -- -- contents of -- the original pleadings, that the evidence and testimony of the previous trial is null and void-- non-existent in effect--except when governed by the existing rules of evidence . . ." (Emphasis supplied.) Under the provisions of section 93-2701, R.C.M. 1947, now section 27-2-102 MCA, an action is commenced when the complaint is filed. It is the filing date of the original complaint that determines whether our order for disqualification and sub- stitution of judges applies. In this case, the filing date preceded the effective date of the order. Therefore, if relators had a right to disqualify the trial judge after our grant of a new trial, they must have done so within the provisions of section 93-901 or be precluded from such disqualification. The relators have failed to comply with section 93-901 for two reasons: (1) They have failed to file an affidavit in accord- ance with section 93-901(4), stating that relators cannot have a fair and impartial hearing and trial before the district judge in question. (2) They have failed to file their affidavit of disqualification within three days of the time that they were notified that Judge Shanstrom assumed jurisdiction. Judge ~henkhanstrom assumed jurisdiction in November 1976, relators and all other parties then in the action under 9 section 93-x01, new had but three days, upon receiving notice, to file a disqualifying affidavit. Any attempt to disqualify a district judge after that statutory time has elapsed is a nullity and does not have the effect of depriving the district judge of juris- diction. State ex rel. Leavitt v. District Court. (1977), Mont . , 560 P.2d 517, 34 St.Rep. 65; Stefonick v. District Court (1945), 117 Mont. 86, 157 P.2d 96. The right of disqualification, once lost, cannot be revived. Leavitt, supra. Accordingly, relator's application for supervisory control or other appropriate writ is denied. DATED this / * d a y of February, 1979. I 1 Justice We Concur: Chief Justice & / ' f i	February 14, 1979
2401ccac-159a-476f-9c14-2e82127e9629	LYNDES v SCOFIELD	N/A	14398	Montana	Montana Supreme Court	No. 14398 I N THE S U P - CCURT O F ' THE STATE OF MONTANA 1978 HXKGG 0. LYNDES and R f l - LYNDES , Plaintiffs a r d Respondents, Deferdant and Appellant. Appeal frm: District Court of the Fourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: George, W i l l i a m s and Benn, Missoula, mntana For Respordent: Garlington, Lohn & Robinson, Missoula, )untana ,Wmitted on briefs: Mvember 3, 1975 Decided: JAN 2 .. . ~ q - - , , jc.;" Filed : M r . J u s t i c e Gene B. Daly delivered the Opinion of the Court. p l a i n t i f f s Kellogg and Rosemary Lyndes (Lyndes) f i l e d t h i s action against defendant Ruthanne Scofield (Scofield) on October 7, 1977, i n the D i s t r i c t Court of the Fourth J u d i c i a l D i s t r i c t , Missoula County, t o recover damages a r i s i n g out of an automobile collision. Lyndes alleged t h a t Scofield negligently and carelessly operated her vehicle causing it t o c o l l i d e with the Lyndes' vehicle and t h a t a s a d i r e c t and proximate r e s u l t of Sco- f i e l d ' s negligence, Rosemary Lyndes was injured and the vehicle damaged. The cause was t r i e d before a jury on April 1 7 , 1978, t h e Honorable Edward T. Dussault presiding. The jury re- turned a v e r d i c t i n favor of Scofield and against Lyndes. O n April 27, the court entered judgment f o r defendant. Lyndes thereafter moved the court f o r a new t r i a l . O n May 11, 1978, the D i s t r i c t Court granted a new t r i a l and from t h i s order Scofield appeals. O n the morning of January 5, 1 9 7 6 , a t about 7:45 a.m., the p a r t i e s were traveling i n opposite directions on 39th S t r e e t i n Missoula, Montana. The Lyndes, Kellogg Lyndes driving and h i s wife Rosemary a passenger, were eastbound and Scofield was westbound when the two vehicles collided. A t the time of the c o l l i s i o n some snow was f a l l i n g and the roads i n the v i c i n i t y were slippery. Kellogg ~ y n d e s de- scribed t h e roads a s "solid ice" with the p r e c i p i t a t i o n putting a watery g l a r e over the i c e . Scofield's vehicle had new t i r e s and had sandbags placed i n its r e a r t o improve i t s traction. Scofield had experienced driving i n snowy winters and had her windshield wipers and l i g h t s on. There was a steady stream of c a r s traveling i n both directions. Because of t h e weather and road conditions, the t r a f f i c , including ~ c o f i e l d , was cautiously going about 25 m.p.h., although the posted speed l i m i t was 35 m.p.h., when the r i g h t f r o n t wheel of Scofield's c a r struck a chuckhole. This caused the r e a r end t o swing out toward the oncoming t r a f f i c . Scofield a t - tempted t o correct her skid but before she could do so the r e a r end of her car was clipped by an oncoming vehicle driven by Dora Mosher. This caused Scofield's car t o swing first violently t o the r i g h t and then t o come back across t h e center l i n e i n t o the oncoming Lyndes vehicle. Kellogg Lyndes, seeing Scofield's d i f f i c u l t i e s , had almost brought h i s vehicle t o a stop. The impact was between Scofield's d r i v e r ' s door and the l e f t f r o n t fender and g r i l l of Lyndes' car. Neither c a r could be driven away from the scene. A t t r i a l Scofield, an elementary school teacher, t e s t i - f i e d t h a t she drove the 39th S t r e e t route once a week on her way t o her job. ( A t an e a r l i e r deposition, she had t e s t i - f i e d she drove it daily.) She further t e s t i f i e d , however, t h a t the morning of the accident, January 5, was the f i r s t time she had driven over t h i s route since December 24 be- cause she had gone t o S e a t t l e f o r a vacation during the school's Christmas holiday. She s t a t e d a t t r i a l she had not previously noticed t h a t p a r t i c u l a r chuckhole i n the roadway although she did admit she knew t h a t chuckholes were a common occurrence during Montana winters. The general i s s u e is whether the D i s t r i c t Court erred i n granting p l a i n t i f f s ' motion f o r a new t r i a l a f t e r a jury v e r d i c t had been returned i n favor of defendant. ~ a s e d on the reasons f o r the D i s t r i c t c o u r t ' s order granting a new t r i a l , t h i s general i s s u e breaks down i n t o the following s p e c i f i c questions: 1. Was t h e evidence i n s u f f i c i e n t t o j u s t i f y a v e r d i c t f o r S c o f i e l d on t h e i s s u e of l i a b i l i t y ? 2. Was defendant negligent a s a matter of law f o r v i o l a t i n g s e c t i o n 32-2144, R.C.M. 1947, r e q u i r i n g d r i v e r s t o d r i v e a t a reasonable r a t e of speed f o r t h e conditions of t h e road where t h e only evidence of unreasonableness is t h a t she h i t a chuckhole and was thrown i n t o a s k i d on an i c y road? 3. Was S c o f i e l d negligent as a matter of law by reason of v i o l a t i n g s e c t i o n 32-2151, R.C.M. 1947, r e q u i r i n g d r i v e r s t o d r i v e on t h e r i g h t s i d e of t h e road, when t h e reason f o r her v i o l a t i o n was t h a t her c a r w a s skidding on an i c y road a f t e r h i t t i n g a chuckhole? A D i s t r i c t Court has broad a u t h o r i t y t o g r a n t o r deny motions f o r a new trial. Brothers v. Town of V i r g i n i a City (1976), 171 Mont. 352, 558 P.2d 464, 467, 33 St.Rep. 1250, 1254. This d i s c r e t i o n is n o t without l i m i t s , however. Thus, " t h e t r i a l c o u r t ' s d i s c r e t i o n is exhausted when it f i n d s s u b s t a n t i a l evidence t o support t h e v e r d i c t . " Kincheloe v. Rygg (1968), 152 Mont. 187, 191, 448 P.2d 1 4 0 , 142. Neither may a D i s t r i c t Court g r a n t a new t r i a l only on t h e b a s i s t h a t it chose t o b e l i e v e one l i n e of testimony d i f f e r e n t from t h a t which t h e jury believed. Yerkich v. Opsta (1978), Mont. , 577 P.2d 857, 859, 35 St.Rep. 465, 467; I n re E s t a t e of Hardy (1958), 133 Mont. 536, 547-48, 326 P.2d 692, 698. I n Campeau v. L e w i s (1965), 1 4 4 Mont. 543, 549, 398 P.2d 960, 963, w e made t h e following statement which i s p a r t i c u l a r l y a p p o s i t e t o t h e i n s t a n t case: "When t h e t r i a l c o u r t denies a motion f o r a new t r i a l and thereby i n d i c a t e s f a i t h i n t h e jury v e r d i c t w e are more a p t t o r e f r a i n from d i s t u r b i n g t h a t o r d e r than where t h e t r i a l judge sets aside the jury's findings and re- quires t h a t t h e f a c t s be decided again. Where t h e t r i a l judge i s presented with evidence i n favor of the v e r d i c t , but proceeds t o grant a new t r i a l , w e f e e l it i s our duty t o t e s t the evidence against the verdict." The preceding principles r e l a t e d i r e c t l y t o the f i r s t two issues presented f o r review. A s t o the f i r s t issue, t h e D i s t r i c t Court s t a t e s i n its order granting the new t r i a l : ". . . The only apparent basis f o r the jury v e r d i c t is t h e f a c t t h a t the jury must have f e l t h i t t i n g t h e chuckhole j u s t i f i e d the De- fendant losing control of her vehicle. There i s no other evidence which would explain o r j u s t i f y the Defendant losing control of her car. " The D i s t r i c t Court then s t a t e s t h a t h i t t i n g a chuckhole and losing control of a vehicle is a v i o l a t i o n of section 32-2144, R.C.M. 1947, which provides i n part: "A person operating o r driving a vehicle of any character on a public highway of t h i s s t a t e s h a l l drive it i n a careful and prudent manner, and ---- a t a r a t e of speed no g r e a t e r than is reasonable and proper under t h e conditions - - - existing -- a t t h e point of operation, taking i n t o account t h e amountand character of t r a f - f i c , condition of brakes, weight of vehicle, grade - and width of highway, condition of -- sur- face. and freedomof obstruction t o view ahead, ~. and he s h a l l d r i v e it so as not t o unduly or unreasonably endanger t h e l i f e , limb, property, o r other r i g h t s of a person e n t i t l e d t o the use of the s t r e e t or highway." (Emphasis by D i s t r i c t Court. ) The t r i a l court concluded t h a t the chuckhole h i t by Scofield was a "condition of the surface" which Scofield was bound t o take i n t o account i n operating her vehicle. While a chuckhole undoubtedly i s a condition of the surface whose presence should be taken i n t o account, w e disagree under the f a c t s of t h i s case t h a t Scofield was negligent a s a matter of law. Our conclusion i s based on the standard f o r judging speed imposed by the s t a t u t e of "reasonable and proper under t h e conditions existing a t the point of operation." What is reasonable and proper under t h e conditions is c l e a r l y a question of f a c t t o be determined by t h e jury. Nissen v. Johnson (1959), 135 Mont. 329, 331-33, 339 P.2d 651, 652-53. "Whether under t h e circumstances p r e s e n t t h e defendant was negligent appears t o be a f a c t question and f a c t questions must be submitted t o a jury under a p p r o p r i a t e i n s t r u c t i o n s . " Nissen, 135 Mont. a t 333-34, 339 P.2d a t 653; Heen v. Tiddy (1968), 151 Mont. 265, 269, 4 4 2 P.2d 434, 436. While t h e r e i s c o n f l i c t i n some p a r t s of t h e evidence, t h e jury d i d hear unrefuted testimony t h a t t h e road on which t h e a c c i d e n t occurred w a s very s l i p p e r y and t h a t snow was f a l l i n g . Both S c o f i e l d and t h e d r i v e r preceding her testi- f i e d a s t o t h e s i z e and depth of t h e chuckhole. S c o f i e l d t e s t i f i e d a s t o her r a t e of speed, t h e condition of her c a r , and t h e care with which she drove. The jury f u r t h e r heard Scofield t e s t i f y t h a t she had almost succeeded i n c o n t r o l l i n g her car's s k i d when her l e f t r e a r fender was "clipped" by t h e oncoming c a r driven by Dora Mosher causing her c a r t o once again start skidding a c r o s s t h e roadway where it eventually c o l l i d e d with Lyndes' c a r . The jury w a s e n t i t l e d t o b e l i e v e t h i s evidence. A s t h i s Court s t a t e d i n Staggers v. United S t a t e s F i d e l i t y and Guaranty Co. (1972), 159 Mont. 254, 258-59, 496 P,2d 1161, "This Court has on s e v e r a l occasions reviewed t h e r u l e s on s u f f i c i e n c y of evidence. I n Cam- peau v. L e w i s , 1 4 4 Mont. 543, 547, 398 P.2d 960, 962 (1965), w e s t a t e d : "'The c o u r t has c o n s i s t e n t l y held t h a t t h e evidence i s n o t i n s u f f i c i e n t i f it is substan- t i a l . Adami v. Murphy, 118 Mont, 172, 164 P.2d 150. I n t h e Adami case, t h e c o u r t , quoting from Morton v, Mooney, 97 Mont. 1, 33 P.2d 262, held t h a t " s u b s t a n t i a l evidence" could be de- f i n e d as such " a s w i l l convince reasonable men and on which such men may n o t reasonably d i f f e r a s t o whether it e s t a b l i s h e s t h e p l a i n t i f f ' s case, and, i f a l l reasonable men must conclude t h a t t h e evidence does not e s t a b l i s h such case, then it is n o t s u b s t a n t i a l evidence." 118 Mont. 172, a t page 179, 164 P.2d a t page 153. The evidence may be i n h e r e n t l y weak and s t i l l be deemed " s u b s t a n t i a l " , and- one - witness m a y be s u f f i c i e n t t o e s t a b l i s h t h e preponderance of a case. ~ a t c h o f f v. Craney, 119 Mont. 157, 1 6 1 ; 172 P.2d 308. Also, s u b s t a n t i a l evidence m a y c o n f l i c t with o t h e r evidence presented. Win D e l Ranches, Inc. v. Rolfe and Wood, I n c . , 137 Mont. 44, 49, 350 P.2d 581. . . I It (Empha- sis added.) F i n a l l y t h e jury was i n s t r u c t e d properly under t h e circumstances. Section 32-2144, quoted above, was given a s an i n s t r u c t i o n as w e r e standard i n s t r u c t i o n s on negligence. The jury, i n r e t u r n i n g its v e r d i c t f o r defendant, neces- s a r i l y decided t h a t , taking i n t o consideration t h e condi- t i o n s of t h e s u r f a c e and a l l t h e surrounding circumstances, Scofield w a s not negligent. A s w e have s t a t e d numerous t i m e s : t h e mere happening of an accident is n o t evidence of negligence. Fries v. Shaughnessy (1972), 159 Mont. 307, 310, 496 P.2d 1159, 1160; Flansberg v. Montana Power Co. (1969), 154 Mont. 53, 58, 460 P.2d 263, 266; Stocking v. Johnson Flying Service (1963), 143 Mont. 61, 65, 387 P.2d 312, 314; Nissen v. Johnson (1959), 135 Mont. 329, 332, 339 P.2d 651, 653. The Montana case most s i m i l a r f a c t u a l l y t o t h e i n s t a n t case is Rodoni v. Hoskin (1960), 138 Mont. 164, 355 P.2d 296. I n t h a t case t h e defendant's v e h i c l e a l s o h i t a chuck- h o l e on an i c y street causing it t o s k i d i n t o an oncoming c a r . There a r e , however, s e v e r a l c r u c i a l d i f f e r e n c e s be- tween t h a t accident and t h e Scofield-Lyndes c o l l i s i o n , a l l of which weigh i n favor of Scofield. For example, i n Rodoni t h e defendant t e s t i f i e d he had d r i v e n t h e r o u t e which he w a s d r i v i n g a t t h e t i m e of t h e accident every day f o r f o u r y e a r s and t h a t he knew of t h e approximate l o c a t i o n of t h e chuckhole and was watching f o r it because he knew it could throw h i s c a r i f he h i t it. I n c o n t r a s t Scofield, although she £re- quently drove over 39th S t r e e t , had not driven it a t l e a s t f o r some two weeks p r i o r t o t h e accident and did not know of t h e existence of t h e chuckhole. A s the Lyndes note, chuck- holes a r e a common occurrence but they tend t o appear sud- denly and a t t i m e s a r e repaired quickly. (The chuckhole struck by Scofield here was apparently repaired within four hours of the accident.) N o evidence was presented t o show t h a t t h e chuckhole had been present two weeks p r i o r t o t h e accident when Scofield l a s t could have driven over t h i s route. I n f a c t Kellogg Lyndes, who drove over 39th S t r e e t t w i c e a day, "had n o t noticed any severe chuckholes i n t h a t area. " Lyndes' r e l i a n c e of t h e case of Huey v. Stephens (Okla. 1954), 275 P.2d 254, overruled on o t h e r grounds, Hayward v. Ginn (Okla. 1957), 306 P.2d 320, i s misplaced. The Oklahoma Court recognized t h a t t h e presence of i c e on a road may lead t o an accident with no negligence on t h e p a r t of any d r i v e r . Erickson v. P e r r e t t (1976), 169 Mont. 167, 545 P.2d 1074, a l s o r e l i e d on by Lyndes, is distinguishable. I n Perrett, t h e defendant's vehicle skidded i n t o another c a r a s he approached an intersection. The defendant claimed t h a t a t h i r d vehicle suddenly changing lanes was an intervening cause of t h e accident. However, i n t h a t case a s the t h i r d v e h i c l e ' s d r i v e r could not be found f o r t r i a l , w e held t h e r e was i n s u f f i c i e n t evidence t o support defendant's contention. 169 Mont. a t 173, 545 P.2d a t 1078. W e conclude t h e D i s t r i c t Court erred i n basing its order granting Lyndes a new t r i a l on insufficiency of t h e evidence and v i o l a t i o n of section 32-2144. The t h i r d b a s i s f o r t h e D i s t r i c t C o u r t ' s order con- cerned S c o f i e l d ' s v i o l a t i o n of s e c t i o n 32-2151, R.C.M. 1947. I n its order g r a n t i n g a new t r i a l , t h e District Court con- cluded : " F i n a l l y , it should be noted t h a t t h e accident r e s u l t e d from t h e f a c t t h a t t h e Defendant's v e h i c l e went o u t of c o n t r o l and crossed t h e c e n t e r l i n e . R.C.M. 1947, Section 32-2151 re- q u i r e s t h a t a v e h i c l e s h a l l be operated on t h e r i g h t half of t h e roadway. While t h e Court recognizes t h a t t h e r e are exceptions t o t h i s s t a t u t o r y duty, none of those exceptions was a p p l i c a b l e under t h e f a c t s presented i n t h i s case. The Defendant v i o l a t e d t h e provisions of R.C.M. 1947, Section 32-2151. Such conduct would be negligence a s a matter of law and, as set f o r t h earlier i n t h e Court's opinion, t h e e x i s t e n c e of a chuckhole would n o t alter t h e Defendant's duty t o operate her v e h i c l e on t h e r i g h t s i d e of t h e road." Section 32-2151, R.C.M. 1947, reads: " ( a ) Upon a l l roadways of s u f f i c i e n t width a v e h i c l e s h a l l be driven upon t h e r i g h t half of t h e roadway except a s follows: " (1) When overtaking and passing another v e h i c l e proceeding i n t h e same d i r e c t i o n under t h e r u l e s governing such movement; " ( 2 ) When t h e r i g h t half of a roadway is closed t o t r a f f i c while under construction o r r e p a i r ; " (3) Upon a roadway divided i n t o t h r e e (3) marked l a n e s f o r t r a f f i c under t h e r u l e s a p p l i c a b l e thereon; o r " ( 4 ) Upon a roadway designated and signposted f o r one-way t r a f f i c . " It i s undisputed t h a t a t t h e time of t h e a c c i d e n t , S c o f i e l d ' s v e h i c l e was skidding down t h e road i n t h e l e f t - hand l a n e and t h a t a t t h e p o i n t of c o l l i s i o n , t h e Lyndes' v e h i c l e w a s w e l l w i t h i n i t s proper l a n e of t r a f f i c . The question simply is, does t h i s mean S c o f i e l d w a s n e g l i g e n t a s a m a t t e r of law? W e conclude it does n o t and r e v e r s e t h e conclusion of t h e D i s t r i c t Court on t h i s p o i n t . I n Lamb v. Page (1969), 153 Mont. 171, 181, 455 P.2d 337, 342, t h i s Court held, " [ i l t is c l e a r t h a t i n Montana t h e r e are exceptions t o t h e r u l e t h a t one must t r a v e l upon t h e r i g h t s i d e of t h e highway." The reason f o r t h e defen- d a n t ' s v e h i c l e being on t h e wrong s i d e of t h e road i n t h a t case w a s t h a t it had h i t a patch of black i c e . See a l s o Harrington v. H. D. Lee Mercantile Co. (1934), 97 Mont. 40, 33 P.2d 553. I n t h i s connection, ~ o d o n i v. Hoskin (1960), 138 Mont. 164, 355 P.2d 296, is again important because of i t s f a c t u a l s i m i l a r i t y t o t h e i n s t a n t case. I n t h a t c a s e , where defendant's v e h i c l e skidded i n t o t h e left-hand l a n e and c o l l i d e d with p l a i n t i f f ' s v e h i c l e we c l e a r l y i n d i c a t e d t h a t whether t h e f a i l u r e t o s t a y on t h e r i g h t s i d e of t h e road was negligence w a s a question of f a c t f o r t h e jury. The District Court e r r e d . i n concluding t h a t v i o l a t i o n of t h e s t a t u t e c o n s t i t u t e d negligence a s a m a t t e r of law. It is w e l l e s t a b l i s h e d t h a t involuntary v i o l a t i o n of a s t a t u t e i n an emergency due t o circumstances beyond t h e a c t o r ' s c o n t r o l does n o t c o n s t i t u t e negligence -- per se. Duchesneau v. Mack Truck, Inc. (1969), 158 Mont. 369, 377, 492 P.2d 926, 930. Rather, S c o f i e l d ' s presence i n t h e i n c o r r e c t lane i s only prima f a c i e evidence of negligence which may be rebutted. McGinnis v. P h i l l i p s (1922), 62 Mont. 223, 228, 205 P. 215, 216. This r a i s e s a f a c t u a l i s s u e which must be l e f t t o t h e jury t o decide. Duchesneau, supra. The Michigan Supreme Court i n Martiniano v. Booth (1960), 359 ~ i c h . 680, 103 N.W.2d\ 502, 506, summed up our p o s i t i o n very w e l l : ". . . t h e m e r e f a c t t h a t an automobile i s on t h e wrong s i d e of t h e highway a t t h e t i m e of c o l l i s i o n does n o t of i t s e l f make t h e d r i v e r thereof g u i l t y of negligence a s a m a t t e r of law. The f a c t t h a t an automobile s k i d s a c r o s s t h e highway a s a r e s u l t of s t r i k i n g a r u t o r a patch of ice, o r because of a s l i p p e r y pavement, through no f a u l t of t h e d r i v e r , has been held t o excuse f a i l u r e t o comply with t h e requirement of t h e s t a t u t e t h a t t h e d r i v e r of a c a r must keep on t h e r i g h t s i d e of a street o r highway . . . The i s s u e s involved i n how defendant struck t h e r u t and t h e distance of p l a i n t i f f ' s d r i v e r ' s c a r from defendant's c a r a t t h e time defendant skid- ded onto t h e north half of t h e highway w e r e fac- t u a l and w e r e properly submitted t o t h e jury i n a charge t h a t , taken i n its e n t i r e t y , c a r e f u l l y protected t h e r i g h t s of p l a i n t i f f a s w e l l a s those of defendant. The weight t o be given t o t h e testimony of t h e d i f f e r e n t witnesses and t h e inferences t o be drawn from such testimony r e s t e d i n t h e good judgment and common sense of t h e jurors." (Citations omitted.) Thus, t h e t h i r d i s s u e a l s o ultimately resolves i t s e l f i n t o a f a c t question f o r t h e jury t o decide. Its decision, which i s supported by s u b s t a n t i a l evidence, may n o t be overturned by t h e D i s t r i c t Court. Scofield presented s u b s t a n t i a l evidence t o prove t h a t a s she was driving i n a reasonable and prudent manner t h e r i g h t f r o n t wheel of her vehicle h i t an unusually l a r g e chuckhole concealed by new snow and t h a t a s a r e s u l t her vehicle was s e n t skidding down t h e highway and eventually collided with t h e Lyndes vehicle. The jury heard t h i s evidence together with evidence t o t h e contrary presented by t h e Lyndes and concluded t h a t Scofield was n o t negligent. There being s u b s t a n t i a l evidence t o support t h e v e r d i c t and t h e r e being no e r r o r of law, t h i s v e r d i c t could n o t be overturned by t h e D i s t r i c t Court on a motion f o r a new t r i a l . The order of t h e D i s t r i c t Court granting Lyndes a new t r i a l i s reversed. The cause is remanded t o the District Court with d i r e c t i o n s t o r e i n s t a t e t h e v e r d i c t of t h e jury. I ,/ J u s t i c e We concur:	January 24, 1979
b1dc13bc-a20e-4077-9d83-d7dd6007109d	WESTERN SIGN INC v STATE	N/A	14296	Montana	Montana Supreme Court	No. 14296 IN THE SUPREME COUIiT O F THE STATE O F MONTANA lEXEF?N SIm, D r . , a Montana corporation, Plaintiff and Appllant, THE szATI3 OF m A N A , S T A T E O F M O N T A N A DEPAFsmNr O F A D M I N I ~ I C N , S T A T E OF ITXVI?ANA DEPAR!DENT O F I I I G H W A Y S and S T A T E O F m l A N A D m m m O F (2amlNITY AFFAIRS, Defendants and Respondents. Agpeal fran: D i s t r i c t Court of the First ~ u d i c i a l District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For -ellant: Burton, Waite and Cruikshank, Great Falls, bbntana Charles Cruikshank I 1 1 argued, Great Falls, MDntana For Respondents: Hon. Mike Greely, Attorney General, Helena, Montana Michael Young argued, Dept. of Administration, Helena, Pbntana M. G. McLatchey, Dept. of Highways, H e l e n a , Montana Daniel G. D i e m e r t , Dept. of Ccmnmity Affairs, Helena, Mntana Decided : F E B -, 5 1979 Filed - 5 5979 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court . Western Sign, Inc., h e r e i n a f t e r r e f e r r e d t o a s Western, appeals from an order of t h e District Court, F i r s t J u d i c i a l D i s t r i c t , t h e Honorable Gordon R. Bennett, granting t h e motion of t h e S t a t e f o r p a r t i a l summary judgment on t h e i s s u e of l i a b i l i t y and denying t h e motion f o r summary judg- ment made by Western. Involved herein i s t h e i n t e r p r e t a t i o n of a c o n t r a c t entered i n t o between t h e S t a t e of Montana and t h r e e of i t s agencies and t h e p l a i n t i f f Western Sign, Inc. The S t a t e , through i t s agents, s e n t o u t requests f o r quotations, in- v i t a t i o n s t o bid f o r c o n t r a c t t o be l e t by t h e S t a t e f o r materials t o b u i l d street signs. Western's bid w a s t h e lowest q u a l i f i e d one, and s o it was awarded t h e c o n t r a c t . Subsequently, a purchase agreement w a s entered i n t o by t h e S t a t e and Western, whereby t h e S t a t e agreed t o buy from Western a l l steel s i g n posts ordered by l o c a l governments which w e r e p a r t i c i p a t i n g i n t h e "signing program". Western procured a s t o r e of m a t e r i a l s which would enable it t o f i l l a l l t h e orders as they came i n ; i n f a c t , Western procured enough m a t e r i a l s t o f i l l t h e maximum number of orders which would have needed f i l l i n g had every e l i g i b l e l o c a l govern- ment ordered t h e maximum amount of m a t e r i a l s t h a t it could. Its a n t i c i p a t i o n f a r exceeded t h e a c t u a l i t y of events, f o r t h e S t a t e d i d n o t order enough t o exhaust Western's supply. Western then sued, a l l e g i n g i n t e r a l i a , breach of c o n t r a c t by t h e S t a t e f o r i t s f a i l u r e t o take a l l t h e m a t e r i a l s procured by Western. The District Court determined t h a t t h e r e w a s no breach because t h e c o n t r a c t w a s a requirements c o n t r a c t , which bound t h e S t a t e t o take from Western only what it required. Western argues t h a t t h e S t a t e was obligated t o purchase t h e e n t i r e quantity s t a t e d i n t h e estimate on which Western had bid, which estimate had been incorporated i n t o t h e c o n t r a c t proper, because t h e c o n t r a c t was one f o r a specified quantity. Disposition of t h i s case is controlled by t h e Montana Uniform Commercial Code and by T i t l e 13 of t h e 1947 Revised Codes of Montana. Before applying t h e law, however, t h e contract i t s e l f must be examined. The Request f o r Quotation, incorporated by reference i n t o t h e c o n t r a c t , reads i n per- t i n e n t p a r t : "Steel posts s h a l l be ordered when required on t h e same summary s h e e t a s t h e signs b u t counties and cities have t h e option t o request wood posts which w i l l n o t be p a r t of t h e purchase order. " Q u a n t i t i e s a s shown a r e on a more less b a s i s a s d e t a i l e d estimates a r e not possible u n t i l inven- t o r i e s a r e completed by each c i t y and county wishing t o p a r t i c i p a t e i n t h e s a f e t y demonstra- t i o n program. Orders f o r signing m a t e r i a l s , posts, etc., under t h i s purchase order w i l l be processed f o r each c i t y o r county individually by t h e Dept. of Highways throughout t h e f i s c a l year and vendor s h a l l expeditiously f i l l these orders and s h i p materials d i r e c t l y t o counties o r cities designated within a maximum of 90 days a f t e r r e c e i p t of an order. The Dept. of Highways s h a l l process t h e payment of each order a f t e r t h e material has been mutually inspected and accepted by representatives . . ." The r e l e v a n t portions of t h e purchase agreement a r e these: " S e l l e r agrees t o sell and d e l i v e r and buyer agrees t o purchase, accept and pay f o r a l l of Buyer's small quantity requirements of m a t e r i a l s h e r e i n a f t e r r e f e r r e d t o needed f o r use i n t h e agencies, departments, and o f f i c e s of t h e S t a t e of Montana. "Delivery of s a i d material s h a l l be made a s re- quired during t h e c o n t r a c t order and within a reasonable t i m e a f t e r t h e seller receives a w r i t t e n order therefore from t h e buyer. "These materials s h a l l be of the kind, quantity and quality s e t f o r t h i n t h a t c e r t a i n o f f e r made t o t h e buyer by t h e s e l l e r on Aug. 1 9 , 1975, a copy of which is attached hereto and by t h i s reference made a p a r t of t h e agreement. I t is expressly understood and agreed t h a t t h i s contract is f o r s i n g l e orders of t h e items l i s t e d i n s a i d o f f e r which a r e not i n excess of the q u a n t i t i e s f o r which prices a r e quoted i n said bid o f f e r . B y t h i s contract, Buyer has no obligation t o buy from S e l l e r t h e items l i s t e d i n s a i d o f f e r when a s i n g l e order f o r said items i s f o r a quantity i n excess of the quantity f o r which prices a r e quoted i n said bid offer." (Emphasis added.) Western f i r s t contends t h a t t h e S t a t e of Montana i s a merchant, and so is t o be held t o a standard higher than than of mere good f a i t h . Section 87A-2-104(1), R.C.M. 1947, defines "merchant" a s follows: "'Merchant' means a person who deals i n goods of t h e kind o r otherwise by h i s occupation holds himself o u t a s having knowledge o r s k i l l peculiar t o t h e practices o r goods involved i n the transaction o r t o whom such knowledge or s k i l l may be a t t r i b u t e d by h i s employment of an agent o r broker o r other intermediary who by h i s occupation holds himself out a s having such knowledge o r s k i l l . " Certainly it does not "deal i n goods" of the s o r t sub- j e c t of t h e contract; it does not "hold [it] s e l f o u t a s having knowledge o r s k i l l peculiar t o t h e practices o r goods involved i n the transaction." The most t h a t could perhaps be s a i d i s t h a t "such knowledge o r s k i l l may be a t t r i b u t e d [ t o the S t a t e ] by [its] employment of an agent . . . who by h i s occupation holds himself o u t a s having such knowledge o r s k i l l . " Counsel has not c i t e d us t o and neither did we find any decision i n which t h e court has found a s t a t e t o be a mer- chant. Although c e r t a i n governmental e n t i t i e s , i n p a r t i - c u l a r municipalities, have been found t o be merchants when acting i n a p a r t i c u l a r fashion, f o r instance, maintaining a municipal water system and s e l l i n g w a t e r t o r e s i d e n t s of t h e municipality, those cases reach t h a t determination of t h e merchant character v i a deciding whether t h e "goods", - t h e water, has a warranty of merchantability. See, e.g., Moody v. City of Galveston (Tex. Civ. App. 1975), 524 S.W.2d 583. But c f . Coast Laundry, Inc. v. Lincoln City (1972), 9 0re.App. 521, 497 P.2d 1224, 54 ALR3d 930 (impliedly finding municipality n o t a merchant because no implied w a r - r a n t i e s of merchantability and f i t n e s s f o r p a r t i c u l a r pur- pose i n connection with sale and supply of w a t e r . This decision has been c r i t i c i z e d , e.g., Dolan, The Merchant C l a s s of A r t i c l e 2: Farmers, Doctors, and Others, 1977 Wash. U.L.Q. 1, 27 (1977) .) W e have no question of merchantability here; ergo, t h a t is not a v e h i c l e by which w e may be c a r r i e d t o a considera- t i o n of t h e question of t h e merchant character of t h e S t a t e . "The Code makes no provision a s t o t h e proof of merchant character of a party. The general r u l e governing burden of proof w i l l r e q u i r e t h a t t h e party who w i l l b e n e f i t by proof of such character c a r r y t h e burden of proving t h e merchant character." 1 R. Anderson on t h e Uniform Commercial Code 52-104:7 (2nd ed. 1970). I t may w e l l be t h a t a state may be a merchant i n some circumstances; w e do n o t decide t h a t question i n t h i s case. W e take note, however, t h a t Western d i d not c a r r y its burden of proof, t h a t it d i d not demonstrate t h e S t a t e was a merchant i n t h i s transaction. Therefore, it cannot p r e v a i l on t h i s i s s u e . A s t h e D i s t r i c t Court noted, t h e r e i s no provision i n t h e c o n t r a c t which s p e c i f i e s an exact q u a n t i t y and p r i c e binding both t h e seller, Western, and t h e buyer, t h e S t a t e . The i n d e f i n i t e n e s s of t h e quantity, coupled with t h e speci- f i c reference t o t h e contingency of t h e participation of t h e l o c a l governments, led the t r i a l court t o conclude t h a t , a s a matter of law, t h e contract was a requirements contract. W e agree with t h a t conclusion, f o r , on appeal, Western has f a i l e d t o show t h a t the terms a r e s o d e f i n i t e as t o make it other than a requirements contract. Once t h a t determination i s made, inquiry must be made i n t o what constitutes allowable variations i n the estimates of quantity shown i n the Request f o r Quotation. The stan- dard t o be employed is one of "good f a i t h " , section 87A-2- 306(1), R.C.M. 1947, precluding an unreasonably dispropor- t i o n a t e variation. Absent such unreasonableness t h e s e l l e r assumes t h e r i s k of variations made i n good f a i t h by the buyer. See, e.g., HML Corp. v. General Foods Corp. (3rd C i r . 1966), 365 F.2d 77; Standard Magnesium Corp. v. United S t a t e s (10th C i r . 1957), 2 4 1 F.2d 677; Wilsonville Concrete Products v. Todd Bldg. Co. (1978), 281 Ore. 345, 574 P.2d 1 1 1 2 . The party p l a i n t i f f claiming a breach has t h e burden of showing t h a t t h e defendant acted i n bad f a i t h . HML Corp. v. General Foods Corp., 365 F.2d a t 83. A s i n HML Corp., t h a t burden has not been m e t . See a l s o Summers, "Good Faith" i n General Contract Law and t h e Sales Provisions of t h e Uniform Commercial Code, 54 Va.L.Rev. 195 (1968), and Farnsworth, Good Faith Performance and Commercial Reason- ableness Under t h e Uniform Commercial Code, 30 U.Chi.L.Rev. 666 (1963). Western's l a s t challenge i s directed t o whether summary judgment was appropriately awarded i n t h i s case. Appellant Western contends t h a t i n making a decision i n granting summary judgment t o t h e S t a t e the court erred because it f a i l e d t o r u l e on e i g h t other positions r e l i e d upon by a p p e l l a n t . Appellant makes no argument a t a l l on those p o i n t s , b u t merely baldly asserts t h a t t h e D i s t r i c t Court acted improperly. This Court has r e i t e r a t e d t h e r u l e t h a t an o r d e r grant- i n g summary judgment, pursuant t o Rule 56, M.R.Civ.P., w i l l be upheld i n those c a s e s i n which t h e complaining p a r t y f a i l s t o demonstrate t h e e x i s t e n c e of m a t e r i a l and s u b s t a n t i a l f a c t s which would a l t e r t h e d e c i s i o n made below. E.g., Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613; Montana Deaconess Hospital v. Gratton (1976), 169 Mont. 185, 545 P.2d 670. The p l a i n t i f f , t h e complaining p a r t y , has f a i l e d t o show us such f a c t s a s t o r a i s e a genuine i s s u e of material f a c t a s would i n v a l i d a t e t h e conclusions of law of t h e D i s t r i c t Court. Having f a i l e d t o c a r r y its burden, plain- t i f f cannot p r e v a i l i n t h i s Court. Affirmed. W e concur: Z a $ chief J u s t i c e Q A . J . / J x & k J u s t i c e s	February 5, 1979
4525a71e-84a9-43bc-8ddf-9eee6e68403a	DODD v CITY OF EAST HELENA	N/A	14274	Montana	Montana Supreme Court	No. 14274 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 STAN DODD, Plaintiff and Appellant, THE CITY OF EAST HELENA, a Montana Corporation, and JOHN VERBANAC, the Mayor of East Helena, Defendants and Respondents. Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Jackson and Kelley, Helena, Montana For Respondents: Luxan, Murfitt, Davis and Cosgrove, Helena, Montana For Amicus Curiae: Keller, Reynolds & Drake, Helena, Montana Filed: Submitted on briefs: January 29, 1979 Decided ~ i ~ , i i - 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. This i s an appeal by Stan Dodd, a former policeman i n t h e C i t y of E a s t Helena, County of Lewis and Clark, Montana, from a r u l i n g of t h e D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t , determining t h a t he w a s n o t e n t i t l e d t o overtime compensation a s a policeman of a t h i r d c l a s s c i t y . The i s s u e on appeal i s whether o r not t h e t r i a l c o u r t properly determined t h a t policemen of t h i r d c l a s s c i t i e s a r e n o t e n t i t l e d t o overtime compensation. Appellant was employed a s a policeman f o r t h e C i t y of E a s t Helena, Montana, from January 1, 1975, t o May 19, 1977. Appellant has a l l e g e d t h a t during t h i s period he r e g u l a r l y worked overtime without any reimbursement. The C i t y of E a s t Helena admits t h a t it d i d n o t pay any overtime t o a p p e l l a n t during t h e period of h i s employment. The i s s u e on appeal involves t h e s o l e question of whether o r n o t policemen of t h i r d c l a s s cities a r e e n t i t l e d t o overtime compensation. I n 1971 t h e l e g i s l a t u r e enacted t h e Minimum Wages and Hours Act which was c o d i f i e d a s s e c t i o n 41-2301, e t seq., R.C.M. 1947, now s e c t i o n 39-3-401 e t seq. MCA, which became e f f e c t i v e J u l y 1, 1971. I n conformity with t h e provisions of t h e a c t , t h e Commissioner of Labor i s s u e d , on J u l y 1, 1971, i n i t i a l r e g u l a t i o n s i n t e r p r e t i n g t h e provisions of t h e Minimum Wage Act. Request was made of t h e Commissioner by t h e Montana P o l i c e Association as t o whether policemen w e r e covered by t h e a c t and e n t i t l e d t o overtime compensation. The Commissioner by l e t t e r responded i n t h e a f f i r m a t i v e . On J u l y 27, 1971, a p e t i t i o n f o r a d e c l a r a t o r y judgment was f i l e d i n t h i s Court i n Cause No. 12100, e n t i t l e d t h e C i t y of B i l l i n g s and Yellowstone County v. The Honorable Sid Smith, Commissioner of Labor of t h e S t a t e of Montana. Numerous i s s u e s w e r e r a i s e d i n t h e p e t i t i o n regarding t h e v a l i d i t y and coverage of t h e Minimum Wage A c t . The p e t i t i o n alleged (1) t h a t t h e a c t was unconstitutional and void, and ( 2 ) t h a t p o l i c e o f f i c e r s , firemen, and deputy s h e r i f f s were excluded from t h e provisions t h e r e i n on t h e grounds t h a t each was a professional. This Court accepted o r i g i n a l j u r i s d i c t i o n and issued i t s opinion on October 29, 1971. City of B i l l i n g s v. Smith (1971), 158 Mont. 197, 490 P.2d 221. The a c t w a s determined t o be c o n s t i t u t i o n a l , b u t w e held t h a t policemen were bona f i d e professionals and thereby exempt from i t s provisions. By reason of t h i s Court's decision, t h e 1973 l e g i s l a - t u r e amended t h e Municipal Police Act by enactment of sec- t i o n 11-1832.2, R.C.M. 1947, now s e c t i o n 7-32-4119 MCA, which provides: "Members of t h e p o l i c e departments of c i t i e s of t h e f i r s t and second class, except those o f f i c e r s holding t h e rank of captain o r above, are e n t i t l e d t o compensation f o r overtime as provided under s e c t i o n 41-2303 (b) ." The B i l l i n g s determination by t h i s Court was n o t limited i n any way t o t h e policcimen working i n cities of any s p e c i f i c s i z e . On t h e contrary, f o r t h e reasons set f o r t h i n t h e opinion, they a r e applicable t o policemen working i n any c i t y o r town i n t h e S t a t e of Montana. I n f a c t , t h e l e g i s l a - t i v e treatment of policemen r e f e r r e d t o i n t h e opinion i s contained i n what i s known a s t h e Municipal Police Act, s e c t i o n 11-1801, e t seq., R.C.M. 1947, now s e c t i o n 7-32-4101 e t seq. MCA, which provides t h e b a s i c guidelines f o r a l l cities and towns f o r t h e administration and operation of t h e i r p o l i c e departments. A s a r e s u l t of t h e B i l l i n g s d e c i s i o n , no policemen i n Montana w e r e e n t i t l e d t o r e c e i v e any overtime compensation. A s noted, t h e 1973 l e g i s l a t i v e assembly amended t h e P o l i c e A c t by adding s e c t i o n 11-1832.2, R.C.M. 1947, now s e c t i o n 7- 32-4119 MCA. According t o t h e amendment, those policemen i n first and second c l a s s c i t i e s became e n t i t l e d t o overtime compensation. The d e c i s i o n i n B i l l i n g s applied t o a l l policemen. The e f f e c t of s e c t i o n 11-1832.2 was t h a t t h e l e g i s l a t u r e overruled t h e B i l l i n g s d e c i s i o n only a s it applied t o policemen i n f i r s t and second class c i t i e s . Consequently, policemen employed by c i t i e s of t h e t h i r d c l a s s w e r e n o t e n t i t l e d t o r e c e i v e overtime compensation. The d e c i s i o n of t h i s Court has n o t been changed by t h e l e g i s l a t u r e o r by t h i s Court. A l l t h e arguments of appel- l a n t notwithstanding, t h e s t a t e of t h e l a w a t t h i s t i m e i s t h a t while t h e B i l l i n g s d e c i s i o n applied t o a l l policemen, t h e r e i s a s p e c i a l act which now segregates t h i r d c l a s s c i t y policemen. Subissue (a) s e t f o r t h by a p p e l l a n t i s whether t h e B i l l i n a s d e c i s i o n contains an i n h e r e n t c o n f l i c t which must be addressed by t h i s Court. Appellant argues t h a t t h e r e i s c o n f l i c t i n t h e reasoning of t h i s C o u r t ' s opinion which must be c l a r i f i e d . H e argues t h a t " [ I ] £ policemen are excluded from t h e Minimum Wages Act, then t h e r e can be no c o n f l i c t between t h e Minimum Wage Act and Section 25-604. This i n h e r e n t c o n t r a d i c t i o n should be addressed and c l a r i f i e d by t h e Honorable Supreme Court of t h e S t a t e of Montana." The c o n t r a d i c t i o n which a p p e l l a n t addresses does not e x i s t . The B i l l i n g s c a s e held t h a t policemen were excluded from t h e t e r m s of t h e a c t because of t h e i r s e p a r a t e t r e a t - ment under t h e t e r m s of t h e ~ u n i c i p a l P o l i c e Act, Chapter 18, T i t l e 11. The s t a t u t e r e f e r r e d t o by a p p e l l a n t , s e c t i o n 25-604, R.C.M. 1947, now s e c t i o n s 7-4-2505 and -2402 MCA, r e l a t e s only t o compensation f o r deputy s h e r i f f s . This Court i n f i n d i n g t h a t a deputy s h e r i f f was excluded r e f e r r e d t o a c o n f l i c t between t h e s p e c i f i c s t a t u t e (25-604) speci- fying t h e i r pay and t h e general s t a t u t e , t h e Minimum Wage A c t , and a determination of which s t a t u t e would govern. That discussion had nothing t o do with t h e r a t i o n a l e f o r finding t h a t policemen w e r e professionals. W e f i n d no c o n f l i c t i n t h e opinion which r e q u i r e s f u r t h e r c l a r i f i c a t i o n . Appellant next addresses h i s subissue ( b ) concerning t h e e f f e c t of t h e l e g i s l a t u r e ' s enactment of s e c t i o n 1 1 - 1832.2, R.C.M. 1947, now s e c t i o n 7-32-4119 MCA. Appellant argues t h a t t h e omission of policemen of t h i r d c l a s s c i t i e s from t h e s t a t u t e w a s a mistake and t h a t t h i s Court should c o r r e c t same. H e s t a t e s t h a t " t h e r e f o r e , it i s q u i t e evi- d e n t t h a t t h e i n s e r t i o n of f i r s t and second c l a s s c i t i e s i n t h e above a c t w a s e i t h e r a d r a f t i n g e r r o r o r i n s e r t e d simply through t h e ignorance of t h e p o s s i b l e consequences." The argument t h a t t h i s exclusion was " s c r i v e n e r ' s e r r o r " on t h e p a r t of t h e l e g i s l a t u r e and t h e r e q u e s t t h a t t h i s Court rewrite t h e s t a t u t e t o i n s e r t t h i r d class c i t i e s w i t h i n i t s provisions contain no c i t a t i o n of a u t h o r i t y t o support such an a c t i o n by t h i s Court. W e have held on numerous occasions t h a t t h i s Court cannot r e w r i t e s t a t u t e s t o omit what p a r t i e s f e e l should be omitted o r i n s e r t what p a r t i e s f e e l should be i n s e r t e d . I n a r e c e n t decision, Mont. Depart. of Rev. v. Am. Smelting & Refining (1977), Mon t . , 567 P.2d 901, 905-06, 34 St.Rep. 597, 602, t h e Court said: "The function of t h e Supreme Court when con- s t r u i n g a s t a t u t e i s simply t o a s c e r t a i n and d e c l a r e what i s i n substance s t a t e d t h e r e i n , and n o t t o i n s e r t what has been omitted o r t o omit what has been i n s e r t e d . ( C i t a t i o n s omitted. ) The fundamental r u l e of s t a t u t o r y c o n s t r u c t i o n i s t h a t t h e i n t e n t of t h e l e g i s l a t u r e c o n t r o l s . ( C i t a t i o n s omitted.) Where t h e i n t e n t of t h e l e g i s l a t u r e can be determined from t h e p l a i n meaning of t h e words used, t h e c o u r t s may n o t go f u r t h e r and apply any o t h e r means of i n t e r - p r e t a t i o n . . ." See a l s o Matter of E s t a t e of Baier (1977), Mont . I 567 P.2d 943, 34 St.Rep. 860; Myers v. 4 B ' s Restaurant, Inc. (1977), 172 Mont. 159, 561 P.2d 1331, 34 St.Rep. 187; Lester v. J. & S. Investment Company (1976), 171 Mont. 149, 557 P.2d 299, 33 St.Rep. 1104; S t a t e ex rel. Nawd's T.V. & App. Inc. v. D i s t r i c t Court (1975), 168 Mont. 456, 543 P.2d Applying t h e s e r u l e s of s t a t u t o r y c o n s t r u c t i o n sup- p o r t s t h e proposition t h a t t h e r e i s no mistake on t h e p a r t of t h e l e g i s l a t u r e . I t s p e c i f i c a l l y mentioned c i t i e s of f i r s t and second c l a s s only and f a i l e d t o mention c i t i e s of t h i r d c l a s s o r towns. W e a r e bound by t h e following r u l e of s t a t u t o r y construction: " . . . It is a r u l e of s t a t u t o r y c o n s t r u c t i o n t h a t t h e express mention of one matter excludes o t h e r s i m i l a r matters n o t mentioned. . ." Helena Valley Irr. D i s t . v. S t a t e Highway Comrn'n (1967), 150 Mont. 192, It was a l s o noted i n t h e above e n t i t l e d case t h a t t h e r e i s a presumption t h a t t h e l e g i s l a t u r e a c t s knowing f u l l w e l l t h e f a c t s e x i s t i n g a t t h e t i m e of t h e enactment of t h e l e g i s l a t i o n . " I t i s a l s o a r u l e of s t a t u t o r y construction t h a t t h e l e g i s l a t u r e acted with f u l l knowledge and informa- t i o n a s t o t h e s u b j e c t matter and e x i s t i n g conditions in- cluding t h e construction placed on previous law by t h e executive o f f i c e r s a c t i n g under it. . ." 150 Mont. a t 199, The l e g i s l a t u r e obviously was aware of t h e B i l l i n g s d e c i s i o n when it amended t h e a c t t o include policemen of f i r s t and second c l a s s c i t i e s and knew f u l l w e l l of t h e e f f e c t of t h i s act and intended s p e c i f i c a l l y t o l i m i t it t o t h e l a r g e r c i t i e s and t o exclude t h e smaller c i t i e s . Appellant argues t h a t t h e enactment of s e c t i o n 11-1832.2 repealed t h e B i l l i n g s decision. W e do n o t agree. A l l t h a t w a s done was t o provide c e r t a i n policemen with overtime compensation. The e f f e c t of t h e l e g i s l a t i o n d i d not.-aff e c t t h e s t a t u s of policemen i n t h i r d c l a s s cities, and they a r e s t i l l bound by t h e provisions of t h e B i l l i n g s decision. I t i s a l e g i s l a t i v e m a t t e r t o decide whether o r not policemen of t h i r d c l a s s cities and towns a r e t o be given overtime compensation. Appellant then r a i s e s t h e i s s u e of whether s e c t i o n 11- 1832.2 v i o l a t e s t h e r i g h t s of policemen i n t h i r d c l a s s c i t i e s by denying them overtime. This i s s u e of unconstitu- t i o n a l i t y of t h e treatment of policemen of t h i r d c l a s s c i t i e s w a s r a i s e d f o r t h e f i r s t t i m e on appeal. N o attempt was made by a p p e l l a n t t o s e r v e t h e Attorney General of t h e S t a t e of Montana. W e hold, therefore, t h a t t h e i s s u e i s n o t prop- e r l y before t h i s Court. This Court i n Johnson v. Doran (1975), 167 Mont. 501, 511, 540 P.2d 306, s t a t e d , "As t o Doran's contention t h a t s e c t i o n 66-1940(c), R.C.M. 1947, i s u n c o n s t i t u t i o n a l , t h i s i s s u e was r a i s e d f o r t h e f i r s t t i m e on appeal. This Court has c o n s i s t e n t l y r u l e d t h a t a c o n s t i t u t i o n a l i s s u e i s waived i f n o t presented a t t h e earliest opportunity. . ." See a l s o Clontz v. Clontz (1975), 166 Mont. 206, 531 P.2d 1003; Union Interchange, Inc. v. Allen (1962), 140 Mont. 227, 370 P.2d 492; Rule 38, M.R.App.Civ.P. The d e c i s i o n of t h e District Court i s affirmed. W e concur: L/ c J T A & . u s t i c e s	March 5, 1979
d71cf2e6-6611-4221-aeaa-99ab24bf803b	STATE v PERRY	N/A	14446	Montana	Montana Supreme Court	No. 14446 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THE STATE OF MONTANA, Plaintiff and Respondent, -vs- FRED PERRY, Defendant and Appellant. Appeal from: District Court of the Third Judicial District, Honorable Robert J. Boyd, Judge presiding. Counsel of Record: For Appellant: Byron Boggs argued, Anaconda, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Chris D. Tweeten, Assistant Attorney General, argued, Helena, Montana James J. Masar, County Attorney, Deer Lodge, Montana Submitted: January 30, 1979 DecidedqEF 1 F, :q79 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. Defendant was charged with one count of possession of a weapon by a prisoner and one count of aggravated a s s a u l t . H e w a s convicted of both counts following a t r i a l by jury i n Powell County 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 , t h e Honorable Robert J. Boyd, presiding. Xe appeals. This case arose o u t of a prison a l t e r c a t i o n i n which inmate Anthel Brown sustained severe i n j u r i e s . Brown and defendant had fought on a t l e a s t one occasion p r i o r t o t h e January 15, 1978, i n c i d e n t which r e s u l t e d i n t h e f i l i n g of t h e s e charges. According t o the testimony developed a t t r i a l , Brown confronted defendant when he entered t h e prison r e c r e a t i o n a r e a and showed him a sharpened f i l e . Defendant then walked t o t h e o t h e r end of t h e room and armed himself with a metal pipe. H e concealed t h e pipe i n h i s c l o t h i n g and disregarded an order from a prison o f f i c e r t h a t he s t o p t o be searched. Upon reaching Brown, he proceeded t o de- l i v e r numerous blows t o Brown's head and legs. Brown a l s o incurred s t a b wounds i n t h e c h e s t of undetermined o r i g i n . Defendant presents t h r e e i s s u e s on appeal, which can be summarized and s t a t e d a s follows: 1. Whether t h e j u r y ' s finding t h a t defendant was i n possession of a deadly weapon without lawful a u t h o r i t y i s supported by t h e evidence. 2. Whether defendant's conviction f o r t h e offense of possession of a weapon by a prisoner v i o l a t e s 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 prohibitions a g a i n s t double jeopardy. 3. Whether s e c t i o n 94-8-213, R.C.M. 1947, now s e c t i o n 45-8-318 MCA, i s unconstitutionally vague. Each of defendant's issues involves h i s conviction f o r t h e offense of possession of a weapon by a prisoner. Ad- dressing the f i r s t issue, defendant a s s e r t s t h a t the D i s - t r i c t Court erred by not granting h i s motion f o r a directed verdict made on the grounds t h a t the evidence was not s u f f i - c i e n t t o support the conviction. Defendant's argument is broken i n t o two parts. F i r s t , he a s s e r t s t h a t the metal pipe he possessed was not l i s t e d a s a deadly weapon i n section 94-8-213, R.C.M. 1947, now section 45-8-318 MCA, and was not " i n t r i n s i c a l l y a deadly weapon." Furthermore, defendant contends he needed no special authorization t o possess the pipe, and the S t a t e therefore f a i l e d t o prove t h a t he possessed the pipe "with- o u t law£ u l authority. " Section 94-8-213, R.C.M. 1 9 4 7 , now section 45-8-318 MCA, provides i n pertinent part: "Every prisoner committed t o the Montana s t a t e prison, who, while a t such s t a t e prison . . . possesses o r c a r r i e s upon h i s person o r has under h i s custody o r control without lawful authority, a d i r k , dagger, p i s t o l , revolver, slingshot, swordcane, b i l l y , knuckles made of any metal o r hard substance, knife, razor, not including a safety razor, o r other deadly wea- pon, is g u i l t y of a felony and s h a l l be punish- able by imprisonment i n the s t a t e prison f o r a t e r m not l e s s than f i v e ( 5 ) years nor more than f i f t e e n (15) years. Such term of imprisonment t o commence from the time he would have other- wise been released from said prison." (Empha- sis added.) For purposes of t h e "Criminal Code of 1973", "weapon" is defined i n section 94-2-101(65), R.C.M. 1947, now section 45-2-101 (65) MCA: "'Weapon' means any instrument, a r t i c l e , o r sub- stance which, regardless of -- its primary function, i s readily capable of being used t o produce death o r serious bodily injury." (Emphasis added.) Defendant contends t h a t a metal pipe does not f i t within t h e category of "other deadly weapon" a s it i s intended i n s e c t i o n 94-8-213, R.C.M. 1947, now s e c t i o n 45-8- 318 MCA. A review of t h e i n s t r u c t i o n s given t o t h e jury, however, reveals t h a t t h e jury w a s i n s t r u c t e d a s t o t h e meaning of t h e term " b i l l y " . I n s t r u c t i o n No. 10 read: " ' B i l l y ' means a club." W e f i n d t h a t t h e metal pipe wielded by defendant was c l e a r l y a club within t h e common under- standing of t h a t t e r m . A s a r e s u l t , w e need not reach t h e question of what may be included i n t h e phrase "other deadly weapon" a s it appears i n t h e s t a t u t e . Nor does t h e record support defendant's contention t h a t t h e S t a t e f a i l e d t o prove h i s possession of t h e pipe was without lawful authorization. I n substance, Burt S o l l e , t h e prison r e c r e a t i o n d i r e c t o r , t e s t i f i e d t h a t defendant could possess t h e t o o l s necessary t o complete a job without "spe- cial authorization" while working on t h e job. However, he d i d n o t t e s t i f y t h a t defendant had t h e a u t h o r i t y t o possess t h e m e t a l pipe under a l l circumstances. Furthermore, prison o f f i c e r Frank Knadler t e s t i f i e d t h a t defendant's possession of t h e pipe f o r purposes o t h e r than i t s use as a weight bar o r t o o l was a v i o l a t i o n of prison regulations. F i n a l l y , defendant's conduct i n hiding t h e bar under h i s c l o t h i n g and ignoring an order t o submit t o a search i n d i c a t e s t h a t he knew he w a s exceeding h i s lawful a u t h o r i t y i n possessing t h e pipe. With r e s p e c t t o h i s double jeopary claim, defendant ar- gues t h a t t h e charge of possession of a weapon by a prisoner c o n s t i t u t e d , under t h e f a c t s of t h e i n s t a n t case, an of- fense included i n t h e charge of aggravated a s s a u l t . Section 95-1711 (2) (a) , R.C.M. 1947, now s e c t i o n 46-11-502 MCA, addresses t h e double jeopardy p r i n c i p l e advanced by defendant: " ( 2 ) When t h e same t r a n s a c t i o n may e s t a b l i s h t h e commission of more than one o f f e n s e , a person charged with such conduct may be prosecuted f o r each such offense. H e may not, however, be con- v i c t e d of more than one offense i f : " (a) one o f f e n s e i s included i n t h e o t h e r ; 'I Section 95-1711 (1) (b) (i) , R.C.M. 1947, now s e c t i o n 46- 11-501(2)(a) MCA, d e f i n e s a n "included offense". It provides: " ( b ) A n o f f e n s e i s an included o f f e n s e when: " (i) it is e s t a b l i s h e d by proof of t h e same o r less than a l l t h e f a c t s required t o e s t a b l i s h t h e commission of t h e offense charged;" I t appears then t h a t two d i s t i n c t elements, n o t ele- ments of t h e o f f e n s e of aggravated a s s a u l t , must be proved by t h e S t a t e t o s u s t a i n a conviction on a charge of posses- s i o n of a weapon by a p r i s o n e r . The S t a t e must prove (1) t h a t t h e i n d i v i d u a l involved was a p r i s o n e r a t t h e t i m e t h e o f f e n s e was committed, and (2) t h a t h i s possession of t h e weapon was unauthorized. Therefore, defendant's convictions do n o t v i o l a t e p r o h i b i t i o n s a g a i n s t double jeopardy. I n t h e f i n a l i s s u e presented by defendant, he a s s e r t s t h a t s e c t i o n 94-8-213, R.C.M. 1947, now s e c t i o n 45-8-318 MCA, is an u n c o n s t i t u t i o n a l l y vague s t a t u t e and t h e r e f o r e v i o l a t i v e of due process. The r u l e i n Montana is t h a t "unless [a s t a t u t e ] i s s u f f i c i e n t l y e x p l i c i t s o t h a t a l l those s u b j e c t t o t h e p e n a l t i e s may know what t o avoid, it v i o l a t e s t h e e s s e n t i a l s of due process." S t a t e ex r e l . G r i f f i n v. Greene (1937), 104 Mont. 460, 467, 67 P.2d 995, 999. Section 94-8-213, now s e c t i o n 45-8-318 MCA, provides, among o t h e r things, t h a t unauthorized possession by a prisoner of a c l u b i s a punishable offense. A reasonable person would know possession of such an object is an offense only if it is possession without authorization. The conviction is affirmed. We Concur: Q. Justices i	February 15, 1979
ec98ef8f-4ae8-48bf-9418-8674a4ca87f1	TRUCK INS EXCHANGE v TRANSPORT IN	N/A	14267	Montana	Montana Supreme Court	No. 14267 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 TRUCK INSURANCE EXCHANGE, a reciprocal or inter-insurance exchange, Plaintiff and Appellant, TRANSPORT INDEMNITY COMPANY, a corporation, Defendant and Respondent. Appeal from: District Court of the Third Judicial District, Honorable Robert J. Boyd, Judge presiding. Counsel of Record: For Appellant: Worden, Thane and Haines, Missoula, Montana Ronald Bender argued, Missoula, Montana For Respondent : Gough, Shanahan, Johnson and Waterman, Helena, Montana Daniel Murphy argued, Helena, Montana Filed: Ff-F. 2 ; jFG Submitted: December 19, 1978 Decided : FEB 2 1 1979 erk M r . Chief Justice Frank I. Haswell delivered the opinion of the Court. Plaintiff appeals from an amended judgment of the powell County District Court granting summary judgment in favor of de- fendant on the question of liability for insurance coverage and rights of indemnification. This is a controversy between two insurance companies as to which is obliged to provide coverage and defend against prop- erty damages and personal injuries arising out of an accident that occurred on January 24, 1976, on the Racetrack overpass near Galen, Montana. That accident involved a semitractor and trailer and a passenger car. The tractor on the semi belonged to Forest Products International, Inc. (FPI, an Oregon based contract hauler, and was being driven by one Michael Wirkkala, an employee and major stockholder of FPI. The trailer on the rig belonged to International Transport, Inc. (ITI), a Minnesota corporation which is an authorized carrier licensed by the Inter- state Commerce Commission (I.C.C.). At the time of the accident, appellant Truck Insurance Exchange had an insurance policy in effect with FPI and with Michael Wirkkala individually, and respondent Transport Indem- nity Co. had a policy in effect covering ITI. The dispute arises over conflicting provisions in the two policies as affected by certain I.C.C. regulations and the terms of a "haulers contract" entered into between FPI and ITI. On January 23, 1976, FPI and IT1 executed a "Single Trip or Exempt Haulers Contract" whereby IT1 (the carrier) retained the services of FPI (the hauler, Michael Wirkkala owner-operator) to transport an ITI-owned trailer from Oregon to Minnesota. ITI, as a licensed carrier, is subject to regulations promulgated by the I . C . C . FPI, as a hauler only and not a certified carrier, does not have to meet the same I.C.C. requirements. Among the terms of the hauler's contract were numerous provisions which the I.C.C. requires licensed carriers to include in such agreements. One of those provisions appears in the con- tract as paragraph 6 and reads: "During the existence of this contract, the Carrier [ITI] assumes liability for bodily injuries to or the death of any person (except the Hauler, or the employees, agents or servants of the Hauler) or for the loss or damages to the property of others (except the Hauler, or the employees, agents or servants of the Hauler) resulting from the negli- gent operation, maintenance or use of the vehicles described in appendix A hereof . . ." Both the tractor owned by FPI and Michael Wirkkala, and the trailer owned by IT1 were described in appendix A of the contract. An insurance company that enters into a policy of insur- ance with a licensed carrier is required by federal statute and regulation to file with the I.C.C. a certificate of insurance con- ditioned to pay up to specified limits any claims against its insured carrier arising out of negligent operation of motor ve- hicles under the carrier's operating permit. Respondent Transport Indemnity Co., ITI's insurer, had filed such a certificate of coverage for IT1 here. As a result of the accident on January 24, 1976, various parties have filed personal injury and property damage suits naming FPI and IT1 as defendants. On April 20, 1977, appellant Truck Insurance Exchange (FPI's insurer) filed a declaratory judg- ment action in Powell County District Court seeking a declaration that respondent Transport Indemnity Company (ITI's insurer) was obligated to FPI by reason of the assumption of liability clause in the hauler's contract to provide coverage for and defend against any claims asserted against FPI. On June 8, 1977, respondent Transport Indemnity Co. (ITI's insurer) filed an answer denying responsibility for providing coverage for or assuming the defense of the damages arising out of the accident and counterclaiming that all said damages were a consequence of the negligence of FPI and that therefore appel- lant Truck Insurance Exchange, as FPI'S insurer, was respon- sible for them. The counterclaim cited several provisions from the insurance policy issued to FPI by Truck Insurance ~xchange to support that conclusion. The cited provisions included the coverage clauses whereby Truck Insurance Exchange bound itself to pay all damages FPI became legally obligated for because of bodily injury or property damage arising out of the ownership, maintenance, or use of the vehicle to which the insurance applied, and the clause giving Truck Insurance Exchange the right and duty to defend any suit against FPI on account of such bodily injury or property damage. The counterclaim also cited language from the Truck Insurance Exchange policy issued to FPI that the insurance afforded by it was primary insurance, and contrasted that to language in the Transport Indemnity Co. policy issued to IT1 that if at the time of an occm-mce to which the Transport Indemnity Co. insurance applied there was in effect any other valid and collectible insurance applicable to the same occurrence, then counterclaimant Transport Indemnity's insurance was excess insurance only. As originally framed, the counterclaim included an alle- gation that certain language in the insurance policy issued to FPI by Truck Insurance Exchange also extended coverage to ITI, Transport Indemnity Cots named insured, and that therefore the policy issued to IT1 by Transport Indemnity Co. was only excess insurance giving use to no primary duty or liability on the part of Transport Indemnity Co. On appeal, the claim that IT1 is an included insured is abandoned and it is apparently conceded that IT1 is not covered by the Truck Insurance Exchange policy because of a specific exclusion therein. (The effect of the excess cover- age clause on the issue of which insurer is liable for primary coverage, however, is still contested.) The significant underlying theory of the counterclaim for purposes of this appeal is that ultimate responsibility for the accident lay in the negligence of Michael Wirkkala; that the Truck Insurance Exchange policy is the only policy specifi- cally extending coverage to him; and that therefore Truck In- surance Exchange is obligated to defend IT1 against any claims asserted against it from the accident and indemnify Transport Indemnity Co. for any settlements or other liabilities paid on behalf of IT1 by Transport Indemnity Co. under its policy with Truck Insurance Exchange filed its reply to the counter- claim on July 14, 1977, admitting that the language cited in the counterclaim was included in the policy issued to FPI by Truck Insurance Exchange but alleging that other language in the policy precluded the conclusion that Truck Insurance Exchange was liable for primary coverage. The reply did not specify what other lang- uage Truck Insurance Exchange relied on. Subsequent to the filing of the original pleadings, an error in the naming of the plaintiff became apparent and amended pleadings were filed. The amended pleadings are substantially identical to the originals except for the change in name. After a period of discovery, both sides moved for summary judgment and submitted briefs in support of their motions. The brief of Truck Insurance Exchange specified the language from the policy issued by Transport Indemnity Co. on which Truck Insurance Exchange based its allegation that the Transport Indemnity Co. policy should be liable for coverage. The language cited empha- sizes that an "insured" under the Transport Indemnity Co. policy includes the named insured and "any other person, firm or organ- ization to whom insurance protection has been extended under the policy or made so by any provision of law". Language from each of the coverage clauses to the effect that Transport Indemnity Co. will pay all sums for which "the insured shall become legally obligated, by contract or otherwise . . . arising out of the occupation of the named insured" was also emphasized. By tying this language to the previously mentioned assumption of liabilities clause in the hauler's contract and the federal statutes under which the I.C.C. had issued the regulations requiring such clauses, the Truck Insurance Exchange brief con- cluded that coverage under the Transport Indemnity Co. policy insuring ITI, an I.C.C. regulated carrier, was extended thereby to the damages at issue by operation of law and by contract with- in the meaning of the policy. On January 19, 1978, the District Court entered an order granting summary judgment to Transport Indemnity Co., insurer of ITI, the licensed carrier. The court based its decision on the United States Supreme Court case of Transamerican Freight Lines, Inc. v . Brada Miller Freight Systems, Inc. (1975), 423 U.S. 28, 96 S.Ct. 229, 46 L Ed 2d 169, which held under circumstances similar to those here that the party responsible in law (here, under the I.C.C. regulations, ITI, insured by Transport Indem- nity Co.) may seek indemnity from the party responsible in fact (here, FPI and Michael Wirkkala, insured by Truck Insurance Ex- change) . A petition for rehearing was subsequently filed by Truck Insurance Exchange, alleging that the case relied on was dis- tinguishable and that under the provisions of the policies and all the circumstances present here Michael Wirkkala was an in- cluded insured under the Transport Indemnity Co. policy against whom Transport Indemnity had no claims for the reason that there is no subrogation or indemnification by an insurer against its own insured. The petition for rehearing was denied, and judg- ment was entered for Transport Indemnity Co. on February 9, 1978. The judgment ordered that Truck Insurance Exchange "is obligated by its policy to defend and indemnify IT1 for any settlements, judgments, attorney fees and expenses incurred in connection with the civil actions instituted as a result of the accident of January 24, 1976." An amended judgment filed February 27, 1978, corrected the judgment to reflect that Truck Insurance Exchange's liability was only to the extent of its policy limits. From that amended judgment, Truck Insurance Exchange has brought this appeal. The issues we find controlling, together with the deter- minative arguments and authorities, are as follows: Issue I. Did the District Court err in relying on Trans- american Freight Lines Inc. v . Brada Miller Freight Systems, Inc. (1975), 423 U.S. 28, 96 S.Ct. 229, 46 L Ed 2d 169, as authority for its order of summary judgment on the circumstances present here? We conclude that it did. While the Brada decision involved the same federal statutes and regulations as here with respect to motor carriers' use under leases of motor vehicles not owned by them, 49 U.S.C. §304(e), 49 C.F.R. §1057.4(a)(4), a close reading of the case indicates it is not controlling. It is true that in Brada the court said: "Although one party is required by law to have control and respon- sibility for conditions of the vehicle, and to bear the conse- quences of any negligence", (referring to I.C.C. licensed carriers, and the duties imposed on them by the federal statutes and regula- tions), "the party responsible in law to the injured or damaged person may seek indemnity from the party responsible in fact." Brada, 423 U.S. at 40, 96 S.Ct. at 235, 46 L Ed 2d at 179. How- ever, distinguishing facts and other language in the opinion limiting its scope do not permit the broad conclusion Brada was cited for here that any I.C.C. carrier can ignore its statutory assumption of liability and seek indemnity from the negligent party anytime. In Brada both parties were authorized carriers. Trans- american apparently had more business than its equipment could handle, while Brada had some spare equipment. Transamerican therefore leased a rig from Brada, to be operated by a Brada driver but over Transamerican's roubes and under Transamerican's operating authority. The lease, as required by the I.C.C. regu- lations, recited that Transamerican, the certified carrier, had responsibility for the operation of the equipment "in respect to the public, shippers, and I.C.C." In addition, the lease con- tained a separate paragraph in which Brada, the lessor, specifi- cally agreed to indemnify Transamerican for any claims or losses arising out of negligent operation of the vehicle by the Brada driver. The narrow question before the Court was whether the in- demnification agreement was void and ineffective as contrary to the public policy behind the I.C.C. regulations (that licensed carriers would be responsible in fact, as well as in law, for the actions of borrowed drivers). The Court pointed out that: "The regulations do not expressly prohibit an indemnification agree- ment between the lessor and the lessee. In fact they neither sanction nor forbid it." Brada, 423 U.S. at 39-40, 96 S.Ct. at 235, 46 L Ed 2d at 178. The Court concluded: "We hold only that the presence in an equipment lease of an indemnification clause directed to the lessor's negligence is not in conflict with the safety concerns of the Commission or with the regulations it has promulgated." Brada, 423 U.S. at 41, 96 S.Ct. at 236, 46 L Ed 2d at 179. Thus, reliance on Brada as authority here was inappropriate. Here, there was no specific undertaking in the lease by the lessor to indemnify the lessee authorized carrier. To cite Brada as blanket authority for indemnification in the absence of such a specific agreement is to circumvent the I.C.C. regulations placing primary responsibility on the carrier. Issue 11. Does the Transport Indemnity Co. policy in- clude Michael Wirkkala as an insured so that no rights of in- demnity or subrogation can arise in favor of Transport Indem- nity Co.? We hold that it does. There is no right of subrogation in favor of an insur- ance company against its own insured. Home Insurance Co. v. Pinski Brothers, Inc. (1972), 160 Mont. 219, 500 P.2d 945. This is true both as to the named insured and as to any party to whom coverage is extended under the terms of the policy; an additional insured is entitled to the same protection as the named insured. Cf. American Surety Company of N.Y. v . Canal Ins. Co. (4th Cir. 1958), 258 F.2d 934. Respondent Transport Indemnity Co.'s brief concedes that the terms of the additional insured endorsement in the policy it issued to IT1 extend coverage to FPI. Respondent is adamant, however, that the endorsement does not extend coverage to Michael Wirkkala. Therefore, respondent argues, Transport Indemnity Co. is not barred from indemnification by Wirkkala by the rule that an insurer cannot seek indemnity from its own insured. Respondent's argument that the endorsement does not ex- tend coverage to Wirkkala is based on an erroneous premise. The pertinent language in the endorsement is: "It is hereby understood and agreed that the insurance . . . is extended to any person or organization (hereinafter called CONTRACTOR) as an additional INSURED but only with res- pect to the ownership, operation, maintenance or use of AUTOMOBILES whether owned or non- owned by CONTRACTOR which are contracted to the NAMED INSURED under a written supplemental lease or contract subject to all terms and conditions of the policy to which this endorsement is attached . . .." Transport Indemnity Co. argues that by this endorsement the cover- age of their policy is extended only to persons or organizations who contract with the named insured (ITI) for the lease of motor vehicles. Thus, respondent argues, since the lease contract was only between IT1 and FPI and not between IT1 and Wirkkala, coverage is not extended to Wirkkala. This conclusion improperly construes the language of the endorsement. The endorsement does not refer to "persons or organizations contracting with the named insured" (as Transport Indemnity argues). Rather, it refers to "automobiles . . . con- tracted to the named insured" (Emphasis added.), and extends coverage to "any person or organization . . . with respect to the ownership, operation, maintenance or use" of the contracted automobiles. The proper interpretation of that language clearly extends coverage to both FPI and Wirkkala regardless of whose name appears on the contract leasing the vehicle to ITI. This conclusion is buttressed by the fact that Transport Indemnity Co.'s interpretation of the endorsement would render it substan- tially meaningless in that FPI, the contracting party, could never itself "operate, maintain, or use" the vehicle, but could do so only through its agents or employees who would never ordi- narily be direct parties to the contract. We conclude, there- fore, that the Transport Indemnity Co. policy does run to Michael Wirkkala by its own terms under the additional insured endorse- ment and that respondent is barred from seeking indemnification from him. Issue 111. Do federal statutes and regulations automati- cally impose responsibility for primary coverage on the insurer of the I.C.C. carrier as a matter of law? We find that they do not. 49 U.S.C. S315 and 49 C.R.F. §1043.l(a) provide that no I.C.C. certificate or permit shall be issued to a motor carrier unless it has filed with the I.C.C. proof that the carrier is insured against any liabilities arising out of operations under its certificate or permit. In this case, Transport Indemnity Co., ITI's insurer, filed with the I . C . C . and attached to the policy issued to IT1 the following certificate of endorsement (in pertinent part) : "In consideration of the premium stated in the policy to which this endorsement is attached, the Company hereby agrees to pay, within the limits of liability hereinafter provided, any final judgment recovered against the insured for bodily injury to or death of any person, or loss of or damage to property of others . . . result- ing from negligence in the operation, maintenance, or use of motor vehicles under certificate of pub- lic convenience and necessity or permit issued to the insured by the Interstate Commerce Commission . . . "Within the limits of liability . . . it is further understood and agreed that no condition, provision, stipulation, or limitation contained in the policy . . . shall relieve the Company from liability here- under . . .." Truck Insurance Exchange has taken the position throughout this case that because Transport Indemnity Co. filed the above quoted endorsement, as required by the federal statutes and regulations, it is liable for primary coverage as a matter of law. Transport Indemnity Co. counters that the federal statutes and regulations are not determinative and do not absolve Truck Insurance Exchange of the contractual responsibility to provide primary coverage for FPI and Michael Wirkkala under the policy it issued to them. There is a plethora of case law involving disputes be- tween insurers (on facts similar to those involved here) as to what effect the I.C.C. regulations have on coverage and rights of subrogation and indemnity. The authority is mainly from federal court decisions. Many cases stand for the proposition that the I.C.C. encorsement does impose primary liability as a matter of law on the insurer of the licensed carrier under whose permit a vehicle is in use at the time of an accident. Cf. Argonaut Insurance Co. v . National Indemnity Co. (10th Cir. 1971), 435 F.2d 718; Hagans v. Glen Falls Insurance Co. (10th Cir. 1972), 465 F.2d 1249; Ryder Truck Lines v. Carolina Cas. Ins. Co. (Ind-App. 1978), 372 N.E.2d 504; Allstate Insurance Co. v. Federal Insurance Co. Conversely, there are also numerous cases that reject the notion that the I.C.C. regulations are determinative. Cf. Allstate Insurance Co. v . Liberty Mutual Insurance Co. (3rd Cir. 1966), 368 F.2d 121; Wellman v. Liberty Mutual Insurance Company (8th Cir. 1974), 496 F.2d 131; Vance Trucking Company v. Canal Insurance Company (D.S.C. 1966) 249 F.Supp. 33, aff'd (4th Cir. 1968), 395 F.2d 391, Cert. denied, 393 U . S . 845, 89 S.Ct. 129, 21 L Ed 2d 116 (holding that I.C.C. regulations are not designed to excuse a party from liability he might otherwise have). The most recent decision in the area, and one of the best reasoned, is also one that closely parallels many of the facts present here. Carolina Cas. Ins. Co. v. Underwriters Ins. Co. (5th Cir. 1978), 569 F.2d 304. In Carolina Cas. the court held: " . . . the endorsement does not make (the insurer of the licensed carrier) the primary insurer as a matter of law . . . I.C.C. policy factors are frequently determinative where protection of a member of the public or a shipper is at stake, but those factors cannot be invoked by another insur- ance company which has contracted to insure a specific risk and which needs no equivalent protec- tion." 569 F.2d at 313. We find that reasoning persuasive and adopt it as controlling. Issue IV. Should one of the insurers here be responsible for primary coverage and the other for excess or should coverage be prorated between them? We conclude that coverage should be prorated. To this point, two things have been determined: (a) Michael Wirkkala is insured under both policies involved here (as an additional insured under the additional in- sured endorsement in the Transport Indemnity Co. policy, and as a named insured under the Truck Insurance Exchange policy). Thus, Transport Indemnity Co. is not entitled to indemnification from Michael Wirkkala and cannot shift primary liability to Truck Insurance Exchange on that ground. (b) There is a fairly even split of authority on whether I.C.C. regulations automatically impose primary coverage on the insurer of the certified carrier as a matter of law. The line of reasoning we find persuasive holds that they do not. Thus, Truck Insurance Exchange cannot shift primary liability to Trans- port Indemnity Co. on that ground. The upshot is that both insurance companies have legiti- mate arguments that the other should be primarily responsible. Truck Insurance Exchange argues that by reason of the terms of the lease contract between IT1 and FPI, where in para- graph 6 IT1 assumes liability for negligent operation of the vehicles, Truck Indemnity Co. as ITI's insurer is absolutely liable for primary coverage. Truck Indemnity Co. replies that it is not a party to and therefore not bound by the terms of that contract. "It is well settled that disputes of this sort hinge principally on the express terms of the policy and an insurer's contractual obligations cannot ordinarily be altered by collater- al agreements between its insured and third persons." Carolina Cas., 569 F.2d 313. - The express terms of the Transport Indemnity Co. policy state that if at the time of an occurrence to which the insurance applies there is in effect other insurance applicable to the same occurrence, then Transport Indemnity's policy provides excess coverage only. The express terms of the Truck Insurance Exchange policy, on the other hand, state that where other insurance is applicable, the amount of Truck Insurance Exchange's liability shall not be reduced by the existence of such other insurance. Thus, Truck Insurance Exchange provides primary coverage. "However, it is equally well settled that a court can look to outside sources--such as lease agreements and I.C.C. regulations--to define the status of persons who are covered by the insurance contract." Carolina Cas., 569 ~ . 2 d at 314. In addition to the assumption of liability by Transport Indem- nity's insured in the hauler's contract, the I.C.C. endorsement attached to the Transport Indemnity Co. policy specifies that "no condition, provision, stipulation or limitation contained in the policy shall relieve the Company from liability hereunder." Thus, the excess coverage clause, at least up to the limits of liability specified in the I.C.C. endorsement, is negated and ineffective to relieve Transport Indemnity Co. from primary coverage. Taking into consideration all of the above factors, we conclude that both insurers have obligated themselves to provide primary coverage. Coverage should be prorated between them in accordance with the limits of liability applicable in each policy. In conclusion, we note that although Truck Insurance Ex- change itself moved for summary in the District Court, on appeal it argues that summary judgment is improper because genuine issues of fact exist as to Michael Wirkkala's negligence. Transport Indemnity Co. replies that Truck Insurance Exchange proceeded in the District Court as if no genuine issues of fact were present and cannot now be heard to argue that summary judgment is precluded. Having determined that neither party is entitled to summary judg- ment against the other because both provide primary coverage, we have rendered this issue moot. The order of the District Court granting summary judgment in favor of Transport Indemnity Co. is vacated. The cause is remanded with instructions to enter a declaratory judgment: (a) That Transport Indemnity Co. provides primary coverage to ITI, FPI, and ~ichael Wirkkala and Truck Insurance Exchange provides primary coverage to FPI and Michael Wirkkala; (b) That if Michael Wirkkala was the negligent party, then coverage for any settlements or judgments should be pro- rated between Truck Insurance Exchange and Transport Indemnity Co. based upon the applicable policy limits in each policy; (c) That if the insurers contest the negligence of their insureds, then the contestant or contestants are obligated to defend their insureds against the claims pending in the District Court, each insurer to be responsible for its own attor- ney fees and costs and any judgments returned against its insureds. Reversed and remanded. Chief Justice We concur?	February 21, 1979
36b0d434-74c5-480b-a246-dfaf7290b420	LUCIANO v REN	N/A	14356	Montana	Montana Supreme Court	No. 14356 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 ALFRED A. LUCIANO, Plaintiff and Appellant, MICHAEL REN and THE STATE OF MONTANA, Defendants and Respondents. Appeal from: District Court of the Nineteenth Judicial District, Honorable Robert Sykes, Judge presiding. Counsel of Record: For Appellant: Moses, Tolliver and Wright, Billings, Montana K. D. Tolliver argued, Billings, Montana For Respondents: Garlington, Lohn and Robinson, Missoula, Montana Gary Graham argued and Gary Churnrau argued, Missoula, Montana Submitted: December 19, 1978 Decided: JAN 2 4 1973 Filed: JK/Q 2 d qrn ) '. Mr. Justice John C. Sheehy delivered the Opinion of the Court. Plaintiff, Alfred A. Luciano, 111, instituted a civil action against Michael Ren and the State of Montana, in Lincoln County District Court alleging wrongful assault and battery. On September 26, 1974, at approximately 11:OO p.m., Michael Ren, a highway patrolman for the State of Montana, received a request from the U.S. Forest Service and the Lincoln County Sheriff's Department to assist in an arson investigation in the Glen Lake area near Eureka. A series of fires had been started in the vicinity, the most recent occurring at 3:00 a.m., September 26, approximately twenty hours before Ren came upon the scene. With fellow investigators, Ren walked up a dirt road . that ended at the top of a hill. The road had been swept by plows earlier in the day, but tire tracks from a four-wheel drive vehicle were discovered. The tracks were similar to plaster casts of tracks that had been obtained three days earlier. The tracks went to the top of the hill, but there was no sign the vehicle had exited via the dirt road. It was decided that the vehicle probably entered the forested area at the end of the road and disappeared. Ren had started walking down the hill, using his flashlight to illuminate the way, when he noticed a pickup truck coming up the road. He assumed it belonged to the Forest Service. Ren was certain that it was not the vehicle that had been on the road previously. Shortly thereafter, Ren noticed Alfred Luciano, the plaintiff, walking towards him. Ren recognized Luciano because earlier that day Ren had issued a speeding ticket to him. Ren did not view Luciano as a suspect in the arson investi- gation. The two men walked together. Luciano put his arm on Ren's shoulder and stated that he knew who the arsonist was and would tell Ren if he would tear up the speeding ticket. Ren -2- promptly informed Luciano that no deal would be made on the ticket. As they approached the pickup, Ren told Luciano that if he had information regarding the fires, he must give it to the rangers and deputy sheriff. The men parted and Luciano walked down the right side of the pickup. Ren, thinking Luciano was going to leave, said, "You're not going anywhere." and grabbed his arm. Luciano pulled away, swinging his right arm at Ren, and Ren hit Luciano on the head with his flashlight. The flashlight was sixteen inches long and weighed approximately five pounds. Luciano testified at trial, that he was not attempting to strike Ren, but that he had been pulled off balance by Ren and was spinning around. Ren admitted that he was not sure Luciano was striking a blow at him and that he was not acting in self-defense; rather, he was reacting to Luciano's swinging arm. Ren placed Luciano in a hammerlock hold and forced him against the hood of the pickup. Luciano wrestled loose, swung around, and Ren hit him on the head again with the flashlight. About this time, a sheriff's deputy, Eugene Mustard, approached and the two officers handcuffed Luciano and put him in the patrol car. Luciano managed to get out of the car, and Ren hit him in the solar plexus with the butt of the flashlight and pushed him back into the car, where he remained until arriving at the Eureka jail. Luciano was charged with and convicted of disorderly conduct. On October 22, 1975, Luciano instituted this civil action seeking compensation from Michael Ren and the State of Montana for damages caused by wrongful assault and battery. The case was tried before a jury in District Court, Lincoln County, Montana. At the close of evidence, Luciano's counsel moved for a directed verdict, contending that Ren had no privilege, as a matter of law, to strike -3- Luciano. The District Court denied the motion finding that the officer's privilege, under these circumstances, was a question of fact for the jury to decide. The case went to the jury and a unanimous verdict was returned in defendants' favor. On appeal, Luciano raises two issues: 1. Was Ren's use of force privileged under Montana's "stop and frisk" statute, section 95-719, R.C.M. 1947? 2 . Did the District Court improperly refuse to admit evidence of Rents prior assaults and altercations? k peace officer is given a privilege, by statute, to use all necessary and reasonable force in making an arrest. Section 95-602, R.C.M. 1947. The privilege extends to the use of force necessary to prevent the escape of the arrested person. Section 94-3-106, R.C.M. 1947. However, the right to make an arrest is vested in the officer by law and an arrest without lawful authority violates the right of the citizen to the "enjoyment of his personal liberty free from aggression by anyone." State v . Bradshaw (1916), 53 Mcnt. In 1973, section 95-719, R.C.M. 1947, was enacted. It provides : "Stop and frisk. (1) A peace officer may stop any person he observes in circumstances that give him reasonable cause to suspect that the person has committed, is committing, or is about to commit an offense involving the use or attempted use of force against a person or theft, damage, or destruction of property if the stop is reasonably necessary to obtain or verify an acccunt of the person's presence or conduct or to determine whether to arrest the person. "(2) A peace officer may stop any person he finds near the scene of an offense that he has reasonable cause to suspect has just been committed if: "(a) he has reasonable cause to suspect that the person has knowledge of material aid to the investigation of the offense; or "(I;) the stop is reasonably necessary to obtain or verify the person's identity or an account of the offense. " (3) A peace officer may stcp any person in connection with an offense that he has probable cause to believe has been committed if: "(a) the offense is a felony involving the use or the attempted use of force against a person or theft, damage, or destruction of property; " (b) he has reasonable cause to suspect the person committed the felony; and " (c) (i) the stop is reasonably necessary to obtain or verify the person's identity to determine whether to arrest the person for the felony; or "(ii) the peace officer has reasonable cause to suspect that the person was present at the scene of the offense and the stop is reasonably necessary to obtain or verify the person's identity. " ( 4 ) A peace officer who has lawfully stopped a person under this section may: "(a) frisk the person and take other reasonably necessary steps for protection if he has reasonable cause to suspect that the person is armed and presently dangerous to him or another person present; and "(b) take possession of any object that he discovers during the course of the frisk if he has probable cause to believe the object is a deadly weapon. " ( 5 ) A peace officer who has lawfully stopped a person under this section may demand of the person his name and his present or last address. "(6) A peace officer who has lawfully stcpped a person under this section shall inform the person, as promptly as possible under the cir- cumstances and in any case before questioning the person, that he is a peace officer, that the stop is not an arrest but rather a temporary detention for an investigation, and that upon completion of the investigation the person will be released unless he is arrested. "(7) After the authorized purpose of the stop has been accomplished or 30 minutes have elapsed, whichever occurs first, the peace officer shall allow the person to go unless he has arrested the person." Section 95-719 does not specifically grant peace officers a statutory privilege to use necessary and reasonable force as the arrest statutes do. However, as a general proposition of law, peace officers are expected to use such force as is necessary to perform their regular duties. Miller, Criminal Law 864 (b) , p. 191. - "One who is interfered with in the discharge of a duty, . . . may, when force is required, use such force as is reasonably necessary to enable him to carry out his lawful purpose . . . Hence a public officer acting under authority of law and without malice is not liable for assault and battery provided he uses no more force than is reasonably necessary under the circumstance to properly perform his official duties." 6A C.J.S. Assault and Battery 826. Whether the force used in a particular case is reasonable is a question of fact for the jury to decide. As stated in Mead v. O'Connor (1959), 66 N.M. 170, 344 P.2d 478: "Officers, within reasonable limits, are the judges of the force necessary to enable them to make arrests or to preserve the peace. When acting in good faith, the courts will afford them the utmost protection, and they will recognize the fact that emergencies arise when the officer cannot be expected to exercise that cool and deliberate judgment which courts and juries exercise afterwards upon investigations in court. However, it devolves upon the jury, under the evidence in the case and proper instructions of the court, to resolve these questions." It should be noted that section 95-719 does specifically refer to the officer's right to frisk the detained person and take other reasonably necessary steps for protection if he has reasonable cause to suspect that the person is armed and presently dangerous. The United States Supreme Court discussed the necessity for this privilege in the landmark "stop and frisk" case, Terry v. Ohio (1967), 392 U.S. 1, 23, "Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives. "In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Ren and the State of Montana contend the use of force was privileged in this case because Ren was attempting to stop and frisk Luciano as allowed by section 95-719(2) (a). Section 95-719(2)(a), allows a peace officer to stop any person he finds near the scene of an offense that he has reasonable cause to suspect has just been committed, if he has reasonable cause to suspect that the person has knowledge of material aid to the investigation of the offense. Luciano told Ren he knew who started the fires and Luciano was at the scene of the fires, but the crime had not just been committed. It had been committed approximately twenty hours earlier. We must assume the Legislature had a legitimate reason for including the above mentioned requirement in the statute. State ex rel. Irvin, Inc. v. Anderson (1974), 164 Mont. 513, 525 P.2d 564. We cannot assume the Legislature intended to allow peace officers to stop and frisk any person they believe has useful information that is at the scene of an offense nearly a full day after the offense was committed. A stop and frisk "is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly". Terry v. Ohio, 392 U.S. at 17. "No right is held more -- sacred, or is more carefully guarded, by common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. R . Co. v. Botsford (1891), 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.E. 734. ". . . [Ilt is not the province of the sheriff, con- stable, or other officer to exert more force upon a citizen than is necessary for the carrying out of his duties, and discharging the functions of his office." Anderson, A - Treatise on the Law of Sheriffs, Coroners, and Constables ---- (1941), 5294, p. 294-295. "A public officer has no right because he is such to use violence toward a citizen, even when in the discharge of his duty, except when the character of the duty requires it, and even then he must go no further than the circumstances demand." Rand v. Butte Electric Ry. Co. et al. (1910), 40 Mont. 398, 407, 107 P. 87. We find that Michael Ren was not performing a duty of his office when he used force to stop Alfred Luciano on the night of September 26, 1974. Therefore the use of force was unprivileged and counsel's motion for a directed verdict should have been granted. Having so decided, we need not consider plaintiff's second issue. Reversed and remanded for a determination of plaintiff's damages. ----- ----------------- ---- We Concur: y S f c e "Y ----------- Zw&-P_&e&	January 24, 1979
f95475dd-76f4-4bd0-89a9-9e8f4c268bbc	STATE v RYAN	N/A	14224	Montana	Montana Supreme Court	No. 14224 IN THE SUPREME COURT OF THE STATE OF MONTAN 1978 THE STATE OF MONTANA, Plaintiff and Appellant, -vs- ELWOOD WILLIAM RYAN, Defendant and Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presiding. Counsel of Record: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana James D. Walen, argued, Deputy County Attorney, Billings, Montana For Respondent: Berger, Anderson, Sinclair and Murphy, Billings, Montana Chris J. Nelson argued, Billings, Montana Submitted: December 11, 1978 Decided: JAN 1 6 ;$73 M r . J u s t i c e Gene B. Daly delivered t h e Opinion of the Court. his appeal i s brought by the S t a t e of Montana from an order of the D i s t r i c t Court, Thirteenth J u d i c i a l D i s t r i c t , suppressing c e r t a i n statements made by defendant Elwood Ryan during the execution of a search warrant a t h i s home. The appeal i s authorized by section 95-2403(2) ( f ) , R.C.M. 1947, which permits t h e S t a t e t o appeal from any court order i n a criminal case which r e s u l t s i n the suppression of a confes- sion o r admission. A t approximately 1 0 : O O a.m. on September 22, 1977, two detectives from the Yellowstone County s h e r i f f ' s o f f i c e and two s h e r i f f ' s o f f i c e r s from Garfield County arrived a t defendant's home i n Jordan, Montana. The detectives were i n p l a i n clothes and drove an unmarked car while the Garfield County o f f i c e r s were i n uniform and drove a s h e r i f f ' s vehicle. When the o f f i c e r s arrived, defendant and h i s stepson were outside the house working on a vehicle parked i n the yard. Detective E l l i s presented defendant with a search warrant authorizing the o f f i c e r s t o search h i s home f o r various firearms which defendant had e a r l i e r reported stolen and f o r which he had received insurance compensation. Upon reading a copy of the warrant defendant reportedly t o l d the o f f i c e r s , "Well, you guys have g o t m e anyway. I w i l l j u s t show you where the guns a r e a t . " ~t the time the statement was made defendant had not been given a Miranda warning. Inside the house defendant requested t h e o f f i c e r s t o wait while h i s wife got out of bed and dressed. When she had done so, he escorted them i n t o h i s bedroom where he pointed t o the c l o s e t saying "the guns a r e i n there." A t t h i s point the o f f i c e r s had been a t defendant's home approximately ten minutes and s t i l l had not informed defendant of h i s r i g h t t o remain s i l e n t o r t o consult with an attorney. When the o f f i c e r s began checking the s e r i a l numbers on t h e various weapons they found i n t h e c l o s e t , defendant t o l d them t h a t there was no sense i n writing them down because he had a l t e r e d them a f t e r turning i n the burglary report. I t was only a f t e r t h i s statement by defendant t h a t t h e o f f i c e r s placed defendant under arrest and informed him of h i s r i g h t s . A t t h e suppression hearing held February 17, 1978, t h e D i s t r i c t Court held t h a t a l l the statements made by defendant p r i o r t o h i s a r r e s t were inadmissible f o r f a i l u r e t o give the Miranda warning. The s o l e issue on t h i s appeal is whether the statements made by defendant p r i o r t o h i s a r r e s t were the product of custodial interrogation and therefore inadmissible f o r lack of a Miranda warning, The S t a t e argues t h a t defendant's statements before a r r e s t were completely voluntary and t h a t u n t i l t h e t i m e of h i s a r r e s t , defendant had not been deprived of h i s freedom i n any s i g n i f i c a n t way. The S t a t e f u r t h e r argues t h a t the o f f i c e r s had not i n i t i a t e d any s o r t of interrogation o r focused t h e i r investigation on defendant. Under these circumstances, it contends, the Miranda requirement is not applicable. Defendant argues t h e D i s t r i c t Court's suppression order should be affirmed because the presence of four armed o f f i c e r s with a search warrant deprived him of h i s freedom i n a s i g n i f i c a n t way and t h a t he should have been informed of h i s r i g h t s t o remain s i l e n t p r i o r t o making any s t a t e - ments. I n Escobedo v. I l l i n o i s (1964), 378 U.S. 478, 490-91, 1 2 L Ed 2d 977, 986, 84 S.Ct. 1758, 1765, t h e United S t a t e s Supreme Court held t h a t where t h e i n v e s t i g a t i o n of a crime has begun t o focus on a p a r t i c u l a r suspect, t h e suspect is i n custody, t h e p o l i c e i n t e r r o g a t e t h e suspect thereby e l i c i t i n g incriminating statements , t h e suspect has re- quested and been denied an opportunity t o c o n s u l t with counsel, and t h e p o l i c e have n o t e f f e c t i v e l y warned t h e suspect of h i s r i g h t t o remain s i l e n t , t h e suspect has then been denied h i s S i x t h Amendment r i g h t t o " t h e a s s i s t a n c e of counsel" and t h e r e f o r e "no statement e l i c i t e d by t h e p o l i c e during t h e i n t e r r o g a t i o n may be used a g a i n s t him a t a criminal t r i a l . " This r u l e was developed f u r t h e r i n Miranda v. Arizona (1966), 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L Ed 2d 694, 726, t o r e q u i r e t h a t when an i n d i v i d u a l is "taken i n t o custody o r otherwise deprived of h i s freedom by t h e a u t h o r i t i e s i n any s i g n i f i c a n t way and i s subjected t o questioning," t h e a u t h o r i t i e s must employ procedural safe- guards t o " n o t i f y t h e person of h i s r i g h t of s i l e n c e and t o a s s u r e t h a t t h e e x e r c i s e of t h e r i g h t w i l l be scrupulously honored . . . 11 1 1 . . . [Ulnless and u n t i l such warnings and waiver a r e demonstrated by t h e prosecution a t t r i a l , no evidence obtained as a r e s u l t of i n t e r r o g a t i o n can be used a g a i n s t him." 384 U.S. a t 479, 86 S.Ct. a t 1630, 16 L Ed 2d a t 726. The Escobedo and Miranda holdings both applied t o i n t e r r o g a t i o n s which w e r e conducted a f t e r t h e suspect had been taken t o t h e p o l i c e s t a t i o n . However, i n 1969, t h e Supreme Court applied t h e Miranda r u l e t o an i n t e r r o g a t i o n conducted a t a boarding house i n t h e room of a suspect. Orozco v. Texas (1969), 394 U.S. 324, 89 S.Ct. 1095, 22 L Ed 2d 311. I n Orozco four o f f i c e r s entered t h e s u s p e c t ' s room a t 4:00 a.m. and questioned him concerning a shooting, without a r r e s t i n g him o r informing him of h i s r i g h t s . During t h e questioning, t h e suspect admitted t h a t he had been a t t h e r e s t a u r a n t where the shooting occurred and revealed t h e location of h i s p i s t o l which was l a t e r shown t o be t h e one used i n t h e shooting. The Supreme Court d i s - missed t h e prosecution's argument t h a t Miranda did not apply t o those statements because they w e r e made while t h e defen- d a n t w a s on h i s own bed and i n f a m i l i a r surroundings. Instead, t h e Court emphasized the words from Miranda which declare t h a t t h e warnings are required when t h e person being questioned i s " i n custody a t the s t a t i o n - o r otherwise de- prived -- of h i s freedom of - a c t i o n - i n w s i g n i f i c a n t w ~ . " 394 U.S. a t 327, 89 S.Ct. a t 1097, 22 L Ed 2d a t 315. (Emphasis i n o r i g i n a l . ) I n t h e present case defendant argues t h a t t h e r a t i o n a l e of Orozco a p p l i e s because four o f f i c e r s descended upon h i s premises a t once and while n o t technically placing him under a r r e s t , deprived him of h i s freedom of a c t i o n i n a s i g n i f i - c a n t way. The S t a t e focuses on t h e t i m e , place, and circum- stances of both t h e execution of t h e search and t h e making of t h e incriminating statements. I n p a r t i c u l a r it points o u t t h a t t h e o f f i c e r s a r r i v e d a t defendant's home a t 10:OO a.m., t h a t defendant w a s not incommunicado and was i n t h e presence and company of h i s wife and stepson, and t h a t t h e o f f i c e r s d i d not a c t u a l l y i n t e r r o g a t e defendant about an alleged crime b u t made t h e i r purpose known by serving a search warrant on him. Of p a r t i c u l a r significance t o t h i s set of f a c t s is t h e lack of questioning by t h e o f f i c e r s . I n B r e w e r v. Williams (1977), 430 U.S. 387, 97 S.Ct. 1232, 51 L Ed 2d 424, t h e Supreme Court held inadmissible t h e statements of a suspect who gave incriminating evidence even a f t e r he had been informed of h i s r i g h t t o remain s i l e n t because, a f t e r h i s lawyer had refused t o permit i n t e r r o g a t i o n , he was questioned i n t h e lawyer's absence. I n B r e w e r , t h e defendant, while r i d i n g across Iowa with two d e t e c t i v e s , was questioned once a t t h e beginning of t h e t r i p . Sometime l a t e r i n t h e journey he made t h e incriminating statements. 430 U.S. a t 392-93, 97 S.Ct. a t 1236-37, 51 L Ed 2d a t 432-33. Having once a s s e r t e d h i s r i g h t t o s i l e n c e i n t h e absence of h i s lawyer, t h e defendant could n o t again be questioned absent a strong showing of waiver. 430 U.S. a t 404-06, 97 S.Ct. a t 1242-43, 51 L Ed 2d a t 439-41. Thus, where questioning takes place i n a c u s t o d i a l s e t t i n g t h e d i c t a t e s of Miranda must be c a r e f u l l y followed. I n t h e same t e r m a s t h e Brewer d e c i s i o n , however, t h e Supreme Court considered t h e case of Oregon v. Mathiason (1977), 429 U.S. 492, 97 S.Ct. 711, 50 L Ed 2d 714. I n Mathiason it held t h a t a parolee who v o l u n t a r i l y came t o a p o l i c e s t a t i o n was n o t subjected t o c u s t o d i a l i n t e r r o g a t i o n when he was questioned about a crime because he had been t o l d t h a t he was n o t under a r r e s t when t h e questioning began and was f r e e t o l e a v e a half hour l a t e r when t h e interview ended. 429 U.S. a t 495, 97 S.Ct. a t 714, 50 L Ed 2d a t 719. The Court reasoned t h a t a noncustodial s i t u a t i o n is n o t "converted i n t o one i n which Miranda a p p l i e s " simply because t h e questioning t a k e s p l a c e i n a "coercive environment": "Any interview of one suspected of a crime by a p o l i c e o f f i c e r w i l l have coercive as- p e c t s t o it, simply by v i r t u e of t h e f a c t t h a t t h e p o l i c e o f f i c e r is p a r t of a law en- forcement system which may u l t i m a t e l y cause t h e suspect t o be charged with a crime. But police o f f i c e r s a r e not required t o administer Miranda warnings t o everyone whom they ques- tion. Nor i s the requirement of warnings t o be imposed simply because the questioning takes place i n the s t a t i o n house, or because the questioned person i s one whom the police sus- pect. Miranda warnings a r e required only where there has been such a r e s t r i c t i o n on a person's freedom a s t o render him ' i n custody.' It was t h a t s o r t of coercive environment t o which Miranda by its terms was made applicable, and t o which it is limited." 429 U.S. a t 495, 97 S.Ct. a t 714, 50 L Ed 2d a t 719. Thus, Miranda applies t o a questioning which takes place i n a coercive environment i n which the suspect's freedom of action has been significantly r e s t r i c t e d . From t h e f a c t s of the present case, defendant argues t h a t h i s freedom had been so r e s t r i c t e d by the presence of the o f f i - cers. However, the other c r u c i a l element of the Escobedo, Miranda, Orozco, and Brewer cases is missing here--that i s , t h e questioning by the officers. A s was pointed out i n Miranda, a confession which i s t r u l y voluntary is not fore- closed from evidence because made before the person confes- sing has been warned of h i s r i g h t s : "Any statement given f r e e l y and voluntarily without any compelling influences is, of course, admissible i n evidence. The funda- mental import of the privilege while an individual is i n custody i s not whether he is allowed t o t a l k t o the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no require- ment t h a t police stop a person who enters a police s t a t i o n and s t a t e s t h a t he wishes t o confess t o a crime, o r a person who c a l l s the police t o o f f e r a confession o r any other statement he desires t o make. Volunteered statements of any kind a r e not barred by the F i f t h Amendment and t h e i r admissibility i s not affected by our holding today." 384 U.S. a t 478, 86 S.Ct. a t 1630, 16 L Ed 2d a t 726. A s applied t o the f a c t s of t h i s case, t h e holdings of Escobedo, Miranda, Orozco, and Brewer do not require t h a t t h e statements of defendant be excluded from the prosecu- t i o n ' s evidence. Defendant was not questioned. H e simply decided t o admit t h a t he still had t h e firearms. Where t h e e n t i r e s i t u a t i o n w a s f r e e from any coercion o r d e p r i v a t i o n of freedom of a c t i o n by t h e l a w enforcement o f f i c e r s and t h e statements were n o t t h e r e s u l t of i n t e r r o g a t i o n , t h e require- ments of Miranda w e r e n o t applicable. Oregon v. Mathiason, 429 U.S. a t 495, 97 S.Ct. a t 714, 50 L Ed 2d a t 719; Beckwith v. United S t a t e s (1976), 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1616-17, 48 L Ed 2d 1, 8; United S t a t e s v. Shelby ( 7 t h C i r . 1978), 573 F.2d 971, 975-76; United S t a t e s v. Long S o l d i e r ( 8 t h C i r , 1977), 562 F.2d 601, 603, n.1(2) ; Annot. 31 A.L. R. 3d 565, 676-80 (1970). The holdings i n S t a t e v. D i s t r i c t Court of Eighth Jud. D i s t . (1978), Mont . , 577 P.2d 849, 35 St.Rep. 481, and S t a t e ex rel. Kotwicki v. D i s t r i c t Court (1975), 166 Mont. 335, 532 P.2d 694, are n o t d i r e c t l y i n p o i n t with t h i s case b u t lend considerable s t r e n g t h t o t h e S t a t e ' s p o s i t i o n . I n those cases t h e statements o r confessions made by t h e accused occurred while i n custody. Due t o t h e spe- c i a l circumstances i n each, however, t h e confession was held admissible. I n t h e f i r s t c a s e t h e accused made a spontaneous confession a f t e r he had been informed of h i s r i g h t s , Though t h e accused was i n a p o l i c e v e h i c l e a t t h e t i m e he made t h e confession, t h e p o l i c e had n o t e l i c i t e d a statement as i n B r e w e r . 577 P.2d a t 854, 35 St-Rep. a t 487. I n Kotwicki t h e defendant had n o t been informed of h i s r i g h t s t o s i l e n c e and an a t t o r n e y , b u t t h i s Court found t h e confession o r admission appeared uncoerced and spontaneous. 166 Mont. a t 344, 532 P.2d a t 698-99. I n n e i t h e r Kotwicki nor D i s t r i c t Court of Eighth Jud. D i s t . d i d t h i s Court at- tempt t o expand t h e scope o r a p p l i c a t i o n of Miranda beyond t h e f e d e r a l c o n s t i t u t i o n a l requirements established by t h e United S t a t e s Supreme Court. The judgment of t h e D i s t r i c t Court is reversed and t h e cause remanded f o r f u r t h e r proceedings. W e Concur: ' % & 4 A C & & Chief ' J u s t i c e	January 16, 1979
2360a5b7-9aaf-496e-aa47-480c5aeac47d	MARRIAGE OF HOUTCHENS	N/A	14250	Montana	Montana Supreme Court	No 14250 I N THE S U P R E B E COURT O F THE STATE O F MONTANA 1978 IN RE THE MARRIAGE O F DO= G. HOU'ICHENS, Petitioner an3 Respondent, and Respordent a n d Appellant. Appeal frm; D i s t r i c t Court of the First Judicial D i s t r i c t , Honorable Ibbert J. Boyd, Judge presiding. Counsel of Record: For Appellant: Smith and Harper, Helena, Montana Charles S t h , I11 argued, Helena, Wntana For Respondent: Jackson and Kelley, Helena, Montana Gregory LJackson argued and Douglas Kelley argued, H e l e n a , Mntana Sutmitted: November 16, 1978 Decidd: MAR 1 5 1 m Filed : -- Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Husband appeals from the judgment of the Lewis and Clark County District Court dissolving his marriage and making provisions for child custody, property distribution and attorney fees. He contends the evidence does not support the findings of the District Court as to child custody, property distribution and attorney fees awarded to the wife. He also challenges an order, incorporated into the divorce decree, holding him in contempt of court for failure to pay temporary child support and maintenance to the wife and requiring him to make these back payments. The parties were married on May 10, 1975. Both had been married once before. The wife brought two children into this marriage. On June 5, 1976 one child was born of this marriage. On July 19, 1977, the wife petitioned for dissolution. At the same time, a "temporary order and order to show cause" (one document) was submitted to the court along with the wife's affidavit attesting to: her fear of physical abuse by the husband; her then being unemployed; her having physical custody of the child; and, her need of $150 per month for child support and $200 per month for maintenance. The District Court signed the order which also provided that the husband appear and show cause on July 29, 1977 why the order should not be issued. On July 28, the court continued the show cause hearing until August 2, 1977 for unspecified reasons. According to the wife's testimony at trial, the parties resumed cohabititation and attempted to reconcile their differences during this period from July through October 1977 at which time they separated permanently. She stated that, therefore, she was only asking the court to order the husband to pay temporary support and maintenance after October 1977 until the date of trial. -2- In November 1977, the district judge ordered the cause transferred to Conciliation Court and for an official con- ciliator to explore the prospect of reconciliation between the parties. Again, reconciliation failed and the cause went to hearing on January 13, 1978. At trial, numerous witnesses testified primarily on the relative suitability of the respective parties as custodian for the child. The court ultimately granted custody of the minor child to the wife, disposed of the marital estate and awarded attorney fees to the wife. The court also found the husband in contempt of the temporary order to show cause and ordered him to pay arrearages thereunder from October 1977, when the parties separated, permanently, until the date of trial. Husband first contends the evidence was insufficient to support the District Court's award of custody to the wife. We disagree. Although some difference of opinion was expressed at trial on the proper custodian for the child, substantial credible evidence supported the court's decision to award custody to the wife. See Allen v . Allen (19781, Mont . , 575 P.2d 74, 75-76, 35 St.Rep. 246, 247-48 (and authority cited therein). That is all that is required. Husband next contends the court's disposition of marital property constituted an abuse of discretion. He argues that since only $1,550 worth of property was acquired during marriage, awarding the wife property with an aggregate value of $8,000 was an abuse of discretion under Berthiaume v. Berthiaume (1977) , Mont . , 567 P.2d 1388, 34 St.Rep. 921. In Berthiaume, marital assets held in joint tenancy were divided disproportionately contrary to the court's declared intent to distribute "as equally as possible". Berthiaume v. Berthiaume, supra at 1390. Nothing said in Berthiaume commands reversal of the case before this Court. -3- The fact that only $1,500 in assets were acquired during marriage is not determinative. Section 48-321, R.C.M. 1947, now section 40-4-202 MCA, calls for an equitable division of marital property by the court, regardless of however or whenever acquired or in whose name the property is held. Here, husband was in possession of a 1972 GMC pickup valued at $1,000, a 1967 Buick valued at $400, real property valued variously at $50,000, $56,000 and $100,000 and savings in the amount of $11,000. Wife had no savings and no real property but some personal property of minor value. Awarding her the 1975 Ford free of encum- brances which was worth $4,500 and $3,500 in cash was not an abuse of discretion under the circumstances. The husband next asserts the court erred by holding him in contempt of the show cause order and requiring him to pay temporary child support and temporary maintenance due thereunder. The "temporary order and order to show cause" was, in substance, both an ex parte restraining order and notice of a motion for temporary support and maintenance. Section 48-318, R.C.M. 1947, now section 40-4-106 MCA, permits motions for temporary support and maintenance to be combined with an ex parte application for a restraining order. Section 48-318, supra, provides in pertinent part: ". . . [Elither party may move for temporary maintenance or temporary support of a child of the marriage entitled to support. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested. "(2) As a part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the court to issue a temporary injunction for any of the following relief: " (b) enjoining a party from molesting or disturbing the peace of the other party or of any child; "(3) The court may issue a temporary restraining order without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed. "(4) A response may be filed within twenty (20) days after service of n o t - motion -- or at the W s p e c i f i e d i n the temporary ---- -- restraining order." Section 48-318, R.C.M. 1947, now section 40-4-106 MCA (Emphasis added). The wife relies on section 48-318(4), supra, as foreclosing the husband's opportunity to be heard on wife's motion for temporary support and maintenance. While section 48-318(4), supra, permits a response, it does not require a response. It merely limits the time within which a response may be filed. This construction is required both by the permissive terms of the provision and by reference to section 48-315, R.C.M. 1947, now section 40-4-103 MCA which provides, unless otherwise specified by the Montana Uniform Marriage and Divorce Act (M.U.D.A.), the Montana Rules of Civil Procedure apply. In construing the civil rule on the form of motions, Rule 7(b), Mont.R.Civ.P., this Court has frequently stated that a motion is but an application for an order. A motion is not a pleading and does not require responsive pleadings. See e.g. Luppold v. ~ e w i s (1977) , Mont . , 563 P.2d 538, 546, 34 St.Rep. 227; McVay v. ~istrict Court (19531, 126 Mont. 382, 392-93, 251 P.2d 840, 846. See also, 2A Moore's Federal Practice S7.05. The husband's failure to file a response did not render the motion, an order. The July 19 temporary restraining order specified July 29 for a show cause hearing at which time the issues of whether the restraining order should continue pending trial, and whether temporary child support and maintenance should be ordered pending trial, would be determined. Thus, the portion of the show cause order relating to temporary support and maintenance was no more than the court's designation as to when the motion would be heard. On July 28, the court continued the hearing without date. The record is silent as to whether there ever was a show cause hearing on the motion. Since the terms of the court order clearly contemplated a show cause hearing before temporary support and maintenance would be ordered, it was not a final interlocutory order in the absence of a show cause hearing. We therefore reverse the District Court's finding of contempt and consequent order requiring the husband to make back payments. A valid order had never been entered requiring the payment of the temporary support and maintenance. Finally, husband challenges the courts award of attorney fees to the wife and the sufficiency of evidence offered in support of the $1,000 attorney fees. He contends wife failed to establish necessity, a condition precedent to the award of attorney fees in a dissolution action according to section 48-327, R.C.M. 1947, now section 40-4-110 MCA; and Allen v. Allen (1978), Mont . , 575 P.2d 74, 76, 35 St.Rep. 246, 249. We find the court was adequately apprised of the relative financial means of the parties, and sufficient evidence supported the court's finding of wife's necessity for the award of reasonable attorney fees. However, we do not find the method used to substantiate the amount of the attorney fees sufficient to uphold the award. "An award of fees, like any other award, must be based on competent evidence." First Security Bk. of Bozeman v . Tholkes (1976), 169 Mont. 422, 429, 547 P.2d 1328, 1331 (quoting Crncevich v. Georgetown Recreation Corp. (1975), 168 Mont. 113, 120, 541 P.2d 56, 59). The only evidence supporting the $1,000 fee was the wife's acknowledgment in testimony that a $1,000 fee was reasonable under the circumstances. This evidence standing alone, is insufficient to verify the reasonableness of the attorney fees awarded. The cause is therefore remanded for determination of reasonable attorney fees consistent with the authority cited. The judgment of the District Court is affirmed as to custody and property disposition but reversed as tc contempt and arrearages under the show cause order. The cause is remanded to the District Court for a hearing to determine reasonable attorney fees tc be paid by the husband. We Concur: chief Justice ........................ Justices Mr. ~ustice John C. Sheehy concurring in part and dissenting in part: While I agree with the result relating to the custody, division of assets and reversal of the contempt order, I disagree with the conclusion that the evidence does not support the award of attorney fees. The wife testified, without objection, that she had incurred a liability for attorney fees in the divorce action of $1,000 to $1,500 which she considered reasonable. No cross-examination on this point occurred, nor was counter evidence offered by the husband to show a lesser fee would be proper. On that record, it is a fundamental rule of appellate law that the court will only consider objection to evidence to which proper objections have been made in the trial court. Butte Northern Copper Co. v. Radmilovich (1909), 39 Mont. 157, P. 1078. If a party fails to preserve the record with timely objections and specific grounds therefor, that party cannot complain of the matter on appeal. Hayes v. J. M. S . Construction Co. (1970), Mont . t 579 P.2d 1225, 34 St.Rep. Here, with a trial transcript of 230 pages, and five detailed exhibits prepared and submitted, it should be apparent to any district judge what the reasonable fees of attorneys would be to represent the petitiodin such a proceeding. It is a futile act to return the case to the District Court on this point. Very probably, a telephone 1 call between counsel will settle the issue at or near the court's order, for the reasonableness of the award is apparent. If anything, we should return the case with instructions to the District Court to consider additional attorney fees to the petitioner or appellant, because, aside from the issue on the temporary support order, the appeal is near frivalous. " / Justice	March 14, 1979
56022866-12a4-4c93-8baa-8b616f988ec3	FISCUS v BEARTOOTH ELECTRIC COOP	N/A	14301	Montana	Montana Supreme Court	No. 14301 IN THE SUPREME COURT OF THE STATE OF MONTANA CLAYTON R . FISCUS, Plaintiff and Appellant, BEARTOOTH ELECTRIC COOPERATIVE, INC., Defendant and Respondent. Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Berger, Anderson, Sinclair and Murphy, Billings, Montana Richard Anderson argued, Billings, Montana For Respondent: Hutton and Cromley, Billings, Montana Brent Cromley argued, Billings, Montana Submitted: December 12, 1978 Decided: 2 ' 1g71 Filed: FEE - !:7q M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. Plaintiff-appellant, Clayton R. Fiscus, brings t h i s matter t o t h i s Court, asking t h a t , because t h e holding i n Fiscus v. Beartooth E l e c t r i c (1974), 164 Mont. 319, 522 P.2d 87, has been overruled by Piper v. Lockwood Water Users Ass'n (1978), Mont. - , 573 P.2d 646, 35 St.Rep. 9, 13, t h a t he now be given h i s day i n court. The immediate events giving rise t o t h i s appeal a r e a s follows. O n June 10, 1974, pursuant t o t h i s Court's decision rendered i n Fiscus v. Beartooth Electric, supra, t h e D i s - t r i c t Court entered summary judgment i n favor of Beartooth and a g a i n s t Fiscus. The case lay dormant on its thus dismissed s t a t u s u n t i l February 3, 1978, when Fiscus moved t o vacate the judgment and dismissal. B r i e f s w e r e f i l e d f o r and against t h e motion i n t h e D i s t r i c t Court, t h e Honorable Charles Luedke pre- siding. The court made no r u l i n g on t h e motion, and on March 30, 1978, Fiscus' motion became "deemed denied" under Rule 59(d) and (g) , M.R.Civ.P. Fiscus then f i l e d t h i s appeal. For t h e f a c t s i t u a t i o n , see Fiscus v. Beartooth Elec- tric, supra. The i s s u e a t t h i s point is a narrow procedural one, namely, whether t h e doctrine of e i t h e r "law of t h e case" o r res judicata bars appellant from pursuing a claim against Beartooth E l e c t r i c . Appellant argues t h a t he has never had h i s claim ad- judicated and t h a t he has never been i n court t o have such made, on t h e m e r i t s , t h e f a c t u a l and t h e l e g a l determina- t i o n s of t h e case. H e argues t h a t he has been procedurally barred by order of t h i s Court dated 1974. Appellant acknowledges t h a t " t h e law of the case" and res judicata a r e t h e l e g a l p r i n c i p l e s generally applicable t o bar those attempts by a d i s s a t i s f i e d l i t i g a n t t o reopen a matter which has been decided. H e argues t h a t a l l general r u l e s , however, have t h e i r exceptions, and t h a t under t h e circumstances of t h i s case, they should be allowed under t h e exception of t h e general r u l e . Black's Law Dictionary (Rev. 4th Ed., 1968), defines res judicata thus: "A matter adjudged; a thing j u d i c i a l l y acted upon o r decided; a thing o r matter s e t t l e d by judgment . . . Rule t h a t f i n a l judgment o r de- cree on m e r i t s by c o u r t of competent jurisdic- t i o n is conclusive of r i g h t s of p a r t i e s o r t h e i r p r i v i e s i n a l l l a t e r s u i t s on p o i n t s and matters determined i n former s u i t . . . And t o be applicable, r e q u i r e s i d e n t i t y i n thing sued f o r as w e l l as i d e n t i t y of cause of a c t i o n , of persons and p a r t i e s t o action, and of q u a l i t y i n persons f o r o r a g a i n s t whom c l a i m is made . . . The sum and substance of t h e whole r u l e i s t h a t a matter once j u d i c i a l l y decided i s f i n a l l y decided . . ." I n Western Montana Production C r e d i t Ass'n v. Hydro- ponics, Inc. (1966), 147 Mont. 157, 161, 410 P.2d 937, 939, t h i s Court, c i t i n g Moore's Federal P r a c t i c e , said: "'The t e r m res judicata i s o f t e n used t o denote two things i n r e s p e c t t o t h e e f f e c t of a v a l i d , f i n a l judgment: (1) t h a t such judgment, when rendered on t h e merits, i s an absolute bar t o a subsequent a c t i o n , between t h e same p a r t i e s o r those i n p r i v i t y with them, upon t h e same c l a i m o r demand; and ( 2 ) t h a t such a judg- ment c o n s t i t u t e s an estoppel, between t h e same p a r t i e s o r those i n p r i v i t y with them, as t o matters t h a t w e r e necessarily l i t i g a t e d and determined although t h e claim o r demand i n t h e subsequent a c t i o n i s d i f f e r e n t . Under t h e f i r s t proposition t h e judgment operates a s a bar * * . Under t h e second proposition t h e judgment prevents t h e p a r t i e s from r e l i t i g a t i n g only those matters t h a t were determined.' 1-B Moore F.P. 621-622, S 0.405. "The f i r s t proposition is properly c a l l e d res judicata while t h e second i s c a l l e d c o l l a t e r a l estoppel. " A s t o t h e concept "law of t h e case", Black's d e f i n i t i o n includes t h e following: "The decision, judgment, opinion o r r u l i n g s on former appeal o r w r i t of e r r o r become ' l a w of t h e case. ' . . . "The d o c t r i n e expresses p r a c t i c e of c o u r t s generally t o r e f u s e t o reopen what has been de- cided . . . [ I l t expresses t h e r u l e t h a t f i n a l judgment of highest c o u r t i s f i n a l determination of p a r t i e s ' r i g h t s . . . "The d o c t r i n e is generally deemed applicable whether former determination i s r i g h t o r wrong. . . . But some cases hold t h a t d o c t r i n e is inapplicable where p r i o r decision i s unsound, . . . o r i n c o r r e c t p r i n c i p l e s w e r e announced o r mistake of f a c t w a s made on f i r s t appeal 1 1 . . . "Law of t h e case" has been explained by t h e Montana Court thus: "'The r u l e i s w e l l established and long adhered t o i n t h i s state t h a t where, upon an appeal, t h e Supreme Court, i n deciding a case presented states i n its opinion a p r i n c i p l e o r r u l e of l a w necessary t o t h e decision, such pronouncement becomes t h e l a w of t h e case, and must be adhered t o throughout i t s subsequent progress, both i n t h e t r i a l c o u r t and upon subsequent appeal; and t h i s , although upon i t s subsequent consideration t h e Supreme Court may be c l e a r l y of opinion t h a t t h e former decision i s erroneous. * * it is a f i n a l adjudication from t h e consequences of which t h i s c o u r t may n o t d e p a r t , nor t h e p a r t i e s r e l i e v e themselves ( c i t i n g cases).' Carlson v. Northern Pac.R.Co., 86 Mont. 78, 281 Pac. 913, 914. "'Whether t h e opinion is r i g h t o r wrong, it is t h e law of t h e case, was binding upon t h e t r i a l c o u r t , and i s binding upon us.' Anderson v. Border, 87 Mont. 4 , 285 Pac. 174, 176." Apple v. Edwards (1949), 123 Mont. 135, 139-40, 2 1 1 P.2d 138, 140. I n contravention of t h e r i g i d standards a r t i c u l a t e d above, appellant cites t h e c o u r t t o Perkins v. K r a m e r (1948) , 1 2 1 Mont. 595, 600, 198 P.2d 475, 477, f o r t h e following p e r t i n e n t language: "The d o c t r i n e of res judicata, i f applicable, does n o t prevent t h e c o u r t from c o r r e c t i n g mani- f e s t e r r o r i n its former judgment. Thus i n Cluff v. Day, 1 4 1 N.Y. 580, 36 N.E. 182, 183, t h e c o u r t said: 'There i s no i r o n r u l e which precludes a c o u r t from c o r r e c t i n g a manifest e r r o r i n i t s former judgment, o r which r e q u i r e s it t o adhere t o an unsound d e c l a r a t i o n of t h e law. I t may, f o r cogent reasons, r e v e r s e o r q u a l i f y a p r i o r d e c i s i o n , even i n t h e same case. But t h e c a s e s i n which t h i s w i l l be done a r e exceptional, and t h e power should be sparingly exercised.' "When t h e p r i o r d e c i s i o n is by a divided c o u r t , a s here, . . . t h e c o u r t w i l l t h e more r e a d i l y d e p a r t from it, i f erroneous. [ C i t a t i o n omitted.]" I n Perkins, t h e defendants contended t h a t t h e p l a i n t i f f w a s precluded from maintaining h i s a c t i o n , because of t h e holding i n a previous case, which was described a s being "an appeal from t h e judgment entered i n t h e t r i a l c o u r t a f t e r r e v e r s a l " by t h e s t a t e Supreme Court. 121 Mont. a t 597-98, 198 P.2d a t 476. The Court acknowledged t h a t t h e question presented t h e r e w a s t h e same a s t h a t presented before, but s a i d t h a t it had n o t precluded p l a i n t i f f from r e l i e f i n t h e e a r l i e r case. 1 2 1 Mont. a t 598, 198 P.2d a t 476. Appellant a l s o d i r e c t s our a t t e n t i o n t o a r e c e n t c a s e of t h i s Court, S t a t e v. Zimmerman (1977), - Mont. I 573 P.2d 174, 34 St.Rep. 1561. W e b e l i e v e t h a t he does s o i n c o r r e c t l y because t h e above case i s a criminal m a t t e r and t h e p r i n c i p l e s applying t h e r e t o cannot always be conveyed s t r a i g h t a c r o s s t h e board and applied t o a c i v i l proceeding. The problem t h e r e involved r e l a t e d t o double jeopardy, a l e g a l concept decidedly a p p l i c a b l e t o criminal cases only. While w e c i t e d a number of c i v i l cases i n Zimmerman, i n our b r i e f discussion of t h e "law of t h e case", r e l y i n g on Zimmerman i s i n t h i s c a s e i l l - a d v i s e d . The r e c i t a t i o n i n those c a s e s concerning t h e a p p l i c a t i o n of t h e exception t o t h e general r u l e i s opposite t o t h i s case. The exception i s t h a t t h e general r u l e w i l l n o t be applied i n those cases where r e v e r s a l w a s based on an unrelated matter. Here t h e i s s u e is n o t unrelated. Thus t h e exception should not apply W e f i n d t h a t Perkins i s c o n t r o l l i n g i n t h i s case and t h a t t h e D i s t r i c t Court d i d n o t err i n i t s r u l i n g . Next a p p e l l a n t argues t h a t h i s c o n s t i t u t i o n a l r i g h t of access t o t h e c o u r t s has been denied him. 1889 Mont. Const., A r t . 111, 5 6, i n e f f e c t a t t h e t i m e t h a t he suffered h i s i n j u r i e s . However, he does not develop t h i s claim with case l a w o r o t h e r a u t h o r i t y and w e f i n d no m e r i t t o it. Recognizing t h a t h i s p o s i t i o n i n t h i s appeal i s probably d e f e c t i v e under t h e Montana law on t h e " r u l e of t h e case" a p p e l l a n t argues t h a t under f e d e r a l decisions i n t e r p r e t i n g Rule 60(b), which i s i d e n t i c a l t o Montana's Rule 6 0 ( b ) , d i f f e r e n t s o l u t i o n s of t h e case could be a r r i v e d a t . Appel- l a n t , i n support of h i s argument, cites a number of f e d e r a l cases, which we w i l l discuss individually i n t h i s opinion. Klapprott v. United S t a t e s (1949), 335 U.S. 601, 69 S.Ct. 384, 93 L.ed. 266, is a n a t u r a l i z a t i o n case and does n o t i n our opinion m e e t t h e s i t u a t i o n here where an appel- l a t e c o u r t overruled a l a t e r decision. There t h e c o u r t simply held t h a t t h e p l a i n t i f f had been s o e x t r a o r d i n a r i l y victimized by t h e government t h a t t h e f e d e r a l r u l e 60(b) (6) would be invoked t o cure t h a t outrage where t h e government had f a i l e d t o provide evidence required i n a matter of l a w i n t h e denaturalization process. There i s no question t h a t t h e p l a i n t i f f came under and deserved t o come under ~ u l e 60 (b) (6) . This i s n o t a case t h a t supports t h e a p p e l l a n t ' s p o s i t i o n here which is whether t o change t h e decisional l a w s e v e r a l years a f t e r a f i n a l judgment was entered a g a i n s t him and whether t h i s c o n s t i t u t e s a p r e r e q u i s i t e of "any o t h e r reason j u s t i f y i n g r e l e a s e from judgment". Appellant next c i t e s Ackermann v. United S t a t e s (1950), 340 U.S. 193, 71 S.Ct. 209, 95 L.ed. 207. This c a s e l i k e Klapprott s t a n d s f o r t h e p o s i t i o n t h a t only i n an e x t r a - ordinary c a s e should Rule 60(b) be granted. There i s con- s i d e r a b l e a u t h o r i t y holding t h a t when a d e c i s i o n is l a t e r overruled by a c o u r t , t h a t it i s n o t "extraordinary" as contemplated i n Klapprott. W e do n o t f i n d t h a t i n t h e c a s e c i t e d , Ackermann, i s a u t h o r i t y f o r a p p e l l a n t ' s p o s i t i o n . The n e x t case c i t e d by a p p e l l a n t i n support of h i s p o s i t i o n i s Tsakonites v. Transpacific C a r r i e r s Corp. (S.D. N.Y. 1970), 322 F.Supp. 722, which comes t h e c l o s e s t t o a p p e l l a n t ' s p o s i t i o n here. However it i s d i s t i n g u i s h a b l e i n our opinion from t h e Montana "law of t h e case" d o c t r i n e because t h e r e never would have been a Tsakonites c a s e except f o r t h e f a c t t h a t sometimes various c i r c u i t s have c o n f l i c t - i n g holdings as they r e l a t e t o s p e c i f i c i s s u e s of l a w . It i s i n those s i t u a t i o n s t h a t t h e United S t a t e s Supreme Court i s more w i l l i n g and u s u a l l y w i l l g r a n t c e r t i o r a r i f o r t h e purpose of resolving t h e c o n f l i c t by announcing a f i n a l r u l e t o be uniformly applied t o a l l t e n c i r c u i t s . This, of course, is one of t h e d i s t i n c t i o n s between t h e f e d e r a l system and our s t a t e j u d i c i a l system i n t h a t t h e r e t h e r e a r e intermediate c o u r t s of appeal while here t h e Supreme Court i s t h e c o u r t of appeals i n t h e r u l i n g s i n t h e D i s t r i c t Courts. H e r e we have no intermediate c o u r t s of appeal and when t h i s Court renders a d e c i s i o n on a l e g a l i s s u e , t h a t i s and should be t h e end of t h e matter. I n Tsakonites t h e a p p e l l a n t had attempted t o go t o t h e United S t a t e s Supreme Court i n 1967 following an adverse r e s u l t i n t h e D i s t r i c t Court f o r t h e F i f t h C i r c u i t of t h e Court of Appeals. However, t h e United S t a t e s Supreme Court denied h i s a p p l i c a t i o n f o r c e r t i o r a r i and thus d i d n o t hear, consider and r u l e upon t h e i s s u e which caused him t o l o s e below, t h e i s s u e t h e r e r e l a t i n g t o whether h i s maritime employer had s u f f i c i e n t c o n t a c t s with America t o come under t h e Jones A c t . It was n o t u n t i l Hellenic Lines Ltd. v. Rhoditis (1970), 398 U.S. 306, 90 S.Ct. 1731, 26 L Ed 2d 252, reh. denied, 400 U.S. 856, t h a t t h e Supreme Court r u l e d upon t h e very i s s u e it had declined t o i s s u e i n i t s earlier opinion i n Tsakonites. The c r i t i c a l f a c t o r d i s t i n g u i s h i n g Tsakonites from t h e Hellenic Lines c a s e and t h i s appeal i s t h a t t h e United S t a t e s Supreme Court d i d n o t o v e r r u l e a previous d e c i s i o n of i t s own. I t had n o t r u l e d as w e have i n t h i s case, b u t chose t h r e e y e a r s a f t e r Tsakonites i n t h e Hellenic Lines c a s e t o consider t h e matter and r e s o l v e t h e d i f f e r e n c e s of t h e c i r c u i t c o u r t s on t h e i s s u e t h a t Tsakonites and Hellenic Lines had before them i n 1967. This case, however, a s it relates t o t h e Supreme Court t h a t issued it, i s without any d i r e c t i v e from o t h e r c o u r t s , as i n t h e f e d e r a l system. For t h a t reason w e think it i s d i s t i n g u i s h a b l e . Appellant next cites t h e G r i f f i n v. S t a t e Board of Education (E.D. Va. 1969), 296 F.Supp. 1178, case, which involved t h e c o n s t i t u t i o n a l i t y of t h e V i r g i n i a t u i t i o n g r a n t laws, a d e n i a l of t h e equal p r o t e c t i o n clause. This deci- s i o n , w e f i n d , supports t h e respondent i n t h i s m a t t e r i n view of t h e f a c t while t h e r e w a s a change i n t h e d e c i s i o n a l l a w it was made prospectively and operated t o preserve t h e r u l i n g i n 1955 and t h e l a w of t h e c a s e being a p p l i c a b l e up through 1969. Respondent c i t e s a number of f e d e r a l cases i n support of its position, two of which w e think a r e of import f o r discussion. T i t l e v. United S t a t e s (9th C i r . 1959), 263 F.2d 28, c e r t . denied 359 U.S. 989, reh. denied, 360 U.S. 914, a case where M r . T i t l e whose appeal had been dismissed i n 1956 moved t o reopen h i s case i n 1958, and asked t h e court, a s i n t h i s case, t o invoke Rule 60 a t the expense of t h e "law of the case". There t h e c o u r t said: "Appellant recognizes t h a t t h e r e a r e reasons of public policy f o r assuring t h e f i n a l i t y of judgments, but suggests t h a t under r u l e 60 (b) (5) , Fed.R.Civ.P., 28 U.S.C.A., a s p e c i a l r u l e should be adopted i n denaturalization cases relaxing t h e s t r i c t n e s s of t h e ordinary r u l e . I n support of t h i s , appellant r e f e r s t o t h e language of t h e dissenting J u s t i c e s i n Ackermann v. United S t a t e s , 1950, 340 U.S. 193, 202, 7 1 S . C t . 209, 95 L.Ed. 270. W e a r e , of course, bound by t h e majority opinion i n Ackermann, j u s t a s we a r e i n Zucca. Rule 60(b) was not intended t o provide r e l i e f f o r e r r o r on t h e p a r t of t h e court o r t o afford a sub- s t i t u t e f o r appeal. [Citations omitted.] Nor is a change i n t h e j u d i c i a l view of applicable law a f t e r a f i n a l judgment s u f f i c i e n t b a s i s f o r va- c a t i n g such judgment entered before announcement of t h e change. [Citations omitted.]" 263 F.2d a t 31. This Ninth C i r c u i t Court of Appeals case c l e a r l y recognizes t h a t post-judgment change i n decisional l a w affords no avenue f o r reopening judgments. It is a recognition of t h e "law of t h e case" doctrine which is t h e law i n Montana. The second case w e consider t h a t respondent c i t e d is Lubben v. Selective Service System Local Bd. No. 27, (1st C i r . 1972), 453 F.2d 645. This case involved a d r a f t e e who had secured a permanent injunction a g a i n s t induction. After precedential support f o r t h e injunction was removed, t h e government moved f o r t h e d i s s o l u t i o n of t h e injunction. The D i s t r i c t Court provided r e l i e f f o r t h e government, but t h e F i r s t C i r c u i t Court of Appeals reversed on t h e "law of t h e case" grounds. I n s o holding under Rule 60 it noted t h a t it would n o t allow t h e vacation of a judgment g r a n t i n g t h e i n j u n c t i o n s t a t i n g : "TO hold otherwise would destroy t h e c e r t a i n t y which allows controversies t o be deemed judi- c i a l l y concluded . . . " ' I t should be noted t h a t while 60 (b) ( 5) au- thorized r e l i e f from a judgment on t h e grounds t h a t a p r i o r judgment upon which it is based has been reversed o r otherwise vacated, it does n o t a u t h o r i z e r e l i e f from a judgment on t h e ground t h a t t h e law applied by t h e c o u r t i n making i t s adjudication has been subsequently overruled o r declared erroneous i n another and unrelated proceeding.' 7 Moore's Federal Prac- t i c e 1160.26[3] a t 3 2 5 . " 453 F.2d a t 650. (Emphasis i n o r i g i n a l . ) These cases show t h a t t h e r e i s ample support i n t h e f e d e r a l c o u r t s t h a t they f e e l bound by t h e "law of t h e case" and t h a t when a d e c i s i o n a l l a w change occurs, subsequent t o f i n a l judgment i n a p a r t i c u l a r case, t h e "law of t h e case" i s t h a t f i n a l judgment should not be a l t e r e d . The judgment o f t h e District Court is affirmed and t h e appeal is dismissed. W e concur: 8 Honorable R. D. McPhillips, D i s t r i c t Judge, s i t t i n g i n place of M r . J u s t i c e Sheehy.	February 26, 1979
6f5f751a-5e5e-47c4-bfa6-db1def0df9a4	MARRIAGE OF JERMUSON v JERMUSON	N/A	14489	Montana	Montana Supreme Court	No. 14489 IN THE SUPREME COUKI' OF THE STATE OF PKNTANA 1979 IN R E THE M7muAGE OF J A C r n A MAE - S C P J , Petitioner and Appellant, Respondent and Respondent. Appeal frm: District Court of the Ninth Judicial District, Honorable R . D . Whillips, Judge presiding. Counsel of Record: For Appellant: Gale R . Gustafson, Conrad, Mntana For Respondent: David H . Nelson, Brady, bbntana Sut=anitted on briefs: February 28, 1979 Decided: lRAR L 1 3 7 9 Filed : @O;r 7 - - $cfjQ M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court. Appellant J a c i n t a Mae Jermunson f i l e d a p e t i t i o n f o r d i s s o l u t i o n of marriage a g a i n s t Dennis C a r t e r Jermunson on February 2, 1978, a f t e r approximately f o u r years of m a r - r i a g e . O n March 6, 1978, she f i l e d an amended p e t i t i o n , and t h e matter was heard t h e same day by t h e Honorable Ronald D. McPhillips. The p a r t i e s agreed t o t h e e n t e r i n g of a decree of d i s s o l u t i o n reserving with t h e c o u r t r u l i n g s on t h e question of property and support f o r p e t i t i o n e r . On March 2 4 , 1978, t h e d i s t r i c t judge entered f i n d i n g s of f a c t , conclusions of law, and a decree. Determination of t h e property r i g h t s were reserved u n t i l a l a t e r d a t e . The property settlement was decreed by t h e D i s t r i c t Court on J u l y 1 4 , 1978. From t h e s e f i n d i n g s of f a c t , conclusions of l a w , and decree p e t i t i o n e r appeals. Two i s s u e s a r e presented on appeal: 1. Did t h e D i s t r i c t Court e r r i n i t s d i s t r i b u t i o n of m a r i t a l property? 2. Did t h e D i s t r i c t Court err i n f a i l i n g t o provide maintenance f o r a period s u f f i c i e n t t o enable p e t i t i o n e r t o o b t a i n appropriate education o r t r a i n i n g ? The p a r t i e s w e r e married on February 8, 1974. A t t h e t i m e of t h e marriage p e t i t i o n e r had n o t f i n i s h e d high school. She d i d n o t a t t e n d school during t h e marriage, although schooling was a v a i l a b l e t o her. She had no marketable s k i l l s o r vocational t r a i n i n g and no o u t s i d e income o t h e r than a job she has held. P e t i t i o n e r d e s i r e s t o o b t a i n vocational t r a i n i n g t o become a nurse. Respondent i s a high school graduate and has had t r a i n - i n g i n t h e m i l i t a r y a s a d i e s e l mechanic. A t t h e p r e s e n t time he farms some 80 acres of land which was given t o him by h i s f a t h e r . H e i s employed by h i s f a t h e r a s a farmer and i s capable of doing o u t s i d e carpentry, backhoe work and general r e p a i r work. The p a r t i e s had an adjusted g r o s s income i n 1977 of $14,601.59. During t h e i r marriage t h e p a r t i e s l i v e d i n a mobile home located i n Brady, Montana. This mobile home w a s pur- chased f o r $8,900 f o r use a s t h e m a r i t a l home. Payments w e r e made on t h e mobile home during t h e course of t h e mar- r i a g e . During t h e marriage, t h e p a r t i e s paid f o r a 1972 Thunder- b i r d automobile which had previously been purchased by t h e husband and h i s f a t h e r and a l s o had paid f o r a 1974 Jeep pickup. They acquired personal property i n t h e course of t h e i r marriage and approximately 70 percent of t h i s property was taken by respondent when t h e marriage f a i l e d . P r i o r t o t h e marriage, a s noted, respondent had acquired 80 a c r e s of land from h i s f a t h e r , a 1968 Ford truck, t o o l box, motorcycle, snow mobile, a W i l l y ' s C-J Jeep, a dish- washer, and a dryer. P e t i t i o n e r contributed t o t h e a s s e t s of t h e family by her homemaking, aiding her husband's work a t t i m e s , and c o n t r i b u t i n g some of her small income t o t h e marriage. Directing our a t t e n t i o n t o t h e f i r s t i s s u e , w e f i n d no e r r o r i n t h e t r i a l c o u r t ' s d i s t r i b u t i o n of t h e m a r i t a l property. Both p a r t i e s were young when married. P e t i t i o n e r w a s not o u t of high school and d i d n o t possess any property o t h e r than wedding g i f t s . Respondent, f i v e years o l d e r than p e t i t i o n e r , had acquired some property and had been given property by h i s f a t h e r . I n four years of marriage, t h e p a r t i e s acquired l i t t l e property o t h e r than personal i t e m s which w e r e d i v i d e d by t h e t r i a l judge a t t h e t i m e of t h e d i s s o l u t i o n . Due t o indebtedness on t h e p a r t of t h e couple, p r o p e r t y was acquired and s o l d . A t t h e t i m e of t h e d i s s o l u - t i o n , t h e c o u r t estimated t h a t t h e p a r t i e s w e r e i n d e b t i n excess of $20,000. This f i g u r e was i n e r r o r , however, and t h e t o t a l d e b t amount, according t o t h e t r a n s c r i p t , was approximately $11,000. The c o u r t r e q u i r e d respondent t o assume t h a t d e b t , s o p e t i t i o n e r i s l e f t f r e e of any d e b t s t h a t accumulated during t h e marriage. Since t h e adoption of t h e Uniform Marriage and Divorce A c t which became e f f e c t i v e i n Montana on January 1, 1976, t h i s Court has had numerous c a s e s which c o n t r o l t h e d i s t r i - b u t i o n of m a r i t a l p r o p e r t y according t o t h e A c t . See Vivian v. Vivian (1978), Mont. , 583 P.2d 1072, 35 St.Rep. 1359; I n re Marriage of R e i l l y (1978), Mont. , 577 P.2d 840, 35 St.Rep. 451; and I n re Marriage of Johnsrud (1977) Mont. , 572 P.2d 902, 34 St.Rep. 1417. The t r i a l c o u r t d i d n o t abuse i t s d i s c r e t i o n and f o l - lowed t h e s t a t u t e s and case law i n Montana. W e f i n d no m e r i t t o t h i s f i r s t i s s u e . A s t o t h e second i s s u e , whether o r n o t t h e t r i a l c o u r t abused i t s d i s c r e t i o n i n awarding p e t i t i o n e r $1,500 a t t h e t i m e of t h e d i s s o l u t i o n , w e f i n d no abuse of d i s c r e t i o n . The t r i a l c o u r t found, and properly s o , t h a t t h e p a r t i e s had acquired no n e t worth during t h e c o u r s e of t h e i r marriage. P e t i t i o n e r claims s h e i s n o t r e c e i v i n g h e r j u s t due from t h e marriage i n t h e amount of $1,500 and t h a t t h e amount i s i n s u f f i c i e n t . P e t i t i o n e r should recognize, however, t h a t under s e c t i o n 36-103, R.C.M. 1947, now s e c t i o n 40-2-102 MCA, s h e has a j o i n t and mutual o b l i g a t i o n t o pay f o r t h e neces- sities of t h e marriage. The D i s t r i c t Court r e q u i r e d respon- d e n t t o assume a l l d e b t s , f r e e i n g p e t i t i o n e r of t h e s e o b l i - g a t i o n s which approximate $5,500 (her one-half of an $11,000 i n d e b t e d n e s s ) . The District Court considered a l l t h e f a c t s and d e t e r - mined n e i t h e r p a r t y a t f a u l t . W e f i n d no e r r o r i n t h e D i s t r i c t C o u r t ' s award of $1,500 t o p e t i t i o n e r . I n n o t awarding maintenance t o p e t i t i o n e r under s e c t i o n 48-322, R.C.M. 1947, now s e c t i o n 40-4-203 MCA, a g a i n t h e t r i a l c o u r t i s r e q u i r e d t o balance t h e needs of t h e p a r t i e s . Here t h e c o u r t found t h a t t h e p a r t i e s were both capable of working and t h a t no maintenance was r e q u i r e d . This Court i n P o r t e r v . P o r t e r (1970), 155 Mont. 451, 457, 473 P.2d 538, h e l d t h a t : ". . . a reviewing c o u r t is never j u s t i f i e d i n s u b s t i t u t i n g i t s d i s c r e t i o n f o r t h a t of t h e t r i a l c o u r t . I n determining whether t h e t r i a l c o u r t abused i t s d i s c r e t i o n , t h e q u e s t i o n i s n o t whether t h e reviewing c o u r t a g r e e s w i t h t h e t r i a l c o u r t , b u t , r a t h e r , d i d t h e t r i a l c o u r t i n t h e e x e r c i s e of i t s d i s c r e t i o n act a r b i t r a r i l y without t h e em- ployment o f c o n s c i e n t i o u s judgment o r exceed t h e bounds of reason, i n view of a l l t h e circumstances, i g n o r i n g recognized p r i n c i p l e s r e s u l t i n g i n sub- s t a n t i a l i n j u s t i c e . " Here t h e District Court d i d n o t a c t a r b i t r a r i l y o r exceed t h e bounds of reason. The judgment a t t h e D i s t r i c t Court i s affirmed. ! W e concur:	March 20, 1979
cb521fb1-d48c-4c43-9c01-94b0ed73bd8b	MARRIAGE OF KAASA	N/A	14302	Montana	Montana Supreme Court	No. 14302 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 IN RE THE MARRIAGE OF JOY V. KAASA, Petitioner and Respondent, and OSBORNE A. KAASA, Respondent and Appellant. Appeal from: District Court of the Seventeenth Judicial District, Honorable Leonard Langen, Judge presiding. Counsel of Record: For Appellant: McKeon and McKeon, Malta, Montana John C. McKeon argued, Malta, Montana For Respondent : Burns, Solem & MacKenzie, Chinook, Montana William M. Solem argued, Chinook, Montana Submitted: February 7, 1979 Decided F A R 7 - 1979 Filed: MAR 7 - I C J ~ Mr. Justice John C. Sheehy delivered the Opinion of the Court. Joy and Osborne (Ozzie) Kaasa were married August 17, 1963. It was the second marriage for both parties. Ozzie's first wife died in 1962, and the two children of the marriage died in 1971. Joy's first marriage ended in divorce, and she had custody of the two children of that marriage until they reached majority, which occurred in 1971 and 1972. Shortly after the parties were married, they moved into a "primitive", four room house in Dodson, Montana, where they resided for five years. A son, Merle, was born in 1965. In 1968, the Kaasas moved into the family home of Ozzie's deceased wife, located one mile from Dodson. Ozzie has spent most of his life engaged in farming and ranching. Joy has a high school education, but lacks vocational training. Shortly after Merle was born, Joy began working as a bartender. She held this job for six and one-half years, working full time three of those years. Joy has also worked as a waitress and filling station attendant. At the time of trial, Joy was employed selling cosmetics. Ozzie's assets at the time of his marriage to Joy consisted of some town lots, approximately 100 head of cattle, 100 acres of irrigated land, and the Kaasa home place consisting of approximately 260 acres of farmland. Shortly thereafter, Ozzie sold the Kaasa farm and purchased another farm consisting of 640 acres. In 1971, Ozzie inherited a one-third share and purchased the remaining two- thirds share of 1,500 acres of land he had been leasing from his deceased wife's family. At the time of divorce, Ozzie's net worth was $440,244.88. In 1976, Joy inherited approximately $10,000.00, of which $7,000.00 was used to improve the family home. She received an additional $3,900.00 in September 1977. This money was used by Joy for living expenses from September 1977 until April 1978 and to make a trip to Spokane to visit her mother's grave. Joy filed a petition for dissolution of marriage in District Court, Phillips County, on November 5, 1976. She alleged that the marriage was irretrievably broken without reasonable prospect of reconciliation. A trial was held September 21, 1977, with the Honorable Leonard H. Langen presiding. The court's findings of fact, conclusions of law, judgment and decree were entered February 28, 1978. Based on an in-chambers interview with Merle, the court determined that custody should rotate between the parents, and the findings contain a monthly formula to this effect. The formula was devised because of Merle's desire to work on his father's farm. Ozzie was ordered to pay $75.00 per month for child support during the months Merle resided with Joy. The District Court determined that the farm was a working unit which would materially depreciate if it was divided. In order to accomplish its finding that Joy was entitled to one-fourth of the marital estate, or $99,138.00, the court ordered Ozzie to convey the family home to Joy (worth $18,000.00) , pay her $10,000.00 within 60 days of the decree, transfer a 1974 Ford pickup to her (worth $3,482.00), and pay Joy the balance of $67,656.00 over a period of 25 years. In addition, Joy was awarded attorney fees of $1,000.00. Ozzie filed a notice of appeal on March 30, 1978. Shortly thereafter, Joy requested that the District Court order Ozzie to show cause why he should not be required to pay temporary maintenance, support and attorney fees. The District Court, following a hearing on the matter, ruled that it had lost jurisdiction of the case when the notice of appeal was filed, and refused to enter the order. However, the court did recommend that Joy file an application with this Court for a writ of supervisory control. Joy followed the court's recommendation and on July 20, 1978, this Court held in State of Montana ex rel. Joy V. Kaasa v. District Court (1978) , Mont . , 582 P.2d 772, 35 St.Rep. 1045, "that a District Court has power to award necessary maintenance, child su~port and suit monies after judgment in a marital diss~lution case, where an appeal is taken from the judgment, during the pendency of the appeal." The District Court entered an order on July 24, 1978, awarding Joy temporary maintenance, child support and attorney fees of $1,500.00. During the hearing on the order to show cause, the parties' son, Merle, asked to have a word with the court in chambers. Merle told the court that he did not want to live with his father while a certain woman was also living in the house. The District Court amended its findings of fact in response to "the special requests" of Merle and ordered that custody would rotate between the parents at Merle's choosing. Ozzie's appeal, which concerns both the decree of dissolution and the temporary order, raises the following issues: 1. Did the District Court abuse its discretion in making the property division and distribution? 2. Cid the District Court abuse its discretion in determining custcdy of the minor child? 3. Did the District Court abuse its discretion by requiring Ozzie to pay Joy's attorney fees? Our scope of review in appeals claiming abuse of a trial court's discretion is set forth in Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538: ". . . [A] reviewing court is never justified in substituting its discretion for that of the trial court. In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but, rather, did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or exceed the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting in sub- stantial injustice." Concerning property divisions specifically, this Court has said, "it is well settled that a district court has a far reaching discretion in resolving property divisions and its judgment will not be altered unless a clear abuse of discretion is shown." Eschenburg v. Eschenburg (19761, Mont . , 557 P.2d 1014, 33 St.Rep. 1198. Ozzie contends that Joy's contribution to the marriage does not justify the court's division of property. He argues that Joy did not have a farming and ranching background, and that it was his labor and financing that increased the value of the property. Recently, in In Re The Marriage of Brown (1978) , Mon t . , 587 P.2d 361, 35 St.Rep. 1733, we said that the wife acquired a vested interest in the ranch property, regardless of its source and title. She did so by virtue of her fourteen years as mother, housewife and part-time ranchhand. In Biegalke v. Biegalke (1977), Mont. , 564 P.2d 987, 34 St.Rep. 401, an award to the wife of 26% of the value cf the marital estate was upheld in a case involving a farming and ranching family. Responding to a contention identical to Ozzie's, Mr. Justice Daly wrote: ". . . The statement that she took no active part in the farming as such, is nct correct. This kind of selective treatment of the record disregards the testimony of defendant, which is credible and was nct refuted, about doing a man's w ~ r k and wearing out her wedding band chopping wood, turning bales in the field, chasing cattle on foot and most important the assistance rendered while plaintiff was periodically disabled for periods of several months at a time with a chronic disease. The reason she could not spend more time in the fields seems to be due in part to the fact plaintiff blessed her with something like 6 children in 8 years, the care of them somewhat limiting the time a woman could spend out-of-doors." Biegalke, supra at 990. Finally, the Eschenburg case, although not involving a farming and ranching couple, is applicable here. The District Court equated the wife's contributions as homemaker and mother with the husband's as breadwinner in dividing the property and noted that while the contributions of the wife differed in kind, they were of equal weight to the financial contributions of the husband. Noting that each case depended upon its own facts and circumstances, we affirmed the District Court's distribution of property to a wife who had been married thirty-two years, raised four children, managed the household and volunteered her services to activities related to her husband's career. In Joy's case, the record shows she made substantial contributions d~ring twelve years of marriage to Ozzie. Joy "performed the household chores of cooking, housekeeping and looking after all of the children including husband's two children by his first wife." She was employed during a major portion of the marriage and her income was used to purchase groceries and clothing. Joy also performed chores when asked by Ozzie. For example, she helped move cattle out to pasture, hauled cattle by trucks, helped with branding, cooked for the crews, raised chickens and was responsible for the family garden. We find that sufficient evidence exists in the record upon which the District Court could reasonably have relied to make the property division. Ozzie contends the District Court improperly considered a financial statement, dated May 27, 1975, to determine the value of his farmland, rather than using a balance sheet prepared for the divorce proceedings by his accountant. It is true that the court must consider the current value of all property acquired during the course of the marriage, Kruse v. Kruse (1978), Mont. , 586 P.2d 294, 35 St-Rep. 1502, as Ozzie argues. However, that is precisely what the District Court did here. Finding that the land values in the financial statement (which had been used in an application for credit) were inflated and that values given the land in the balance sheet (which had been prepared especially for the divorce proceedings) were low, the District Court averaged the figures to arrive at the present value of the land. We find that this procedure was not unreasonable under the circumstances. Ozzie's contention that the District Court failed to consider Joy's inheritance is without merit. Finding of fact XV states: -7- "Wife inherited $10,000.00 from her mother and expects to receive an additional $4,000.00 from her mother's estate. Wife has invested approximately $7,000.00 of this sum in making improvements in the house situated on the Eroux property. Wife holds no real or personal property in her own name. " The District Court complied with section 48-321(1), R.C.M. 1947, now section 40-4-202- MCA, by considering the inheritance in making the property division. Turning to the issue of Merle's custody, the rule set forth in In Re Marriage of Kramer (1978), Mont . , 580 P.2d 439, 35 St.Rep. 700, is controlling: "We are committed to the view that the welfare of the children is the paramount consideration in awarding custody. Lee v . Gebhardt, (1977), Mon t . I 567 P.2d 466, 34 St. Rep. 810; Schiele v. Sager, (1977), Mont . , 571 P.2d 1142, 34 St. Rep. 1358. We believe the welfare of the children, particularly children of the ages involved here [ll, 13, and 151, is not being served if their wishes are not considered by the trial court. Therefore, we hold the court should make a specific finding, stating the wishes of the children as to their custodian, and, if the court determines that the children's wishes are not to be followed, the court should state in its findings the reason it has chosen not to follow their wishes." It is true, as Ozzie contends, that the District Court did not make a specific finding in the decree concerning Merle's wishes. However, on April 20, 1978, the court amended its finding on Merle's custody, and at that time stated Merle's wishes, thereby satisfying the requirement set forth in Kramer. The District Court's amended finding is controlling. Finally, Ozzie challenges the award of attorney fees to Joy in the decree of dissolution and the temporary order. The Uniform Marriage and Divorce Act, at section 48-327, R.C.M. 1947, now section 40-4-110 MCA, provides: "Costs--Attorney's fees. The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this act and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name." Traditionally, a showing of necessity has been a condition precedent to the exercise of the court's discretion to award attorney fees. Whitman v . Whitman (1974), 164 Mont. 124, 519 P.2d 966. But the lower court's discretion in the matter will not be disturbed if substantial evidence is found in the record to support the award. Brown, 587 P.2d at 367. Joy testified that she had approximately $12.00 in her bank account at the time of trial. She was working as a cosmetic products saleslady with an income of $100.00 to $125.00 per month. Of the inheritance, $7,000.00 had been used previously to make improvements on the house and the remainder had been used for subsistence prior to trial. The $3,900.00 Joy received after trial was used fur living expenses until temporary maintenance was provided. Ozzie did not pay all of Joy's attorney fees. After considering the financial resources of both parties, the court decided that Ozzie should "contribute" $1,000.00 and subsequently $1,500.00 toward the payment of Joy's attorney fees. We find that necessity was shcwn and that the District Court did not abuse its discretion by requiring Ozzie to assist Joy in the payment of her attorney fees. Affirmed. Justice We Concur: Chief Justice	March 7, 1979
67d21b71-85bd-40b1-bd01-b367d6313ef1	NYGARD v HILLSTEAD COYLE	N/A	13756	Montana	Montana Supreme Court	No. 13756 IN THE SUPREME COUFU' OF THE STATE OF MONTANA 1978 AKlXUR G. NYGARD and ARIENE NYGARD, Plaintiffs a n d Respondents, WAYNE A. HILLSTEAD, BE!r!IY L. HILLSTEAD and JEFXE H . COYLE, Defendants and Appellants. Appeal frm: D i s t r i c t Court of the Fourth Judicial D i s t r i c t , Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellants: Murray and Holt, Nissoula, Montana Harold Holt argued, Missoula, Mntana Goldman & WChesney, Missoula, Montana For Respondents: Mulroney, Delaney, Dalby and Jbdd, Missoula, P.lontana Dexter Delaney argued, Missoula, Montana Suhnitted: September 14, 1978 Decided: 7 - ,979 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Wayne A. and Betty L. Hillstead, defendants, appeal from a District Court judgment which directed the parties to the action to sell certain Seeley Lake real property and divide the proceeds equally between them. Several issues are raised in this appeal, but the dispositive issue is our conclusion that the defendants were denied due process of law because the trial court prematurely terminated the trial without giving the defendants an opport- unity to present further testimony and documentary evidence. A summary of the facts leading to this litigation, as well as a s u r r i m a r y of the proceedings in the trial court follows. The events which led to this appeal began in December 1972, when Wayne A. Hillstead, Betty L. Hillstead, Arthur G. Nygard and Arlene J. Nygard formed a verbal partnership for the express purpose of purchasing and operating the Seeley Lake Inn. When the Hillstead-Nygard partnership was formed, the Seeley Lake Inn was being operated by Stewart and Marilyn Rose. The Roses' claimed title to the Inn under a contract for deed entered into with Jerrie Coyle, the record owner of the Inn. On December 19, 1972, the Roses' assigned all their rights under the Coyle-Rose contract for deed to the Nygard- Hillstead partnership. Thereafter, on or about December 22, 1972, the partnership took physical possession of the Seeley Lake Inn. The partnership operated the Inn from December 22, 1972 until April 15, 1973. On the latter date, "unhappy differences" caused the Nygards' to leave Seeley Lake on an extended trip -2- to North Dakota. The Hillsteads remained in Seeley Lake and continued to operate the Inn. On July 10, 1973, the Nygards instituted an action in the District Court, Missoula County, seeking a dissolution of the partnership and a public sale of the partnership's assets. Nygards' complaint alleged that they had been forced to leave Seeley Lake because of "unhappy differences" between the partners, particularly, Wayne L. Hillstead. The Hillsteads filed various responsive pleadings, including an amended answer and counterclaim. The amended answer claimed the Nygards had not been ousted from the Inn, but had abandoned the premises of their own volition. The counterclaim sought reimbursement for the Hillsteads for one-half of all the Inn expenses paid after April 15, 1973. The case was set for trial on June 28, 1976, before the Hon. Edward T. Dussault, sitting without a jury. The trial lasted one day, with the following judgment being entered against the Hillsteads on December 30, 1976: "1. That the partnership relationship between the Nygards and the Hillsteads be adjudged as being terminated as of April 15, 1973. "2. That the Hillsteads provide the Nygards with an accounting of the sale of personal property, equipment and fixtures which the parties purchased jointly from the Roses. "3. That the Plaintiffs Nygards be entitled to a Judgment against the Defendants Hillsteads partitioning said property, requiring the same to be sold at Sheriff's Sale to the highest bidder, and, after the parties have been reimbursed for those sums of money expended by them in connection with the payment of partnership obligations between December 19, 1972, and April 15, 1973, and the Plaintiffs credited to the extent of their interest in the personal property sold by the Defendants, the proceeds thereof be equally divided between the Nygards and the Hillsteads. "4. That the Hillsteads be entitled to take nothing by virtue of their affirmative defenses or cross-complaint against the Nygards." After the adverse judgment in the District Court, defendants substituted their counsel and prosecuted this appeal. The thrust of defendants' argument on appeal is that the District Court prematurely terminated the June 28th trial and thereby deprived them of the opportunity to present their case to the finder of fact. The transcript reveals the following occurrences. Betty L. Hillstead was the only witness allowed to testify on behalf of the defendants. During her testimony, her attorney was laying a foundation for the introduction of a number of defense exhibits; 5ut, her testimony was interrupted when plaintiffs' c~unsel objected to all of the defense exhibits. The trial judge decided to take plaintiffs' objection under advisement. He stated he would review the proposed exhibits during the noon hour and render a decision on their admissibility immediately after lunch. The court then recessed for a ninety-minute lunch break. When the court reconvened at 1:30 p.m., the trial judge held a short meeting in his chambers with both opposing counsel. Thereafter, the judge returned to open court and made the following statement: "THE COURT: For the record, and so the clients will know, we retired to the office of the Court Reporter to at least try to iron out what law governs the situation in this case, and I told the parties what I felt that the Uniform Joint Partnership Act controlled in this case, and as a result, I'm not so sure just what counsel for the Defendants Hillstead feels, but the Court feels that, and has ruled as a matter of record, that the partnership actually was dissolved as of April fifteenth, 1973, and from that date on the remaining partner who stayed in the business didso at his peril. In other words, if he expended any money in the hopes of making money or borrowed money in the hopes of making the business flourish, which it did -- I know of my own knowledge at one time under the original owner that he didso, and they did so at their own peril. The Court will admit the notes which were offered in.evidence with the exception of L which was not offered - Defendants' Exhibit L." After this statement was made, an extended discussion took place between the court and opposing counsel. The bulk of this discussion seems to be an attempt to clarify exactly what the trial judge had decided. At one point, the following exchange took place: "THE COURT: I think both counsel know exactly what we're talking about. "[PLAINTIFFS' CCUNSEL] . . . Shall we - prepare proposed findings? "THE COURT: Yes, if you will. I would - --- appreciate your preparing findings, and I am just saying this -- I was trying to shorten the record for you in case you didn't like the way I interpret the law, so if you want to take an appeal it would cost you less, and I know nobody can say 'anybody,' but I think I can read the law and we've had two or three cases exactly in point regarding this type of partition or dissolution. If it cannot be partitioned, then it would have to be sold." (Emphasis added.) Betty Hillstead never returned to the witness stand. Wayne Hillstead, who was scheduled to testify in his own behalf, was never given the opportunity to take the stand. The District Court simply ruled the trial was complete and findings and conclusions should be submitted. After the court announced its ruling, defendants' counsel made the following objection to the termination of the proceedings: "[DEFENDANTS' COUNSEL] . . . Would you hold the floor a minute, Judge? May we have a few minutes to think about this, Judge? "THE COURT: Sure. "[DEFENDANTS' COUNSEL] . . . Your Honor, at this time I would like to lay a foundation for appeal, if it's all right with the Court. "THE COURT: Sure. "[DEFENDANTS' COUNSEL] . . . That the Defendant, or Defendants, rather, have been barred from introducing any evidence of the conduct of the Plaintiffs and their abandon- ment of the premises. That further we were barred from introducing the income tax returns for the years '74 and '75, made by the accountant for the partnership. This is only part of the basis of our appeal. This is no reflection upon the Court, Your Honor; merely was to make this of the record. I also want to make, for the record, or state for the record, that the parties without a statement of an indemnification, refuse to sign the liquor and beer licenses. Is that correct, Mr. Delaney?" It is fundamental that "[nlo person shall be deprived of life, liberty, or property without due process of law." 1972 Mont. Const. Art. 11, S17. "It is well settled that notice and opportunity to be heard are essential elements --- of Due Process". Halldorson v. Halldorson (19771, Mont . also stated in Halldorson: ". . . [Wle believe that appellate courts have a duty to determine whether the - - - - parties before them have been denied substantial justice the trial court, - and when that has occurred we can. within our sound discretion, consider whether the trial court has deprived a litigant of a fair and impartial trial, even though no objection was made to the conduct during the trial." (Emphasis added.) 573 P.2d at 172. Our review of the District Court record convinces us that the defendants were not given an adequate opportunity to present their side of the case. They were denied substantial justice. Accordingly, they are entitled to a new trial. Since the case must be retried, we feel it is incumbent on this Court to offer some suggestions to avoid further confusion and delays. First, we note that this action was tried without the benefit of discovery or pretrial conference. We strongly recommend holding a formal pretrial conference to simplify the issues and formulate the contentions of the parties. Such a procedure expedites the trial and is valuable for this Court if a subsequent review becomes necessary. -6- We also note that there was some dispute over the applicability of Montana's Uniform Partnership Act. The parties now concede that the act applies, but disagree as to the applicable sections. The pretrial conference will afford the litigants an opportunity to present their arguments to the court prior to the trial date. This procedure will allow the court to make an informed decision as to which section of the act should be applied. For the foregoing reasons, the case is remanded to the District Court for a new trial. We Concur: Chief Justice	March 7, 1979
9a7e3331-94ed-46bd-b871-fd4d9a4218e9	MARRIAGE OF BALSAM	N/A	14282	Montana	Montana Supreme Court	No. 14282 I N THE S U P - CCUKC OF THE STATE OF MONTANA 1978 IN RE THE MARRIAGE O F ' E. G. BALSAM, J3.t Petitioner and Respondent, Respondent 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 , Homrable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Berger, Anderson, Sinclair & Murphy, Billings, Mntana James J. Sinclair argued, Billings, Pbntana For Respondent: I;ongan & Holmstrcan, Billings, Montana J a m e s C. Capser argued, Billings, Mntana Submitted: November 15, 1978 Filed: $m f. 5 1979 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Wife appeals from judgment of the Yellowstone County District Court finally distributing marital assets after dissolution of her marriage to respondent-husband. The parties were married in January 1964. During their thirteen year marriage, they had three children. The husband petitioned for dissolution which was granted on March 9, 1977. Custody, support, visitation, maintenance and property distribution were to be settled later. Mutual agreement was reached as to all matters except property division. The wife would retain custody of the three minor children. Husband was obligated to pay $250.00 per month per child for support until each attained the age of majority. No provision was made for maintenance; none was pleaded. Only the issue of property distribution was presented to the District Court. The property before the Court included: (1) family home appraised at $92,800.00 (2) household furnishings and personal property in possession of wife 17,000.00 (3) household furnishings and personal property in possession of husband 3,000.00 (4) 1972 Mercury station wagon 2,275.00 (5) 34 shares Balsam, Inc. stock 58,549.36 (6) 1 share Hornoi Transport, Ltd. stock no value (7) 215 shares Hornoi Transport, Inc. stock 54,487.45 The marital debts were: (1) Unsecured notes from First National Bank, Miles City, Montana $19,000.00 (2) Note payable to Midland, Inc. for construction materials used in construction of marital home 6,190.00 On December 9, 1977, the District Court issued its memorandum- order determining the wife's entitlement to the above assets and liabilities. The court engaged in a reasoned analysis as follows: Family Home. Prior to their marriage, husband was given a trust fund by his parents. After marriage and construction of the marital home, he withdrew monies from the trust fund and reduced the construction price of $66,800.00 by 41%. Documentation of this transaction was received into evidence without objection. The court ruled that only 59% of the home's present value was includable in the marital estate for division. Balsam Inc. Stock. Husband was given 19 shares of Balsam, Inc. stock and 50 shares of Northern Tank Lines, Inc. stock by his parents. Husband later traded the Northern Tank Lines, Inc. stock for 15 more shares of Balsam, Inc. stock, giving him a total of 34 shares. The court noted no increase in the value of this gifted stock discernible from the evidence presented and that its value is adversely affected by transfer restrictions. The Balsam, Inc. stock was not included in division of the marital property. Hornoi Transport, Ltd. Stock. During the marriage, -- husband and his brother combined the dividends received from Northern Tank Lines, Inc. stock and purchased inter-provincial authority to transport petroleum products from Canada into the United States. The new concern, named Hornoi Transport, Ltd., generated substantial income until about a year after its inception when the Canadian government imposed a heavy export tax on petroleum products thereby causing a complete cessation of business. The corporation has produced no income since and was considered valueless at marital dissolution. Hornoi Transport, Inc. Stock. With the funds generated -- while Hornoi Transport, Ltd. was profitable, husband and his brother purchased certain Montana-North Dakota intrastate authority to haul petroleum products around which they formed Hornoi Transport, Inc. Husband held a 50% interest in Hornoi Transport, Inc. valued at $54,487.45. The court included this amount in the marital estate. Ultimately, the assets in which the wife was deemed entitled to share included: (1) family home to extent of (59%) $54,752.00 (2) furnishings and personal property 20,000.00 (3) automobile 2,275.00 (4) Hornoi Transport, Inc. 54,487.45 $131,514.45 Deducting the marital debts ($25,190.00), her one-half share was deemed $53,162.22. Out of this figure, the court awarded the home furnishings and personal property in wife's possession ($17,000.00) and the automobile leaving a balance of $33,887.22. The court recommended that if the wife remain in the home with the children, an arrangement be made whereby when the youngest child attains majority, the home be sold and its proceeds divided in proportion to their respective interest, i.e., 63.48% to husband, and the balance to the wife. The issue presented is whether the District Court's distribution of the marital property was an abuse of discretion. Our standard of review in disputes over a District Court's division of marital property is whether in the exercise of its discretion the court acted arbitrarily, unreasonably or without regard to recognized principles resulting in substantial injustice. Porter v . Porter (1970), 155 Mont. 451, 457, 473 P.2d 538, 541. This case was submitted with an agreed statement of record on appeal pursuant to Rule 9(d), Mont.R.App.Civ.P., hence we confine our inquiry to whether there was substantial evidence in that record and -4- the exhibits to support the court's findings and order of property disposition. Martinez v. Martinez (1978), Mont . Wife argues that her award of $53,162.22 when compared to $234,848.49 is manifestly inequitable. Our preliminary observation is that the wife's valuation of the marital estate is not supported by the record. The $234,848.49 figure is derived from the chart attached to her brief, ostensibly for this Court's convenience. The wife values the Balsam, Inc. stock without discount. The uncontraverted testimony of husband's certified public accountant was that "if value were to be determined by use of book values, then the stock in Balsam, Inc. would have to be discounted for minority interest." Exhibit 2, fixing the discounted value, was then admitted without objection. Likewise, the only evidence on value of the Hornoi Transport, Ltd. stock was that it had no present value. Since these valuations were accepted by the District Court without objection by wife's counsel, we cannot consider her recalculations on appeal. Sikorski v. Olin and Rolin Mfg., Inc. (1977) , Mont . , 568 P.2d 571, 574, 34 St.Rep. 1042, 1046 (citing cases). Essentially, the wife maintains it is inequitable that she has no source of income while the husband does. She forsees the eventual exhaustion of property awarded her by the time their youngest child attains the age of majority. Husband aptly characterizes this as a "maintenance argument", which assumes she will never work or remarry. Like the valuation she ascribes to the marital assets, wife's contention that the amount awarded will not enable her to maintain her station in life was not an issue raised in the District Court. In view of the fact that the wife had remarried at the time of trial, property disposition as an alternative to a maintenance was indeed a moot issue. - 5- The parties are agreed that section 48-321(1), R.C.M. 1947, provides the statutory guidelines for distribution of marital property at dissolution. The wife contends however, the court failed to consider her non-monetary contributions in its disposition. We disagree. The court acknowledged the wife's non-monetary contribution with respect to 59% of the current value of the family home, all the home furnishings and personal property, the automobile and the Hornoi Transport, Inc. stock. With reference to the stock, the court reasoned: "Although this asset [Hornoi Transport, Inc.] came as a product of the husband's gifted stock interest in Northern Tank Line, being a dividend associated with such stock ownership, its development accrued during the marriage and can properly be considered a marital asset in which the wife would be entitled to some interest." The rationale underlying the court's treatment of the Balsam, Inc. stock was also outlined in the court's memorandum: ". . . the gifted stock he now has in Balsam, Inc., has not been the product of any marital effort by either of them, but is purely a gift toward which the wife has made no contribution and, therefore, any entitlement in her should take this factor into account. If there has been any increase in the value of the stock over the period of the marriage, it is not discernible from the evidence before the Court." The court thus exercised reasonable discretion in dis- allowing wife a half interest in the Balsam, Inc. stock. In valuing the family residence, the court apparently adopted the husband's contention as stated in the court's memorandum: ". . . the amount of gifted trust money he put into the family home amounted to 41% of its construction price so that 41% of its present value should be his, exclusive of any interest in the wife. In other words, he regards 59% of the home to be marital estate and suggests that a 50-50 division of that interest would be appropriate." This formula is troubling in light of a recent case. In Vivian v. Vivian (1978), Mont. , 583 P.2d 1072, 1074-75, 35 St.Rep. 1359, 1362, this Court disapproved deducting an inheritance received during marriage, assuming it was invested in home improvements, from the value of the marital home before dividing the marital assets. It seems the appreciated value of the home should be considered a product of the marital partnership and therefore includible in the marital estate. Vivian is distinguishable from the instant case however, because in Vivian no evidence was presented on the husband's expenditure for home improvements, and the inheritance was received during the marriage. Here, the gifted funds were received before marriage and evidence of husband's expenditure was clearly presented at trial. We do not approve the percentage deduction of monies invested in marital assets which have appreciated during marriage. In this case, however, we find no abuse of discretion. The District Court's memorandum-order disposing of marital assets reflects a reasoned application of section 48-321(1), R.C.M. 1947, to division of the marital estate. All the marital assets were before the court. No abuse of discretion has been shown. The District Court's judgment is affirmed. We Concur: Chief Justice i Justices .	January 15, 1979
7fe85edc-2708-4875-bd6a-5fa087d3be0f	WINTER v RHODES DIEHL GRIFFIN	N/A	14262	Montana	Montana Supreme Court		January 29, 1979
2480c67c-8c23-4268-ae84-23de58e9c0d3	HOWELL v GLACIER GENERAL ASSURANCE	N/A	89-027	Montana	Montana Supreme Court	No. 89-027 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 WILLIAM T. "BILL" HOWELL, and JENSEN HOWELL, Plaintiffs and Appellants, -vs- GLACIER GENERAL ASSURANCE COMPANY and the r STATE OF MONTANA and its agent, THE MONTANA 0 Z POTATO IMPROVEMENT ASSOCIATION, 2 . - I Defendants and Respondents, z D - rn -and- . . 6 ' - MONTANA INSURANCE GUARANTEE ASSOCIATON, -- - i a non-profit association, - , .. Plaintiff in Intervention and Respondent -vs- 141 : GRANGE INSURANCE ASSOCIATION, a corporation; and 0 0 . ' '. WILLIAM T. "BILL" HOWELL and JENSEN HOWELL, individuals, 5 . . Defendants In Intervention and Appellants.-i APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, The Honorable James R. Wheelis, Judge presiding. COUNSEL OF RECORD: For Appellant: Jon R. Binney and Lon J. Dale argues; Milodraqovich, Dale & Dye, Missoula, Montana For Respondent: Robert Phillips argued; Snavely & Phillips, Missoula, Montana Randy J. Cox argued; Boone, Karlberg & Haddon, Missoula, Montana Filed: Submitted: September 25, 1989 Decided: December 27, 1989 Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal by c ill and Jensen Howell (~owells) and Grange Insurance Association (Grange) from a grant of summary judgment in favor of respondent Montana Insurance Guarantee ~ssociation (MIGA), the State of Montana and the Montana Potato Improvement Association (MPIA). Also appealed is the ~istrict Court's denial of appellants' motion to stay pending completion of discovery and its granting of respondents' motion for protective order. We affirm in part, reverse in part and remand for further proceedings. Appellants present essentially two issues for review: 1. id the court abuse its discretion in denying plaintiffs' motion to stay ruling pending completion of discovery and in granting defendants' motion for protective order? 2. Did the District Court err in granting summary judgment in favor of defendants State of Montana, Montana Potato Improvement ~ssociation and plaintiff-in-~ntervention, Montana Insurance Guarantee ~ssociation? At all times material to this litigation, calendar years 1976-1977, the Howells were Montana seed potato producers. The State was an insured of Glacier General under a policy titled "municipality comprehensive liability policy." MPIA is an agent of the State in seed certification matters. The policies insured the State against certain risks enumerated in policies ML101, effective July 1-June 30, 1976 and ML102, effective J.uly 1, 1976-June 30, 1977. Grange insured Howells. The instant action arose out of a Washington civil case wherein certain Washington potato farmers sought compensation for damages they incurred because they had. p.urchased. seed potatoes infected with ring rot. The ~ashington plaintiffs filed suit in 1979 in Washington against the Howells, certain ~ashington warehousemen and MPIA, who had certified the seed potatoes. Grange, under a reservation of rights, defended the Howells in the Washington litigation. On March 20, 1981, judgment was entered in the ~ashington litigation. The judgment in excess of $485,000 ran directly against the warehousemen and MPIA jointly and severally. The Howells were found not negligent but they were ordered to indemnify one of the Washington warehousemen because of breach of warranty claims. On September 17, 1981, the Washington plaintiffs filed a complaint in Montana to enforce the judgment in Montana and on August 24, 1983, judgment was entered against MPIA and Howells. During the time between September 1981 and October 1983 Grange and Howells tried to get MPIA and the State to pay some or all of the judgment but their efforts were unsuccessful. In October 1983, the Washington plaintiffs assigned their judgments to the Howells with Grange furnishing the entire consideration for the assignment. Grange paid the consideration under a reservation of rights agreement. Then in December 1983, Howells and Grange initiated this action. ~uring the pendency of this action, h lacier General was declared insolvent and MIGA was granted permission to intervene. Discovery in this action spans several years. Appellants deposed Thomas Haggerty; claims manager of Glacier General, in December of 1985. Later, in January of 1987, appellants deposed John Maynard. After these depositions, appellants attempted to depose J. Michael Young, Dr. Sun and James McLean, defendants ' agents. Prior to the summary judgment motion counsel had tried to schedule these depositions but were unable to do so because of scheduling conflicts. Appellants filed notices of depositions for September 19 and 26, 1988. In the meantime respondents filed their motion for summary judgment. Issue I Did the court abuse its discretion in denying plaintiffs' motion to stay ruling pending completion of discovery and in granting defendants' motion for protective order? Rule 56 (f) , M.R.Civ.P. is as follows: Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. A review of the District Court's order and opinion discloses that the district judge did read and consider plaintiffs' arguments. However, the District Court, in its discretion, decided that the plaintiffs did not sufficiently establish how that proposed discovery could precl.ude summary judgment. A review of appellants' motion and affidavit persuades us that the ~istrict Court did not abuse its discretion. Further, in light of our holding on Issue 11, reopening discovery as outlined by appellants is unnecessary. We affirm the District Court. Issue I1 Did the District Court err in granting summary judgment in favor of defendants State of Montana and Montana Potato Improvement ~ssociation and plaintiff-in-~ntervention, Montana Insurance Guarantee Association? The ~istrict Court found that respondents were entitled to summary fudgment because this action is essentially a subrogation action and the Montana Insurance Guaranty ~ssociation Act (MIGAA) prohibits recovery from MIGA by insurance companies. We agree with the District Court as to MIGA, but disagree with the District Co.urt1s holding as to MPIA and the State. MIGA MIGAA states in pertinent part as follows: 33-10-102 (2) (b) "Covered claim" shall not include any amount due a reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise. The MIGAA clearly prohibits subrogation recoveries from MIGA by an insurance company. In the instant case, the District Court correctly found dispositive the fact that Grange purchased the judgments from the Washington plaintiffs. Since Grange owns the judgments, 5 33-10-102(2)(b), MCA, bars appellants' claim against MIGA. Appellants contend that even though Grange paid for the judgments, Grange's reservation of rights preserves the claim as Howells'. Thus, appellants argue that the Howells have a claim against MIGA which is not barred by 5 33-10-102(2) (b), MCA . However, the reservation of rights issue only determines the party (Grange or Howells) who receives payment of the judgment. The insurance coverage dispute between Grange and Howells does not impact the liability of the State or MPIA nor does it alter the effect of Grange purchasing the judgments. We affirm the summary judgment in favor of MIGA. The State and MPIA The District Court's opinion does not directly address why it granted summary fudgment for the State and MPIA. Apparently the District Court concluded that since 5 33-10-102(2)(b), MCA, barred recovery from MIGA, it somehow barred recovery from the State or MPIA as well because they are insureds of an insolvent insurer. However the District Court erred in granting summary judgment in favor of the State and MPIA. The District Court's opinion, in effect, nullifies the valid judgment that appellants hold against MPIA. Respondents correctly argue that MIGA affords limited protection to the insureds of insolvent insurers. However, that limited protection does not absolve tortfeasors from judgments against them because coincidentally their insurance carriers become insolvent. Regardless of the effect of the MIGAA on this litigation, appellants still hold a valid judgment against MPIA that remains unsatisfied and judgment should be entered against MPIA. As to the liability of the State of Montana, we remand to the District Court for further proceedings to determine the liability of the State of Montana. We therefore reverse the District Court's award of summary judgment in favor of the State and MPIA and direct entry of summary judgment in favor of the appellants against MPIA. Affirmed as to MIGA, reversed as to the State and MPIA, and remandec? for further proceedings consistent with this opinion. 9 W e concur: --. ?$hJLrp :qw,4o' The t on or able Frank I. Haswell, R e t i r e d Chief J u s t i c e , s i t t i n g f o r Chief Justice J . A . Turnage	December 27, 1989
c95d1863-3a62-429b-8ef2-6ea34314eca0	STATE v BRETZ CLINE	N/A	13550	Montana	Montana Supreme Court	No. 13550 IN THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA, Plaintiff and Respondent, L. R. BRETZ AND MERREL J. CLINE, Defendants and Appellants. Appeal from: District Court of the Third Judicial District, Honorable Jack Green, Judge presiding. Counsel of Record: For Appellants: Frank B. Morrison, Sr. argued, Whitefish, Montana Donald E. Hedman argued, Whitefish, Montana Richard Anderson argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Robert Keller, Special Assistant Attorney General, argued, Kalispell, Montana James Masar, County Attorney, Deer Lodge, Montana Submitted: June 16, 1978 Decided:FEB - 5 1 m Filed: F.EB -- 5 1 9 E Mr. Justice John C. Sheehy delivered the Opinion of the Court. Defendants L. R . Bretz and Merrel J. Cline each appeal from judgments of conviction against them on June 18, 1976, based on verdicts of guilty for certain criminal offenses after jury trial. On August 27, 1975, L. R. Bretz and Merrel J. Cline were charged in a five-count information with criminal acts alleged to have occurred while the two were serving time on prior convictions within the prison at Deer Lodge. The original information charged conspiracy and solicitation to assassinate the then attorney general, Robert L. Woodahl and his special assistant, Richard Dzivi. After the original information was filed, both defendants were transferred to the Missoula County jail to await trial on the assassination charges. While in the Missoula County jail, Bretz and Cline were alleged to have committed certain acts which resulted in the filing of an amended information in Powell County District Court, adding five new counts. The new counts again charged conspiracy and solicitation against defendants, alleging efforts on the part of defendants to secure perjured testimony from two Missoula County jail inmates, Walter Lee Fox and John Eugene Hendricks, regarding the character of prosecution witnesses in the original conspiracy and assassination counts. The District Court granted defendants' motion for a change of venue as to the last five counts from Deer Lodge County to Missoula County. The State appealed and the grant of change of venue was reversed by this Court in a divided opinion. (State v. Bretz and Cline (1976), 169 Mont. 505, 548 P.2d 949.) The case was tried before a jury in Powell County and verdicts were returned. Defendant Bretz was found guilty on count VI, conspiracy to commit the crime of perjury by encouraging Walter Lee Fox and John Eugene Hendricks to make false statements under oath; count VII, solicitation of Walter Lee Fox to commit the crime of perjury; count IX, tampering with witnesses by attempting to induce John Eugene Hendricks and Walter Lee Fox to testify falsely during the trial of the case; and count XI fabricating physical evidence, relating to statements of Walter Lee Fox and John Eugene Hendricks, for the purpose of discrediting the credibility of Jack LaMere as a witness in the case. Defendant Bretz was found not guilty on all other counts. Defendant Cline was found guilty of count VI and was found not guilty on all other counts. Thus all the counts upon which convictions were obtained relate to actions alleged to have occurred in Missoula County, and not in Powell County, the place of trial. After the jury verdicts, judgments were entered against each of the defendants. Cline was sentenced to six years in prison. Bretz was sentenced to a six-year term on his conviction under count VI; imposition of sentence on his convictions on the other counts was deferred. Both defendants were then serving prison terms for prior convictions and these sentences were imposed to run consecutively to those received for the prior convictions. This Court ultimately reversed Cline's prior conviction, and affirmed Bretz's, in State v. Cline and Bretz (1976), 170 Mont. 520, 555 P.2d 724. Appeals were duly taken by both defendants to this Court. Out of the welter of issues raised by appellants in this Court, we find merit in two and reverse the convictions on those grounds. The first issue relates to the amendment by the trial judge, while the jury was deliberating, of instruction No. 6. It was given without objection by either defendants or the State and in part instructed the jury: "Said defendants are also charged in the same information with the following crimes alleged to have committed in Missoula County, Montana, between August 25, 1975, and October 22, 1975: "Count Six: Conspiracy to commit the crime of perjury by encouraging Walter Lee Foxand John Eugene Hendricks to make - false statements under oath or equivalent affirmation." (Emphasis supplied.) (The other counts were also charged conjointly.) The jury deliberated for two days after the case was submitted to it, and on the second day, before the jury had arrived at a verdict, the court informed counsel that the preceeding evening, a Friday night, the bailiff had received a question from the jury as to the interpretation of instruction No. 6. The transcript reveals that the court advised the parties respecting the amendments on the following morning as follows: "THE COURT: I wish to advise counsel that last night, that would be Friday night, the bailiff had a question from the jury as to the interpretation of instruction no. 6, where the word 'and' was used between Fox and Hendricks. I advised the jury in connection to those paragraphs, starting with no. 6, that it should be amended to read 'or', does the State have any objections with that? "MR. GILBERT: No objections. "THE COURT: Does the defendant Bretz have any objection? "MR. TRIEWEILER: No objections. "MR. MATTHEWS: No objection." Both Bretz and Cline contend that the court's action in amending instruction No. 6 constituted an amendment of the information under which the defendants were charged, that the amendment was material and substantially prejudiced the rights of the defendants. The State contends that the amendment did not con- stitute a change of the offense charged; that had the State moved to amend the information at that time, the motion would undoubtedly have been granted; and that the defendants were each fully prepared to defend as to Walter Lee Fox or - John Eugene Hendricks so the change did not increase or lessen the defense burden. The State contends that the recitation by the court to counsel later about the amendment was also without objection. The State however, concedes this is raising a technicality to meet a technicality, and that the real concern facing this Court is whether or not the amendment was one of substance. The statute which mandates procedure when the jury is deliberating in such cases is section 95-1913(d), R.C.M. 1947. It states: " (d) After Retirement, May Return into Court for Information. After the jury has retired for deliberation, if there be any disagreement among them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information requested may be given in the discretion of the court; if such information is given it must be given in the presence of the county attorney and the defendant and his counsel. " Obviously the statute was not followed in this case. In State v. Herron (1975), 169 Mont. 193, 198, 545 P.2d 678, we held that as a general rule additional instructions to the jury must comply with the law and failure to follow the law constitutes reversible error. The instruction as amended constituted a substantial departure from the crime that had been charged. The information and the instructions as argued by counsel by both defendants had required proof of the involvement of Hendricks and Fox. Hendricks did not - testify. The jury was obviously at sea with respect to the use of the conjunctive and so asked further instructions. When the court communicated to the jury neither counsel for the State nor the defendants were present. The amendment of the instruction permitted the jury to convict the defendants if they found that one only of the two persons named were involved. Thus, a material variance occurred which requires reversal. The second issue on which we reverse brings us back to the question of venue of counts VI through X of the amended information, all of which were alleged to have occurred in Missoula County. In the prior decision of this Court, with respect to the venue question (169 Mont. 505, 548 P.2d 949), the majority felt that the additional counts arising out of the alleged acts in Missoula County could not stand independently of the alleged acts in Powell County and therefore that venue in Powell County must be sustained since the first information was filed there. The anomaly now is that as a result of the acquittals, the convictions relate only to alleged acts in Missoula County, and on retrial would concern only allegations arising out of Missoula County. In State v. Zimrnerman (1977), Mont . , 573 P.2d 174, 34 St.Rep. 1561, we held that an earlier erroneous decision of this Court is not necessarily binding as the law of the case in a subsequent appeal. The exception to the general rule of law of the case arises where the cause on appeal must be remanded to the District Court for further proceedings because of reversal on an unrelated issue. When that occurs, this Court may correct "a manifest error in its former opinion" and announce a different ruling to be applied prospectively to the future proceedings in the case. (573 P.2d 178, 34 St.Rep. 1566). We also noted that the exception is more readily applied where the prior decision is by a divided court. Perkins v. Kramer (1948), 121 Mont. 595, 198 P.2d 475. We hold therefore that, especially in the light of subsequent events, the decision respecting venue in our prior opinion is in fact erroneous, and now this cause fits within the general exception to the rule on law of the case; that is, we find that the proper venue for this cause is in the District Court in Missoula County. Defendants raised a number of other issues on their appeals, but there is no need for this Court now to examine those issues critically because of our decision here. Essentially those issues relate to the sufficiency of the evidence to support the convictions which were obtained, or to whether the testimony of an accomplice had been cor- roborated. Since the counts upon which convictions were obtained must now be retried, it would be bootless to search the more than three thousand pages of transcript to determine whether the corroborating evidence was sufficient under State v. Cobb (1926), 76 Mont. 89, 92, 245 P. 265, or whether otherwise the evidence was sufficient to sustain the con- victions. On one issue, raised by defendant Cline, however, we do wish to make comment. He contends that the District Court erred in denying his motion for a separate trial from his codefendant Bretz. He points out that the defendant Bretz -7- exercised the right of peremptory disqualification of the trial judge, and when the second judge assumed jurisdiction, Cline had no similar right to disqualify that judge, because under section 95-1709, R.C.M. 1947, defendants may not peremptorily disqualify more than one judge. Cline contends that because Bretz exercised the disqualification first, he was not given a like opportunity and therefore was not accorded equal protection of the law under 1972 Mont. Const. Art. 11, S4. This contention is now moot because under the order of this Court dated December 26, 1976, entitled Disqualification and substitution of judges (34 St.Rep. 26), each defendant in a criminal proceedings is now entitled to one substitution of a judge. Section 95-1709,R.C.M. 1947, has been superseded by this order. The convictions of each of the defendants are vacated and the cause is remanded to the District Court for further proceedings in accordance with this opinion. Justice We Concur: Justices ............................. Hon. LeRoy L. McKinnon, District Court Judge, sitting in for Mr. Justice Daniel J. Shea STATE -VS- BRETZ & CLINE I respectfully dissent from the foregoing opinion. The majority opinion has found merit in two of the issues raised on appeal. The first of said issues relates to a charge in the information, and to instruction number 6, covering said charge. The charges: "Count Six: Conspiracy to commit the crime of perjury by encouraging Walter Lee Fox and John Eugene Hendricks to make false statements under oath or equivalent affirmation", emphasis added. No proof was offered as to John Eugene Hendricks. No motion was made to conform the pleading to the proof. Instruction number six used the same conjunctive form "and", and was given without objection. Looking back it would seem that the charge should have used the "and/oru form, a motion to conform should have been made, and the instruction should have been worded in the singular. The ultimate fact is that when the prosecution rested, the defendants knew that the part of the charge pertaining to Hendricks was dropped, and that they need not defend against it. This in no way changed the burden of defense unless to lighten it slightly, and certainly the defendants were in no way mis-led or prejudiced in their defense. The jury was confused by the conjunctive form of the instruction when there was proof as to cons@ring with one person only. They raised the question to the bailiff. The judge then advised them that instruction six should be amended to read "or". It was such a simple little thing, and there was only one way to correct it, and this led the trial judge into techni- cal error. -9- The judge promptly advised counsel on both sides of what had transpired, and both sides affirmatively stated they had no objection. At that point, no verdict had been reached. Upon objection from either side the judge could have convened the court and straightened out the whole matter, and the net result would have been the same. "Although communications between judge and jury out- side of the presence of party on trial are frowned upon, prejudice is not to be presumed therefrom, but rather must be established before any verdict of guilty can be reversed on such ground. (Citing cases) Donald Wiseman v The People of the State of Colorado, t - h " t & e + & 4 % k r a d e 7 179 Col. 101, 498 P 2d 930." Quoted in People v Lovato, Col. , 507 P2d 860. Ballantine's Law Dictionary Third Edition at page 1334 defines variance, and the last paragraph thereof is as follows: "In a criminal case, a variance is an essential difference between the accusa- tion and the proof, and the variance is not material unless it is such as to mislead the defense, or expose the defen- dant to the injury of being put twice in jeopardy for the same offense. Brashears v State, 38 Okla Crim 175, 259 P 665." Black's Law Dictionary, Third Edition, at page 1800 is to the same effect with some additional citations. In this case, there was no variance which would lead to any different defense, if anything, it would reduce the necessary defense. Neither would it lead to a possibility of either defendant being put twice in jeopardy. All alleged conspirators were identified, and there could be no further prosecution on the facts giving rise to this case. As to the question of venue, that same question was before this court in this same case, and was ruled upon. See State v Bretz and Cline, 169'~ont. 505, 548 P2d 949. "The general rule in Montana is that where a decision has been rendered by the Supreme Court on a particular r b issue between the same parties in the same case, whether that decision is right or wrong, such decision is binding on the parties and the courts and cannot be relitigated in a subsequent appeal. (Citing cases) " * * * * "The sole exception to the 'right or wrong' rule recognized by this court was articultated in State v Zimmerman (1977) Mont . , 573 P2d 174, 178, 34 St. Rep. 1561, 1566: 'In any event, an exception to this general rule exists where the case must be remanded to the district court for further proceedings because of re- versal on an unrelated issue. In such cases this Court may correct a manifest error in its former opinion and announce a different ruling to be applied pros- pectively to future proceedings in the case. . . . Belgrade State Bank v Swainson, Mont . , 35 St. Rep. 549, 549B.'" Since I find no reversible error, I would not reach the question of venue. As far as fundamental fairness, I doubt there is much to choose between an impartial jury, duly selected, in Missoula County, as compared to its counterpart in Powell County. I would affirm the judgment. LeRoy L . p ~ i n n o n , ~ist;ict Judge, sitting in for Mr. Justice Daniel J. Shea.	February 5, 1979
63f11073-6b3c-4c9c-a592-837dcc9f9993	STATE v OSTWALD	N/A	14376	Montana	Montana Supreme Court	No. 14376 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 THE STATE OF MONTANA, Plaintiff and Respondent, -vs- EDWARD LYLE OSTWALD, Defendant and Appellant. Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellant: Robert Stephens, Jr., Billings, Montana Dave Kinnard argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Richard Larson argued, Assistant Attorney General, Helena, Montana Harold Hanser, County Attorney, Billings, Montana James D. Walen argued, Deputy County Attorney, Billings, Montana Filed: MAR 7 - 1~ Submitted: January 30, 1979 Decided: MAR 7 - lgl~l Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant appeals from his conviction of the crimes of burglary and misdemeanor possession of dangerous drugs following a jury trial in the District Court of Yellowstone County. In the early morning hours of December 26, 1977, when the janitor of the Billings Eagles Club reported for work, he noticed that the club's front door had been pried open. As he approached the building, he heard what he thought was hammering inside. He then left and contacted the authorities. Shortly after 3 : 3 0 a.m., several sheriff's deputies and city police officers were dispatched to the club and deployed around the building. An officer and a deputy approached the front door and glimpsed defendant inside. They called out to him and he began to flee. Defendant ran out the rear of the club where he was apprehended by a deputy sheriff stationed there. Several of the deputies and defendant then returned to the club where a damaged safe and a variety of hand tools were discovered. The tools belonged to defendant. During the course of the arrest, a deputy sheriff asked defendant what he was doing inside the building. Defendant ans- wered that he did not know. A subsequent inventory search of de- fendant uncovered two cigarettes which the officers suspected to be marijuana. The substance in the cigarettes was later tested by one of the officers with a "valtox kit" (a selection of chemi- cal reagents, some of which produce a characteristic color when combined with marijuana) with positive results. The suspected substance was never sent to the state crime laboratory for any further testing. On December 28, 1977, an information was filed in the District Court, Yellowstone County, charging defendant with the crimes of burglary and misdemeanor possession of dangerous drugs. At his arraignment on January 4, 1978, defendant pled not guilty to both offenses. Trial by jury was scheduled for April 18, 1978. On the day of the trial, counsel sought to endorse as an additional witness a psychologist who had performed a battery of tests on defendant. The psychologist was to testify that because of the effects of alcohol on defendant, "the disease of alcoholism and the actual brain damage he has suffered through the years", defendant was incapable of acting with a conscious object and could not have had the requisite mental state that is an element of the crime of burglary. The State objected to this proposed testimony on the grounds that it constituted a defense of mental disease or defect and that written notice pursuant to section 95- 503, R.C.M. 1947, now section 46-14-201 MCA had not been given. Defendant argued that the testimony of the psychologist would go only to the defense of intoxication for which written notice is not required. The State contended that if an accused relies on a particular alcoholic episode to raise intoxication as a miti- gating factor then he is not required to give notice; if, however, he relies on a defense of alcoholism in a generic sense as a mental disease or defect, as here, then the notice requirement applies. The court reserved its ruling on the State's motion to exclude the expert testimony until after all the other defense witnesses had finished testifying. At that time, the court granted the motion and excluded the psychologistls testimony. Three of the arresting officers testified at the trial. All testified they observed defendant's manner of speech and ability to carry on a conversation, his coordination and general condition, and each concluded defendant was not intoxicated at the time of his arrest. One deputy testified he smelled a faint odor of alcohol about defendant at the time he was being booked but he too stated defendant appeared sober, that he was coherent and his coordination was good. Defense witnesses who had seen defendant during the eighteen hour period prior to his arrest testified in general that defendant was an alcoholic, that he had a history of irrational behavior when he was intoxicated, and that he was intoxicated throughout Christmas day, the day before his arrest. His wife and college age son testified that when defendant left the family home around 2:30 a.m. the morning of the incident, he was in an extreme state of intoxication. Defendant himself testified that he was an alcoholic. He stated he had been drinking throughout the day prior to his arrest and could remember nothing from approximately noon of that day until he was awakened for breakfast in a jail cell the follow- ing morning. At the close of trial, defendant offered instruction on criminal mischief and criminal trespass, arguing that those of- fenses were lesser included offenses in the crime of burglary and that the jury must be instructed on them. Those instructions were refused. Defendant also offered several alternative instructions on diminished capacity due to intoxication as a mitigating factor. The court refused defendant's proposed instructions and instead gave instructions regarding the effect of intoxication on crim- inal responsibility by quoting the applicable Montana statutes. On April 20, 1978, the jury returned a verdict of guilty against defendant on both counts in the information. Defendant was sentenced to ten years in prison on the burglary charge and one year in county jail on the possession charge, to be served concurrently. Defendant's motion for admittance to bail pending appeal was denied. Defendant raises three specifications of error in this appeal : (1) Error in excluding the testimony of defendant's expert witness. (2) Error in the giving and refusing of jury instruc- tions. (3) Sufficiency of the evidence to sustain defendant's conviction of possession of marijuana. In ruling on the motion to exclude defendant's proferred expert testimony, the court cited the Revised Commission Comment to section 95-503, R.C.M. 1947, now section 46-14-201 MCA, which provides in pertinent part: "If the defendant fails to give notice of his intent to rely on a defense of lack of specific intent he does not lose that defense, but he will be limited to 'lay' testimony which generally is not effective for a defense of mental disease or defect." The text of section 95-503, R.C.M. 1947, now section 46-14-201 MCA, reads: "(a) Mental disease or defect excluding respon- sibility is an affirmative defense which the defendant must establish by a preponderance of the evidence. "(b)(l) Evidence of mental disease or defect exclud- ing responsibility is not admissible unless the defendant, at the time of entering his plea of not guilty or within ten (10) days thereafter or at such later time as the court may, for good cause, permit, files a written notice of his pur- pose to rely on such defense. "(2) The defendant shall give similar notice when in a trial on the merits, he intends to rely on a mental disease or defect, to prove that he did not have a particular state of mind which is an essential element of the offense charged. Otherwise, except on good cause shown, he shall not introduce in his case in chief, expert testimony in support of that defense. " (c) When the defendant is acquitted on the ground of mental disease or defect excluding responsibil- ity, the verdict and the judgment shall so state." In addition, there is another separate statute regarding the notice requirement. Section 95-1803(3)(a), R . C . M . 1947, now section 46-15-301 (2) (a) MCA provides : "For purpose of notice only and to prevent sur- prise, the defendant shall furnish to the prosecu- tion and file with the clerk of the court, at the time of entering his plea of not guilty or within 10 days thereafter or at such later time as the court may for good cause permit, a statement of intention to interpose the defense of mental disease or defect, self-defense, or alibi." Defendant argues that he was not required to give notice because he was proceeding under section 94-2-109, R.C.M. 1947, now section 45-2-203 MCA, which has no notice requirement. That statute provides: "A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. An intoxicated or drugged condition may be taken into consider- ation in determining the existence of a mental state which is an element of the offense." Defendant's purpose in offering the testimony of the psychologist was to demonstrate that defendant, because of his history of alcoholism and alcoholic personality, would be more prone on a given occasion of intoxication to be deprived of the ability to appreciate the criminality of his conduct than would a person who had no such attributes. The psychologist could not have testified to defendant's intoxication at the time of the commission of the offenses with which he was charged because the psychologist did not see him at that time. The expert testi- mony could only have gone to the likelihood that if defendant had in fact been drinking heavily on the day of the crime, then the disease of alcoholism from which he suffers would make it more probable that his intoxication would prevent him from acting knowingly and purposely within the meaning of the statute defin- ing the offense of burglary. Section 94-6-204, R.C.M. 1947, now section 45-6-204 MCA. We hold that the defense raised by this theory falls within the purview of the statutes requiring notice. The question of whether the defense of intoxication is elevated by an offer of expert testimony on a defendant's alco- holism in general to a defense of mental disease or defect re- quiring notice is a novel one. (We note at the outset that intoxication, strictly speaking, is not really a "defense", but "merely a fact which the jury can consider in determining the existence of a particular mental state". Commission Comment, section 94-2-109, R.C.M. 1947, now section 45-2-203 MCA. The cases and commentaries, however, speak of "the defense of intox- ication", and we incorporate that term herein with its qualified meaning under Montana law.) In the only case we have found specifically addressing the issue of notice of the defense of intoxication, the court said: "The statute requires notice when the defense is based on alibi or insanity, and not when intoxi- cation is used to negate specific intent. This provision would be applicable to a defense of intoxication only where defendant claimed insanity due to intoxication." People v. Cummins (1973), 45 Mich.App. 601, 207 N.W.2d 150, 151. Cummins, supra, was a case in which an assault conviction was reversed because a defendant who had not given notice was precluded from raising intoxication as a mitigating factor. That is not the case here. In this case, numerous defense witnesses testified both as to defendant's alleged intoxication at the time of the crime and as to his alcoholism over the years. The testi- mony excluded, in the words of appellant's brief, would have gone to "the permanent damage done to defendant by his abuse of alcohol." We hold that where, as here, thedefense of intoxication shifts to a defense based on expert testimony as to the long term effects of alcoholism, then it becomes a defense of mental disease or defect within the purview of the statutes requiring notice. Defendant argues that even if the notice requirement applies, the statutes allow for expert testimony despite noncompliance on a showing of good cause. Good cause is alleged in defense coun- sel's confusion over the distinction between intoxication at a specific time and alcoholism as a mental disease or defect. De- fendant argues that any possible prejudice to the State which could have been caused by the unexpected testimony of his expert witness could easily have been cured by the granting of a con- tinuance, and that it was therefore an abuse of discretion for the District Court to grant the State's motion for exclusion. We note that during oral argument of this appeal, defense counsel admitted having the information on which the expert was going to testify for some five weeks prior to trial, but did not make it available to the State nor endorse the psychologist as a witness until the day trial started. Further, it appears that the proferred testimony was of a nature that could not have reason- ably been evaluated and countered in a short time. Under these circumstances, we find no abuse of discretion in the trial court's ruling. In addition, defendant argues that his Sixth Amendment right to present a defense was violated by the exclusion of the expert testimony. Defendant's contentions in this regard are unclear. He cannot argue that he was precluded from presenting the defense of intoxication because numerous lay witnesses testi- fied on that issue. Expert testimony is not required to establish the defense of intoxication. By raising this Sixth Amendment claim, defendant apparently is attempting to force the court into a contradictory position. Nowhere does he claim that he was, in fact, raising a defense of mental disease or defect. However, he argues, if we conclude that such is the gist of his theory and hold that the notice requirement applies, then his Sixth Amendment rights are violated if we invoke his failure to give notice to bar him from presenting the defense of mental disease or defect. We find defendant's contentions to be without merit for the same reason we held there was no abuse of discretion in exclusion of the expert testimony; that is, that defendant attempted to spring this surprise witness on the State at the last moment rather than following the acknowledged customary practice in the thirteenth judicial district of making medical reports available to the State prior to trial. Under the cir- cumstances present here, we hold that the exclusion of the expert testimony does not constitute a violation of defendant's Sixth Amendment rights. We now turn to the second issue on appeal; the alleged errors in instructions. Defendant argues that his intoxication negated the existence of the purpose to commit an offense which is an element of the crime of burglary, and that therefore he could only be convicted of mere criminal trespass or criminal mischief. Defendant cites State v. Bouslaugh (1978), Mont . , 576 P.2d 261, 262, 35 St.Rep. 319, 321 for the proposition that " . . . it is a fundamental rule that the court's instruc- tions should cover every issue or theory having support in the evidence." Defendant also emphasizes language from Bouslaugh where we cited State v . Buckley (1976), Mont . , 557 P.2d 283, 33 St.Rep. 1204, to the effect that a defendant is entitled to instructions on lesser included offenses if any evidence exists in the record which would permit the jury to rationally find him guilty of a lesser offense and acquit him of a greater. We agree with these principles. It is also a fundamental rule, however, that " . . . where an accused is either guilty of the offense charged or is entitled to an acquittal . . . an in- struction on the lower offense is not necessary and is properly refused." 23A C.J.S. Criminal Law S1288(c). The court may not be put in error for refusing to instruct on a lesser offense in such cases. Bouslaugh, supra; State v . Baugh (1977), Mont . , 571 P.2d 779, 34 St.Rep. 1315; State v . McDonald (19151, 51 Mont. 1, 149 P. 279. The offense of criminal trespass includes the element "knowingly". Section 94-6-203, R . C . M . 1947, now section 45-6- 203 MCA. The offense of criminal mischief includes the elements "knowingly or purposely". Section 94-6-102, R . C . M . , now section 45-6-101 MCA. If defendant's intoxication defense had been believed by the jury, he could not have been convicted of burg- lary, criminal trespass, or criminal mischief. He was, therefore, either guilty of the offense charged or entitled to an acquittal. We find no error. Defendant also alleges error in the refusal of his offered instructions on diminished capacity due to intoxication, Defen- dant offered several alternative instructions, each of which con- tained language to the effect that where a defendant is charged with a crime which requires a certain conscious object or mental state, if evidence of defendant's intoxication raises a reasonable doubt that he did not have that mental state, he cannot be found guilty of the crime. The court instead gave instructions in stat- utory language for definitions of knowingly and purposely, and in the language of section 94-2-109, R . C . M . 1947, now section 45-2- 203 MCA, concerning the effect of intoxication on criminal respon- sibility. In addition, the court instructed the jury that where knowledge and purpose are elements of a crime, a mental disease or defect or physical condition, from whatever cause, which might prevent one from knowing or having the purpose essential to the crime is to be considered. "In determining the effect of given instructions, all in- structions must be considered as a whole, and if they fairly tender the case to the jury, the fact that one or more instructions stand- ing alone is not as full or as accurate as it might have been is not reversible error." State v. Reiner (1978), Mont, I 587 P.2d 950, 953-954, 35 St.Rep. 1861, 1864, citing State v . Caryl (1975), 168 Mont. 414, 543 P.2d 389, and earlier cases. - 10 - Having reviewed the instructions given here, we conclude that in their entirety they properly stated the law and fairly tendered the case to the jury. This specification of error is without merit. The final issue on this appeal goes to the sufficiency of the evidence to support defendant's conviction for criminal possession of marijuana. Defendant moved for a directed verdict of acquittal on that charge on the grounds that the "valtox kit" test used to identify the suspected substance is not specific for marijuana and therefore not conclusive. He contends that because the substance was never sent to the crime lab for positive identification, the State has not met its burden of proving be- yond a reasonable doubt that it was in fact marijuana. The State concedes that the "valtox kit" test is not specific for marijuana but argues that when the test results are considered together with the testimony of the officer who performed the test, a prima facie showing was made that the substance was marijuana. The officer testified that his identification of the substance was based not only on the test results, but also on the characteristic odor of marijuana with which he was familiar from past experience in possession cases. We have reviewed many cases involving the burden of prov- ing beyond a reasonable doubt the identity of a substance alleged to be marijuana. In only two of those cases do we find language indicating that absolute chemical identification is required to meet this burden of proof, and in both cases that language was dicta only. State v. Nelson (1977), Mont . 560 P.2d 897, 34 St.Rep. 80; State v. Wind (1973), 60 Wis.2d 267, 208 N.W.2d 357. On the other hand, numerous cases hold that marijuana is not difficult to characterize without chemical analysis and that testimony of officers who have had experience searching for and identifying marijuana is sufficient. Cf. Cory v . State (1975), 0kl.Cr. 543 P.2d 565; State v. Maupin (1975), 42 Ohio St.2d 473, 330 N.E.2d 708. A good general discussion of the cases in the area appears at Annot. 75 ALR3d 717. In our opinion, it is the far better practice to require that the suspected substance be identified by a state chemist to insulate against attacks which might be made on the relia- bility of the tests used to identify the marijuana. Cf. State v. Paulson (1975), 167 Mont. 310, 538 P.2d 339. In this case, however, no such attacks were made. Defense counsel here ob- jected to introduction of the cigarettes into evidence on the grounds there was no showing they contained a prohibited sub- stance, but he did not voir dire on the deputy's qualifications to identify marijuana or introduce any testimony or evidence to cast doubt on the efficacy of the valtox kit test. The identity of the substance went to the jury virtually without contrary evidence. Where, as here, there is credible evidence before the jury that the substance is marijuana and they have been properly instructed on the burden of proof, the defendant cannot complain. Affirmed. Chief Justice We concur: F Joseph B. Gary, ~i&rict J gel sitting in place of Mr. Justice Gene B. Daly.	March 7, 1979
8599b910-f4ee-456e-a1a1-58034c0694e8	KOSTBADE v BUCKINGHAM	N/A	14370	Montana	Montana Supreme Court	N o . 14370 IN THE SUPREME COUEiT OF THE STATE OF M O N J ! A N A 1978 HOWARD KOSTBADE, Plaintiff and Appllant, -vs- laxrLxE BucKlxHAM, Defendant ard Wspndent. Appeal from: District Court of the Thirteenth Judicial District, Honorable Jack Shanstrm, Judge presiding. Counsel of Record: For Appellant: . - Longan and Holmstroan, Billings, Wntana For Respondent: Anderson, Symnes, Brown, Gerbase, Cebull and Jones, Billings, b ! k m t a n a SuSHnitted on briefs: N o v * 3, 1978 Decided: JAN 18 1 9 7 9 Filed: JAN 1 $ 1979 d-f Clerk 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 is an appeal from a judgment on a breach of con- t r a c t case involving t h e feeding of c a t t l e . T r i a l was held on February 16, 1978, before t h e Honorable Jack D. Shanstrom, s i t t i n g without a jury, i n t h e District Court of t h e Thir- t e e n t h J u d i c i a l D i s t r i c t . The c o u r t f i l e d its f i n d i n g s of f a c t and conclusions of l a w on March 29, 1978, and a judg- ment f o r p l a i n t i f f i n t h e amount of $1,712.69 p l u s c o s t s w a s entered on A p r i l 25, 1978. P l a i n t i f f appeals t h e judgment inasmuch as he sought judgment i n t h e amount of $4,690.26. P l a i n t i f f - a p p e l l a n t owns a commercial f e e d l o t near Laurel, Montana, which is managed and operated by A 1 Herden, a copartner. During e a r l y November 1976, defendant-respondent contacted Herden with regard t o feeding a number of respon- d e n t ' s c a l v e s during t h e winter months of 1976-77. A s a r e s u l t of t h e conversation, respondent, who l i v e s i n t h e White Sulphur Springs, Montana, area, t r a v e l e d t o Laurel and discussed with Herden, a s agent f o r a p p e l l a n t , t h e various t e r m s and conditions of t h e feeding operation. A t t h a t t i m e Herden and respondent entered i n t o an o r a l c o n t r a c t f o r t h e feeding of respondent's c a t t l e . Pursuant t o t h e o r a l c o n t r a c t respondent d e l i v e r e d t o t h e Laurel f e e d l o t 109 head of steers on November 19, 1976; 12 head of s t e e r s and 77 head of h e i f e r s on November 23, 1976; and 46 head of h e i f e r s and 71 head of s t e e r s on December 31, 1976. On December 11, 1976, 88 head of steers w e r e s o l d from t h e f e e d l o t and t h e remaining c a t t l e w e r e removed on January 26, 1977. The 88 head of steers s o l d from t h e f e e d l o t w e r e t h e b e t t e r cattle, and many of them had been on t h e f e e d l o t only a period of approximately 20 days. In the l i f e of the contract respondent was b i l l e d f o r appellant's services i n feeding h i s c a t t l e on a semi-monthly basis. s ills f o r the periods ending November 30, December 15, and December 31, 1976, t o t a l i n g $5,048.57 were paid by respondent without protest. When respondent received these b i l l s he a l s o received a breakdown showing the t o t a l weight and c o s t of each feed ingredient which was fed t o h i s c a t t l e f o r t h a t period. After receiving a feed statement and b i l l f o r the period ending January 15, 1977, respondent called and then went t o Laurel on January 25 t o obtain a check weight on h i s c a t t l e , believing t h a t they could not possibly have consumed the amount of feed f o r which he had been charged f o r t h a t period. There was considerable discussion between Herden and respondent a t t h a t time. Respondent alleged t h a t the amount charged, by h i s figures over 90$ per cow, violated t h e i r agreement. Herden figured the c o s t a s approximately 45$ per head. According t o respondent's testimony, when h i s wife f i r s t called the feedlot and when he f i r s t talked t o Herden, they had been assured t h a t the c o s t would not be above 36g! per pound of gain. This alleged assurance on the p a r t of Herden was t h e reason f o r t h e d i f f i c u l t i e s which arose, and a t t h e end of t h i s discussion on the 25th, respondent decided t o remove h i s c a t t l e from appellant's feedlot. Respondent then made arrangements f o r trucks t o remove t h e c a t t l e from appellant's feedlot and take them t o another feedlot i n the same area. After the removal of approximately two loads of c a t t l e , Herden would not permit respondent t o remove any more c a t t l e u n t i l the t o t a l b i l l was paid. Respondent issued a check made o u t t o appellant i n t h e amount of $4,690.26. This check was tendered t o Herden and the remaining c a t t l e removed from the feedlot. Shortly t h e r e a f t e r respondent stopped payment on the check. H e l a t e r tendered t o appellant a check i n t h e amount of $2,180.16, t h e amount he alleged was o r would have been due appellant a t t h e r a t e of 366 per pound of gain. This check was not negotiated by appellant. I n h i s s u i t appellant sought the t o t a l amount of $4,690.26. The s o l e i s s u e before t h i s Court is whether the t r i a l c o u r t ' s findings of f a c t , conclusions of law, and judgment a r e substantiated by substantial evidence. Rule 5 2 ( a ) , M.R.Civ.P., s t a t e s i n pertinent part: "Findings of f a c t s h a l l not be s e t aside unless c l e a r l y erroneous, and due regard s h a l l be given t o the opportunity of the t r i a l court t o judge of the c r e d i b i l i t y of the witnesses." This Court, i n describing i t s function i n reviewing the findings of f a c t and conclusions of law of a D i s t r i c t Court s i t t i n g without a jury, has many times s e t f o r t h the following: "This Court's function . . . i s not t o s u b s t i t u t e i t s judgment i n place of the t r i e r of f a c t s , but r a t h e r it is 'confined t o determining whether there i s substantial credible evidence t o support' the findings of f a c t and conclusions of law. (Citations omitted. ) Although c o n f l i c t s m a y e x i s t -- i n t h e evidence presented, it is t h e duty and function of t h e t r i a l judge t o resolve such - -- conflicts. H i s findings w i l l n o t b e disturbed on appeal where they a r e based on s u b s t a n t i a l though conflicting evidence. (Citations omitted.)" Olson v. Westfork Properties (1976), 171 Mont. 154, 557 P.2d 821, 823, 33 St.Rep. 1133, 1135. (Emphasis added. ) The Court then went on t o define s u b s t a n t i a l evidence: "Substantial evidence has been defined by t h i s Court a s such a s w i l l convince reasonable men and on which such men may not reasonably d i f f e r a s t o whether it establishes the p l a i n t i f f ' s case, and, i f a l l reasonable men must conclude t h a t the evi- dence does not e s t a b l i s h such case, then it is not substantial evidence. The evidence may be inherently weak and s t i l l be deemed ' s u b s t a n t i a l ' , and one witness may be s u f f i c i e n t t o e s t a b l i s h the preponderance of a case. (Citations omitted.)" Olson, 557 P.2d a t 823, 33 St.Rep. a t 1136. With the above guidelines i n mind, we note t h a t the t r i a l court was required t o decide whether o r not appellant met the burden of proving the t e r m s he claims t o have com- prised t h e contract. Respondent denied having agreed t o pay a p r i c e per pound of gain i n excess of 36$. The t r i a l court did not rewrite the contract between appellant and respon- dent; it simply found from the testimony t h a t appellant through h i s agent and respondent entered i n t o an o r a l contract and agreed t h a t t h e maximum p r i c e per pound of gain would not exceed 36$ per pound. The t r i a l court a l s o determined t h a t the amount charged by appellant did i n f a c t exceed the maximum p r i c e of 366 per pound of gain and awarded judgment t o appellant i n t h e amount equivalent t o the agreed upon p r i c e of 36$ per pound of gain a f t e r deducting monies previously paid by respondent. Appellant recognizes the function of t h i s Court i n reviewing the findings of f a c t and conclusions of law of the D i s t r i c t Court. Yet, a f t e r recognizing t h a t authority, he denies t h a t the findings and conclusions show a c l e a r preponderance of evidence. A t t h e very most, a l l t h a t can be s a i d i n the i n s t a n t case is t h a t the evidence was con- f l i c t i n g . I n attacking the c o u r t ' s conclusion t h a t the o r a l contract between the p a r t i e s contained a maximum c o s t per pound of gain of 362, appellant sets f o r t h the testimony of respondent given on cross-examination. However, on d i r e c t examination, respondent did t e s t i f y t h a t appellant's agent Herden told him t h a t the "maximum would be 366 per pound." I n addition respondent's wife t e s t i f i e d she was concerned about the c o s t of feeding c a t t l e i n a commercial f e e d l o t and t e s t i f i e d t h a t on several occasions Herden advised her the maximum c o s t would not exceed 362 per pound. The t r i a l court, i n its findings of f a c t , found the maximum t o be 366 per pound, the f i g u r e it found Herden used i n advising respondent. Appellant alleges t h a t the t r i a l court erred i n i t s award of $1,712.69 plus c o s t s i n view of the f a c t t h a t respondent had tendered a payment of $2,800 t o resolve the c o n f l i c t . However, t h i s tendered o f f e r of respondent, refused by appellant, was merely t o resolve the c o n f l i c t between the p a r t i e s . W e find no e r r o r i n the sum arrived a t by the t r i a l court i n f i x i n g the $1,712.69 figure. The weight of t h e evidence and the c r e d i b i l i t y of the witnesses, where t h a t evidence was conflicting, was a matter f o r the t r i a l c o u r t ' s determination. W e find no c l e a r preponderance of evidence against its findings. Judgment i s affirmed. \,J W e Concur:	January 18, 1979
d0f59e99-c802-468e-bbb8-85fa1c79d3b0	KEITH v LIBERTY CO HOSPITAL NUR	N/A	14309	Montana	Montana Supreme Court	No. 14309 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 MARILYN A. KEITH, Administratrix of the Estate of Lloyd D. Keith, deceased, Plaintiff and Appellant, LIBERTY COUNTY HOSPITAL and NURSING HOME, and LIBERTY COUNTY, a body politic and corporate, d/b/a LIBERTY COUNTY HOSPITAL AND NURSING HOME, Defendants and Respondents. Appeal from: District Court of the Twelfth Judicial District, Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellant: Dzivi, Conklin, Johnson & Nybo, Great Falls, Montana William P. Conklin argued, Great Falls, Montana For Respondents: Smith, Emrnons, Baillie and Walsh, Great Falls, Montana James Walsh argued, Great Falls, Montana Submitted: June 14, 1979 Decided AU j i 1 9 3 Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. The District Court of Liberty County denied plaintiff's motion for change of venue. Following a trial resulting in a jury verdict for defendant, plaintiff appeals from the order denying a change of venue. In June, 1975, plaintiff filed an action for damages arising out of the death of her husband. Defendants in the action were the Liberty County Hospital and Nursing Home and Liberty County. Plaintiff alleged that negligence on the part of the hospital caused her husband's death and sought to hold Liberty County, who operates the hospital, liable. More than two years later as the trial date approached, plaintiff filed her first motion for a change of place of trial. The grounds alleged were that 42 of the 48 members of the jury panel were county taxpayers who had a direct pecuniary interest in the outcome of the trial. As taxpayers, they would have to pay higher property taxes to cover any uninsured judgment in favor of plaintiff. Plaintiff claimed this pecuniary interest precluded an impartial trial within the meaning of what is now section 25-2-201(2) MCA. This motion was never ruled upon. A new jury panel was drawn on January 12, 1978 and on February 6, 25 days later, plaintiff filed a renewed motion for a venue change. This motion was substantially the same as the first one except it recited that 49 members of the new 51 person panel were Liberty County taxpayers. On March 9, the District Court denied the motion. Trial began on March 13, 1978 and re- sulted in a jury verdict for the Hospital. At no time during empanelment of the jury or during the courseof the trial did plaintiff challenge the panel or seek to have any juror disqual- ified because of county taxpayer status. In appealing, plaintiff contends that because of their pecuniary interest, county taxpayers are not qualified to be jurors in cases where the county is a party. By analogy, she asserts that the presence of a large number of county taxpayers on the jury panel is a ground for changing the place of trial. This Court has previously held that taxpayer status is not a ground for juror disqualification. School Dist. No. 1. v . Globe & Republic Ins. Co. (1963), 142 Mont. 220, 383 P.2d 482. Here, it is not necessary for us to reach this argument for in failing to challenge the panel or any juror for cause on the basis of taxpayer status, plaintiff waived any objections she might have had. Ledger v . McKenzie (1938), 107 Mont. 335, 340, 85 P.2d 352, 353. Plaintiff has referred the Court to cases from other states which hold that where jurors are not disqualified because of their status as taxpayers, a motion for change of venue may nevertheless be granted. Olson v. City of Sioux Falls (1935), 63 S.D. 563, 262 N.W. 85; Sheridan County v. Davis (1932), 61 N.D. 744, 240 N.W. 867. Montana case law is contrary, Carter City v. Cambrian Corp. (1963), 143 Mont. 193, 387 P.2d 904; Good Roads Machinery Co. v. Broadwater Co. (1933), 94 Mont. 68, 20 P.2d 834. We hold that plaintiff waived her right to a change of place of trial in any event for failure to timely move therefor. "Any request for change in place of trial for grounds 2 and 3 of section 25-2-201, Montana Code Annotated, must be presented by motion within 20 days after the answer to the complaint, or to the cross-claim where a cross-claim is filed, or the reply to any answer, in those cases in which a reply is authorized, has been filed; except that whenever at some time more than 20 days after the last pleading has been filed an event occurs which thereafter affords good cause to believe that an impartial trial cannot be had under ground 2 of said section 25-2-201, and competent proof is submitted to the court that such cause of impar- tiality did not exist within the 20-day period after the last pleading was filed, the court may entertain a motion to change the place of trial under ground 2 of section 25-2-201 within 20 days after that later event occurs. " Rule 12 (b) (iii) , M . R.Civ.P. Neither the first motion nor the renewed motion for change of venue was made within 20 days a f t e r t h e answer o r within 20 days a f t e r an event affording good cause t o b e l i e v e an i m p a r t i a l t r i a l could not be had. P l a i n t i f f argues t h a t t h e event caus- i n g i m p a r t i a l i t y was t h e January 1 2 jury panel s e l e c t i o n . I n t h i s case n e i t h e r t h e f i r s t motion nor t h e renewal motion f o r change of venue was timely. P l a i n t i f f has acknowledged i n h e r b r i e f t h a t t h e f i r s t motion f o r change of venue was n o t made within 20 days a f t e r t h e then e x i s t i n g jury panel was drawn. Thus t h e f i r s t motion was untimely under Rule 12 (b) (iii) , M.R. Civ.P. The second jury panel was drawn on January 12, 1978. The second o r renewed motion f o r change of venue was not made u n t i l February 6 , 1978. This motion was likewise untimely because it was not made within t h e 20-day time l i m i t s p e c i f i e d i n Rule 1 2 ( b ) (iii) . W e hold t h a t s i n c e both motions f o r change of venue were untimely; t h e D i s t r i c t C o u r t ' s d e n i a l of a change of p l a c e of t r i a l was c o r r e c t . Affirmed. ............................... Chief J u s t i c e	August 1, 1979
f585fe64-abf3-48ff-b495-360d4a265186	STATE v OLSON RAY	N/A	14306	Montana	Montana Supreme Court	No. 14306 I N THE SUPREME C D U F D OF THE S T A T E OF MONTANA 1978 S T A T E OF ~ N T A N A I Respondent and Plaintiff, -vs- JAhTE A . OLSON and KEVIN R. RAY, Appzllants and Defendants. Appeal from: D i s t r i c t Court of the Sixth Judicial D i s t r i c t , Honorable N a t Allen, Judge presiding. Counsel of Record: For Fppellants: Goetz and Madden, Bozeman, Mntana J a m e s H. Goetz argu&, Bozesnan, bWntana For Amicus Curiae: Hon. Mike Greely, Attorney General, Helena, Mntana Denny bWreen argued, Assistant Attorney General, Helena, bWntana For Respoladent: Jack Yardley, County Attorney, Livingston, bWntana Suhitted: October 24, 1978 -id&: ' 4 >d 1 3 1979 Filed: .jAN 1 5 Mr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendants, Jane A. Olson and Kevin R. Ray, appeal from their conviction under section 54-133, R.C.M. 1947, possession of less than sixty grams of dangerous drugs, by the Park County District Court. While answering a routine call, Officer Bryce of the Livingston, Montana Police Department passed along an alley- way by defendants' residence and thought he smelled burning marijuana coming from the home. He walked to the front door, knocked and was greeted by defendant Jane Olson. As later stated in his application for a search warrant, the officer again detected the "identifiable odor of marijuana" emanating from the open door and on the clothing of defendant Olson. After obtaining a search warrant, the officer returned to search defendants' residence and discovered a small quantity of marijuana, some marijuana seeds, plants and related paraphernalia. Defendants, who both acknow- ledged living there, were charged with misdemeanor possession of dangerous drugs. They pleaded not guilty. At pretrial hearing, defendants moved to dismiss the charges alleging violation of their constitutional right to privacy under the Montana and United States Constitutions. Defendants also moved to suppress the evidence seized, on the ground the officer's purported smell of marijuana was insufficient probable cause for issuance of a search warrant. The District Court denied both motions. Trial by the court sitting without a jury found the defendants guilty and fined $500.00 each, payable within sixty days of judgment. A stay of execution was granted pending the outcome of this appeal. Defendants raise two issues for our review: 1 . Whether smelling marijuana smoke is sufficient, in and of itself, to establish probable cause for the issuance of a search warrant? 2. Whether the privacy provisions of the Montana and United States Constitutions preclude intrusion into the home of defendants to seize a small quantity of marijuana? We address only defendants' first issue since it is determinative of the case before this Court. The statutory provisions on search and seizure provide in part: ". . . A search of a person, object or place may be made and instruments, articles or things may be seized in accordance with the provisions of this chapter when the search is made: "(c) By the authority of a valid search warrant." Section 95-701, R.C.M. 1947. and : "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: ''(1) states that an offense has been committed; " (2) states facts sufficient to show probable cause for issuance of the warrant; " (3) particularly describes the place or things to be search; and " (4) particularly describes the things to be seized." Section 95-704, R.C.M. 1947. The validity of Officer Bryce's search in this case rests squarely upon whether his affidavit "states facts sufficient to show probable cause for issuance of the warrant." Only the officer's sworn application was before the magistrate; therefore, our inquiry must be confined to the facts stated in the application. State v. Leistiko (1978), Mont . , 578 P.2d 1161, 1163, 35 St.Rep. 590, 592; petition of Gray (1970), 155 Mont. 510, 519, 473 P.2d 532, 537. The State maintains that due to the "presumed imparti- ality" of the magistrate's decision on application for a search warrant and the additional protection thereby afforded the rights of citizens, the circumstances under which a judge may issue a search warrant are necessarily different from those which justify a warrantless search by a police officer embroiled in an allegedly criminal situation. This Court has, of course, recognized the distinction: ". . . when a search is based upon a magistrate's rather than a police officer's, determination of probable cause, the reviewing courts will accept evidence of a less 'judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,' . . . and will sustain the judicial determination so long as 'there was substantial basis for [the magistrate] to conclude that narcotics were probably present . . . 1 II State ex rel. Glanz v. Dist. Court (1969), 154 Mont. 132, 136, 461 P.2d 193, 196. (Quoting Aguilar v. Texas (1964), 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723, 726.) We note, however, that although "less 'judicially competent or persuasive'" evidence is required, the magistrate must base his finding upon competent evidence sufficient to enable the magistrate to form his own independent conclusion. In State ex rel. Townsend v. Dist. Court (1975), 168 Mont. 357, 360, 543 P.2d 193, 195, we stated: "The requirement that the magistrate decide the existence of probable cause on the basis of facts sufficient to allow an independent determination, is imposed by Montana law to ensure that some neutral and detached evaluation is interposed between those who investigate crime and the ordinary citizen. This principle was discussed in ~ohnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, 440: "'The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. I ' Under the facts here, the officer's delay in obtaining a search warrant rather than arresting and searching on the spot, adds nothing to the evidentiary basis necessary to establish probable cause. The requirement of competent evidence must be satisfied. We hold that it was not. The magistrate was presented with a search warrant application based exclusively on Officer Bryce's purported smell of marijuana smoke. His affidavit only stated that he was, from experience, familiar with the fragrance of marijuana and that he detected the aroma on the clothing of defendant Olson and also emanating from the defendants' residence. The smell of marijuana is however, insufficient probable cause to justify a warrantless search of an automobile. In State v. Schoendaller (1978) , Mont. , 578 P.2d 730, 35 St.Rep. 597, this Court stated: "The police conducted their warrantless search on the basis of '. . . a strong odor of marijuana in the car along with that of s o r r i e incense of something . . .' and lacking any exigent circumstances, such perception falls closer to the realm of bare suspicion than probable cause. We do not deny police officers the right to rely on their sense of smell to confirm their observations. However, to hold that an odor alone, absent evidence of visible contents, is deemed equivalent to plain view might very easily mislead officers into fruitless invasions of privacy where there is no contraband." 578 P.2d at 734, 35 St.Rep. at 602. There are even more compelling reasons for concluding that smell alone is not sufficient to justify the invasion of the privacy of one's home. While we do not intend to discourage aggressive and lawful investigation by the police, we conclude that the information thus obtained, the odor of burning marijuana, does not by itself establish probable cause to issue a search warrant. The evidence seized must, accordingly, be suppressed. Based on our holding, it is not necessary to discuss another aspect of the requirement of probable cause-- whether the magistrate was provided with sufficient facts to believe the officer's smell of marijuana was reliable. Nor do we reach the defendants' contention that the privacy provisions of the Montana and United States Constitutions preclude intrusion into the home of defendants to seize a small quantity of marijuana. The judgment of the District Court is reversed, and the cause ordered. dismissed. P + J - ~ ice We Concur: L Chief Justice d Justices	January 19, 1979
a6f3ac2c-8582-4ebf-9973-0886ec167703	HOPKINS v SCOTTIE HOMES INC	N/A	14442	Montana	Montana Supreme Court	No. 14442 IN THE SUPREME COURT OF THE STATE OF MONTANA - GERALD F. HOPKINS and MARY M. HOPKINS, Plaintiffs and Respondents, SCOTTIE HOMES, INC., a Corporation, Chief Industries, Inc., a Corporation, and THE FIRST NATIONAL BANK OF GLASGOW, MONTANA, a corporation, Defendants and Appellants. Appeal from: District Court of the Fourteenth Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellants: Robert Hurly and Paul Hoffmann, Glasgow, Montana Harrison, Loendorf, Poston and James T. Harrison, Sr., Helena, Montana James T. Harrison Sr., argued, Helena, Montana For Respondents: Ask and Pratt, Roundup, Montana Thomas M. Ask argued, Roundup, Montana Anderson, Symmes, Brown, Gerbase, Cebull & Jones, Billings, Montana - Submitted: February 2, 1979 Decided: M R 2 cm M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. This i s an appeal by defendants, S c o t t i e Homes, Inc., and F i r s t National Bank of Glasgow, from an order of 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 , Mussel- s h e l l County, denying t h e i r motion f o r a change of venue. P l a i n t i f f s Gerald and Mary Hopkins purchased a new "Bonavilla" mobile home from defendant S c o t t i e Homes, Inc., on June 1, 1976. They executed a s e c u r i t y agreement t o finance t h e balance of t h e purchase p r i c e , and t h e s e c u r i t y agreement was assigned by defendant S c o t t i e Homes, Inc., t o defendant F i r s t National Bank of Glasgow. The mobile home w a s delivered t o and s e t up on p l a i n t i f f s ' property near Roundup, Montana. Within a few months t h e roof of t h e mobile home began t o leak whenever it rained causing s u b s t a n t i a l damage t o t h e home's i n t e r i o r . P l a i n t i f f s n o t i f i e d defendant S c o t t i e Homes, Inc., of t h e problem and a l s o defendant Chief Indus- tries, Inc., t h e manufacturer of t h e mobile home. After numerous letters, phone c a l l s , and t h e t h r e a t of l e g a l a c t i o n , t h e roof of t h e mobile home was reshingled during t h e summer of 1977, b u t t h e problem p e r s i s t e d . When plain- t i f f s n o t i f i e d defendants t h a t t h e r e p a i r work had n o t cured t h e d e f e c t s , defendants answered t h a t t h e warranty period had expired and with it t h e i r obligation. This prompted p l a i n t i f f s t o give defendants a second n o t i c e of r e c i s s i o n , c a n c e l l a t i o n and revocation, as they had done p r i o r t o having t h e roof repaired t h e previous summer. On January 28, 1978, p l a i n t i f f Gerald Hopkins climbed on top of t h e roof t o t r y t o d i v e r t t h e flow of water t h a t w a s s t i l l running i n t o t h e home. Because i c e had formed on t h e r o o f , he slipped and i n j u r e d h i s back. P l a i n t i f f s t h e r e a f t e r brought t h i s a c t i o n seeking: " [ I ] c a n c e l l a t i o n of purchase and s e c u r i t y agreements and of balances due on purchase of a mobile home, [2] t h e removal of t h e mobile home from t h e i r land, [3] refund of a l l pay- ments they had made on t h e i r mobile home pur- chase, [4] damages f o r breach of c o n t r a c t regarding purchase of t h e mobile home, and [5] damages f o r back i n j u r i e s a l l e g e d l y suf- f e r e d by one p l a i n t i f f when he f e l l o f f t h e i c y roof of t h e mobile home." The a c t i o n was f i l e d 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 District, Musselshell County, t h e county i n which p l a i n t i f f s r e s i d e and i n which t h e mobile home is located. Defendants S c o t t i e Homes, Inc., and F i r s t National Bank of Glasgow moved f o r a change of venue t o Valley County, t h e county i n which each defendant's place of business i s located. The s o l e i s s u e f o r review by 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 denying defendant's motion f o r change of venue. This Court has held t h a t " [ t l h e general r u l e governing venue i n c i v i l a c t i o n s i s t h a t t h e a c t i o n s h a l l be t r i e d i n t h e county i n which t h e defendant r e s i d e s a t t h e commence- ment of t h e action." McGregor v. Svare (1968), 151 Mont. 520, 523, 445 P.2d 571, 573. The general r u l e with i t s exceptions i s c o d i f i e d i n s e c t i o n 93-2904, R.C.M. 1947, now s e c t i o n s 25-2-101, 25-2-102, and 25-2-108 MCA, which pro- v i d e s i n p e r t i n e n t p a r t : ". . . t h e a c t i o n s h a l l be t r i e d i n t h e county i n which t h e defendants, o r any of them, may r e s i d e a t t h e commencement of t h e a c t i o n . . . Actions upon c o n t r a c t s m a y be t r i e d in the county which t h e contracf-was --- t o be performed, and a c t i o n s f o r t o r t s in t h e county where the .. , - s i s added.) t o r t was committed . . . " (Empna: This Court has s t a t e d t h a t t h e r u l e with r e s p e c t t o t h e performance exception i s " t h a t t h e p l a c e of performance must be evident e i t h e r by ( a ) t h e express terms of t h e c o n t r a c t , o r (b) by necessary implication t h a t a county o t h e r than t h a t of t h e defendant's residence i s intended t o be t h e county of performance." Brown v. F i r s t Federal Savings and Loan Assn. (1964), 1 4 4 Mont. 149, 153, 394 P.2d 1017, 1019. Neither p a r t y seeks t o demonstrate t h e place of per- formance by t h e express t e r m s of t h e c o n t r a c t , and s o t h i s Court must decide whether a county o t h e r than t h a t of defen- d a n t s ' residence i s intended t o be t h e county of performance by necessary implication. I n determining t h i s , t h e Court may consider t h e c o n t r a c t - and p l a i n t i f f s ' supporting a f f i d a v i t submitted with t h e i r memorandum i n opposition t o change of venue. S t a t e ex rel. I n t e r s t a t e Lumber Co. v. District Court (1918), 54 Mont. 602, 608, 172 P. 1030, 1033. When a f f i d a v i t s supplied by one of t h e p a r t i e s with r e s p e c t t o t h e motion f o r change of p l a c e of t r i a l are uncontradicted, t h e statements of f a c t s s e t f o r t h t h e r e i n must be taken a s t r u e . F r a s e r v. Clark (1954), 128 Mont. 160, 173, 273 P.2d 105, 1 1 2 . Defendants argue t h a t t h e only continuing performance contemplated by t h e p a r t i e s w a s t h e payment of i n s t a l l m e n t s t o t h e bank i n Glasgow. P l a i n t i f f s , i n t h e i r a f f i d a v i t , say t h a t d e l i v e r y of t h e mobile home t o Musselshell County was a t a l l t i m e s contemplated by t h e p a r t i e s ; t h a t p l a i n t i f f s had no c o n t a c t with t h e bank a t any t i m e ; t h a t t h e p l a c e of performance was where t h e home was d e l i v e r e d and set-up; and t h a t t h e proper venue f o r t h i s a c t i o n is Musselshell County i f one considers t h e convenience of t h e witnesses. I n Hardenburgh v. Hardenburgh (1944), 115 Mont. 469, 478, 146 P.2d 151, 154, t h i s Court s t a t e d : "Agreement must be c l e a r . A m e r e d i r e c t i o n by t h e s e l l e r a s t o t h e place of payment i s n o t suf- f i c i e n t , nor can a promise t o r e m i t t o cover t h e purchase p r i c e be sued upon by t h e s e l l e r i n t h e county of t h e p o i n t t o which t h e remittance i s t o be made." This Court, i n Brown v. F i r s t Federal Savings & Loan Assn. (1964), 1 4 4 Mont. 149, 154, 394 P.2d 1017, 1020, reviewed a number of c a s e s involving venue questions looking f o r a common element. The Court s t a t e d t h a t " [ i l n a l l of t h e s e c a s e s t h e county of a c t i v i t y , a s r e f l e c t e d by t h e - terms of t h e c o n t r a c t , w a s deemed t h e p l a c e of performance." (Emphasis added.) The c o n t r a c t i n t h e i n s t a n t case does expressly provide t h a t "[c]ustomer w i l l pay S c o t t i e Homes f o r Blocking w a t e r and sewer hookup," a c t i v i t y which would n e c e s s a r i l y t a k e p l a c e w i t h i n Musselshell County. It should be noted t h a t s e c t i o n 93-2904, R.C.M. 1947, now s e c t i o n 25-2-102 MCA, provides f o r a t o r t exception i n ad- d i t i o n t o t h e c o n t r a c t performance exception. I n t h e i n s t a n t case, p l a i n t i f f s have a l l e g e d t o r t i o u s conduct by defendants i n Musselshell County r e s u l t i n g i n physical i n j u r i e s . This a l l e g a t i o n , on i t s f a c e , when considered with t h e a l l e g a t i o n s regarding performance of t h e c o n t r a c t , a r e s u f f i c i e n t t o uphold t h e determination of t h e D i s t r i c t Court t h a t proper venue f o r t h i s a c t i o n i s i n Musselshell County. The o r d e r of t h e D i s t r i c t Court i s affirmed. W e concur: / I %A$. Chief J u s t i c e %Lu-c& M r . J u s t i c e Gene B. Daly d i s s e n t i n g : I d i s a g r e e w i t h t h e reasoning of t h e m a j o r i t y a s it concerns t h e "county of a c t i v i t y " and u s i n g t h e c a s e of Brown v. F i r s t Federal Savings & Loan Ass'n., supra, a s a u t h o r i t y . The " t o r t exception" i n s e c t i o n 93-2904, R.C.M. 1947, now s e c t i o n 25-2-102 MCA, i n m y view, c l e a r l y d i d n o t i n t e n d t o permit a f a l l from a roof t o be a t t a c h e d t o a c o n t r a c t a c t i o n f o r t h e purpose of venue.	March 2, 1979
fae812a2-017d-471b-bb80-0c3aafa2a7f9	MARRIAGE OF SKINNER	N/A	89-304	Montana	Montana Supreme Court	N o . 8 9 - 3 0 4 I N THE SUPREME COURT OF THE STATE O F MONTANA 1 9 8 9 I N RE THE MARRIAGE O F RONALD L . SKINNER, P e t i t i o n e r and A p p e l l a n t , and LUCINDA G. SKINNER, R e s p o n d e n t and R e s p o n d e n t . APPEAL FROM: D i s t r i c t C o u r t of t h e Fourth J u d i c i a l D i s t r i c t I n and for t h e C o u n t y of M i s s o u l a T h e H o n o r a b l e J a m e s Wheelis, Judqe presiding. COUNSEL O F RECORD: For A p p e l l a n t : J a m e s P. O t B r i e n , O ' B r i e n L a w O f f i c e s , 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 : 1 - P a u l e t t e C. Ferguson, M i s s o u l a , M o n t a n a f . E 3 c> 2 : < , -- S u b m i t t e d on B r i e f s : O c t o b e r 2 0 , 1 9 8 9 D e c i d e d : D e c e m b e r 1 9 , 1 9 8 9 L C l e r k Justice John Conway Harrison delivered the Opinion of the Court. Ronald Skinner appeals the decision of the District Court of the Fourth Judicial District, Missoula County, awarding his former wife, Lucinda Skinner, property, maintenance payments and attorney's fees and requiring him to pay all marital debts. We affirm. The appellant presents the following issues for review: 1. Did the District Court err in failing to make adequate findings of fact before dividing the marital property? 2. Did the District Court err in awarding maintenance to the respondent in the amount of $300/month for three years? 3. Did the District Court err in awarding attorney' s fees to the respondent? Ronald and Lucinda Skinner began living together in mid-1980 and on December 5, 1982 the couple married. This was the second marriage for both and each had children from previous marriages, but no children were born of this union. Both parties are 40-year-old high school graduates with some college education. Throughout the marriage Ronald has been employed as a millwright at Stone Container's Frenchtown plant. He was making approximately $14.50 per hour when the couple wed and at the time of these proceedings his wage was $17.65 per hour. Lucinda worked at various jobs during the marriage but at the time of dissolution was making $6.32 per hour as a lab assistant at Missoula Community Hospital where she has been employed since 1984. At one time Lucinda was a maintenance enqineer for Champion International but had quit, at Ronald's request, in order to work at the couple's ranch and be available to Ronald's children and her daughter. Prior to the marriage Ron bought property, known as the "Kidd property," which was sold and money from sale of the Kidd property was used to purchase the "Hoover property" in 1980. The Hoover property, located just outside of Stevensville, Montana, became the marital residence. When the couple separated in 1986, Ronald remained at the marital home, while Lucinda rented an apartment in Stevensville. Ronald Skinner petitioned for dissolution in June, 1987. Following a hearing, the District Court entered a Decree of Dissolution on November 2, 1987, but reserved all other issues for final hearing. A hearing on the remaining issues was held January 14, 1988 from which the court made Findings of Fact and Conclusions of Law, and entered an Order on June 28, 1988. A month later, on Ronald's motion, the court granted a new trial limited to new evidence. After the new trial in July, 1988, Lucinda moved for a stay in the proceedings in order to present additional evidence. The District Court granted the stay and additional evidence was taken on November 18, 1988. Based on the evidence from the additional hearings, the District Court amended its earlier Findings of Fact, Conclusions of Law and Order and filed. the amended version on February 6, 1989. During the course of the proceedings, Ronald seriously injured his left hand while replacing a window in his girlfriend's house and did not work from February 27, 1988 to October 3, 1988. While he was convalescing Ronald received accident and sickness insurance payments of approximately $950 per month, but received full pay and benefits upon his return to work. Before the injury Ronald moved from the marital home and moved in with his girlfriend. Also pre-injury, Ronald stopped making payments on the marital property (the Hoover property) and withheld this information from the District Court at the January 14, 1988 hearing. This non-payment eventually caused the property to be foreclosed upon and sold at sheriff ' s sale. Ronald did not attempt to sell- the property prior to the foreclosure. The marital estate had also been dissipated by Ronald's sale of certain livestock after the parties separated, in violation of the court's restraining order. Ronald deposited most of these proceeds in his own acco.unt, but did put $5,000 from the sale of cattle into a trust account in recognition of Lucinda's share. Additionally, Ronald deliberately misled the District Court regarding the sale of a bull. Ronald also deposited in his own account the entire amount of the couple's refund from their joint Federal and State income tax returns. Ronald also deposited $5,000 of marital monies into a savings account in the name of the girlfriend he now lives with. During the marriage, Lucinda inherited approximately $19,000 from her mother's estate. Some of this money was invested in stocks and some was placed in a Kemper account on which both parties wrote checks. The majority of the inheritance was used up during the marriage, but the remaining $5,546 is now held jointly by Lucinda and her daughter. Before discussing the issues presented on appeal, we will address the problem of bifurcation of issues in a dissolution proceeding. Section 40-4-104, MCA, provides: (1) The district court shall enter a decree of dissolution of marriage if: (dl to the extent it has jurisdiction to do so, the court has considered, approved, or made provision for child custody, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property. In this case we note the District Court entered a decree of dissolution of the marriage on November 2, 1987, and it was not until February 6, 1989 that the District Court filed its final judgment relating to the disposition of the marital property. The requirement of S 40-4-104(1), MCA, was not met. The District Co,urt should have entered judgment relating to the disposition of marital property before entering the decree of dissolution of the marriage. Although we will not find reversible error in this instance, we call to the attention of the bench and bar the necessity to comply with the above statute. In the past, before the amendment of 5 40-4-104(1), MCA, in 1985, this Court notes that too often appeals were filed involving a delay of months, and occasionally years, between the decree of dissolution and the final judgment relating to child custody, support of any child entitled to support, the maintenance of either spouse and the disposition of property. The delays that occurred were often intolerable resulting in a complete failure of the administration of justice. In re Marriage of Krause (1982), 200 Mont. 368, 654 P.2d 963; and In re Marriage of Loegering (1984), 212 Mont. 499, 689 P.2d 260. Along with the above-noted statute, the court should also consider the provisions of 5 40-4-201(1), MCA, in dissolution cases. Issue 1. Did the District Court err in failing to make adequate findings of fact before dividing the marital property? Division of marital property is governed by statute: (1) In a proceeding for dissolution of a marriage, legal separation, or division of property following a decree of dissolution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to divide the property, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each o r ' the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including: (a) the nonmonetary contribution of a homemaker; (b) the extent to which such contributions have facilitated the maintenance of this property; and (c) whether or not the property division serves as an alternative to maintenance arrangements. Section 40-4-202 (1) , MCA. As this statute and Montana case law makes clear, "Equity, not equality , should guide the District Court ' s discretion in dividing the marital estate." In re Marriage of Fitzmorris (Mont. 1987), 745 P.2d 353, 354, 44 St.Rep. 1809, 1811. The District Court holds far-reaching discretion in dividing marital property. In re Marriage of Dirnberger (Mont. 1989), 773 P.2d 330, 332, 46 St.Rep. 898, 900 (quoting In re Marriage of Stewart (Mont. 1988), 757 P.2d 765, 767, 45 St.Rep. 850, 852, and In re Marriage of Watson (Mont. 1987), 739 P.2d 951, 954, 44 St.Rep. 1167, 1170). Furthermore, the standard of review for property division is that the District Court's judgment, when based upon substantial credible evidence, will not be altered unless a clear abuse of discretion is shown. Id. Ronald argues that the District Court's findings and conclusions were insufficient for that court to determine the parties' net worth in order to make an equitable division of the marital property. A district court is obligated to make a finding of net worth before dividing the marital estate. Schultz v. Schultz (1980), 188 Mont. 363, 365, 613 P.2d 1022, 1024. Such finding of net worth, however, need not be stated in a finding of fact as an exact amount. It is only necessary that "the cumulative effect of the findings can be equivalent to a finding of net worth when relevant factors are considered and adequately set forth by the trial court." In re Marriage of Hunter (19821, 196 Mont. 235, 245, 639 P.2d 489, 494. Ronald complains that of the court's 60 plus finding and conclusions in the original Findings of Fact and Conclusions of Law (which were incorporated into the amended version), only five dealt with the parties' liability. Ronald contends that these few findings concerning liability were inadequate to determine net worth and, thus, inadequate to make an equitable division of property. Having reviewed the Findings of Fact and Conclusions of Law, filed after both the January 14, 1988 and November 18, 1988 hearings, we hold that the findings provide a sound foundation for the court's judgment. As we have previously noted: This foundation need not consist of a multitude of evidentiary facts, but the findings of fact must set forth a recordation of the essential and determining facts upon which the court rested its conclusions of law and without which the judgment would lack support. Stratford v. Stratford (Mont. 1981), 631 P.2d 296, 298, 38 St.Rep. 1093, 1095. In the case at bar, the District Court, while not making a totally exhaustive list, did set forth the essential and determining facts from which it drew conclusions of law that supported its judgment. The few findings that deal with the partiesq liabilities are adequate, and, taken together with the other findings and conclusions, the parties' net worth is capable of being determined. We hold that there was no abuse of discretion. Furthermore, we hold that the District Court equitably divided the couple's property, within the requirements of 5 40-4-202, MCA, pertinent to the situation: Ronald, in defiance of the court's restraining order dissipated the marital estate; there was extensive testimony regarding assets and liabilities of the parties, with the court's findings detailed in the findings and conclusions; the contribution to the marriage of both parties were considered; the disparity between the real income and earning potential of Ronald and Lucinda were noted; and the obligation to support children from prior marriages was set out. The findings of fact and conclusions of law support the District Court's judgment, and we conclude an equitable distribution was made. Issue 2. Did the District Court err in awarding maintenance to the respondent in the amount of $300/month for three years? Section 40-4-203, MCA, sets out the guidelines for awarding a spouse maintenance in a dissolution proceeding. Maintenance may only be awarded if the spouse seeking maintenance lacks sufficient property to provide for that spouse's reasonable needs. Section 40-4-203(1), MCA. The statute also mandates that the trial court consider relevant facts of the situation including the financial resources of the spouse seeking maintenance, the ability of the maintenance paying spouse to meet his own needs, and the standard of living established during the marriage. Section 40-4-203 (2) , MCA. In reviewing the award of maintenance, we once again note the latitude accorded the trial court: An award of maintenance is related only to the needs of the spouse seeking maintenance . . . The District Court has wide discretion in the determination of maintenance awards, and that discretion is not to be disturbed unless clearly erroneous. (Citations omitted.) In re Marriage of Aanenson (1979), 183 Mont. 229, 235, 598 P.2d 1120, 1123. The District Court made a specific finding that Lucinda needs the maintenance payments to meet her monthly expenses and Ronald is capable of making the payment. There is substantial evidence in the record to support this finding. Ronald makes over $35,000 per year while Lucinda is paid much less. Ronald also has more disposable income since he no longer makes land payments and does not pay rent since he now lives with his girlfriend. Ronald asserts that Lucinda received sufficient property in the property division to support herself. However, the court awarded Lucinda, based on her contributions, only twenty percent of the value of the property. In establishing the amount and duration of maintenance it is appropriate for the District Court to consider whether the assets awarded in the property division consume or produce income and whether employment is appropriate. Bowman v. Bowman (Mont. 1981), 633 P.2d 1198, 1200-1201, 38 St.Rep. 1515, 1518. Additionally, "appropriate employment" must be determined with relation to the standard of living achieved by the parties during the marriage. In re Marriage of Madson (1978), 180 Mont. 220, 224-225, 590 P.2d 110, 112. The property awarded Lucinda is not income producing nor does she make enough money through her employment to maintain her former standard of living. There is substantial evidence to support the District Court's decision. Issue 3. Did the District Court err in awarding attorney's fees to the respondent? Attorney's fees in dissolution cases are addressed in § 40-4-110, MCA, which provides: Costs -- attorney's fees. The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name. In interpreting this statute, this Court has found: "Traditionally, a showing of necessity has been a condition precedent to the exercise of the court's discretion to award attorney fees. Flhitman v. Whitman (1974), 164 Mont. 124, 519 P.2d 966. But the lower court's discretion in the matter will not be disturbed if substantial evidence is found in the record to support the award." Kaasa v. Kaasa (1979), Mont., 591 P.2d 1110, 1114, 36 St.Rep. 425, 430. "Here, the trial court was well aware of the parties' financial situations. It did not abuse its discretion in making an award of reasonable attorney fees, based on necessity. - Houtchens v. Houtchens (1979), 181 Mont. 7 0 , 592 P.2d 158, 36 St.Rep. 501, 505." Bailey v. Bailey (1979), Mont., 603 P.2d 259, 261, 36 Carr v. Carr (1983), 205 Mont. 269, 272-73, 667 P.2d 425, 427. I n t h e case a t b a r , t h e r e was g r e a t f i n a n c i a l d i s p a r i t y between t h e p a r t i e s . A s discussed above, Ronald makes approximately t h r e e times Ilucindals s a l a r y , and h i s disposable income has increased s i n c e t h e p a r t i e s divorced. Based on t h i s evidence, t h e t r i a l c o u r t d i d n o t abuse i t s d i s c r e t i o n i n awarding Lucinda a t t o r n e y ' s f e e s . W e a f f i r m t h e D i s t r i c t Court's judgment. W e concur: .... 4 -/1,4 '-7 C e f J u s t i c e J u s t i c e s /	December 19, 1989
592d237f-60f7-4fb5-9fe0-a146c7804f7c	TREUTEL v JACOBS	N/A	89-420	Montana	Montana Supreme Court	No. 89-420 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 LINDA TREUTEL and TERRY TREUTEL, plaintiffs and Appellants, -VS- FRANCES JACOBS, Defendant and Respondent. , ' 1 c;s 7: 0 0 C CT, XJ APPEAL FROM: District Court of the Fourth Judicial ~ i s t r s t , In and for the County of Ravalli, The Honorable Douglas ~ a r k i ~ , Judge presiding. COUNSEL OF RECORD: For Appellant: Kim L. Ritter; Milodragovich, Dale & Dye, Missoula, Montana For Respondent: Shelton C. ~illiams; ~illiams Law ~ i r m , is sou la, Montana Filed: Submitted on ~riefs: Nov. 21, 1989 Decided: December 28, 1989 ~ustice William E. Hunt, Sr., delivered the opinion of the Court. ~ i n d a and Terry Treutel, plaintiffs and appellants, appeal from a summary judgment entered by the District Court of the Fourth Judicial District, Ravalli County, in favor of Frances Jacobs, defendant and respondent. We affirm. The sole issue raised on appeal is whether the District Court properly granted defendant's motion for summary judgment based on plaintiff's failure to state a claim on a legally recognizable theory upon which relief could be granted. In 1987, Linda Treutel and her family resided on property in ~avalli County held in trust. The property was formerly owed by Treutel's parents. The beneficiaries of the trust were Linda, her two siblings and her mother, Frances Jacobs. Mr. Jacobs, as trustee, procured a comprehensive personal liability insurance policy issued by Farmers Insurance Group on the property which remained in effect from April 3, 1987 to April 3, 1988. On ~ p r i l 5, 1987, Linda and her husband were repairing a fence on the property with a pair of pliers. A piece of metal chipped off the pliers injuring Linda's right eye. At the time of the accident, Jacobs was living in Alaska and was unaware that the fence was broken or that the Treutels intended to fix it. Linda submitted a claim to Farmers for her medical expenses and lost income. Farmers paid out $7,024.30 on her claim. Linda's attorney contacted Farmers' claims adjuster, Gougler, who informed the attorney that coverage existed for the accident. Gougler then sent Linda's attorney a memc? confirming the conversation and stating, "We will look forward to discussing settlement possibilities at your earliest convenience." Settlement negotiations subsequently failed, and on October 22, 1988, ~ i n d a filed a complaint alleging injury as a result of the accident that occurred on the trust property. The Treutels alleged damages for Linda's future medical expenses, pain and suffering, loss of customary way of life, cost of suit and other relief deemed just and proper and for Terry's loss of consortium. The complaint did not allege negligence nor wrongdoing on the part of Jacobs. ~ i n d a filed a motion for partial summary judgment on February 24, 1989. Jacobs then filed a brief in opposition to plaintiff's motion for summary judgment and a motion for summary judgment on March 20, 1989. A hearing on the motions was held on June 7, 1989. On June 19, 1989, the District Court entered its order and judgment denying ~ i n d a ' s motion and granting Jacobs' motion. From the order, ~ i n d a appeals. The court granted Jacobs' motion for summary judgment based on its finding that Linda failed to state a legally recognizable claim upon which relief could be granted. Rule 8(a), M.R.Civ.P., provides in part: A pleading which sets forth a claim for relief, . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgmeyt for the - relief to which he deems himself entitled. (Emphasis added. ) While Linda's complaint sets forth the facts pertaining to the day of the accident and demands relief therefore, it does not allege that Jacobs was negligent in any manner nor does it allege that Jacobs breached any legal duty owed to ~inda. While this Court has long recognized that a complaint is to be construed in the light most favorable to the plaintiff, Fraunhofer v. price (1979), 182 Mont. 7, 594 P.2d 324, we cannot say that Linda's complaint, even when viewed favorably to her position, set forth a claim upon which relief can be granted. As we stated in Rambur v. ~ i e h l Lumber Co. (1963), 142 Mont. 175, 179, 382 P.2d 552, 554: . . . a complaint must state something more than facts which, at most, would breed only a suspicion that plaintiffs have a right to relief. Liberality does not go so far as to excuse omission of that which is material and necessary in order to entitle relief. Jacobs' policy reads in pertinent part: We shall pay all damages from an occurrence which an insured is legally liable to pay because of - bodily injury'- or property damagy covered by this policy. (Emphasis added. ) Here, Linda does not claim that Jacobs breached any legal duty owed to her nor was negligent in any manner. Thus, under the terms of the policy, Jacobs is not legally liable for her accident. Jacobs' insurance company is under no obligation to pay for that which she, herself, is not liable. Nonetheless, Linda claims that Farmers, through its adjuster, Gougler, admitted liability and are now bond by the admission. while it is true that during a telephone conversation, Gougler told ~inda's attorney that Linda's accident was covered and then sent a memo confirming the conversation, the statement and memo were not admissible as evidence to prove liability. It is clear from the language of the memo that the statements were made as part of a settlement negotiation process. It read in part, "We will look forward to discussing settlement possibilities - at your earliest convenience." (Emphasis added.) Rule 408, M.R.Evid., provides in that, "~vidence of conduct or statements made in compromise negotiations is . . . not admissible." Further, under B 33-15-504 (3), MCA, an insurer does not waive policy provisions nor defenses by engaging in settlement negotiations. As evidence, the statement and memo are inadmissible as a matter of law. As we stated in Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d 509, a party moving for summary j-udgment must prove that he is entitled to summary judgment as a matter of law by demonstrating an absence of any genuine issue of material fact. Discarding the inadmissible evidence, there remains no genuine issue of material fact in this case. The ~istrict Co.urt properly granted Jacobs' summary judgment. Affirmed. /	December 28, 1989
ad535c97-feb7-4cbb-b743-cfa9e19e1f07	CHAMBERLAIN v EVANS	N/A	14452	Montana	Montana Supreme Court	NO. 14452 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 CARL B . CHAMBERLAIN and HERTHA A. CHAMBERLAIN, husband and wife, Plaintiffs and Appellants, L . E. EVANS et al., Defendants and Respondents. Appeal from: ~istrict Cburt of the Eighth ~udicial District, Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellants: Stacey and Nye, Billings, Montana Jerrold L. Nye argued, Billings, Montana For Respondents: Swanberg, Koby, Swanberg and Matteucci, Great Falls, Montana Raymond F. Koby, Jr. argued, Great Falls, Montana Submitted: February 6, 1979 ; - 1~33 Filed: M r . J u s t i c e Gene B. Daly delivered t h e Opinion of t h e Court. This a c t i o n concerns a farm l e a s e f i l e d 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. Motions and b r i e f s w e r e submitted by both p a r t i e s f o r sum- mary judgment, and on June 2 3 , 1978, summary judgment was granted t o t h e defendants. P l a i n t i f f s appeal. I n A p r i l 1971, p l a i n t i f f Chamberlain leased from defendants L.E. and Josephine Evans (Evans) 230 a c r e s of wheat land near Great F a l l s . The p e r t i n e n t p a r t s of t h e l e a s e i n t h i s a c t i o n provided t h a t it r a n t o November 1, 1971, and unless n o t i c e of termination w a s given by e i t h e r p a r t y , it would be automatically renewed f o r each succeeding year. Termination could be made i n two ways. I n t h e event Evans sold a l l o r p a r t of t h e land, t h e l e a s e would t e r m i - n a t e immediately as t o t h e p a r t sold and Chamberlain would become e n t i t l e d t o c e r t a i n payments. The lease could a l s o be terminated by nonrenewal, i f n o t i c e of nonrenewal w a s given by e i t h e r p a r t y a t least 60 days p r i o r t o t h e renewal d a t e of t h e lease. The lease continued u n t i l April 1974 through automatic renewal. On o r about April 1, 1974, however, Chamberlain received from Evans a n o t i c e of termination of the l e a s e . The n o t i c e s t a t e d t h a t t h e reason f o r termination w a s due t o sale of p a r t of t h e leased premises making f u r t h e r farming inconvenient. The n o t i c e a l s o d i r e c t e d Chamberlain t o do no summerfallow o r t o p l a n t any of t h e land. Evans t h e r e a f t e r entered i n t o a c o n t r a c t with illi ion- Moore, Inc., t o come onto t h e land i n t h e spring and summer of 1974 t o work t h e leased premises and t o p l a n t it t o wheat. The land under l e a s e was n o t sold. Because of Killion-Moore's operations, however, Chamberlain ceased farming t h e leased land. The i s s u e ( s ) on appeal a r e disputed by t h e p a r t i e s . Because t h e District Court granted Evans summary judgment, t h e i s s u e a s defined by him i s probably more c o r r e c t l y s t a t e d : Whether t h e r e was an i s s u e of m a t e r i a l f a c t , t h e e x i s t e n c e of which would preclude summary judgment, and i f n o t , whether t h e movant should p r e v a i l a s a matter of law? Chamberlain more c i r c u i t u o u s l y states t h e i s s u e s as: 1. Whether an admitted i n t e r f e r e n c e by Evans with Chamberlain's r i g h t s t o t h e exclusive possession and q u i e t enjoyment of t h e leasehold during t h e t e r m of t h e l e a s e gave rise t o f a c t u a l and l e g a l questions of damages? 2. Whether t h e n o t i c e of termination which s t a t e d an untrue reason f o r termination of t h e l e a s e i n an attempt t o deprive Chamberlain of h i s termination r i g h t s was fraud on t h e p l a i n t i f f s ? Both p a r t i e s moved f o r summary judgment i n t h e c o u r t below. The order of t h e D i s t r i c t Court reads i n p e r t i n e n t p a r t : . . . it appearing t o t h e Court t h a t , a s t o l a i n t i f f s ' motion t h e r e remain genuine i s s u e s f m a t e r i a l f a c t on questions of l i a b i l i t y , b u t t h a t as t o defendants' motion, t h e r e i s no gen- uine i s s u e of any m a t e r i a l f a c t and t h a t defen- d a n t s a r e e n t i t l e d t o judgment as a m a t t e r of law, " I t is, t h e r e f o r e , hereby ORDERED t h a t p l a i n t i f f s ' motion f o r p a r t i a l summary judgment be and it is hereby denied, and t h a t defendants' motion f o r summary judgment i n t h e i r favor be and it i s hereby granted." Chamberlain can bring no challenge t o t h a t p a r t of t h e D i s t r i c t Court order denying him p a r t i a l summary judgment. A l a r g e p a r t of h i s o r i g i n a l complaint and b r i e f on appeal i s devoted t o a discussion of how Evans allegedly fraudu- l e n t l y terminated t h e lease. B y s t a t u t e , fraud i s always a question of f a c t . Section 13-310, R.C.M. 1947, now s e c t i o n 28-2-404 MCA. Therefore, Chamberlain himself w a s n o t e n t i t l e d t o summary judgment. The D i s t r i c t Court d i d g r a n t Evans' motion f o r summary judgment, however. O n review, t h i s Court must merely d e t e r - mine whether t h e r e e x i s t s a genuine i s s u e of m a t e r i a l f a c t and whether 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 l a w . Rule 5 6 ( c ) , M.R.Civ.P. The termination provision of t h e lease reads: "2. TERM O F LEASE: This agreement s h a l l be f o r a t e r m commencing on t h e d a t e hereof and ter- minating on November 1, 1971, PROVIDED HOWEVER, t h a t t h i s agreement s h a l l be renewed automatically from year t o year f o r one year terms commencing November 1st of each year and terminating on November 1st of t h e next year, unless one p a r t y g i v e t o t h e o t h e r p a r t y n o t i c e of termination of t h e s a m e a t least s i x t y (60) days p r i o r t o t h e termination d a t e i n any given year, i n which event t h i s agreement s h a l l terminate November 1st f o l - lowing t h e giving of n o t i c e of termination." The n o t i c e of termination s e n t t o Chamberlain by Evans s t a t e d : "NOTICE of TERMINATION of F A R M LEASE C O N T R A C T between L. E. Evans and Josephine Evans (Owners) and C a r l V. Chamberlain and Hertha A. Chamberlain (Operators). "Due t o t h e s a l e of acreage on t h i s farm and sell- i n g of acreage i n various p a r t s of t h i s farm makes it very inconvenient t o farm. Therefore, a s of A p r i l 1, 1974, t h e Operators are t o do no spring planting o r summerfallowing except f o r reseeding i n s p o t s on winter wheat. "The Operators w i l l harvest t h e winter wheat crop now i n , a s s p e c i f i e d i n t h e Contract." I t i s c l e a r from t h e termination provision t h a t n e i t h e r p a r t y w a s required t o s t a t e any reason f o r t h e termination as long as n o t i c e of t h e termination was given s i x t y days p r i o r t o t h e November 1 termination d a t e i n any year. Evans gave (and Chamberlain received) t h i s n o t i c e on o r about A p r i l 1, a f u l l seven months before t h e s p e c i f i e d termina- t i o n d a t e . This n o t i c e complied f u l l y with t h e l e t t e r and s p i r i t of t h e lease. Chamberlain apparently recognized t h i s f a c t and d i d n o t attempt t o t a l k t o Evans about t h e matter a f t e r A p r i l 1. I n such circumstances, any claim by Chamber- l a i n t h a t Evans f r a u d u l e n t l y s t a t e d t h e reasons f o r termina- t i n g t h e lease are groundless f o r t h e simple reason t h a t Evans was n o t required t o s t a t e any reason a t a l l f o r termina- t i n g t h e lease. See Shanahan v. Universal Tavern Corp. (1978) 1 - Mont. , 585 P.2d 1314, 1317, 35 St-Rep. 1585, 1589. Evans followed t h e t e r m s of t h e lease i n terminating it and i s now e n t i t l e d t o summary judgment as a matter of law. Chamberlain's claim i n h i s o r i g i n a l complaint t h a t he is e n t i t l e d t o a s h a r e of t h e 1975 crop i s a l s o groundless. Sections 67-702, -703, R.C.M. 1947, now s e c t i o n 70-26-206, MCA. H e n e i t h e r planted, c u l t i v a t e d , nor harvested t h e s e crops. I n any event, w e have s t a t e d under very s i m i l a r circumstances: "The record i s c l e a r t h a t p l a i n t i f f knew when he accepted t h e t e r m s of October 2, 1961, t h a t h i s t e r m ended November 1, 1962. A s a matter of f a c t he brought t h i s a c t i o n on May 15, 1962, even be- f o r e t h e t i m e f o r summer-fallow. Treating t h e m a t t e r i n t h e l i g h t most favorable t o p l a i n t i f f , t h a t a lease f o r one year e x i s t e d because of t h e letter of September 27, and t h e addendum of Oc- t o b e r 2, t h e t e r m s a r e p l a i n , and under such conditions t h e r e i s no b a s i s f o r any theory of 'away going' crop. " I n H a l l v. H i l l i n g , supra, t h e r u l e i s announced t h a t when a l e a s e , expressly o r by implication, recognizes t h e r i g h t of a t e n a n t t o sow i n t h e l a s t year of h i s t e r m , t h e t e n a n t has a r i g h t t o h a r v e s t t h e away-going crop a t t h e e x p i r a t i o n of h i s l e a s e , where t h e lease i s s i l e n t a s t o who i s e n t i t l e d t o t h e crop. This general proposition does n o t a i d a p p e l l a n t , s i n c e as we have previ- ously discussed, under t h e circumstances here, t h e very b a s i s f o r h i s l e a s e r i g h t , whether it was a l e a s e a t w i l l o r f o r one-year period, was t o t h e contrary. The o t h e r a u t h o r i t i e s a r e e i t h e r n o t i n p o i n t o r support our holding here. "Summarizing t h e circumstances here, t h e a p p e l l a n t knew when he accepted t h e t e r m s of t h e l a s t l e a s e --- --- t h a t h i s t e r m ended November 1, 1962. H e knew it --- -- --- would n o t b e extended. The l e a s e d i d n o t r e q u i r e -- him t o do any summer-fallowing i n 1962, and i f he chose t o do any t h a t he would be paid. "Under t h e s e circumstances, t h e d i s t r i c t c o u r t was c o r r e c t . . ." Johnson v. Anderson Ranch Co. (1963), 142 Mont. 251, 254-55, 384 P.2d 271, 272- 73. (Emphasis added. ) I n f a c t , t o accept Chamberlain's theory of t h e c a s e would be t o r e q u i r e i n e f f e c t a one year and s i x t y day n o t i c e of termination period because t h e t e n a n t would always be e n t i t l e d t o t h e crops harvested t h e year following h i s r e c e i p t of n o t i c e of termination. This c l e a r l y contravenes t h e l e a s e provisions. F i n a l l y , f o r t h e f i r s t t i m e on appeal, Chamberlain a s s e r t s t h a t h i s claim a l l along has been f o r breach of h i s r i g h t t o q u i e t enjoyment of t h e leased premises. The record does n o t support t h i s a s s e r t i o n . I n t h e main paragraph and prayer of h i s complaint, Chamberlain s t a t e d : "2. That, on o r about March 27, 1974, Defendants gave n o t i c e of termination of lease a l l e g i n g s a l e and use a s an i n d u s t r i a l park, made it inconvenient t o farm. That P l a i n t i f f s r e l i e d upon Defendants r e p r e s e n t a t i o n s and ceased t o farm, although under s a i d l e a s e , they were e n t i t l e d t o summerfallow and farm t h e a g r i c u l t u r a l ground f o r 1975. That t h e r e p r e s e n t a t i o n s of Defendants were f a l s e and fraudu- l e n t and made f o r t h e purpose of deceiving Plain- t i f f s , with t h e i n t e n t t h a t P l a i n t i f f s r e l y thereon t o t h e i r detriment. P l a i n t i f f s r e l i e d thereon and s u f f e r e d detriment i n t h e l o s s of t h e i r 1975 crop share. That t h e reasonable value of P l a i n t i f f s ' s h a r e of t h e 1975 crop i s t h e sum of TWENTY SEVEN T H O U S A N D SIX H U N D R E D AND N0/100 DOLLARS ($27,600.00). "WHEREFORE, P l a i n t i f f s pray judgment a s follows: "1. For TWENTY SEVEN T H O U S A N D SIX H U N D R E D AND N0/100 D O L L A R S ($27,600.00) . " That t h i s s t a t e s t h e o r i e s of recovery based on fraud o r on e n t i t l e m e n t t o an "away-going" crop s h a r e i s supportable; t h a t it s t a t e s a theory of breach of q u i e t enjoyment is not. It has long been t h e r u l e t h a t a p a r t y may n o t change h i s theory on appeal t o t h i s Court from t h a t advanced i n t h e t r i a l court: "Under t h e well-known r u l e counsel ought n o t now t o p r e s e n t a d i f f e r e n t theory from t h a t upon which he t r i e d t h e case i n t h e c o u r t below. 'The r u l e i s s e t t l e d i n t h i s j u r i s d i c t i o n t h a t when 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 he may n o t change t h e theory on appeal. (Gay v. Lavina S t a t e Bank, 61 Mont. 449, 18 A.L.R. 1204, 202 Pac. 753.)' (O'Hanlon v. Ruby Gulch M. Co., 64 Mont. 318, 209 Pac. 1062; P a t t e r s o n v. Law, 78 Mont. 221, 254 Pac. 412.)" United S t a t e s Build- i n g & Loan Ass'n v . Burns (1931), 90 Mont. 402, 420, 4 P.2d 703, 707. Accord, W i l l i a r d v. Campbell (1932), 91 Mont. 493, 503, 1 1 Even i f w e assume t h a t Chamberlain's claim a l l along has been f o r breach of q u i e t enjoyment, he would s t i l l have no claim f o r r e l i e f a s t h e r e was no breach. Chamberlain would be e n t i t l e d t o a s h a r e of t h e 1974 crop harvested before t h e end of t h e l e a s e . A s i n d i c a t e d by t h e t e r m i - n a t i o n n o t i c e and t h e record, t h i s i s e x a c t l y what he d i d r e c e i v e . Nothing Evans o r Killion-Moore d i d i n 1974 i n t e r - f e r e d with Chamberlain's r i g h t t o h a r v e s t t h i s crop. Chamber- l a i n ' s f l a t a s s e r t i o n t h a t he i s e n t i t l e d t o some broader degree of possession of t h i s farm land when he would n o t be e n t i t l e d t o any of t h e f r u i t s of t h e land harvested a f t e r t h e termination of t h e lease i s i n s u f f i c i e n t grounds on which t o deny Evans' motion f o r summary judgment. The judgment of t h e D i s t r i c t Court i s affirmed. , ' J u s t i c e / ' We concur:	March 5, 1979
a2396964-d5b3-45ed-aa75-080e00c346ab	DOBLE v TALBOTT	N/A	14372	Montana	Montana Supreme Court	No. 14372 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 JOHN H . DOBLE, SR., Plaintiff and Respondent, -vs- CAROLE PATRICIA TALBOTT, et al., Defendants and Appellants. ....................................... No. 14345 HAROLD FULLER et al., Plaintiff, -vs- JOHN H. DOBLE, et ux, et al., Defendants. ........................................ No.14363 JOHN W . DOBLE, et ux, et al., Plaintiffs and Appellants, -vs- BONNERS FERRY LUMBER COMPANY, LIMITED, a corporation, et al., Defendants and Respondents. Appealed from: District Court of the Nineteenth and Eleventh Judicial Districts Honorable Robert C. Sykes, Presiding Judge Counsel of Record: For Appellants: H. James Oleson argued, Kalispell, Montana For Respondents: McGarvey, Lence and Heberling, Kalispell, Montana Dale L. McGarvey argued, Kalispell, Montana John M. Schiltz argued, Kalispell, Montana Murray, Donahue and Kaufman, Kalispell, Montana Geroge Best argued, Kalispell, Montana Murphy, Robinson, Heckathorn and Phillips, Kalispell, Montana Lawrence H. Sverdrup, Libby, Montana Submitted: October 12, 1978 Decided: JAN 1 1 g n - M r . J u s t i c e Gene B. Daly delivered t h e Opinion of the Court. These three actions were consolidated f o r appeal by order of t h i s Court on May 31, 1978. Each a r i s e s from the controversy between Carole Talbott e t a l . , judgment c r e d i t o r s , and John H. Doble, a judgment debtor. O n August 13, 1976, Carole Talbott and her minor children obtained a wrongful death judgment i n federal d i s t r i c t court against John H. Doble i n the amount of $450,000. This sum was subsequently reduced t o $225,000. C A U S E NO. 14345 -- PRIORITY O F CREDITORS The controversy i n t h i s cause centers on a determina- t i o n of creditors' p r i o r i t i e s made by the D i s t r i c t Court of the Eleventh J u d i c i a l D i s t r i c t . O n April 27, 1 9 7 7 , the D i s t r i c t Court ordered the p r i o r i t i e s of two Doble c r e d i t o r s , the Conrad National Bank and the F i r s t National Bank of Eureka a s f i r s t and second respectively. Both banks were p l a i n t i f f s i n a s u i t against Doble seeking s a t i s f a c t i o n on promissory notes which they had issued t o him during 1976. This order, however, made no mention of Carole Talbott's judgment against Doble. O n M a y 3, 1977, the D i s t r i c t Court entered an amended order, adding a paragraph which indicated t h a t Carole Talbott had a judgment against John H. Doble, and ordered t h a t judgment i n f e r i o r t o the claims of the banks. O n February 8, 1978, Talbott's attorney presented a motion t o have the May 3 , 1977 decree establishing pri- o r i t i e s among the c r e d i t o r s s e t aside on the ground t h a t Talbott was given no notice her r i g h t s were t o be determined. O n February 27, 1978, the ~ i s t r i c t Court ordered the May 3, 1977 order s e t aside "insofar a s any e f f e c t on the r i g h t s of Carolyn [ s i c ] P a t r i c i a Talbott a r e concerned." O n appeal, Talbott seeks t o have the orders of May 3 and April 27 s e t aside so the three c r e d i t o r s may reestab- l i s h t h e i r r e l a t i v e p r i o r i t i e s i n a single proceeding. Talbott and Doble have agreed t o a remand t o the D i s t r i c t Court, and the banks involved do not object t o a remand. Therefore, Cause No. 14345 is remanded t o the D i s t r i c t Court so a l l the John H. Doble creditors may l i t i g a t e t h e i r r e l a - t i v e p r i o r i t i e s i n a single proceeding. The p r i o r i t i e s a s established on April 27 and M a y 3, 1977, a r e hereby s e t aside. C A U S E NO. 14372 -- INJUNCTION O F SHERIFF'S S A L E Carole Talbott appeals from an order of the D i s t r i c t Court, dated April 11, 1978, permanently enjoining her from proceeding on a w r i t of execution on her judgment against Doble. O n August 29, 1977, Talbott f i l e d her federal judg- ment against Doble i n the Nineteenth J u d i c i a l D i s t r i c t Court and obtained a w r i t of execution on the judgment. Her attorney prepared notice of a s h e r i f f ' s s a l e i n the Eleventh J u d i c i a l D i s t r i c t of John H. Doble's i n t e r e s t i n the con- t r a c t f o r deed and had the date of s a l e s e t f o r October 11, 1977. O n t h a t date, however, Doble's attorney f i l e d a com- p l a i n t i n D i s t r i c t Court asking t h a t the s h e r i f f ' s s a l e be enjoined on various grounds, including t h a t the date of the contract on the s h e r i f f ' s s a l e notice was wrong, t h a t the wrong form of notice was used ( r e a l property rather than personalty), t h a t the judgment creditor had f a i l e d t o pay t h e p r i o r security i n t e r e s t s before levying (section 93- 4338, R.C.M. 1947), and t h a t there was no proper levy. Due t o these alleged defects, the D i s t r i c t Court enjoined the sale under a temporary restraining order issued the same day and ordered a show cause hearing for October 18 to determine whether the sale should be permanently enjoined. Finally, the District Court ordered that copies of the complaint be served on defendants, Carole Talbott, and the Flathead County sheriff. Doble's attorney hand delivered copies of the complaint and temporary restraining order and show cause order to the sheriff and to Talbott's attorney. After various delays an attorney's conference was scheduled for April 11, 1978. Following the conference the District Court made an order reciting that Talbott's attor- ney was present and that he "[represented] to the Court that Defendants Talbott do not intend to proceed further on the writ in question . . ." The court then ordered that a permanent injunction be granted on the writ of execution, that the sheriff be dismissed from the action - and that Talbott's right to proceed on a new writ was "in no way pre- judiced". On April 24 Talbott's attorney filed a motion for re- consideration of the April 11 order, alleging that the service of process on him was not adequate as service on his client, that the order was void because no hearing was held on the merits, and that he did not say that he did not intend to proceed on the August 29, 1977, writ of execution, but that "in -- all likelihood" he would not proceed. (On June 8 following Talbott's notice of appeal, ~oble's attor- neys filed an affidavit that ~albott's lawyer said his client did not intend to proceed on the writ.) Following the District Court's denial of Talbott's motion to reconsider, Talbott applied to this Court on May 19 for a writ of supervisory control which was denied on May 31 (Cause No. 14319) with directions to proceed by appeal. Talbott argues on appeal t h a t the service of process on her attorney was i n s u f f i c i e n t rendering the D i s t r i c t Court's ~ p r i l 11, 1978 order void f o r lack of jurisdiction and t h a t the injunction is void because the D i s t r i c t Court f a i l e d t o hold a hearing o r take evidence justifying such an order. The D i s t r i c t Court's order enjoining the s h e r i f f ' s s a l e expressly places no prejudice on Talbott's r i g h t t o proceed under a new w r i t . The s t a t u t e of limitations f o r actions on judgments is ten years. Section 93-2602, R.C.M. 1 9 4 7 . Doble's attorney sought and obtained an injunction against execution on the August 29, 1977 w r i t not a s an attempt t o s h e l t e r t h e proceeds of the contract f o r deed from a legitimate execution, but rather t o prevent the undesirable. conse- quences of a s h e r i f f ' s s a l e which f a i l e d t o take account of p r i o r secured interests--that is, the security i n t e r e s t s of t h e Conrad Bank and the F i r s t National Bank of Eureka. Talbott's attorney contends the injunction was not e f f e c t i v e a s t o h i s c l i e n t due t o improper service of process. Doble's attorney hand delivered a copy of the complaint and restraining order and show cause order t o Talbott's attorney only one week a f t e r Talbott's attorney had prepared notice of the s h e r i f f ' s sale. Talbott argues t h a t such hand de- l i v e r y t o the attorney was not adequate service on h i s c l i e n t a s he was not a general agent f o r her, c i t i n g and v. Hand (1957), 131 Mont. 571, 312 P.2d 990, and Kraus v. Treasure Belt Mining Co. (1965), 1 4 6 Mont. 432, 408 ~ . 2 d 151. These cases a r e distinguishable from the present matter and do not r u l e out service of process on an attorney a s a means of obtaining jurisdiction over a c l i e n t . In Hand t h e service of process on an attorney was held inadequate because it was on a senior member of a law firm who knew nothing about t h e defendant's case, who had n o t appeared i n any manner a s an a t t o r n e y of record i n t h e defendant's a f f a i r , and whose f i r m had n o t " i n any manner appeared a s respondent's a t t o r n e y s of record." 131 Mont. a t 575, 312 P.2d a t 992. I n Kraus t h e s e r v i c e of process was on a former employee of an out-of-state mining company who had no access t o t h e closed mine premises, who w a s r e c e i v i n g unem- ployment compensation a t t h e time of s e r v i c e , and who t o l d t h e serving s h e r i f f t h a t he no longer had' any connection with t h e mining company. Under t h e s e circumstances s e r v i c e of process was n o t adequate under Rule 4D(2) ( e ) (i) as s e r - v i c e upon a "managing o r general agent" of t h e company. 146 Mont. a t 436, 408 P.2d a t 153. I n t h e p r e s e n t case t h e a t t o r n e y ' s r e l a t i o n s h i p t o t h e c l i e n t and t o t h e s u b j e c t matter of t h e a c t i o n is much c l o s e r . Doble's c i t a t i o n t o United S t a t e s v. Bosurgi (S.D. N.Y. 1972), 343 F.Supp. 815, i s h e l p f u l i n t h a t both t h e f a c t s and a p p l i c a b l e l a w are closer, t o t h e matter a t i s s u e . I n Bosurgi t h e defendant sought t o vacate s e r v i c e of process upon it under Rule 1 2 ( b ) , Fed.R.Civ.P., a l l e g i n g t h a t its a t t o r n e y was not an "agent authorized by appointment . . . t o r e c e i v e s e r v i c e of process." 343 F.Supp. a t 816. The defendant (SAICI), a claimant of a fund which Bosurgi had recovered i n a s e p a r a t e a c t i o n , f i l e d an a c t i o n i n s t a t e c o u r t i n New York claiming t h a t it was r i g h t f u l l y e n t i t l e d t o t h e proceeds of Bosurgi's fund. Meanwhile t h e United S t a t e s had f i l e d an a c t i o n i n f e d e r a l c o u r t seeking t o f o r e c l o s e on t a x l i e n s which it held on t h e fund. Thus, t h e United S t a t e s named SAICI as an a d d i t i o n a l defendant i n its f o r e c l o s u r e a c t i o n and served process on t h e s e n i o r p a r t n e r of t h e law firm which represented SAICI i n its s t a t e c o u r t action. I n declaring t h i s a c t i o n v a l i d s e r v i c e of process, t h e f e d e r a l d i s t r i c t c o u r t f i r s t noted t h e l i m i t a t i o n s on s e r v i c e of process on an attorney: "An attorney, s o l e l y by reason of h i s capacity as an attorney, does n o t thereby become h i s c l i e n t ' s agent authorized by 'appointment . . . t o receive s e r v i c e of process.' Nor is t h e f a c t t h a t an attorney represents h i s c l i e n t i n a completely unrelated l i t i g a t i o n s u f f i c i e n t t o e s t a b l i s h t h e r e q u i s i t e authority. What i s necessary i s t h a t it appear t h a t t h e attorney w a s authorized, e i t h e r expressly o r impliedly, t o receive s e r v i c e of process f o r h i s c l i e n t . And i f such agency is t o be implied, it must be implied from a l l t h e circumstances accom- panying t h e a t t o r n e y ' s appointment which indi- c a t e t h e e x t e n t of a u t h o r i t y t h e c l i e n t intended t o confer." 343 F.Supp. a t 817-18. Y e t i n t h a t case, a s i n t h e present one, the matter a t i s s u e w a s n o t "completely unrelated" t o t h e matter i n which t h e attorneys w e r e already a c t i v e l y representing SAICI. A s t h e c o u r t i n Bosurgi reasoned: " I t i s beyond question t h a t SAICI's attorneys were retained t o assert its alleged r i g h t t o , and t o obtain possession o f , t h e $215,000. This r e t a i n e r necessarily required t h e a t t o r - neys t o r e s i s t t h e claims t o the fund a s s e r t e d by other p a r t i e s , including t h e United S t a t e s Government. Receipt of process by t h e a t t o r - ney i n t h i s s u i t , which involves r e l a t i v e r i g h t s t o t h e settlement fund, w a s a necessary i n c i d e n t of t h e a t t o r n e y ' s e f f o r t t o e s t a b l i s h SAICI's claim t o t h e settlement fund by op- posing t h e claims of t h e government, as w e l l as those of t h e o t h e r claimaints. L i t i g a t i o n with t h e United S t a t e s must have been intended as within t h e scope of the a t t o r n e y ' s a u t h o r i t y , s i n c e t o obtain t h e fund f o r SAICI, its a t t o r - neys would i n e v i t a b l y have t o f a c e and overcome t h e claim of t h e United States." 343 F.Supp. a t 818. I n t h e present case, T a l b o t t ' s attorney necessarily would be required " t o resist the claims t o t h e fund a s s e r t e d by other p a r t i e s . " Logically h i s duty a l s o extends t o pro- t e c t i n g h i s c l i e n t ' s c l a i m a g a i n s t t h e judgment d e b t o r ' s attempt t o block t h e execution sale. A s t h e person entrusted t o safeguard h i s c l i e n t ' s i n t e r e s t s through t h e treacherous journey from judgment to satisfaction, Talbott's attorney was "not only adequate, but probably optimal" as the person to receive service of process. 343 F.Supp. at 818. In a circumstance similar to that in Bosurgi and the instant case, another federal court echoed this conclusion: "There is no fear . . . that service of the summons and complaint upon [the attorney] would not be brought home to each principal. This is at times a matter of concern in these problems of service of process through claimed authorized agent. That service of process upon their lawyer would bring notice of the lawsuit to [the principals] seems beyond argument and is evident here from the motion itself in their behalf to quash the service. Also, a lawyer endowed with all the authority given as here to act and appear is about the best candidate one could choose to insure notice of a pending lawsuit." United States v. Davis (N.D. N.Y. 1965), 38 F.R.D. 424, 425-26. (Bracketed material added.) Thus, due to the attorney's representation of Talbott in a closely related action, which necessarily implied a duty to protect his client's interests against this type of action, service of process on her attorney was valid as service on Talbott within the meaning of Rule 4D(2) (a), As to Talbott's second contention that the District Court granted the permanent injunction without considering evidence at a hearing, it appears that the words of Talbott's attorney precluded the need for such a hearing. The order granting the permanent injunction states that he told the judge his client did not intend to proceed on the writ of August 29. While Talbott's attorney later declared that what he said was "in all likelihood" the defendant did not intend to proceed on the writ, it is clear that the judge and the other attorneys present at the April 11, 1978 con- ference understood Talbott's attorney to say his client did not intend to proceed on the writ. Under these circumstances, t h e D i s t r i c t Court's version of t h e r e p r e s e n t a t i o n s of an a t t o r n e y must be considered t h e b e s t guide of what he s a i d . The D i s t r i c t Court had j u r i s d i c t i o n t o e n t e r i t s A p r i l 11, 1978 order enjoining t h e s h e r i f f ' s sale. Carole T a l b o t t may proceed under a new w r i t a s provided i n t h a t order. C A U S E NO. 14363 -- ORDER NUNC P R O T U N C I n t h i s t h i r d cause a p p e l l a n t T a l b o t t seeks t o set a s i d e an order of t h e Eleventh J u d i c i a l D i s t r i c t Court amending a 1967 judgment nunc pro tunc. A s described above, Carole T a l b o t t ' s f e d e r a l judgment of August 13, 1976, is a g a i n s t John H. Doble, who is p r e s e n t l y t h e r e c i p i e n t of payments under a c o n t r a c t f o r deed dated May 1, 1975, a s a t e n a n t i n common with Helen I. Doble, h i s wife. John W. Doble, Doble's son, is a l s o t h e r e c i p i e n t of payments under a s e p a r a t e c o n t r a c t f o r deed dated May 1, 1975. I n 1966, John H. Doble, Helen I. Doble, John W. Doble and Joyce Doble brought a q u i e t t i t l e a c t i o n i n t h e Eleventh J u d i c i a l D i s t r i c t i n Lincoln County. I n t h e pleadings f o r t h a t a c t i o n t h e Dobles d i d n o t i n d i c a t e s e p a r a t e ownership of t h e various t r a c t s t o which they wished t o q u i e t t i t l e s , b u t they d i d p r e s e n t s e p a r a t e evidence of ownership. John W. Doble brought before t h e c o u r t e x h i b i t s one through t h r e e which w e r e warranty deeds granting various t r a c t s t o him and h i s wife as j o i n t tenants. These t r a c t s , a l l located i n Township 37 North, Range 28 West M.P.M. w e r e : Exhibit 1 Section 26 E/2 NE/4 Exhibit 2 Section 1 1 W / 2 NE/4, E/2 NE/4 m/4, E/2 SE/4 NW/4, SW/4 SE/4 NW/4, S/2 NW/4 SE/4 JW/4 Exhibit 3 Section 10 S/2 SE/4 Section 1 1 S E / ~ SW/4, W / 2 S W / ~ Section 13 Lots 2, 3 ( ~ / 2 N E / ~ ) Section 1 4 m/4 John H. Doble produced warranty deeds granting t h e following t r a c t s t o him and h i s wife a s j o i n t t e n a n t s a s e x h i b i t s f o u r through seven: Exhibit 4 Section 3 Lots 2 and 7 Exhibit 5 Section 15 NE/4 SE/4 Exhibit 6 Section 1 4 1W/4 SW/4 E x h i b i t 7 Section 1 1 W / 2 NE/4 W/4, N/2 NW/4 SE/4 W/4 The D i s t r i c t Court granted judgment f o r t h e Dobles i n t h e i r q u i e t t i t l e a c t i o n on January 6, 1967, b u t f a i l e d t o indi- c a t e s e p a r a t e ownership of t r a c t s on t h e decree. The only mention of t h e p a r t i e s by name i s i n t h e caption of t h e judgment and decree, which simply lists a l l four Dobles as p l a i n t i f f s . O n March 28, 1978, a f t e r f i l i n g a t r a n s c r i p t of t h e f e d e r a l judgment with t h e Nineteenth J u d i c i a l D i s t r i c t Court, Carole T a l b o t t obtained a f e d e r a l w r i t of execution. The United S t a t e s Marshall l e v i e d on t h e property l i s t e d i n t h e 1967 q u i e t t i t l e decree on April 5, 1978, and set t h e d a t e f o r sale of t h e property on May 18. On May 2 Doble's a t t o r n e y f i l e d a motion t o amend t h e 1967 judgment nunc pro tunc t o r e f l e c t t h e s e p a r a t e owner- s h i p . The Nineteenth J u d i c i a l D i s t r i c t Court granted t h a t motion t h e same day. T a l b o t t considers h e r s e l f aggrieved because she i n t e r - p r e t s t h e order nunc pro tunc t o have been a device t o p r o t e c t Doble's property from her r i g h t f u l claim. This hinges upon her i n t e r p r e t a t i o n of t h e 1967 judgment which q u i e t s t i t l e t o t h e v a r i o u s Doble t r a c t s i n Lincoln County. H e r claim i s t h a t t h e a c t i o n served t o t r a n s f e r one-half of John W. and Joyce Doble's i n t e r e s t i n t h e i r s e p a r a t e lands t o John H. and Helen Doble "by operation of law", and similarly t o t r a n s f e r one-half of John H. and Helen Doble's i n t e r e s t i n t h e i r separate lands t o John W. and Joyce Doble by operation of law. Under t h i s theory it would appear t h a t John H. and Helen have retained t h e i r half i n t e r e s t i n the land which John W. and Joyce purport t o have sold t o others under the May 1, 1975, contract f o r deed. Several factors, however, make c l e a r t h a t John H. and Helen Doble have never acquired any i n t e r e s t i n John W. and Joyce Doble's land. F i r s t , the q u i e t t i t l e action which the Dobles f i l e d i n 1966 made no mention of a transfer of i n t e r e s t s among the Dobles. Its purpose was c l e a r l y t o give the Dobles uncontested t i t l e t o t h e i r various t r a c t s , especially a s against the Bonners Ferry Lumber Co. Ltd., the C.E. Conrad Estate, Inc., the Conrad Corporation, and several other individuals. Second, the evidence produced a t the hearing on the q u i e t t i t l e p e t i t i o n c l e a r l y showed John W. and Joyce Doble a s the grantees of c e r t a i n t r a c t s and showed John H. and Helen Doble a s t h e grantees of c e r t a i n other t r a c t s . In t h e absence of any pleading o r evidence t h a t e i t h e r of the Doble families claimed ownership i n the lands standing i n the name of the other, the D i s t r i c t Court could not transfer t i t l e from the one co-plaintiff t o the other co-plaintiff. The nunc pro tunc order did no more than c l a r i f y the evidence and the law governing the case. Third, the Dobles have treated t h e i r ownership a s separate since the q u i e t t i t l e action. The contracts f o r deed which the Doble families entered i n t o i n May, 1975, a r e completely separate and on t h e i r face convey separate t r a c t s of land. One describes John H. and Helen Doble a s tenants i n common. Clearly these people i n 1975 considered them- s e l v e s t o be s e p a r a t e owners of s e p a r a t e lands, and d e a l t s e p a r a t e l y with t h e purchasers of t h e i r land. I n 1978 when Carole T a l b o t t gave n o t i c e of her i n t e n t t o execute her judgment by s e l l i n g a l l t h e land l i s t e d i n - t h e 1967 decree, t h e Dobles understandably became concerned and moved t o amend t h e decree t o c l e a r l y r e f l e c t t h e i r t r u e i n t e r e s t . The only e f f e c t of t h e May 2 , 1978 order cor- r e c t i n g t h e judgment was t o r e f l e c t t h e o r i g i n a l i n t e n t of t h e p a r t i e s . Amendments a r e permissible under Rule 60 (b) (6) , M.R.Civ.P., where they w i l l make t h e meaning of a judgment o r decree more c l e a r and w i l l n o t a c t inequitably o r t o t h e p r e j u d i c e of a party. Smith v. Jackson Tool & Die, Inc. ( 5 t h C i r . 1970), 426 F.2d 5, 8. H e r e , t h e Dobles had l i t t l e reason t o suspect t h a t a subsequent c r e d i t o r would, more than a decade l a t e r , i n t e r p r e t t h e q u i e t t i t l e decree t o mean t h e four Dobles w e r e t e n a n t s i n common of a l l land involved i n t h e decree. A d i f f e r e n t question might be pre- sented i f T a l b o t t ' s theory of t h e e f f e c t of t h e 1967 decree was more p l a u s i b l e , and t h e order nunc pro tunc w a s i n f a c t a change i n t h e o r i g i n a l i n t e n t i o n of t h e q u i e t t i t l e de- cree. But under t h e t o t a l circumstances of t h i s case, t h e order does n o t appear t o p r e j u d i c e T a l b o t t . It merely c l a r i f i e s what had always been intended. With t h i s d e t e r - mination, it i s unnecessary t o consider Doble's claim t h a t T a l b o t t l a c k s standing. The order nunc pro tunc of May 2, 1978, is affirmed. The order does n o t a c t inequitably b u t r a t h e r c l a r i f i e s what w a s o r i g i n a l l y intended by t h e 1967 q u i e t t i t l e a c t i o n . d k J u s t i c e W e Concur: Judge, s i t t i n g i n p l a c e of M r . Chief J u s t i c e Haswell ~ i s t r i & ~ u d ~ e ; s i t k i n g i n place of M r . J u s t i c e Sheehy	January 10, 1979
1117ae01-1865-42db-9d76-95ee550e188a	COUNTS v CHAPMAN	N/A	14207	Montana	Montana Supreme Court	No. 14207 IN THE SUPRFME C O U R ! I ' OF THE STATE O F MONTANA 1978 R U S S E L L C O U N T S , Petitioner and Respondent, DELSEY CHAPMAN, f/k/a D E L S E Y H A N K S , f/k/a D E L S E Y CCUNTS, Respondent and Appellant. ?@peal frm: 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: Richter, Lerner and Nye, Billings, mntana For Respondent: Davidson, Veeder, Baugh & Broeder, Billings, Pbntana Suhnitted on briefs: July 26, 1978 I s ; Decided: v.qi - & Filed : Mr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal is from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, Montana, granting modification of a divorce decree as to custody of the children. Plaintiff wife, Delsey Counts, obtained a decree of divorce from defendant, Russell Counts, on May 17, 1971. In that decree, wife was granted custody of the four children of the parties, Becky Lynn, Michelle Lorraine, Edward Russell and Webster Dean. Husband was ordered to pay the sum of $100 per month to the wife for support money for the children and was given reasonable visitation rights. On June 27, 1973, the husband petitioned for a modifi- cation of the decree asking that he be awarded custody of the four children for 9 months of the year and that plaintiff wife have custody for the remaining 3 months, with the support monies adjusted accordingly. The wife, then known as Delsey Hanks, filed a counter-petition at that time requesting the court to grant her $65 per month for each of the minor children to be paid as support money by the husband. Nothing ever came of that petition or counter-petition. On May 26, 1977, husband, Russell Counts, petitioned for a modification of the divorce decree, asking that custody of the 4 children be granted to him. Wife, then known as Delsey Chapman, filed her counter-petition, requesting that: (1) custody of the four children be continued to her; (2) the Court determine the amount of back payments due to her from husband for support monies; ( 3 ) she be awarded attorneys fees; and (4) the original decree be modified so she would be entitled to receive $100 per month for each of the children of their marriage. On November 4, 1977, District Court entered its order here appealed therefrom, in which the District Court granted to -2- husband full custody of the 4 children of the parties, and determined the husband owed the wife $2,894.20 in back support payments. The wife then moved for a new trial on the single ground there had been no record made of an interview by the District Court of the 4 minor children about their wishes concerning their custody. No ruling was made by the District Court on this motion, and, it being deemed denied, appeal was taken by plaintiff wife to this Court. No stenographic transcript of the proceedings before the District Court regarding the hearing on petition for modification by the husband or counter-petition of the wife, has been filed in the Court. The District Court did not make findings of fact and conclusions of law as such (no appeal is taken as to this point) but attached to the order appealed from, is a memorandum of law and fact by the District Court from which we glean the following pertinent facts: After the divorce decree of May 17, 1971, both parties subsequently remarried, the father, to a woman having 3 children by a prior marriage and the mother, to a man having 1 boy by a prior marriage. The father's second marriage is still intact. The mother's second marriage failed, a divorce occurred, and in March 1977, the mother married again, this time to a man employed or to be employed in Canada. It was necessary she move to Canada with her husband. After con- sultation with school authorities, the mother decided to defer moving the children until after the close of the school year. She placed 3 of the children with their father and 1 with another relative, intending that after school they would all move to Canada with her. The father later ended up having all 4 of the children with him from March 1977. On May 26, 1977, shortly before the mother was to take the children, -3- the father filed his petition requesting modification of the decree so as to award permanent custody of the children to him. The memorandum of District Court summarizes evidence respecting the best interests of the children as follows: "The children involved are two girls, ages 14 and 12 years, and two boys, ages 9 and 8 years. The mother acknowledges that the oldest child, Becky Lynn Counts, desires to stay with her father and agrees that her wish should not be resisted. The mother also does not challenge that the other children have expressed a wish to stay with their father, but she feels that this is only the product of their having been with their father the past few months, resulting in a practical influence upon them even if not an intentional one. "Over the span of time that the mother has had the children, there have been some difficult times in 'getting used to a new father' and in living through the changes of a second separation and divorce. Such difficulties have manifested themselves in the children's school progress, with the two boys having failed one year each, and the girls having poor attendance records. The oldest girl did not, for example, attend a sufficient number of days last year to earn a grade, she being given an 'incomplete.' A number of the school personnel testified at the hearing on this matter, and it is apparent from their testimony that continuation of the childrens' problems became interrupted only after they went with their father. From that period on considerable improvement was noticed. The logical conclusion from this is that at least the educational progress of the children was being seriously affected by the custodial situation existing with the mother. Whether the mother's new situation in Canada would correct or aggravate this situation would be entirely a matter of speculation and cannot form the basis for a finding by the Court." Based upon the foregoing, the Court determined the requirements of section 48-339, R.C.M. 1947, regarding custody had been met and the best interests of the children necessitated a modification, as prayed for by husband. The single issue presented by appellant wife in this appeal is the District Court erred in not requiring a verbatim transcript of the Court's interview with the minor children as to their wishes respecting their custody. Appellant is necessarily limited to this single issue because counsel for both parties have stipulated for this appeal, that no stenographic or verbatim record was made of the trial court proceedings in the matter; no stenographic or verbatim record was made of the trial court in chambers interview of the children in this matter; and both parties by and through their counsel of record at trial, waived stenographic or verbatim record of all the proceedings before the trial court in this matter though Mrs. Chapman, appellant, states her trial counsel did not discuss this waiver with her. (Appellant's counsel on appeal is not the same as her counsel at trial.) For us, therefore, the single issue becomes whether the statutory requirement of a verbatim transcript of the court interview of the minor children is a provision that can be waived by the parents in a dissolution of marriage proceeding. First, we look at the statute involved. Section 48- 334 (1) , R.C.M. 1947, provides: "The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause -- a record of the interview to be made and - -- ---- to be part of the record in the case." ----- --- (~m~hasis added. ) In Ronchetto v. Ronchetto (1977), Mont . , 567 P.2d 456, 458, 34 St.Rep. 797, a case where we reversed the District Court on a child custody decision, we note that on remand, if the court desired to interview the child concerning his wishes, it could be done, but in that event, the court must make a record of the interview to be considered part -5- of the record of the case. However, Ronchetto v. Ronchetto was not decided on that precise ground. In Schiele v. Sager (1977), Mont . , 571 P.2d 1142, 34 St.Rep. 1358, we reversed a District Court in a child custody decision. One of the grounds upon which we relied on in that case was the fact that the District Court had not made a record of its interview of the minor children involved. In the Matter of Geary (1977), Mont . , 562 P.2d 821, 34 St.Rep. 218, an appeal involving a youth in need of supervision (not a divorce proceeding), we held that because the dispositional hearing was not recorded verbatim in the District Court, that therefore under section 10- 1220(3), R.C.M. 1947, the case required reversal. In the Matter of the Guardianship of the Gullette Children, (1977), Mont . , 566 P.2d 396, 34 St.Rep. 277, a contested guardianship case, this Court held that the lack of a stenographic record of the contested hearing required reversal. In this case now before us, the stipulation executed by the parties with respect to the waiver of transcript of all proceedings presents a different aspect from the cases above cited. In Ronchetto, the pivotal point in the case was the fact the District Court had allowed hearsay testimony with respect to the best interests of the child and it was on that ground the reversal occurred. In Schiele, the lack of verbatim record of the childreds interviews was one of the points on which the case turned, but there is no indication in the records that a stipulation dispensing with such verbatim records had occurred in the trial. In Geary, there was a complete lack of stenographic report of all the proceedings in the District Court, sitting as a Youth Court, under a statute that required a verbatim record, particularly for use in appeal. In Gullette, there was a contested guardianship proceeding. The lack of stenographic record was one of the points on which this Court relied for reversal. In Gullette and Geary, the children themselves were parties before the court. Under the Uniform Marriage and Divorce Act, the District Court in determining custody of children looks at the best interests of the children and weighs all relevant factors, including those listed in section 48-332, R.C.M. 1947. That statute lists five different factors affecting the best interests of the child. Only one of these factors is the child's wish as to his custodian, although that is undoubtedly an important factor. Hurly v. Hurly (1966), 147 Mont. 118, 411 P.2d 359. Nonetheless, it is but one of five important factors set out in the statute. Because the court might wish to conduct the interview of the children in chambers, away from the trial, and indeed, if necessary, away from the presence of the parents, provision is made in section 48-334, R.C.M. 1947 for such interview to occur in chambers, where counsel may be permitted to be present. In order to have a complete record however, section 48-334 provides the interview should be recorded and made a part of the record in the case. It is obvious the ultimate purpose of the requirement of a record of the children's interviews is to accord the parties to the action, the husband and wife, a full record which would support any finding the court might make regarding wishes of the children, and the bearing of those wishes in his final decision. In a dissolution of marriage, however, the children are not parties to the action and the reason for the statute requiring a record of -7- interviews is to serve the interests of the parents who are actually parties to the action. If one of the parties therefore, knowing the Court will interview the children, and that such interview will weigh in the Court's decision as to their custody, nevertheless waives a verbatim record of such interview, then we must hold such party has voluntarily waived a known right and cannot complain about lack of record in this Court. We are not faced here with the problem that might arise if the District Court had not affirmed the wishes of the children. If that had occurred, then our paramount concern for the children's best interests, Lee v. Gebhardt (1977), Mont . , 567 P.2d 466, 34 St.Rep. 810; Schiele v. Sager (1977), Mont . , 571 P.2d 1142, 34 St. Rep. 1358, might have obligated us to send the custody problem back with a proviso that an attorney be appointed to represent the children, and a verbatim record be made of their interviews. In this respect, this case is different from Kramer v . Kramer (1978), Mont . , 580 P.2d 439, 35 St.Rep. 700. On the face of this record, as the memorandum of the District Court indicates, the best interests of the children are being served. Appellant wife contends the waiver was not discussed with her by trial counsel at the time the waiver was made. As far as the Court and other counsel are concerned however, she is bound by stipulations made by her counsel entered in open court. Section 93-2101, R.C.M. 1947. When appellant wife, through her counsel, waived a transcript of all proceedings in the District Court, she thereby placed herself wholly within the discretion of the District Court as to the issues presented to him. This Court is powerless to put a District Court in error without a record, Francis v. Heidel (1937) , 104 Mont. 580, 68 P. 2d 583, unless there appears inherent error, Aquettaz v. Chicago, Milwaukee & St. Paul Ry. Co. (1937), 104 Mont. 181, 65 P.2d 1185. Affirmed. We Concur: A Chief Justice Justices Mr. Justice Daniel J. Shea dissenting: I cannot agree with the decision of this Court that the wife waived her right to have the hearings recorded and to have a court reporter record the interviews between the trial court and the children. I would reverse the trial court and order a new trial because the first trial was held without a record being made. Here the wife claims that the lawyer who represented her at the trial level did not discuss with her whether or not she would waive the use of a court reporter to record the proceedings. We are involved here, not with a technical question of whether the client should be bound by the acts of her lawyers, as majority states, in relying on section 93-2101, R.C.M. 1947. Rather, we are involved with the very foundation of appellate review--the require- ment of a record, if review is to be effective. Indeed, the majority recognized the ineffectiveness of review with a record by stating "this Court is powerless to put a district court in error without a record, . . . unless there appears inherent e-rror, . . ." The essence of this hclding is that a District Court can deprive this Court of effective review by sinply not providing a court reporter to record the proceedings at trial. The potential evils engendered by this kind of attitude require no additional comment. It is of little consolation to the wife here that we hold her lawyer waived her right to a court reporter and consequently, to a meaningful appeal. Too often, when counsel agrees to the waiver of a record, he does so in an effort to accomodate the court and the court reporter, not to protect the interests of his client. The failure to have a court reporter to record the trial court proceedings goes to the very heart of the administration of the court system. The waiver that the Court has relied on here, namely that of counsel waiving the rights of his client to a recording of the hearing, is so fundanental that it should not be allowed without the personal waiver of the client. For this personal waiver to be effective, it shculd be spread upon the record. The client should be informed of the right to have a record; he should be informed of the uses to which a record is put; and he shculd be informed of the consequences of the failure to have a record, namely that almost total discretion is being reposed in the district judge, and that if the case is appealed there will be no effective and meaningful method of presenting the appeal. Perhaps then, if the client does not want a record, a waiver would be effective. And, being that the waiver should be spread upon the record, presumably taken down by a court reporter, perhaps the court reporter could even be persuaded to stay awhile and make a verbatim record of the hearing, which, after all, is his duty. The problem with a lack of a record, which so cften arises, has convinced me that there is a need for fundamental change in the way that verbatim records are recorded at the District Court level. Too many of the court reporters believe that the courts, counsel and the parties, exist only for the convenience and monetary benefit of the court reporters. They fail to recognize that they are servants of the public and the judicial system and that their duty to record trials and other hearings before the court takes precedence over other activities such as taking depositions, statements, etc. It must be remembered that court reporters are on a full-time salary, and this means they should be full-time public servants. It is the duty of the District Court judges to see to it that the court reporters in their employ are present to record the judicial proceedings which the particular judge is handling. I am convinced that electronic recording systems installed in the District Court may well be the only long-lasting and meaningful answer to the problem. If this c ~ u r t is unwilling to address the fundamental problems involved with the failure of court reporters to properly perform their functions, then I am convinced that the only redress is to have comprehensive legislation whereby electronic recording systems are mandated, and the duties of the court reporters are redefined, with commensurate salary reductions.	January 16, 1979
ae6f7d27-6d56-4f29-96d3-d1b5626449a0	RUNGE v WATTS	N/A	14313	Montana	Montana Supreme Court	No. 14313 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 THOMAS KENT RUNGE, Plaintiff and Appellant, CECIL T. WATTS, JR., as Special Administrator of the estate of David Allen Watts, Deceased; CECIL T. WATTS, JR., individually MARLENE WATTS, his wife; and DORIS M. POPPLER, Defendants and Respondents. Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellant: Krutzfeldt and Haker, Miles City, Montana William J. Krutzfeldt argued, Miles City, Montana For Respondents: Moulton, Bellingham, Longo and Mather, Billings, Montana McNamer, Thompson and Cashmore, Billings, Montana Charles R. Cashmore argued, Billings, Montana Filed: Submitted: December 18, 1978 Decided : JArI 1 : 1 : ; s M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. P l a i n t i f f 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 Thirteenth J u d i c i a l D i s t r i c t i n Yellowstone County a l l e g i n g negligence on t h e p a r t of defendant i n serving alcohol t o a minor whose i n t o x i c a t i o n allegedly r e s u l t e d i n a c a r accident causing p l a i n t i f f ' s injury. P l a i n t i f f appeals from an order and judgment dismissing h i s complaint a g a i n s t defendant Poppler on t h e ground t h a t it f a i l s t o state a claim upon which r e l i e f can be granted. O n April 26, 1975, David Allen Watts, then a minor, attended a party a t t h e home of defendant, Doris Poppler, and drank some beer, allegedly furnished by defendant. P l a i n t i f f , Thomas Runge, l e f t t h e party with Watts and w a s subsequently injured when Watts' c a r l e f t t h e road and struck a u t i l i t y pole. The i s s u e presented f o r review is whether the D i s t r i c t Court erred i n dismissing p l a i n t i f f ' s c l a i m a g a i n s t defen- dant, Doris M. Poppler. Stated another way, does Montana recognize a claim f o r r e l i e f a g a i n s t one furnishing l i q u o r t o a minor i n favor of those injured a s a consequence of t h e minor's intoxication? P l a i n t i f f seeks t o impose l i a b i l i t y upon defendant Poppler on t h e b a s i s of common law p r i n c i p l e s of negligence and negligence -- per se. Defendant argues t h a t i n the absence of a s p e c i a l dramshop a c t s p e c i f i c a l l y c r e a t i n g a c i v i l remedy and c i v i l cause of a c t i o n a g a i n s t t h e s o c i a l purveyor of intoxicants, no remedy o r cause of a c t i o n can be maintained. I n r e c e n t months t h i s Court has had two opportunities t o address t h e i s s u e of t h e l i a b i l i t y of one furnishing alcoholic beverages t o a person who subsequently s u s t a i n s i n j u r i e s by v i r t u e of the resulting intoxication. Swartzen- berger v. Billings Labor Temple Association (1978), Mont. , 586 P.2d 712, 35 St.Rep. 1625; Folda v. City of Bozeman (1978), Mont. , 582 P.2d 767, 35 S t . Rep. 1019. I n each of those cases, however, the p l a i n t i f f ' s recovery was barred by h i s own contributory negligence. In contrast the i n s t a n t case involves injury t o a t h i r d party. Contributory negligence on the p a r t of Watts, then, does not bar recovery by a t h i r d party. A similar question t o the one presented i n the i n s t a n t case arose i n a commercial context i n Deeds v. United S t a t e s (D. Mont. 1969), 306 F.Supp. 348. I n Deeds the Honorable William J. Jameson held, under the p a r t i c u l a r circumstances of t h a t case, t h a t "the s a l e and serving of liquor t o Tanberg i n v i o l a t i o n of Montana law was a proximate cause of the accident and r e s u l t i n g i n j u r i e s t o p l a i n t i f f . " 306 F.Supp. a t 361. However, we do not find Deeds controlling i n the i n s t a n t case. Rather, we follow the general rule: " . . . i n the absence of a s t a t u t e t o the con- t r a r y . . . there can be no cause of action against one furnishing liquor i n favor of those injured by the intoxication of the person t o whom it has been . . . furnished . . . so long a s the person t o whom the liquor was sold o r given was not i n such a s t a t e of helplessness . . . a s t o be deprived of h i s willpower o r responsibility f o r h i s behavior." 45 Am Jur 2d, Intoxicating Liquors S554. The problem we face i n so deciding is a d i f f i c u l t one. Montana law does provide sanctions t o discourage furnishing alcoholic beverages t o minors. F i r s t , section 4-3-306 (1) ( a ) , R.C.M. 1947, provides: " (1) N o licensee o r h i s o r her employee or employees, nor any other person, s h a l l sell, deliver, o r give away o r cause o r permit t o be sold, delivered o r given away any alcoholic beverage to: " (a) Any person under the age of eighteen (18) years. " B y v i r t u e of section 4-6-404, R.C.M. 1947, violation of t h i s provision is a misdemeanor. While t h i s provision does not apply t o a s o c i a l purveyor of alcoholic beverages, section 94-5-609 (1) (b) , R.C.M. 1947, does: "(1) A person commits the offense of unlawful transactions with children i f he knowingly: " (b) s e l l s o r gives intoxicating substances t o a child under the age of majority . . ." These sanctions, however, do not by themselves c r e a t e a c i v i l cause of action i n favor of a t h i r d person injured a s a r e s u l t of a minor's having been furnished alcoholic bev- erages. Establishing such a c i v i l cause of action involves considerations of public policy f a r beyond those presented by the circumstances of the i n s t a n t case. Traditionally, there has been greater j u s t i f i c a t i o n f o r imposing l i a b i l i t y on a commercial purveyor than on a s o c i a l purveyor. There i s a greater need f o r some check on the pecuniary motives of those engaged i n the business of s e l l i n g alcoholic beverages. In addition a commercial vendor is i n a b e t t e r position t o observe h i s customers and monitor t h e i r l e v e l of intoxication by v i r t u e of the f a c t t h a t the s e l l e r i s more l i k e l y t o communicate with the patron each time he serves a new drink. Taking t h i s i n t o consideration, we a r e r e l u c t a n t t o extend the l i a b i l i t y of persons serving alcoholic beverages t o a s o c i a l s e t t i n g when the l e g i s l a t u r e has t o date f a i l e d t o extend t h a t l i a b i l i t y t o commercial vendors by v i r t u e of dramshop legislation. W e a r e aware of the high incidence of automobile accidents a t t r i b u t a b l e t o intoxication. W e a l s o recognize t h a t innocent t h i r d p a r t i e s stand t o suffer substantial harm i n such situations. However, t o hold purveyors of alcohol, especially s o c i a l furnishers, l i a b l e f o r t h i s harm would be contrary t o the current s t a t e of Montana law and would infringe upon a matter more appropriately within t h e province of the legisla- ture. Our recent holdings have reaffirmed our statement of the law i n Nevin v. Carlasco (1961), 139 Mont. 512, 515-16, "The r u l e followed by most courts is t h a t when damages a r i s e from voluntary intoxication, the s e l l e r of the intoxicant is not l i a b l e i n t o r t f o r the reason t h a t h i s a c t is not the e f f i c i e n t cause of the damage. The proximate cause is the a c t of him who imbibes the liquor." Under current Montana law, a s affirmed i n Folda and Swartzen- berger, Watts' drinking and not defendant's serving the beer was the proximate cause of the accident which resulted i n p l a i n t i f f ' s injury. The judgment of the D i s t r i c t Court is affirmed. W e Concur: / / J u s t i c e I - c - L- ~t/dv r J u s t i c e s ,' / L ' ' M r . Chief J u s t i c e Frank I. Haswell, deeming himself disqualified, did not s i t i n t h i s case.	January 15, 1979
f26a76ff-4255-4088-98c7-3c6f6692ca36	CHRISTENSEN v BRITTON	N/A	89-219	Montana	Montana Supreme Court	No. 89-219 IN THE SIJPREME COURT OF THE STATE OF MONTANA ROSE CHRISTENSEN, Conservator of the Estate of CLARENCE B. NEIDIGH, a protected person, Plaintiff and Appellant, -vs- DOROTHY BRITTON, JOYCE LANGE, and DEBBIE McSHANE, Defendants and Respondents. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Joel G. Roth, Judge presiding. COUNSEL OF RECORD: For Appellant: Michael W. Cotter, Cotter & Cotter, Great Falls, Montana For Respondent: Dirk Larsen; Larsen & Neill, Great Falls, Montana - Submitted on Briefs: Sept. 15, 1989 Decided: December 28, 1989 Filed. : Justice R. C. Mcnonough delivered the Opinion of the Court. This is an appeal from an action to recover real and personal property that Clarence Neidigh qave to defendants Dorothy Britton, Joyce Lange and Debbie McShane (sometimes collectively referred to as "Defendants"). Rose Christensen, later appointed conservator of the estate of Cla-rence Neidigh, brought this action for damages and to set aside certain transfers on the grounds that Clarence Neidigh was incompetent and the transactions were a result of undue influence . The District Court of the Eighth Judicial District, sitting without a jury, found that the transactions between Clarence Neidigh, who was found to be competent, and the Defendants, were fair and regular. We reverse, remand and order the trial court to conduct a new trial to determine damages. The issue in this case is: Whether the District Court erred in concludinq that the various transactions between Clarence Neidigh and the Defendants were valid. Clarence Neidigh (Lou) was born on January 15, 1900. In 1929, he married Marie and had two children, Rose, and Dwight. Lou and Marie were married for 57 years. During this period of time, they enjoyed a very close and lovinq relationship. According to testimony, Lou and his wife were inseparable. They went everywhere together and he relied on her exclusively, for all of his needs. Marie died on September 14, 1986. Lou was extremely distraught over the loss of his wife. His neighbors described him as a "lost soul" during the months following the death. The Defendants, Dorothy Rritton, Debbie McShane and Joyce Lange, all knew Lou and Marie very well. Britton and McShane, who are daughters of Lange, grew up within a block of Lou. Consequently, they enjoyed a very close relationship with him for about 25 years before his wife died. After Marie died, Aritton began spending an inordinate amount of time with Lou. She helped him with his day to day activities, such as driving him to the store and fixing his meals. In October, approximately one month after Marie's death, Britton contacted her family attorney. She asked him to prepare a power of attorney, giving her full control over all of Lou's assets. She maintained that this was necessary, because Lou was unable to handle his business affairs due to his depression over his wife's death and because his eyesight was very poor. Accordinqly, on October 20, 1986, Rritton took Lou to her attorney's office and he signed a durable power of attorney giving her full and complete control over his property. On February 4, 1987, Britton took Lou to see her attorney for a second time. The purpose of this visit was for Lou to make a new will. According to Britton's testimony, Lou wanted to make a new will in order to leave the bulk of his estate to her, her mother and her sister. It was also decided that Lou would deed his house and all of its contents to Britton through an immediate transfer. Lou executed a warranty deed and conveyed his house and all of "the furniture, furnishings and equipment located therein" to Dorothy Britton. The house was fully paid for and there was no consideration paid to Lou for the home or the furnishings. A number of monetary transactions then took place between Lou and the Defendants, most of which were in 1987. They included a $5,000.00 loan to Joyce Lanqe, a $4,000.00 loan to Rudette Mattingly (Dorothy Britton's sister), a $2,500.00 loan to Debbie McShane and a gift of a diamond ring, valued at $1,500, to Joyce Lanqe. Most of these loans have never been repaid. Lange maintains, however, that she has repaid her $5,000.00 loan. She asserts that the loan was repaid by returning to Lou a gun collection which he had previously given to her. Each of these loans and their purported repayments were cash transactions. No promissory notes were every drafted, nor did the Defendants keep records of any repayment. The loans were usually accomplished by Lou making out a check to "cash." The Defendants would then drive him to the hank where he would cash the check and give them the money. In October of 1987, Lou gave Britton his 1982 Ford LTD, which was valued at $3,800.00. Britton used the car for 13 days. She then sold the car back to Lou for $6,000.00. A receipt evidencing this sale was executed by both Lou and Britton. During this period of time Lou met a young woman named Kim Stevens. Kim was 24 years old when she was introduced to Lou. Apparently Kim was a close friend of Defendant, Debbie McShane . Kim had three children and was, at this time, involved with a man by the name of Leland LaPier, who is currently incarcerated at the Montana State Prison. A short time after they met, Lou and Kim were married on October 23, 1987. She moved herself and her three children into the home which Lou had previously deeded to Dorothy Britton. Debbie McShane also moved into the house with Rim and Lou. Lou, no longer having any furniture and appliances in the house, bought furniture and appliances. He obtained many of the items that he needed by repurchasing some that he had given to Dorothy Britton. Among other things, he repurchased from her, his bed for $600.00 and his washer and dryer for $700.00. In December of 1987, animosity began to develop between Lou and the Defendants. Britton's testimony is that the animosity arose after Iloul s marriage to Kim. Eventually Britton asked Lou to leave the house. As a result Lou was forced to leave the home that he had occupied for over thirty years. He was not allowed to take any of his personal possessions because, as stated earlier, these had been conveyed to Britton. Following Lou's departure Britton began renting the house to her sister, Debbie McShane, for $342.00 a month. Lou's son, Dwight, died in January of 1988. At the funeral Lou's daughter, Rose, discovered that he was out of money and was no longer in possession of his home or his belongings. Consequently, she moved him into her home in Helena. In February, after she was appointed conservator of her father's estate, she cashed out his bank account. He had only $800.00 left. When Lou's wife died, his checking account contained between $45,000 and $50,000. He also had an income of approximately $1,500.00 a month which was obtained through retirement benefits and stock dividends. The total depletion of his cash assets between September of 1986 and February of 1988 was in an amount between $69,000 and $74,000. Additionally, he lost his home and virtually all of his personal possessions. Lou's marriage to Kim was annulled in June of 1988. In the stipulation to annul the marriage, Kim stated her belief that "other parties set up and fraudulently induced the marriage relationship." Following the annulment Kim returned all of Lou's property that was in her possession. Rose Christensen, as Conservator of the Estate of Lou Neidigh, brouqht this action to recover the property given to Dorothy Britton, Joyce Lanqe and Debbie McShane. After a bench t r i a l , t h e D i s t r i c t Court h e l d t h a t t h e v a r i o u s g i f t s and t r a n s a c t i o n s between Lou and t h e Defendants were v a l i d . The c o u r t f u r t h e r concluded t h a t t h e Defendants d i d n o t e x e r c i s e undue i n f l u e n c e over Lou and Lou was competent a t t h e time of t h e t r a n s a c t i o n s . Judgment was t h e r e f o r e e n t e r e d i n t h e i r favor. From t h i s judgment, t h e p l a i n t i f f a p p e a l s . The p l a i n t i f f advances two t h e o r i e s , e i t h e r of which i f proven would o p e r a t e t o i n v a l i d a t e t h e t r a n s f e r s of p r o p e r t y by Lou Neidigh t o t h e Defendants. She maintains t h a t e i t h e r Lou lacked t h e c a p a c i t y necessary t o make a v a l i d g i f t o r , i n t h e a l t e r n a t i v e , t h a t t h e g i f t s w e r e obtained through t h e use of undue i n f l u e n c e . The evidence does n o t support h e r claim t h a t Lou lacked t h e c a p a c i t y t o make a v a l i d g i f t . I n f a c t Lou's d o c t o r t e s t i f i e d t o h i s b e l i e f t h a t Lou d i d have t h e mental c a p a c i t y t o understand and manage h i s f i n a n c i a l a f f a i r s a t t h e t i m e t h e t r a n s f e r s were made. L V e , t h e r e f o r e , w i l l examine t h e a p p e l l a n t ' s claim t h a t t h e g i f t s were obtained through t h e u s e o f undue i n f l u e n c e . Proof o f undue i n f l u e n c e does n o t depend upon a showing o f mental i n c a p a c i t y on t h e p a r t o f t h e donor. I n re E s t a t e of Aageson (1985), 217 Mont. 78, 702 P.2d 338. Undue i n f l u e n c e i s never presumed and must be proven l i k e any o t h e r f a c t . Adams v. A l l e n (1984), 209 Mont. 149, 679 P.2d 1232. Therefore, w e must review t h e evidence t o determine whether t h e p l a i n t i f f has c a r r i e d h e r burden o f proving t h a t t h e g i f t s were a product o f t h e Defendants' use of undue i n f l u e n c e . I n Montana, t h e q u e s t i o n of whether undue i n f l u e n c e was e x e r c i s e d on a donor making a g i f t i s determined by t h e same c r i t e r i a used i n d e c i d i n g whether undue i n f l u e n c e was e x e r c i s e d on a t e s t a t o r making a w i l l . Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939. These c r i t e r i a , a s set o u t i n Montana c a s e law, a r e : (1) Confidential relationship of the person attempting to influence the testator; (2) The physical condition of the testator as it affects his ability to withstand influence; ( 3 ) The mental condition of the testator as it affects his ability to withstand the influence; (4) The unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to undue influence, and (5) The demands and importunities as they may affect the particular donor taking into consideration the time, the place, and all- the surrounding circumstances. Cameron, 587 P.2d at 945, see also 5 28-2-407, MCA. To prove an assertion of undue influence one must satisfy each of these criteria. We therefore apply the evidence to each of the five points. There was a close confidential relationship between Lou Neidigh and Dorothy Britton. Before the death of Lou's wife, Britton had known Lou for approximately 25 years. According to her testimony, she thought of Lou as a "grandfather." Within five weeks after Lou's wife died, however, this relationship began to change. Britton then took on the added responsibility of controlling and managing Lou's financial affairs by obtaining power of attorney over his entire estate. This blanket power of attorney, which was obtained through Britton's lawyer, imposed upon her a fiduciary duty to act in the utmost good faith when dealing with Lou's financial affairs. This fiduciary duty, together with her long personal relationship with him, demonstrates that Britton had a confidential relationship with Lou Neidigh. Due to Lou's advanced years, his physical condition was deteriorating at the time he engaged in the transactions on review. Testimony revealed that his sight had deteriorated to the point of near blindness. In order to read, he needed a magnifying glass. This poor eyesight required him to become dependent upon others to write his checks and review his bank records. This dependency, in turn, made him susceptible to overreaching influence asserted by the Defendants. Lou was also in a precarious mental state during the time the gifts and the loans were made to the Defendants. As we have previously mentioned, Marie Neidigh, Lou's wife, died on September 14, 1986. Lou took the death very hard. Witnesses at trial described him as a "lost soul" and testified that he would often cry in front of them. As can be expected, after the loss of a longtime spouse, Lou was sad, dependent, confused and lonely. His dispositions were unnatural and indicate that he was in a weakened emotional state and was therefore easily susceptible to undue influence. Very shortly after Marie's death, Lou gave Joyce Lange, Marie's wedding rings. Following this gift a number of other unnatural transactions occurred between Lou and the Defendants. He gave his house and all of its contents to Dorothy Rritton. In making this transaction, he did not even reserve to himself a life estate which would insure that he had a place to live. Additionally, a number of loans were made to the Defendants. These loans and their repayment were all purported to be in cash. No records were kept of their repayment and no promissory notes were ever signed by the Defendants. The sum of these loans approximated at least $12,000.00. In addition to conveyinq all of the property contained in his house to Britton, Lou also gave her his only car. Thirteen days after this gift was made, Britton sold the car back to Lou for $6,000.00, which was $2,200.00 more than its fair market value. When Lou asked that other items of his personal property be returned, R r i t t o n sold them t o him. For i n s t a n c e , she sold him h i s washer and dryer f o r $700.00, h i s snowblower f o r $100.00, and h i s bedroom f u r n i t u r e f o r $600.00. I n December of 1987, a f t e r h e r r e l a t i o n s h i p with Lou began t o d e t e r i o r a t e , Dorothy B r i t t o n forced Lou t o leave t h e house t h a t he owned f o r over 30 years. When he l e f t , he was n o t allowed t o t a k e any of h i s personal e f f e c t s . Shortly a f t e r h i s departure, R r i t t o n rented t h e house t o h e r s i s t e r f o r $342.00 a month. The only conclusion t h a t can he drawn from t h e s e t r a n s a c t i o n s i s t h a t they were unnatural and were t h e product of an unbalanced mind o r one t h a t was e a s i l y s u s c e p t i b l e t o influence. W e p o i n t o u t t h a t i n a d d i t i o n t o l o s i n g h i s home and most of h i s personal property, Lou's monetary l o s s approximated somewhere between $69,000-$74,000. The Defendants, t h e r e f o r e , gained over $100,000 through t h e i r dealings with Lou. A s a f i n a l consideration i n our examination of undue i n f l u e n c e , we must look a t t h e demands made by t h e Defendants a s they may have a f f e c t e d Lou. Due t o h i s weakened physical and emotional s t a t e , Lou was highly s u s c e p t i b l e t o influence exerted by t h e Defendants. Moreover, t h e manner i n which t h e various t r a n s a c t i o n s took place i s highly suspect. Dorothy R r i t t o n took Lou t o h e r a t t o r n e y on two occasions. O n t h e f i r s t occasion she obtained blanket power of a t t o r n e y over h i s e n t i r e e s t a t e . O n t h e second occasion, she obtained a warranty deed t o h i s house and a l l of i t s contents. The appointments f o r both of t h e s e meetings were made by Dorothy B r i t t o n . She accompanied Lou t o these meetings and s a t i n with Lou while he spoke with t h e a t t o r n e y . This afforded her a unique opportunity t o influence t h e d i s p o s i t i o n of Lou's propertv. We also note that the power of attorney, conferred upon Britton the duty to act in the utmost good faith in any financial dealings with Lou. This fiduciary duty was breached in a number of ways. In support of this conclusion we make reference to the facts that Britton allowed Lou to make improvident loans to her family members and that after obtaining title to his property she embarked on a course of selling it hack to him. The five criteria necessary to support the conclusion of undue influence have been met and the burden now shifts to the Defendants to prove that the transactions were fair and voluntary. 29 Arn.Jur 2d, Evidence S 128. Defendants advance a number of arguments in support of their position that the transactions were valid. We find little merit to any of these arguments. When Britton brought Lou to her attorney to make a new will, she obtained a statement from his doctor which stated that Lou was competent. We have no argument with this assertion. However, we point out that the fact that Lou was competent has no hearing on his susceptibility to undue influence. One does not need to be incompetent in order to be subject to overreaching influence. In re Estate of Aageson (1985), 217 Mont. 78, 702 P.2d 338. We note that this same doctor testified that the dispositions made by Lou were not natural. The Defendants also presented testimony which indicated that Lou's children knew that he was going to give his house to Dorothy Sritton. The testimony on this issue is conflicting, but at least one witness for the defense testified that Lou told his children of his desire to make this gift at a Christmas party in 1986. Assuming this testimony is true, we do not find that it has any relevance to the issue of undue influence. Even though Lou's children may have known of Lou's i n t e n t , t h e r e i s no evidence t h a t they knew it was done and t h a t he may l a t e r be forced t o leave h i s house. Nor i s t h e r e any evidence t h a t they knew of t h e extensive d r a i n on h i s f i n a n c i a l resources. F i n a l l y , t h e Defendants presented evidence of t h e i r c l o s e r e l a t i o n s h i p with Lou Neidigh. Dorothy R r i t t o n t e s t i f i e d t h a t Lou was " l i k e a grandfather" t o h e r . Another witness t e s t i f i e d t h a t Lou s t a t e d t h a t R r i t t o n was more of a daughter t o him than h i s own. This c l o s e r e l a t i o n s h i p , it i s maintained, i n d i c a t e s t h a t t h e g i f t s were made a s a r e s u l t of Lou's d e s i r e t o show h i s love f o r t h e Defendants and were n o t , t h e r e f o r e , a product of undue influence. B r i t t o n ' s a c t i o n s , however, speak louder than any of t h i s testimony. A s a matter of common human experience, we f i n d it hard t o comprehend how one could a t t h e same time t h i n k of another person a s a "grandfather" and then e v i c t him from h i s own house. B r i t t o n maintains t h a t Lou's removal from t h e house and t h e subsequent s a l e s of property t o him r e s u l t e d from her d e s i r e t o p r o t e c t t h e a s s e t s a f t e r h i s marriage t o K i m Stevens. I n view of t h e o v e r a l l a c t i o n s of B r i t t o n , w e r e j e c t t h i s argument. Lou married K i m on October 2 3 , 1987. By t h i s time B r i t t o n had obtained ownership of h i s house, h i s c a r and o t h e r possessions. H i s monetary worth had decreased by over $20,000.00. W e a l s o p o i n t o u t t h a t upon t h e f i l i n g of t h i s l a w s u i t , only one Defendant returned Lou's property. That defendant was K i m Stevens. The f a c t s of t h i s case p a i n t a v i v i d p i c t u r e of u n f a i r advantage and undue influence over an e l d e r l y and depressed man. W e a r e , t h e r e f o r e , obligated t o reverse. W e do not t a k e l i g h t l y t h e f a c t t h a t we a r e reversing t h e findings of a c o u r t s i t t i n g without a jury. However, a s w e have s t a t e d on many occasions, t h e findings of a c o u r t s i t t i n q without a jury must be based upon substantial evidence. Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939. Substantial evidence is defined as that evidence that a reasonable mind might accept as adequate to support a conclusion. Blacks Law Dictionary 1281 (5th ed. 1979). Although it may be based upon weak and conflicting evidence, in order to rise to the level of substa-ntial evidence it must be greater than trifling or frivolous. If a lower court's findings are not based upon substantial evidence and there is a clear preponderance of evidence against them, we must reverse. Taylor v. Pretranek (1977), 173 Mont. 433, 568 P.2d 120. The evidence in this case, taken as a whole, of undue influence is overwhelming. Three women, within a time period of fifteen months, stripped Lou Neidigh of his house, his car, virtually all of his personal belongings, and over $40,000 in savings. The Defendants' evidence, in essence, is that these were gifts, freely given, as a result of Mr. Neidigh's love and affection. The extent of the gifts and the Defendants ' course of conduct, however, belies these contentions and does not, therefore, rise to the level of substantial evidence. There is a clear preponderance of evidence against the findings of the trial court. As a result, we must reverse, remand and order further consideration consistent with this opinion. Justice We concur: d h Justice J u s t i c e s Justice Fred J. Weber dissents. In reversing the District Court, this Court has become the finder of fact, which is appropriate only in limited circumstances which do not apply here. Rule 52(a), M.R.Civ.P., states that a district court's findings of fact shall not be set aside unless "clearly erroneous," and that "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." In Parker v. Elder (Mont. 1988), 758 P.2d 292, 293, 45 St.Rep. 1305, 1307, this Court pointed out that if substantial credible evidence supports the findings, they are not clearly erroneous. The majority concluded there were inequities in the transfers by an elderly man and have set aside the District Court's findings. The majority analyzes the evidence and sets forth its own findings of fact. The majority opinion does not analyze the findings of fact and the supporting evidence as determined by the District Court. The District Court pointed out that the plaintiff called five witnesses and the defendants called six witnesses. With regard to the transfer of the house, the District Court found : 8. On February 4, 1987, Dorothy took Clarence to Robert Clary's law office where Clarence told Robert Clary that wanted to prepare his Last Will and Testament. He told Robert F. Clary, Jr. that he wanted to leave his house, his automobile and the contents of the house to Dorothy Britton. After some discussion, Clarence B. Neidigh decided that because his own children, Dwight Neidigh and Rose Christensen, might contest such a provision in his will, he instructed Robert F. Clary, Jr. to prepare a deed of the house of the house and its contents to Dorothy Rritton as he wished to make to h e r an immediate g i f t o f t h i s p r o p e r t y t o avoid any f u t u r e w i l l c o n t e s t s . . . With f u r t h e r r e g a r d t o t h e t r a n s f e r o f t h e house, t h e D i s - t r i c t Court found: 9. Following the t r a n s f e r o f t h e house t o Dorothy, Clarence continued t o l i v e i n t h e house u n t i l November o r December 1987 when he moved t o a n o t h e r house he had purchased. I n connection with t h e deed o f t h e house t o Dorothy, t h e r e was an o r a l understanding between Clarence and Dorothy t h a t Clarence could s t a y i n t h e house a s long a s he wanted t o s o long a s he paid t h e t a x e s and mainte- nance on t h e house . . . With r e g a r d t o t h e i s s u e o f d u r e s s and undue i n f l u e n c e , t h e f i n a l f i n d i n g o f f a c t by t h e D i s t r i c t Court was: 19. Although Clarence now wants h i s property t o him t h e c o u r t f i n d s t h a t t h e evidence presented -- does n o t e s t a b l i s h t h a t C l a r e n c e ' s d e c i s i o n s with -- r e s p e c t t o h i s f i n a n c i a l a f f a i r s and p r o p e r t y - -. i n t e r e s t s were made under d u r e s s - o r - - undue i n f l u - ence. ~ h r e v i d e n c e w r e ~ o n d e r a t e s i n f a v o r of A . A . f i n d i n g t h a t Clarence made h i s own d e c i s i o n s and knew what h e was doing a t t h o s e t i m e s . H i s proper- t y d i s p o s i t i o n d e c i s i o n s may have been unwise. Clarence himself d i d n o t t e s t i f y t h a t he was - - - - - coerced o r under undue i n f l u e n c e from anyone when he made t h e g i f t s o f h i s property and when he married K i m Stevens. (Emphasis s u p p l i e d . ) The D i s t r i c t Court t h e n made t h e following conclusions of law which have elements o f f a c t u a l f i n d i n g s i n them: 2. Clarence B. Neidigh made a v a l i d g i f t by deed o f h i s house t o g e t h e r w i t h t h e f u r n i t u r e , f u r n i s h i n g s and equipment l o c a t e d t h e r e i n t o Doro- t h y B r i t t o n on February 1 0 , 1987. . . 3 . The v a r i o u s t r a n s a c t i o n s between Clarence B. Neidigh and Dorothy B r i t t o n whereby she s o l d t o him a 1982 Ford, household f u r n i s h i n g s and guns were f a i r and r e g u l a r . 5. The loans made by Clarence R . Neidigh to Dorothy Britton and Joyce Langie [sic] have been repaid in full and there remains no balance due to Clarence B. Neidigh on thse [sic] loans. 6. There is no evidence that the gift made by deed from ~larence B. Neidiqh to Dorothy Britton was obtained through duress o r undue influence. (Emphasis supplied.) While the record does contain substantial evidence in support of the findings set forth in the majority opinion, the record also contains substantial evidence to support the findings of the District Court. It is interesting to note that the district judge specifically found that a reason for the transfer of the real property was to prevent will con- tests and an attempt to obtain the property by his children. The record demonstrates that it is Rose Christensen, one of those two children who has acted as the plaintiff. I conclude there is substantial credible evidence to support the findings of the District Court, and this should be the end of the inquiry. I would affirm the District Court. Justice William E. Hunt, Sr., joins in the foregoing dissent of Justice Fred J. Weber.	December 28, 1989
66d59941-db13-4771-a908-adc1eb93ffb1	STATE EX REL COLONEL SOL v ORCU	N/A	14220	Montana	Montana Supreme Court	No. 14220 I N THE SUPREME COUfiT O F THE S T A T E O F MONTANA 1978 S T A T E O F MlWPANA, ex rel., C o r n JOE R. SOL, Administrator, mntana Highway Patrol, Plaintiff and Respondent, -VS- JOHN WAYNE OFCUFF, Defendant and Appellant. Appeal frcnn: D i s t r i c t Court of the Seventh Judicial D i s t r i c t , Honorable L. C. Gulbrandson, Judge presiding. Counsel of Record: For Appellant : Gene Huntley argued, Baker, mntana For &spondent: Hon. Mike Greely, Attomey General, H e l e n a , Wntana Richard S h n t o n argued, County Attomey, G l d i v e , bbntana Tcan Dowling argued, Helena, kbntana Sdmitted: September 14, 1978 Decided: JAN 3 1 9 ~ ~ Mr. Justice John C. Sheehy delivered the Opinion of the Court . Appellant-defendant, John Wayne Orcutt, appeals from an order of the District Court, Seventh Judicial District, Dawson County, adjudging him to be an habitual traffic offender and ordering him to surrender his license to operate a motor vehicle. The County Attorney of Dawson County, under section 31-179, R.C.M. 1947, filed a verified complaint seeking to have John Wayne Orcutt declared an'habitual traffic offender, as defined in section 31-177(1), R.C.M. 1947. The District Court issued a show cause order and Orcutt answered, asserting the complaint did not state facts sufficient to constitute a claim against him and denying both that the exhibit attached to the complaint was a copy of the certified record of his driving violations and that the certified record indicated he had accumulated more than thirty conviction points for traffic violations. Hearing on the show cause order was had September 6, 1977, and on November 15, 1977, the District Court issued an order finding Orcutt to be the person named in the complaint, finding him to be an habitual traffic offender, and ordering him to surrender immediately his driver's license. Defendant appeals from such order and presents four issues for review: 1. Whether the defendant was entitled to a hearing before his driving privileges weresuspended for three years. 2. Whether the Montana Highway Patrol had authority to suspend his driving privileges without a hearing. 3. Whether section 31-147, R.C.M. 1947, relating to suspension of driving privileges by the Montana Highway Patrol was repealed by Chapter 362, Laws of 1974 (section 31+163, et seq., R.C.M. 1947). -2- 4. Whether the complaint to have defendant declared to be an habitual offender was invalid on its face. The State in seeking to revoke the driver's license relies on six claimed convictions, which, under section 31- 177(1), R.C.M. 1947, add up to thirty-three points calculated as follows: Operating a motor vehicle while his license to do so was suspended or revoked 10 points (Section 31-177 (1) (e) , R.C.M. 1947) 2 convictions 20 points Speeding 3 points (Section 31-177 (1) (k) , R.C.M. 1947 3 convictions 9 points Failure to report an accident in violation of the law 4 points (Section 31-177 (1) (g) , R.C.M. 1947) 1 conviction 4 points Our consideration of the fourth issue is dispositive of the case. One of the offenses claimed against Orcutt is a conviction for failure to report an accident by the quickest means for a total of four conviction points. Under the habitual offender statute, section 31-177(g), R.C.M. 1947, it is provided: "Willful failure of the driver involved in an accident resulting in property damage of $250 to stop at the scene of the accident and give the required information or to otherwise fail to report an accident in violation of the law, 4 points;" The provisions of section 31-177(g), above quoted, could refer to convictions under two possible statutes. They are sections 32-1207, R.C.M. 1947, and 32-1208, R.C.M. 1947. Under section 32-1207, a driver who is involved in an accident resulting in injury to or the death of any person, or property damage to an apparent extent of $100.00 or more is required immediately by the quickest means of communication to give notice of the accident to the local police department or sheriff. Under section 32-1208, R.C.M& 1947, the driver of a vehicle involved in an accident resulting in bodily injury to or death of any person, or total property damage to an apparent extent of $250.00 is required to give a written report of that accident to the Highway Patrol supervisor, Orcutt's driving record, which was submitted to the District Court as exhibit one, shcws an abstract of court record from a justice of peace court in Culbertson, in which the violation is recorded as "32-1207, failed to report accident quickest means". No other information is given with respect to this charge, particularly the date of the alleged charge, the place it occurred, the arresting officer, but most impcrtantly, that there was bodily injury or death involved or that apparent property danage in the amount of $100.00 or more was incurred. Each other claim of violation is supported by a copy of a surrmons, but in the case of this claimed conviction, the sm.ons is not appended and no other information appears in the record respecting this claimed violation. There is only a number reference to a sumtons with no other information attached. The District Court therefore assumed, without proof before it, as we must also assume, if we feel the charge is substantiated, that the conviction under section 32-1207, involved death, injury to a person, or property damage in the amount of $100.00 or more. There is no proof thereof in the record. We hold therefore, that there was insufficient record to substantiate the conviction for failure to report an accident by the quickest means. This means a reduction of four points charged against Orcutt leaving a total of twenty-nine, and under section 31-177(1), R.C.M. 1947, thirty or more points are required before defendant can be considered an habitual offender. One other point raised by Orcutt in his appeal is that the record which was forwarded to the court and which constitutes exhibit no. 1 is not a "certified record" as required by section 31-181, R.C.M. 1947. That section makes admissible as evidence official abstracts of the records of convictions and bond forfeiturers in the custody of the administrator, which are " . . . certified in writing by the administrator to be a correct account of the said convictions and bond forfeitures . . . ". In this case, the record forwarded by the administrator of the Highway Patrol simply recited that it was "certified". While we do not decide this case on that point, we call to the attention of the administrator that his certificate of the record should include the statement set forth in the statute that it is a correct account of the convictions and bond forfeitures. With respect to the issue raised by Orcutt that he was not accorded a hearing by the District Court, we find that the record does indicate Orcutt was given a hearing based on the issues framed by the verified complaint and his written answer thereto. The issues with respect to the constitution- ality of the driver's license suspension procedures of Montana Highway Patrol, under section 31-147, R.C.M. 1947; the authority of the Highway Patrol; and the effect of the subsequent enactment of section 31-163, R.C.N. 1947, were not framed by the pleadings below, and no other record indicates that they were considered by the ~istrict Court. Therefore, we will not consider such issues for the first time on appeal. Francis v. Heidel (1937), 104 Mont. 580, 68 P.2d 583. The order of the District Court is reversed. We Concur: M r . J u s t i c e John Conway Harrison dissenting: I would affirm t h e judgment of t h e D i s t r i c t Court. I n so doing, I must discuss t h e i s s u e s presented and m y reasons f o r disagreeing with t h e majority holding. I s s u e 1. Defendant asks whether he w a s e n t i t l e d t o a hearing before h i s l i c e n s e was ordered surrendered. Most assuredly, he was so e n t i t l e d . Section 31-184, R.C.M. 1947, mandates t h a t " t h e [ d i s t r i c t ] c o u r t s h a l l hold a hearing upon t h e show cause order." Based on t h e hearing, t h e c o u r t must f i n d t h a t t h e defendant e i t h e r is o r is not t h e person named i n t h e complaint. I f the finding is t h a t t h e defen- d a n t i s t h e person so named, t h e c o u r t must then make a second finding, v i z . , whether t h e defendant i s an habitual t r a f f i c offender a s defined i n s e c t i o n 31-177(1), R.C.M. 1947, before adjudging t h e defendant an habitual t r a f f i c offender, and ordering him t o surrender t o t h e c o u r t h i s l i c e n s e t o operate a motor vehicle. The c o u r t has no d i s - c r e t i o n a s t o s o adjudging and ordering; once the deter- minations have been made t h a t t h e defendant i s t h e person named i n t h e complaint and t h a t t h e defenda,lt is an habitual t r a f f i c offender, t h e c o u r t i s mandated t o f i n d and adjudge t h e defendant an habitual t r a f f i c offender and t o order surrender of h i s d r i v e r ' s license. Defendant himself r e f e r s us t o s e c t i o n 31-184, R.C.M. 1947, and baldly asserts t h a t , with r e s p e c t t o h i s hearing, t h e D i s t r i c t Court d i d n o t follow t h e provisions therein. N o support f o r t h a t a s s e r t i o n is t o be found i n a p p e l l a n t ' s b r i e f . I recognize t h a t " t h e Due Process clause a p p l i e s t o t h e deprivation of a d r i v e r ' s l i c e n s e by t h e S t a t e " , ~ i x o n v. Love (1977), 431 U.S. 105, 1 1 2 , 97 S.Ct. 1723, 1727, 52 L Ed 2d 172, 179-80, c i t i n g B e l l v. Burson (1971), 402 U.S. 539, 91 S.Ct. 1586, 29 L Ed 2d 90, and find that due process was accorded the defendant herein. As mandated by section 31-184, R.C.M. 1947, there was a hearing, held on September 6, 1977, at which defendant was present, represented by counsel. Based on that hearing, the lower court issued an order on November 15, 1977, which contains an unambiguous finding that the defendant Orcutt is the person named in the complaint, which finds and adjudges him to be an habitual traffic offender, and which orders him to surrender his driver's license. The court acted in conformity with the statutory mandates, thus according defendant due process. Implicit in defendant's due process challenge is an ob- jection, made in passing elsewhere in appellant's brief, that the District Court "simply ruled that the defendant was an habitual traffic offender without ever setting the matter for trial or otherwise giving the defendant an opportunity to contest the contents of the abstract of driving record which had been offered in evidence against him." Orcutt thus hints at attempting to collaterally attack the convic- tions which spurred the proceeding to adjudge him an habi- tual traffic offender. That attempt must fail because "a defendant in a[n] habitual traffic offender proceeding is not entitled to collaterally attack the validity of the convictions supporting the action by alleging the impro- priety of the prior license suspension." State v . Petersen (1976), 16 Wash.App. 77, 553 P.2d 1110, 1111-12. As did the defendant in Dixon v. Love, 431 U.S. at 113, 97 S.Ct. at 1728, 52 L Ed 2d at 181, the defendant Orcutt has had the opportunity for a full judicial hearing in con- nection with each of the traffic convictions on which the court's decision was based. Orcutt's driving record clearly shows convictions, as defined i n s e c t i o n 31-177(2), R.C.M. 1947, f o r d r i v i n g while t h e p r i v i l e g e t o do s o is suspended (two), speeding ( t h r e e ) , and f a i l i n g t o r e p o r t an accident by t h e quickest means (one). A l l convictions were within t h e period of February 1 0 , 1975, t o A p r i l 11, 1977, approxi- mately two years--a time period w e l l w i t h i n t h e f i v e y e a r s during which convictions p o i n t s accumulated by a l i c e n s e e a r e counted toward h a b i t u a l t r a f f i c offender s t a t u s . Sec- t i o n 31-177(1), R.C.M. 1947. Orcutt, by v i r t u e of h i s s i x convictions, accumulated t h i r t y - t h r e e p o i n t s , c a l c u l a t e d a s follows : Operating a motor v e h i c l e while h i s l i c e n s e t o do s o was suspended, 10 p o i n t s (Section 31-177 (1) ( e ) , R.C.M. 1947)--two convictions . . . . . . . . .20 p o i n t s Speeding, 3 p o i n t s (Section 31-177 (1) (k) , . . . . R.C..M. 1947)--three convictions 9 p o i n t s F a i l u r e t o r e p o r t an accident i n v i o l a - t i o n s of t h e l a w , 4 p o i n t s (Section 3M77 (1) (g) , R.C.M. 1947) --one convic- . . . . . . . . . . . . . . . . . . t i o n 4 p o i n t s Orcutt has had h i s day i n c o u r t and may n o t r e l i t i g a t e t h e i s s u e of g u i l t i n t h e suspension hearing. Zaba v. Motor Vehicle Div. (Colo. 1973), 516 P.2d 634, 638. I s s u e 2. Defendant challenges t h e a u t h o r i t y of t h e Montana Highway P a t r o l Board t o twice suspend h i s d r i v i n g p r i v i l e g e s , pursuant t o s e c t i o n 31-147, R.C.M. 1947, thereby causing him t o accumulate twenty p o i n t s toward t h e designa- t i o n " h a b i t u a l t r a f f i c offender". Section 31-177(1)(e), R.C.M. 1947. Relying on B e l l v. Burson (1971), 402 U.S. 535, 91 S.Ct. 1586, 29 L Ed 2d 90, defendant argues t h a t due process r e q u i r e s t h a t t h e S t a t e must a f f o r d n o t i c e and opportunity f o r a hearing before t h e termination of t h e p r i v i l e g e t o d r i v e becomes e f f e c t i v e . Burson, which cen- t e r e d on a Georgia s t a t u t e , t h e only purpose of which w a s t o obtain security from which to pay judgments against the licensee resulting from the accident, was distinguished in ~ixon. he latter controls the disposition of the instant case, because the Montana statutes under consideration here are similar to those reviewed in Dixon and decidedly dis- similar to those subject of Burson. The Highway Patrol Board is authorized by section 31- 147, R.C.M. 1947, "to suspend the license or driving privi- lege of an operator or chauffeur without preliminary hearing upon - a showing % its records or other sufficient evidence that the licensee . . . has been convicted with such £re- quency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disre- spect for traffic laws and a disregard for the safety of other persons on the highways . . ." (Emphasis added.) There is no procedural difficulty with such a provision. As the United States Supreme Court has noted, numerous courts have sustained the suspension or revocation of driving privileges, without prior hearing, where earlier convictions were on the record. Dixon v. Love, 431 U.S. at 114-15, 97 S.Ct. at 1728, 52 L Ed 2d at 181, and cases cited therein. In the case before us, defendant's convictions were on the record. If the record on which the Highway Patrol Board relied contained a clerical error, written objection to it would have put the Board on notice to inves- tigate and to correct the record if need be. Dixon v. Love, 431 U.S. at 113, 97 S.Ct. at 1728, 52 L Ed 2d at 180-81. Our statutes, including section 31-147, R.C.M. 1947, like those of Illinois under consideration in ~ixon, have been enacted "to keep off the roads those drivers who are unable or unwilling to respect traffic rules and the safety of o t h e r s . " Dixon v. Love, 431 U.S. a t 115, 97 S.Ct. a t 1729, 52 L Ed 2d a t 181. Orcutt has demonstrated such i n a b i l i t y o r unwillingness, a s evidenced by h i s d r i v i n g record r e p l e t e with convictions f o r o f f e n s e s committed w i t h i n a s h o r t period of t i m e . The Highway P a t r o l Board, with an eye t o p r o t e c t i n g those unsuspecting i n d i v i d u a l s using t h e p u b l i c thoroughfares, acted properly i n suspending h i s p r i v i l e g e t o d r i v e . See I n re France (1966), 147 Mont. I s s u e 3. Defendant claims t h a t s e c t i o n 31-147, R.C.M. 1947, i s u n c o n s t i t u t i o n a l having been impliedly repealed by t h e enactment of Chapter 362, 1974 Laws of Montana, c o d i f i e d a t s e c t i o n s 31-175 e t seq., R.C.M. 1947. This argument i s advanced i n t h e f a c e of h i s own r e f e r e n c e t o s e c t i o n 31-189, R.C.M. 1947, which reads: "Nothing contained i n t h i s a c t s h a l l be construed a s t o r e p e a l , modify o r amend any o t h e r laws o r p a r t s of l a w s , o r any e x i s t i n g ordinance of any p o l i t i c a l sub- d i v i s i o n r e l a t i n g t o t h e operation o r l i c e n s i n g of motor v e h i c l e s , t h e l i c e n s - i n g of persons t o o p e r a t e motor v e h i c l e s o r providing p e n a l t i e s f o r t h e v i o l a t i o n t h e r e o f ; nor s h a l l anything i n t h i s a c t be construed s o a s t o preclude t h e exer- c i s e of regulatory powers of any d i v i s i o n , agency, department o r p o l i t i c a l subdivi- s i o n of t h i s s t a t e o r of t h e f e d e r a l government having t h e s t a t u t o r y power t o r e g u l a t e t h e operation and l i c e n s i n g of motor v e h i c l e s and t h e l i c e n s i n g of motor v e h i c l e operators. " Our o b l i g a t i o n i n construing a s t a t u t e is t o look a t i t s language. I f t h e language i s c l e a r and unambiguous, t h e r e i s nothing t o construe, f o r t h e s t a t u t e speaks f o r i t s e l f . I f t h e meaning of t h e s t a t u t e may be discerned from t h e p l a i n import of t h e words used, t h e Court may n o t go beyond t h e language and apply o t h e r means of i n t e r p r e t a t i o n . See, e.g., I n re E s t a t e of Baier (1977), - Mont . , 567 P.2d 943, 34 St.Rep. 860, 863 and cases c i t e d t h e r e i n . Section 31-189, R.C.M. 1947, is c l e a r and unambiguous. It does n o t r e p e a l s e c t i o n 31-147, R.C.M. 1947. This d e t e r - mination comports with t h e a r t i c u l a t e d purpose of t h e a c t r e l a t i n g t o h a b i t u a l t r a f f i c offenders. "This a c t is predicated upon t h e b e l i e f and philosophy t h a t innocent d r i v e r s and o t h e r innocent passengers and pedestrians have a c o n s t i t u t i o n a l r i g h t t o l i v e , f r e e from f e a r of death o r i n j u r y from h a b i t u a l t r a f f i c of- fenders. Further, it i s t h e purpose of t h i s a c t t o reduce t h e number of motor v e h i c l e a c c i d e n t s i n t h i s s t a t e , t o provide g r e a t e r s a f e t y t o t h e motoring public and o t h e r s , by denying t o t h e h a b i t u a l t r a f f i c offenders t h e p r i v i l e g e of operating a motor v e h i c l e upon t h e p u b l i c streets and highways of t h i s s t a t e . " Section 31-175, R.C.M. 1947. The language i s s t r o n g and clear-an unequivocal r i g h t t o be f r e e of t h e menace posed by h a b i t u a l t r a f f i c offenders i s afforded a l l innocent u s e r s of t h e roadways of t h i s s t a t e . I n c o n t r a s t , Orcutt, a s an h a b i t u a l t r a f f i c offen- d e r , does n o t enjoy a c o n s t i t u t i o n a l l y guaranteed i l l i m i t - a b l e r i g h t t o drive. See Zaba v. Motor Vehicle Division, 516 P.2d a t 637. The enjoyment of t h e p r i v i l e g e t o d r i v e a motor v e h i c l e depends on compliance with conditions imposed by law and always is s u b j e c t t o such reasonable r e g u l a t i o n and c o n t r o l as t h e l e g i s l a t u r e sees f i t t o impose i n t h e e x e r c i s e of i t s p o l i c e power i n t h e i n t e r e s t of p u b l i c s a f e t y and welfare. S t a t e v. Scheffel (1973), 82 Wash.2d 872, 514 P.2d 1052, 1057. Orcutt has n o t complied with t h e conditions imposed by law; h i s d r i v e r ' s l i c e n s e w a s revoked and properly so. Had he wished t o avoid t h e operation and impact of t h e h a b i t u a l t r a f f i c offenders a c t , he should have r e f r a i n e d from breaking t h e law. S c h e f f e l , 514 P.2d a t Defendant seems t o argue t h a t by allowing s e c t i o n 31- 147, R.C.M. 1947, t o stand with s e c t i o n s 31-175 e t seq., R.c.M. 1947, two entities, the Highway Patrol Bureau and the ~istrict Court, will each be meting out "punishment" for the same offense. Defendant misconstrues the nature and purpose of these statutes. We reiterate: suspension or revocation does not constitute punishment as that term is understood in law. Suspension or revocation of a driver's license is for the protection of the public. Deprivation of the privilege to drive is the penalty imposed by statute, a penalty imposed for willful failure or refusal to obey laws relating to motor vehicle traffic and imposed to protect others. In re France, 147 Mont. at 288, 411 P.2d at 734; Anderson v. Comrn'r of Highways (1964), 267 Minn. 308, 126 N.W.2d 778, 783-84, 9 A.L.R.3d 746, 754. See also Barkett v . Lester (Okla. 1971) , 490 P. 2d 249. It is well settled that in a civil proceeding, which that to declare an individual an habitual traffic offender is, no question of double jeopardy arises. See, e.g., One Lot Emerald Cut Stones v. United States (1972), 409 U.S. 232, 93 S.Ct. 489, 34 L Ed 2d 438. Thus, defendant's com- plaint that, in virtue of being adjudged an habitual traffic offender he has been made subject to double jeopardy, is without foundation. Revocation of a driver's license under the act relating to habitual traffic offenders on the basis of previous convictions for violations is not intended as punishment, as we have said, but for the protection of the public. A prior suspension is not purged from a driver's record merely by reinstatement of his license and attendant privilege to drive, and so may be considered by the ~istrict Court in a proceeding to declare a driver an habitual traf- fic offender. Perlmutter v. State (Colo. 1976), 554 P.2d 691, 693; Campbell v. State (Colo. 1971), 491 ~ . 2 d 1385, 1390; and In re France, 147 Mont. at 288-89, 411 P.2d at 734-35. Operating a vehicle without a license is an offense "indicative of a callous disregard of the law by an irre- sponsible driver", State v. Bowles (1973), 113 N.H. 571, 311 A.2d 300, 302, and is properly considered in establishing that a defendant has accumulated the requisite number of conviction points within the statutory period. Given the avowed purpose of our statutes, defendant cannot be heard to complain that his constitutional rights have been violated. Issue 4. In his last effort to find fault with the proceeding adjudging him to be an habitual traffic offender, defendant alleges that the complaint filed by the county attorney was invalid on its face. Orcutt claims that he should not have been assessed four points for violating sec- tion 31-177 (1) (g) , R.C.M. 1947, regarding failure to report an accident in violation of the law. He readily acknowl- edges that he was guilty of violating section 32-1207, R.C.M. 1947, requiring "[tlhe driver of a vehicle involved in an accident resulting in injury to or death of any person or property damage to an apparent extent of one hundred dollars ($100.00) or more" to "immediately by the quickest means of communication give notice of such accident" to the proper authorities. Section 31-177 (1) ( g ) , R.C.M. 1947, states that four points are to be assessed against a "driver involved in an accident resulting in property damage of $250 to stop at the scene of the accident and give the required information -- or to otherwise fail to report - an accident - in -- violation of --- the law . . ." (Emphasis added.) Even though he himself refers to the language underlined above, defen- dant argues that property damage resulting from an accident must equal o r exceed $250 before t h i s s t a t u t e may be applied i n c a l c u l a t i n g p o i n t s toward determination of t h e s t a t u s of h a b i t u a l t r a f f i c offender; t h a t it does n o t appear on t h e record t h a t O r c u t t ' s v i o l a t i o n of s e c t i o n 32-1207, R.C.M. 1947, was associated with an accident i n which t h e r e was t h e r e q u i s i t e $250 worth of damage; t h a t , t h e r e f o r e , t h e f o u r p o i n t s were improperly assessed a g a i n s t Orcutt; and, thus, t h a t those four p o i n t s should be deducted from t h e t h i r t y - t h r e e p o i n t t o t a l , leaving Orcutt with twenty-nine p o i n t s , t o o few upon which t o commence proceedings t o d e c l a r e him an h a b i t u a l t r a f f i c offender. The argument i s specious. Orcutt i s arguing, i n e f f e c t , t h a t a d r i v e r involved i n a motor v e h i c l e accident i n which t h e property damage is determined t o be within t h e $100 t o $249 range, who v i o l a t e s s e c t i o n 32-1207, R.C.M. 1947, is exempt from t h e operation of t h e h a b i t u a l t r a f f i c offenders a c t , s e c t i o n 31-177(1)(g), R.C.M. 1947. Such an argument v i o l a t e s t h e l e g i s l a t i v e i n t e n t expressed i n s e c t i o n 31-175, R.C.M. 1947, discussed above. Violation of s e c t i o n 32-1207, R.C.M. 1947, is w i t h i n t h e ambit of t h e language regarding f a i l u r e t o r e p o r t an accident i n v i o l a t i o n of t h e law found i n s e c t i o n 31-177(1) ( 9 ) . For t h e above reasons, I would a f f i r m t h e judgment of t h e D i s t r i c t Court. M r . Chief J u s t i c e Frank 1 1 concurring: I concur i n t h e above d i s s e n t . ? A d Chief $ p . % & J u s t i c e	January 3, 1979
fe259d3d-18a6-4545-8a0c-0742cd5f88b0	STATE v FARNSWORTH	N/A	89-332	Montana	Montana Supreme Court	No. 89-332 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Respondent, -vs- DAVID STEVEN FARNSWORTH, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Thomas McKittrick, Judge presidinq. COUNSEL OF RECORD: For Appellant: John Keith, Great Falls, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Elizabeth S. Baker, Asst. Atty. General, Helena Patrick L. Paul, County Attorney; Steve Hudspeth, Deputy, Great Falls, Montana Filed: Submitted on Briefs: Nov. 21, 1989 Decided: December 2 0 , 1989 Justice John Conway Harrison delivered the Opinion of the Court. Appellant appeals his conviction in the Eighth Judicial District, Cascade County, Montana, of one count of criminal sale of dangerous drugs and two counts of criminal possession of dangerous drugs. The District Court sentenced appellant to twenty years for the criminal sale conviction and six months each on the criminal possession convictions which were to be served concurrently with the criminal sale sentence. The District Court also sentenced appellant to an additional five years as a persistent felony offender to be served consecutively with the other sentences. We affirm. Appellant raises the following issues for review: 1. Did the District Court properly instruct the jury as to the defense of entrapment? 2. Were appellant's substantial rights violated when he did not receive a preliminary hearing because he was charged by an information? 3. Was appellant denied his right to counsel because counsel was not appointed until after the information was filed? 4. Did the District Court err in denyinq appellant's motion to hire an investigator? 5. Did the District Court improperly deny appel.lantls challenge to the statute designating marijuana as a dangerous drug? 6. Did the District Court err when it sentenced appellant as a persistent felony offender? On October 17, 1988, Great Fal-ls police officers testified that the Great Falls Police Department received a tip from an individual identifyinq himself as Ray Armstreet regarding illegal drug activity in his apartment building. Two detectives met with Armstreet who informed them that a tenant in his apartment building had asked him to find people interested in buying marijuana. After questioning Mr. Armstreet regarding his information, the detectives decided to attempt a "buy-bust" marijuana purchase with one of the detectives posing as the buyer. As soon as the "buy-bust" operation was in place, the undercover detective directed Mr. Armstreet to enter the apartment building and advise the target individual that he had an interested buyer waiting in a car outside. A short time later the defendant came out and sold the detective $40 worth of marijuana and gave the detective an additional four "joints. " After completing the deal, the appellant left the car and walked back toward the apartment building where he was arrested by other officers. The officers searched appellant and found marijuana on his person. After obtaining a search warrant for appellant's room, the officers also found marijuana in his room. On October 18, 1988, appellant had his initial appearance before a justice of the peace who set bail and set a date for a preliminary hearing. However, on October 26, 1988, the county attorney was granted leave to file an information charging appellant with one count of sale of dangerous drugs and two counts of possession of dangerous drugs. Counsel was appointed for appellant on October 31, 1988. Appellant was arraigned on November 7, 1988. At trial appellant raised the defense of entrapment. He testified that Armstreet, who appellant knew as "Gary," initially sold him the marijuana and then induced him to sell the marijuana to the undercover officer. Appell ant alleged that Armstreet was an aaent of the police. Did the District Court properly instruct the jury as to the defense of entrapment? The District Court gave the following instruction regarding entrapment: The elements of the defense of entrapment: (1) Criminal intent or design originating in the mind of the police officer or informer; (2) absence of criminal intent or design oriqinating in the mind of the accused; and (3) luring or inducing the accused into committing a crime he had no intention of committing. Appellant contends that this instruction is error because it is unnecessarily complex and misleading and not required by Montana's Entrapment Statute, S 45-2-213, MCA. Appellant also argues that a due process instruction based on outrageous government conduct should have been given. We reject both appellant's contentions. The instruction at issue, while not a model, expresses the law adopted by this Court and approved in numerous cases. See, State v. Kamrud (1980), 188 Mont. LOO, 105, 611 P.2d 188, 191; State v. Kelly (19831, 205 Mont. 417, 441, 668 P.2d 1032, 1045; State v. Canon (1984), 212 Mont. 157, 167, 687 P.2d 705, 710; and State v. Walker (1987), 225 Mont. 415, 422, 733 P.2d 352, 357. Appellant provides absolutely no rationale for his contention that the instruction is unnecessarily complex and misleading to the jury. Further, although appellant argues that a due process instruction should have been given, appellant did not submit such an instruction for consideration by the District Court. Section 46-16-401 (4) (a), MCA, provides that: When the evidence is concluded, if either party desires special instruction to be given to the jury, such instructions shall be reduced to writing, numbered, signed by the party or his attorney, and delivered to the court. "We have held this statutory language to be mandatory. (Citation omitted.)" Walker, 733 P.2d at 357. Because appellant failed to offer a proposed due process instruction he has waived this claim. We hold that the District Court properly instructed the jury regardinq the entrapment defense. Were appellant's substantial rights violated when he did not receive a preliminary hearing because he was charged by an information? Appellant contends that his substantial rights were violated because he was neither given a preliminary hearing nor any opportunity to challenge the State's assertion of probable cause. These contentions lack any credibility whatsoever. Section 46-7-103, MCA, requires that a preliminary hearing be held within a reasonahle time following the initial appearance unless the district court grants leave to file an information. Before a district court can grant leave to file an information, it must have independently determined that probable cause exists to believe the defendant committed an offense. Section 46-11-201, MCA. The defendant has no vested right to a preliminary hearing but rather has a right to an independent judicial finding of probable cause. State v. Higley (1980), 190 Mont. 412, 419, 621 P.2d 1043, 1048, citinq Gerstein v. Pugh ( 1 9 7 5 1 , 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54. In the instant case, although the justice of the peace scheduled a preliminary hearing, the District Court upon a finding of probable cause, granted leave to file an information prior to the preliminary hearing. The appellant received an independent judicial determination of probable cause within a reasonable time. See, Higley, 621 P.2d at 1048 (ten-day delay in determining probable cause not unreasonable) . The apparent reason that appellant remained in jail until his arraignment was his inability to post the bail that was set at his initial hearing. The record does not reflect that appellant ever challenged the amount of bail. Nor does the record reflect that appellant ever moved the District Court to dismiss the information for lack of probable cause. We hold that appellant was not entitled to a preliminary hearing. Was appel-lant denied his right to counsel because counsel was not appointed until after the information was filed? Appellant's contention that his right to counsel was violated because counsel was not appointed until after the information was filed is untenable. Montana law is well settled that a defendant is not entitled to the assistance of counsel at the initial appearance because "[tlhe initial appearance is not a 'critical stage1 of the prosecution in Montana." State v. Dieziger (1982), 200 Mont. 267, 270, 650 P.2d 800, 802. Contrary to appellant's assertion, the United States Supreme Court in Coleman v. Alabama (1970), 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, did not designate the setting of bail as a critical stage thus entitling the defendant to assistance of counsel. Coleman held that a preliminary hearing was a critical stage because a defendant could be substantially prejudiced without counsel. Coleman, 399 U.S. at 9-10. Further, appellant has not argued to this Court how his failure to obtain counsel before he did prejudiced him. We hold that appellant's right to counsel was not violated by counsel not being appointed until after the information was filed. I V . Did the District Court err in denying appellant's motion to hire an investigator? Appellant provides this Court with no argument on this issue beyond the bare assertion that the District Court's ruling placed appellant at a "potential disadvantage. " We reject appellant's contention. Did the District Court err in denying appellant's challenge to the statute designating mariiuana as a dangerous drug? Sections 45-9-101, 50-32-101 and 50-32-222, MCA, are the statutes wherein the legislature has declared marijuana a dangerous drug and designated as a crime the sale of dangerous drugs. Essentially appellant argues that at trial the State should have had to prove that marijuana is a dangerous drug and that it is a hallucinogenic substance. We specifically rejected this contention in State v. Petko (1978), 177 Mont. 229, 581 P.2d 425, where we stated: Marijuana is grouped with hallucinogenic drugs, hut this does not call for the trier of fact to make a specific finding as to its hallucinogenic capabilities. The legislature has made that determination. Petko, 581 P.2d at 430. The State is only required to prove that the substance appellant sold was marijuana which it did. We reject appell-ant 's contentions. Did the District Court err when it sentenced appellant as a persistent felony offender? Appellant contends that the District Court improperly sentenced him to an additional five years as a persistent felony offender. Appellant argues that the persistent offender statute constitutes double jeopardy. Further appellant asserts that the District Court's decision that he was a persistent felony offender was based on evidence improperly before the District Court. We disagree. This Court has soundly rejected the double jeopardy argument appellant raises to the persistent offender statute. See, State v. Maldenado (1978), 176 Mont. 322, 328-329, 578 P.2d 296, 300. Appellant provides this Court with no authority to the contrary. The persistent felony statute which authorizes enhanced sentences for recidivists does not constitute double jeopardy. Similarly, appellant's evidentiary objections are without merit. The Montana Rules of Evidence do not apply to sentencing proceedings. Rule 101 (c) (3), M.R.Evid. The persistent felony offender determination is part of the sentencing proceeding. State v. Smith (Mont. 1988), 755 P.2d 569, 571-72, 45 St.Rep. 955, 958; State v. LaMere (1983), 202 Mont. 313, 321, 658 P.2d 376, 380. The District Court relied on competent evidence, certified copies of court documents from Utah and expert testimony regarding appellant's fingerprints, to establish the requirements of the persistent felony offender statute. Further, contrary to appellant's claim the State is not required to prove that the prior conviction offered for purposes of the persistent felony offender determination is constitutionally valid. See State v. Campbell (1985) , 219 Mont. 194, 711 P.2d 1357, cert. denied, 475 U.S. 1127 (1986). Of course, a constitutionally infirm conviction cannot be used to support a determination of a persistent felony offender. Lewis v. State (1969), 153 Mont. 460, 457 P.2d 765. Contrary to the facts in Lewis, upon which appellant relies, in the instant case the appellant has not challenged the constitutional validity of the prior conviction in Utah. We hold that the District Court properly sentenced appellant as a persistent felony offender. Affirmed. Ju tice *yhv We concur: ,--' A G / ' - - p V - - - - \ Fhief Justice I	December 20, 1989
ad086ba7-bb8a-451c-b6b9-b9c910531092	MATTER OF DECLARING T E R	N/A	14286	Montana	Montana Supreme Court	No. 14286 IN THE SUPREME (BURT O F THE S T A T E O F MONTANA 1978 IN THE MATTER OF DMILARING T.E.R. Youth in Need of Care. Appeal fram: D i s t r i c t Court of the Tenth Judicial D i s t r i c t , Honorable LRRoy L. McKimn, Judge presiding. Counsel of m r d : For Appellant: William E. Berger argued, Lewistown, Montana For Respondent: Hon. Mike Greely, Attorney General, H e l e n a , Montana W i l l i a m Spoja, Jr. , County Attorney, Ledstawn, I%ntana Timothy O'Hare, Deputy County Attorney, argued, Lewistown, Montana K. Mbert Foster argued, Lewistown, Montana PFp 979 Filed : Skmitted: November 21, 1978 Decided: FEi3 i, * 79'79 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. This is an appeal by t h e parents of a minor child from a judgment and order entered October 17, 1977, i n the Youth Court of t h e Tenth J u d i c i a l D i s t r i c t , Fergus County, the Honorable LeRoy L. McKinnon presiding. The judgment de- clared T.E.R. t o be a Youth i n Need of C a r e and awarded permanent custody of T.E.R. t o the Department of Social and Rehabilitation Services of the S t a t e of Montana (SRS) with authority t o consent t o her adoption. O n October 29, 1975, James Longin, the principal a t T.E.R.'s school, n o t i f i e d Roberta Knopp, a child welfare caseworker, t h a t T.E.R. might be the victim of child abuse. Subsequent t o her investigation, M s . Knopp offered "protec- t i v e services" which consisted of regular v i s i t s t o the c h i l d ' s home. Over the course of t h e next year and a h a l f , she maintained contact with T.E.R., noticing, on occasion, a number of bruises which she suspected t o be the r e s u l t of some abuse. Among other things, testimony indicated t h a t T.E.R. i s bright f o r her age but not w e l l adjusted. I n February 1977, shortly before her twelfth birthday and while attending the fourth grade, she exhibited t h i s poor adjustment by damaging two c e i l i n g t i l e s i n a restroom a t her school. The school's principal, who had been working with T.E.R. and her parents periodically f o r two years, wrote her parents d e t a i l i n g t h e incident and suggested c e r t a i n changes i n t h e i r treatment of T.E.R. A few weeks a f t e r t h i s incident, M s . Knopp placed T.E.R. i n 24 hour day care because her stepfather had been hospitalized and her mother was working outside the home a t a job which required her presence 24 hours each day. After a month had passed under t h i s arrangement, M s . Knopp t o l d T.E.R. t h a t she would be taking her back home s h o r t l y . T.E.R. reacted t o t h i s suggestion with some alarm and, a f t e r some prodding, t o l d M s . Knopp of r e c e n t i n c i d e n t s of sexual abuse by her stepfather. The incidents had allegedly in- creased i n frequency s i n c e her mother had taken t h e job which kept her away from t h e family home. On Monday, A p r i l 15, 1977, two days a f t e r t h e i r t a l k , M s . Knopp took T.E.R. t o a doctor who performed a p e l v i c examination. The doctor t o l d M s . Knopp t h a t t h e r e was evidence of sexual c o n t a c t and M s . Knopp immediately placed T.E.R. i n a f o s t e r home i n Harlowton, Montana. One week later, on Monday, April 22, 1977, t h e deputy county attorney f o r Fergus County, f i l e d a p e t i t i o n f o r youth hearing, a l l e g i n g t h a t T.E.R. w a s a youth i n need of supervision because of t h e February i n c i d e n t a t school and because she was "habitually disobedient and beyond p a r e n t a l control". On May 4 , 1977, a hearing was held a t which T.E.R. was represented by a n attorney, t h e S t a t e was represented by t h e deputy county attorney, and T.E.R.'s parents represented themselves. On motion of t h e attorney representing t h e c h i l d , t h e p e t i t i o n w a s o r a l l y amended t o include allega- t i o n s t h a t T.E.R. w a s a youth i n need of care. T.E.R. gave her statement i n chambers, outside t h e presence of her parents. While she w a s t e s t i f y i n g , her s t e p f a t h e r appar- e n t l y suffered a h e a r t a t t a c k and w a s taken t o t h e h o s p i t a l . A t t h a t t i m e , t h e deputy county attorney moved t h a t t h e hearing be continued u n t i l t h e S t a t e could f i l e an amended p e t i t i o n i n s e r t i n g t h e charge t h a t T.E.R. w a s a youth i n need of care and have t h e amended p e t i t i o n s served on a l l p a r t i e s . This w a s done on June 2, 1977. Subsequent hearings, on July 7 and August 4 , primarily addressed a l l e g a t i o n s of physical and sexual abuse by T . E . R . ' ~ stepfather. T.E.R.'s stepfather denied these allegations and, through h i s attorney, attempted t o prove t h a t T.E.R. had a reputation f o r untruthfulness and t h a t i f she had been sexually active, it would have been with neighborhood boys. O n appeal t h e parents present four i s s u e s f o r our con- sideration. They can be summarized and s t a t e d a s follows: 1. Whether t h e Youth Court erred i n allowing the c h i l d t o t e s t i f y outside t h e presence of her parents a s t o t h e alleged sexual and physical abuse by her stepfather. 2. Whether t h e Youth Court abused i t s d i s c r e t i o n i n making a finding of sexual abuse based primarily on the c h i l d ' s disputed testimony. 3 . Whether t h e Youth Court erred by considering T.E.R.'s r e p o r t cards, submitted subsequent t o t h e hearing by t h e Department of Social and Rehabilitation Services. 4 . Whether t h e S t a t e followed proper procedures i n taking T.E.R. i n t o custody and maintaining custody pending t h e Youth Court's ultimate determination on t h e p e t i t i o n a l l e g i n g her t o be a youth i n need of care. T.E.R. t e s t i f i e d on two occasions; both t i m e s she was permitted t o t e s t i f y outside t h e presence of her parents. O n t h e f i r s t occasion, a t t h e May 4 hearing, she was ques- tioned by t h e attorney appointed t o represent her and by t h e deputy county attorney. It was while t h i s testimony was being given t h a t T.E.R.'s stepfather suffered a h e a r t a t t a c k i n t h e courtroom where he was waiting with T . E . R . ' s mother. The second time T.E.R. was questioned was a t t h e ~ u l y 7 hearing. O n t h a t occasion t h e attorney f o r t h e parents was given t h e opportunity t o cross-examine. The parents argue t h a t the allegations made by T.E.R. i n the course of her testimony amounted t o charging her stepfather with criminal conduct and t h a t he was therefore constitutionally e n t i t l e d t o confront h i s accuser. W e do not agree. A t the o u t s e t it should be noted t h a t a "peti- t i o n alleging abuse, neglect, o r dependency i s a c i v i l action brought i n the name of the s t a t e of Montana. . ." Section 10-1310(3), R.C.M. 1947, now section 41-3-401(3) MCA. The overriding policy which underlies a l l actions involving potentially abused children i s " t o provide f o r the protection of children whose health and welfare a r e adversely affected and further threatened by the conduct of those responsible f o r t h e i r care and protection." Section 10- 1303, R.C.M. 1947, now section 41-3-101(2) MCA. Under circumstances such a s those presented i n t h e i n s t a n t case, it may be necessary f o r a c h i l d ' s testimony t o be taken outside the presence of "those responsible f o r t h e i r care and protection." W e therefore hold t h a t a child may t e s t i f y outside t h e presence of h i s parents i n a case involving allegations of abuse and neglect, subject t o cross-examina- t i o n by the parents' attorney, when the presiding judge determines t h a t it i s the most l i k e l y method of discovering t h e whole t r u t h a s t o the alleged abuse o r neglect. The next issue presented r e f e r s t o t h e c o u r t ' s Finding of Fact No. 12: "12. That t h e step-father has fondled the said youth, and has attempted t o have sexual rela- t i o n s with her on many occasions when the mother was not i n the home." The parents argue t h a t t h e judge erred i n making such a finding i n l i g h t of testimony adduced a t the hearing t h a t T.E.R. has l i e d a t times t o avoid punishment and t h a t she does not wish t o l i v e with her stepfather. However, our review of t h e testimony does not r e v e a l t h a t the Youth Court c l e a r l y abused i t s d i s c r e t i o n i n a r r i v i n g a t t h i s determina- t i o n . Where testimony is d i r e c t l y c o n f l i c t i n g w e presume t h a t t h e judge's findings are c o r r e c t because he w a s present when t h e testimony was given and had t h e opportunity t o observe t h e demeanor of t h e witnesses. Hellickson v. B a r r e t t Mobile Home Transp. (1973), 161 Mont. 455, 460, 507 P.2d 523, 526. A s a r e s u l t , w e do not f i n d t h a t t h e Youth Court abused i t s d i s c r e t i o n i n making a finding of sexual abuse based primarily on t h e c h i l d ' s disputed testimony. The parents' t h i r d i s s u e concerns T.E.R.'s school r e p o r t card which w a s submitted t o t h e judge f o r h i s con- s i d e r a t i o n some t i m e a f t e r t h e conclusion of t h e August 4 hearing. I n f a c t he d i d not receive t h e r e p o r t card u n t i l sometime i n October. A s evidence, t h e r e p o r t card f a l l s within Rule 803(6), Mont.R.Evid., which excepts records of r e g u l a r l y conducted a c t i v i t y from t h e hearsay prohibition. The f a c t t h a t t h e r e p o r t card was brought t o t h e judge's a t t e n t i o n a f t e r t h e conclusion of t h e hearing i s somewhat d i s t u r b i n g b u t does not amount t o r e v e r s i b l e e r r o r . F i r s t , t h e r e p o r t card w a s not i n existence a t t h e time t h e hearing concluded. Second, 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 some degree of f l e x i b i l i t y i n procedure t o i n s u r e t h a t a l l evidence pertaining t o t h e b e s t i n t e r e s t s of t h e c h i l d may be considered. I n addition, counsel f o r t h e parents knew of t h i s r e p o r t card and has never questioned i t s authen- t i c i t y . W e f i n d under t h e circumstances of t h e i n s t a n t case t h a t t h e Youth Court d i d not err i n considering T.E.R.'s r e p o r t card. The f i n a l i s s u e r a i s e d by t h e parents concerns t h e procedure by which T.E.R. w a s taken from her home by Ms. Knopp, t h e caseworker from SRS. What d i d not appear from t h e record a s it was submitted t o t h i s Court, b u t what has been made a p a r t of t h e record 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 during o r a l argument, i s t h a t a proceeding w a s held on ~ p r i l 20, 1977. A t t h a t t i m e T.E.R.'s mother agreed t o t h e s h e l t e r c a r e arrangement proposed by M s . Knopp, t o be implemented pending determination of t h i s matter by t h e Youth Court. Thus, t o prevent any possible embarrassment t o T.E.R.'s parents, t h e p a r t i e s then proceeded pursuant t o t h e s t a t u t o r y provisions regarding youths i n need of supervision r a t h e r than youths i n need of care. I n i t i a l l y , t h i s had t h e e f f e c t of e s t a b l i s h i n g f o r t h e s t e p f a t h e r a prima f a c i e showing of d e n i a l of due process. A t t h e May 4 hearing, he had only received n o t i c e t h a t a l l e g a t i o n s had been made t h a t T.E.R. w a s a youth i n need of supervision. The t r u e concern of t h e p a r t i e s , however, w a s t h a t T.E.R. might be a youth i n need of c a r e because of sexual abuse. Had t h e s t e p f a t h e r n o t suffered a h e a r t a t t a c k during t h a t hearing, t h e S t a t e may not have had an opportunity t o cure t h e alleged d e f e c t s with r e s p e c t t o due process p r i o r t o a f i n a l determination by t h e Youth Court. But subsequent t o t h a t hearing, t h e s t e p f a t h e r had been apprised of t h e t r u e nature of t h e a l l e g a t i o n s involved i n t h e case. He was given t h e oppor- t u n i t y t o t e s t i f y , and he w a s represented by counsel. I n addition, he was a b l e through h i s counsel t o cross-examine T.E.R. with r e s p e c t t o her a l l e g a t i o n s . Therefore, though t h e procedures involved i n t h i s case w e r e highly unusual and n o t condoned by t h i s Court, w e f i n d t h a t T . E . R . ' s s t e p f a t h e r was u l t i m a t e l y afforded due process. Beyond t h a t , however, something more stands out. These proceedings focused primarily on allegations of improper conduct on the p a r t of t h e stepfather. These allegations were found t o be supported by a preponderance of t h e evi- dence, and t h e Youth Court was therefore c o r r e c t i n finding T.E.R.'s stepfather t o be "an u n f i t person t o have custody; t h a t by reason of h i s dominance i n the family the youth i s unable t o avoid h i s abuse." However, a careful review of the record does not reveal t h a t the Youth Court adequately considered the r i g h t s of T.E.R.'s mother i n awarding permanent custody of T.E.R. t o SRS with authority t o consent t o her adoption. In addition t o t h e i r r i g h t s as a couple, parents may have individual r i g h t s w i t h respect t o t h e i r children. The record i n t h e i n s t a n t case reveals t h a t the mother's r i g h t s were afforded no more than s u p e r f i c i a l consideration. Therefore, t h e order of t h e Youth Court i s vacated t o the extent t h a t it applies t o T . E . R . ' s mother, and the case i s remanded t o the Youth Court f o r further proceedings t o determine the f u t u r e s t a t u s of the mother's parental r i g h t s . W e concur: U 7 & ' , 4 , &&,,&&q Chief J u s t i c e	February 14, 1979
ee98f0a4-6235-43fe-92bb-b1fae1a02e14	WALSTAD v NORWEST BANK	N/A	89-329	Montana	Montana Supreme Court	NO. 89-329 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 FINN and VIRGINIA WALSTAD; and NORDAK INDUSTRIES, U.S.A., INC., 6 . Plaintiffs and Appellants, r',m : (3 P? -- 0 -vs- ;/ c.7 . yu - - I a NORWEST RANK OF GREAT FALLS OR NORTHWESTERN . - , 1 - m - - 'T3 a BANK OF GREAT FALLS; THE ECONOMIC GROWTH COUNCIL . , J - I -1 <-, OF GREAT FALLS; and NORWEST INCORPORATED, a - -, !-- rrt"' W Minnesota corporation, 7 1 n 7 : 0 C Defendants and Respondents. - C -- t - ' , _ 4 APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable R. D . McPhillips, Judge presidinq. COUNSEL OF RECORD: For Appellant: Terry W. Mackey, Cheyenne, Wyoming Howard F. Strause, Great Falls, Montana For Respondent: Robert S. Vermillion; Smith, Baillie & Walsh, Great Falls, Montana (~conomic Growth Council, Cross-Appellant) James #, Poore, 111; Poore, Roth & Robinson, Butte, Montana (Norwest, etc) David L. Hashmall; Popham, Haik, Schnnbrich & Kaufman, Minneapolis, Minnesota (Norwest, etc) Filed: Submitted on Briefs: Oct. 20, 1989 Clerk Justice Diane G. Barz delivered the Opinion of the Court. This is an appeal and cross-appeal from an order of the District Court of the Eighth Judicial District granting Norwest Bank of Great Falls' motion for summary judgment and Finn and Virginia Walstads' motion to amend their complaint allowing the addition of Nordak Industries, Inc. as a party plaintiff against the Economic Growth Council. We affirm in part and reverse in part. Appellants Finn and Virginia Walstad are the sole shareholders and directors of Nordak Industries, USA, Inc., a Montana corporation. As part of an expansion program, Nordak borrowed funds from Norwest Bank of Great Falls (Norwest) and the Economic Growth Council (EGC). Walstads were guarantors of these loans which were also secured by Nordak's assets. Subsequent to borrowing these funds, Nordak underwent a period of financial difficulty. Walstads allege that EGC's failure to qualify for a Small Business Administration program that would have lowered Nordak's interest rate coupled with both defendants' mismanagement of Nordak's business affairs culminated in the forced transfer of Nordak's assets pursuant to an assignment executed by Nordak in favor of Norwest. The Walstads' complaint, filed January 6, 1986, included counts of breach of loan agreements, fraud and negligent misrepresentation, negligence, tortious interference with business and alleged vicarious liability on the part of Norwest, Incorporated (Norwest, Inc.). Both Norwest and EGC counterclaimed for the remainder of the loans to Nordak due under the Walstads' guaranty. Walstads moved to amend their complaint to add Nordak as a party plaintiff on August 11, 1987. The District Court permitted the amendment as to EGC but denied the amendment as to Norwest. Walstads appeal from the District Court's denial of their motion to amend as to Norwest while EGC cross appeals the District Court's grant of the motion to amend as to EGC. Both Norwest and EGC filed motions for summary judgment which the District Court granted as to the Walstads, based on the absence of genuine issues of material fact and the propriety of judgment in favor of respondents as a matter of law. Walstads' first contention on appeal is that the District Court improperly refused to permit amendment adding Nordak as a party plaintiff as against Norwest. We affirm. The Montana Rules of Civil Procedure allow amendment of pleadings with the district court's permission or the consent of the adverse party if such amendment would further the ends of justice. Rule 15(a), M.R.Civ.P. Rule 15(a) has been interpreted liberally, allowing amendment of pleadings as the rule and denying leave to amend as the exception. Priest v. Taylor (1987), 227 Mont. 370, 378, 740 P.2d 648, 653. One exception to the general rule arises when the amendment would be subject to dismissal. Halpert v. Wertheim & Co. , Inc. (S.D.N.Y. 1979), 81 F.R.D. 734. The District Court correctly found that Nordak's claims against Norwest are barred because Nordak expressly and voluntarily transferred and assigned to Norwest all its assets including its legal claims on August 25, 1983. The Agreement assigning Nordak ' s claims to Norwest is clear and unambiguous. The Agreement provided: 3. Concurrent with the execution of this Agreement, NORDAK will execute and deliver such bills of sale and other documents reasonably necessary to vest in NORWEST all of NORDAK'S . . . d) All contract rights, and all other rights to payment of every type and description, excluding only that certain claim of NORDAK against Dyecraftsman, Inc. currently being prosecuted in Cause No. BDV-82-015 in the District Court of the Eighth Judicial District of the State of Montana; and any rights of action or claim against Great Falls Economic Growth Council . . . Montana law is clear that where the language of a written contract is clear and unambiguous, the court is to apply the contractual language as written. Kartes v. Kartes (1981), 195 Mont. 383, 387, 636 P.2d 272, 274. [Ilntent of the parties is only looked to when the agreement in issue is not clear on its face. (Citation omitted.) Where the contractual language is clear and unambiguous on its face, it is this Court's duty to enforce the contract as drafted and executed by the parties. (Citation omitted.) Monte Vista Co. v. Anaconda Co. (Mont. 1988), 755 P.2d 1358, 1362, 45 St.Rep. 809, 814. The Walstads attempt to characterize the August 25, 1983 Agreement as a release in order to argue that there is a dispute regarding the intent of the parties to release Norwest. Citing Tribby v. Northwestern Bank of Great Falls (1985) , 217 Mont. 196, 704 P.2d 409. Tribby did not involve a transfer and assignment of rights or legal claims. The Agreement in this case is not a settlement by one joint tortfeasor with a plaintiff. The Agreement also does not bar Nordak's claims against Norwest because Nordak "released" Norwest; it bars Nordak's claims because Nordak transferred away its right to assert claims except those specifically reserved by the Agreement. The District Court also correctly found that any claim Nordak may have had against Norwest is barred by the statute of limitations, 5 27-2-204, MCA. All of the claims against Norwest are essentially tort claims. The proposed amended complaint was filed August 11, 1987. The cause of action against Norwest accrued at the time of the Agreement, August 25, 1983, more than three years before the proposed amendment. Appellants argue that pursuant to Rule 15(c), M.R.Civ.P., the amendment to add Nordak as a party plaintiff relates back to the filing of the original complaint and thus is not barred by the three-year statute of limitations on tort actions. Section 27-2-204, MCA. We addressed for the first time whether a second plaintiff's cause of action related back to the filing of the original complaint in Tynes v. Bankers Life Co. (1986), 224 Mont. 350, 730 P.2d 1115. The decision in that case was founded in the policies underlying the enactment of statutes of limitations, and, when the defendant has "adequate notice of a claim against it," has an opportunity to prepare a reasonable defense, and is not subject to undue prejudice, the second plaintiff's cause of action will relate hack. Tynes, 730 P.2d at 1120-21. The first plaintiff in Tynes alleged the defendant wrongfully refused to provide insurance coverage for plaintiff's psychiatric treatment in violation of the policy held by plaintiff's father. Tynes, 730 P.2d at 1119. The first plaintiff's father, as second plaintiff, sought to bring causes of action against the defendant for breach of contract, promissory estoppel, and negligence. Tynes, 730 P.2d at 1121. We found in that case that: Permitting [father's] claims against [defendant] to relate back to the date of [son's] original complaint did not undermine [defendant's] ability to defend itself. The claims of the two parties are nearly identical. They arise from the exact same "conduct, transaction, or occurrence set forth . . . in the original pleading" as required by Rule 15 (c) , M.R.Civ.P. The pleadings contain the same causes of acti.on. Finally, there is a "clear identity of interest" between [son] and [father]. [Father] was the original insured. He agreed . . . to be responsible for [son's] medical bills incurred at Wilson Center. The only difference in the two pleadings is damages. Under these circumstances, we do not believe [defendant] was prejudiced when the trial judge allowed [father's] claims to relate back to the date of [son's] original complaint. Tynes, 730 P.2d at 1120-21. Walstads, as directors of Nordak, neglected any claims Nordak may have been entitled to assert against the defendants for approximately four years. Nordak's alleged injuries result from defendants' loan of money to it. Walstads' alleged harm derived from their guarantee of Nordak's loans. While collateral, these transactions are not identical. Furthermore, Nordak and Walstads had no "clear identity of interest." The claims of Nordak and Tynes as well as the facts of both cases are distinguishable. The District Court's denial of leave to amend as regards Norwest and Norwest, Inc. is clearly an appropriate exception to Rule 15 (c) . The District Court's order did allow the Walstads to amend the complaint which added Nordak as a party plaintiff against EGC. EGC has filed a cross appeal. We reverse. The District Court allowed the amended complaint to be filed against EGC because the Agreement expressly reserved to Nordak the right to assert legal claims against the Economic Growth Council of Great Falls. However, the amended complaint alleges that Nordak's claims against EGC arose prior to September of 1983. The claims against EGC included negligence, tortious interference with business, and breach of fiduciary duty. Obviously, S 27-2-204, MCA, applies to EGC based on the foregoing discussion and EGC is also entitled to have the claims against it dismissed. Walstads further contend the District Court erred in granting summary judgment in favor of both defendants based on the lack of a separate duty owed by the defendants to Walstads as shareholders and guarantors of Nordak. We af firm. A shareholder guaranteeing corporate loans may recover individual damages from the lender provided that a duty separate from that owed the corporation exists. Bottrell v. American Bank (Mont. 1989), 773 P.2d 694, 710, 46 St.Rep. 561, 579. We previously held that when corporate shareholders personally guarantee corporate debts, the shareholders may not recover as individuals for the lender's breach of the covenant of good faith and fair dealing and negligent misrepresentation absent a separate duty owed to the shareholders. Bottrell, 773 P.2d at 709. Walstads' alleged damages are substantially similar to those suffered by the plaintiff in Bottrell. In neither case did the guarantor/shareholders establish either a separate duty owed them by the lender or damages distinct from those suffered by the corporation. Bottrell, 773 P.2d at 710. We find no abuse of discretion in the District Court's grant of summary judgment. We affirm the District Court's order denying Walstads permission to add Nordak as a party plaintiff as against Norwest and reverse its order permitting addition of the same as against EGC. We affirm the District Court's grant of respondents' motions for summary judgment. We concur:	December 20, 1989
0a9bfc37-b4e7-4bf6-9964-792777cfbc27	BUETTNER v STATE DEPARTMENT OF LAB	N/A	89-199	Montana	Montana Supreme Court	No. 89-199 IN THE STJPREME COURT OF THE STATE OF MONTANA 1989 DUANE BUETTNER, " Plaintiff and Appellant, -vs- STATE OF MONTANA, DEPARTMENT OF LABOR & INDUSTRY, et al., P 0 Defendants and Respondents. - > , - - 1 +.c -) - r- - + fIX, g - 1 c ; . -7- cs 0 C 0 APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Thomas Honzel, Judge presidinq. COIJMSEL OF RECORD: For Appellant: Duane Buettner, pro se, Wolf Point, Montana For Respondent: Scott W. Wilson, Billings, Montana - Submitted on Briefs: Oct. 13, 1983 Decided: December 28, 1989 Filed: ~ustice John Conway ~arrison delivered the Opinion of the Court. Appellant Buettner, pro se, appeals a decision of the District Court of the ~ i r s t ~udicial District, ~ e w i s and Clark County, wherein the ~istrict Court granted respondents' motion to dismiss appellant's complaint against the State because appellant failed to comply with § 2-9-301, MCA. Appellant raises essentially one issue for review: Is the application of S 2-9-301, MCA, to this case unconstitutional because the cause of action arose prior to the effective date of the statute? In late 1984, the State terminated appellant's employment effective December 31, 1984. On November 11, 1987, appellant filed a tort action against the State. The State was served with the complaint in early October of 1988 and on October 31, 1988, the State filed its motion to dismiss. Relying on § 2-9-301, MCA, the District Court granted the State's motion to dismiss appellant's complaint. Some time after briefs were filed on the motion to dismiss but prior to the ~istrict Court's decision, appellant removed his counsel and has continued pro se. Section 2-9-301, MCA, provides in pertinent part: (1) All claims against the state arising under the provisions of parts 1 through 3 of this chapter must be presented in writing to the department of administration. ( 2 ) A complaint based on a claim subject to the provisions of subsection (1) m a 1 7 not be filed in district court unless the claimant has first presented the claim to the department of administration and the department has finally denied the claim. The department must grant or deny the claim in writing sent by certified mail within 120 days after the claim is presented to the department. The failure of the department to make final disposition of a claim within 120 days after it is presented to the department must be considered a final denial of the claim for purposes of this subsection. Upon the department's receipt of the claim, the statute of limitations on the claim is tolled for 120 days . . . The 1987 Legislature added subsection (2) of S 2-9-301, MCA, which became effective October 1, 1987. Appellant filed his complaint on November 17, 1987 without first presenting his claim to the department as required by 5 2-9-301, MCA. Appellant, through counsel, argued to the District Court that S 2-9-301, MCA, could not constitutionally be applied to a cause of action which arose prior to October 1, 1987. Because his cause of action arose in 1984, appellant contended that he did not have to comply with 5 2-9-301, MCA. In holding that § 2-9-301, MCA, could constitutionally be applied to causes of action which arose prior to October 1, 1987, the District Court reasoned that the mandatory initial filing with the department imposed by the statute was procedural. The filing requirement did not in any way alter or restrict appellant's underlying cause of action. Thus, the District Court found that because the underlying cause of action was not impaired by the mandatory department evaluation, the statute could be applied to causes of action that arose prior to October 1, 1987. We agree. The Legislature can impose procedural requirements on a plaintiff before a plaintiff can file a complaint in court as long as the procedures do not impair any of a plaintiff's substantive rights. Appellant cites no authority to the contrary. Also, appellant fails to demonstrate how his substantive rights are impaired. The right plaintiff acquired in late 1984 was the right to bring a tort claim against the State. Section 2-9-301, MCA, is a procedural statute which limits direct access to the courts for at most 120 days while the Department of Administration evaluates the claim. Moreover, subsection (2) specifically provides that the statute of limitations for the claim is tolled for 120 days. Thus, a plaintiff is not penalized in terms of statute of limitation considerations by the mandatory review procedure. As appellant acknowledges the review procedure imposed by § 2-9-301, MCA, preserves a plaintiff's right to file a tort claim in court against the State. Although appellant's argument is unclear, appellant appears to contend that even if .§ 2-9-301 can be applied the District Court had discretion to fashion some other remedy other than outright dismissal of the complaint. Outright dismissal of the complaint, appellant argues, was fundamentally unfair because the statute of limitations had run on the tort claim at the time of the dismissal order. However, once the District Court determined that the statute applied to appellant's claim, it had no choice but to dismiss the complaint for failure to comply with § 2-9-301, MCA. It may be unfortunate for appellant that the statute of limitations had run on his tort claim, but it is not fundamentally unfair. Montana's statutes of limitations apply equally to all plaintiffs who are subject to them. However, while we must affirm the trial judge in granting summary judgment in this case, we call to the attention of the plaintiff who brought this case to us pro se, that under the provisions of .§ 27-2-407, MCA, he is allowed to bring a new action for the same cause after the expiration of the time so limited and within one year after such reversal or termination. Such action must be done in accordance with the provisions of S 2-9-301, MCA, and before March 16, 1990. If the appellant gives notice to the State pursuant to § 27-2-407, MCA, the running of the statute is tolled. In summary, § 2-9-301, MCA, mandates a procedure whereby all tort claims against the State must be filed with and reviewed by the Department of Administration. Appellant failed to comply with the law. The District Court properly dismissed the complaint. We concur: A	December 28, 1989
0c5e69f3-a2b2-4eba-8211-053e2a0137c2	COLES DEPARTMENT STORE v FIRST BAN	N/A	89-239	Montana	Montana Supreme Court	No. 89-239 IN THE SUPREME COURT OF THE STATE OF MONTANA COLES DEPARTMENT STORE, plaintiff and Appellant, -vs- FIRST BANK (N.A.)-BILLINGS and FIRST BANK SYSTEM, INC., Defendants and Respondents. APPEAL FROM: District Court of the Thirteenth Judicial ~istrict, In and for the County of Yellowstone, The Honorable Robert Holmstrom, Judge presiding. COUNSEL OF RECORD: For Appellant: A. Clifford Edwards; Anderson, Edwards & Molloy, Billings, Montana For Respondent : Gerald B. Murphy and T. Thomas Singer; Moulton, el ling ham, Longo & Mather, Billings, Montana Submitted on Briefs: Sept. 27, 1989 Decided: December 1 2 , 1989 Chief Justice J. A. Turnage delivered the Opinion of the Court. Coles Department Store (Coles) appeals from summary judgment granted to defendants First Bank (N.A.)-Billings and First Bank System, Inc. The District Court for the Thirteenth Judicial District, Yellowstone County, ruled that Coles had failed to make a case that the defendants1 actions, which Coles claimed led to the closing of the store, were wrongful under any theory pled. We affirm. The issues are: 1 . Did the District Court err in granting judgment to defendants on Colest claim that defendants breached a fiduciary duty they owed to Coles? 2. Did the District Court err when it found that defendants' actions did not amount to actual or constructive fraud? 3. Did the District Court err in entering judgment in favor of defendants on Colesl claim of breach of the statutory obligation of good faith and fair dealing? 4. Did the District Court err in granting judgment in favor of defendants on Colesl claim of breach of the implied covenant of good faith and fair dealing? Plaintiff Coles was a corporation owned by two brothers, Ron and Bruce Simon, and, before that, by their father. The corpora- tion operated a retail clothing store in downtown Billings for approximately fifty years. During all that time, Coles banked with defendants or their predecessor. For a number of years, Colesl account at defendant bank was handled by Tom Chakos, an old fraternity brother of Ron Simon. Colesl practice for some time had been to execute a separate ninety-day note each time it needed to finance operating expenses. Thus, it would often have several notes outstanding with defend- ants. In the fall of 1984, Chakos suggested that, instead, one master note establishing a line of credit be used. Ron and Bruce Simon executed a $450,000 line of credit note with a due date of March 31, 1985. At the same time, the Simons had discussions with Chakos about the need to reduce the expenses of Coles. The store had lost money in six of the last eight years, losing in excess of $53,000 in fiscal year 1983 and $81,000 in fiscal year 1984. In March or early April 1985, Ron Simon, who was on the Board of Directors of the defendant bank, learned that Chakos was being transferred to another bank and would no longer be handling Colesl credit. Ron Simon requested that Greg Lovell, a commercial loan officer, be assigned to the account. Colesl financial report for the fiscal year ending January 1985 became available in March. It showed losses for that year in excess of $152,000, which reduced the shareholders' equity to $131,000. On April 9, 1985, Greg Lovell and Ron Simon met to discuss Coles' credit. The meeting lasted for several hours. Lovell advised Ron Simon that he did not feel that the bank would continue financing Coles beyond September of 1985 unless additional capital was invested in the corporation or additional collateral, including mortgages on Ron and Bruce Simon's homes, was provided. In spite of Ron Simon's insistence that the bank's valuation of the store's assets was too low and that the Simons were implementing steps to strengthen the store's financial position, Lovell also suggested that the best thing might be to liquidate Coles. The day after the meeting, which he stated in a deposition left him Ndevastated,ll Ron Simon went on a scheduled buying trip to California. When he returned, Coles entered into a promissory note with defendants on a $360,000 line of credit due September 10, 1985. Coles also began liquidating its assets. By August, the defendants had been paid off and Coles' name, fixtures, inventory, and accounts had been sold. This action was filed in July 1987. During discovery, the Simons learned of the existence of an "Action Plan," dated February 1985 and prepared by Tom Chakos. The l1Action Plan" set out a time frame for the liquidation of Coles by September 1985. Coles has alleged breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, negligence, breach of the obligation of good faith under the Uniform Commercial Code, fraud and constructive fraud. Defendants each moved separately for summary judgment. After a hearing, the District Court granted both motions with an order and extensive memorandum. Did the District Court err in granting judgment to defendants on Coles' claim that defendants breached a fiduciary duty they owed to Coles? This Court has set forth the following standard which determines whether a fiduciary duty may be said to exist between a bank and its debtor: A fiduciary relationship exists between a bank and its debtor only if special circumstances indicate exclusive and repeated dealings with the Bank. Pulse v. North American Land Title Co. of Montana (1985), 218 Mont. 275, 707 P.2d 1105, 42 St.Rep. 1578. This Court has recent- ly interpreted the Pulse case as requiring a bank to act as a financial advisor in some capacity, other than that common in the usual arms-length debtor/creditor relationship, in addition to requiring a long history of deal- ings with the bank, to establish a fiduciary relationship. Simmons v. Jenkins (Mont. 1988), 750 P.2d 1067, 1070, 45 St.Rep. 328, 331. First Bank (N.A.) Billings v. Clark (Mont. 1989), 771 P.2d 84, 92, In the present case, the District Court conceded that there existed a long-term relationship between Coles and defendants. But it found no evidence that the bank acted as a financial advisor lvin some capacity other than that common to a usual arms-length debtor/creditor relationship." Coles argues on appeal that Tom Chakos acted as a financial advisor to the Simons when he suggested that Coles use one master note for its borrowing rather than a series of notes. Coles also points out that it was not represented by attorneys during Ron Simon's discussion with defendant bank regarding the operation of the store. The depositions on file reveal that both Ron and Bruce Simon possess advanced degrees in management and business. The brothers had managed Coles well in excess of ten years. The depositions also indicate that, during that entire time, decisions about the financial management of Coles were theirs with nominal, if any, input from bank representatives. The only time the bank could be said to have stepped in on financial management of Coles is when it stated its intent to cut off Coles' credit. Even then, though, the timing and manner of liquidation of the store was controlled by the Simons, not by the bank. We conclude that the District Court did not err in granting judgment to defendants on the claim of breach of a fiduciary duty. I1 Did the District Court err when it found that defendants1 actions did not amount to actual or constructive fraud? The nine elements of fraud are: 1 . a representation; its falsity; 3. its materiality; 4. the speaker's knowledge of its falsity or ignorance of its truth; 5. the speaker's intent that it should be relied upon ; 6. the hearer's ignorance of the falsity of the representation; 7. the hearer's reliance upon the representation; 8. the hearerts right to rely upon the represen- tation; and 9. consequent and proximate injury caused by reliance upon the representation. McGregor v. Mommer (1986), 220 Mont. 98, 105, 714 P.2d 536, 540. Coles claims that defendantst failure to disclose the llAction Planw was fraudulent. But as defendants point out, the Simons were aware that their store was losing money and had talked to Tom Chakos about the need to cut costs. It would be poor banking practice if the bank had been concerned about Coles' losses. As a member of the bank's Board of Directors, Ron Simon was aware of proper banking practice. The essential element of the "Action Plann--that the bank no longer wished to extend credit to Coles without additional security--was disclosed to Ron Simon in the April 9, 1985, meeting with Greg Lovell. We conclude that there is no evidence of a false material representation relating to the alleged failure to disclose the "Action Plan." Coles claims that Greg Lovell's statements at the April 9, 1985, meeting with Ron Simon were fraudulent. There were certainly representations made at that time, but Coles has produced nothing to indicate that Greg Lovell's representations about the bank's reluctance to continue financing Coles were false. Because the element "falsity of the representation" has not been shown, Coles has failed to show that Lovell's statements at that meeting were fraudulent. Coles also asserts that defendantst failure to disclose the "Action Plan" to the Simon brothers constituted constructive fraud because of the special and fiduciary relationship between the parties. As discussed under Issue I, Coles did not present adequate evidence to show a fiduciary relationship. We conclude that Coles has not shown a special relationship between the parties which would have required earlier disclosure of defendants' internal memorandum (the "Action Plan"). We hold that the bank had no duty to disclose to Coles any more any sooner than it did. In sum, we conclude that the District Court did not err when it found that defendant's actions did not amount to actual or constructive fraud. I11 Did the District Court err in entering judgment in favor of defendants on Colest claim of breach of the statutory obligation of good faith and fair dealing? The claim of breach of a statutory duty of good faith and fair dealing is made under 5 30-1-203, MCA, which is part of the Uniform Commercial Code (UCC). That statute provides: Obligation of good faith. Every contract or duty within this code imposes an obligation of good faith in its performance or enforcement. It is undisputed that Colest promissory notes to defendants are controlled by the UCC. The UCC defines good faith as "honesty in fact." Section 30- 1-201 (19) , MCA. This Court has defined the obligation of good faith under the UCC as faithfully carrying out the terms of the agreement. Shiplet v. First Sec. Bank of Livingston (Mont. 1988), 762 P.2d 242, 246, 45 St.Rep. 1816, 1820. Coles argues that defendantst failure to disclose the "Action Plantt breached the terms of defendants' agreements with Coles. However, the agreements between the parties which are covered by the UCC are the written promissory notes. There has been no allegation that defendants have failed to faithfully carry out the terms of those notes. That was the obligation of good faith under the UCC. We conclude that the District Court did not err in entering judgment for defendants on Colesl claim of breach of the statutory obligation of good faith and fair dealing. IV Did the District Court err in granting judgment in favor of defendants on Colesv claim of breach of the implied covenant of good faith and fair dealing? The District Court held that "the tort of breach of the implied covenant of good faith and fair dealing is related to an underlying breach of contract without which, it does not exist. . . . Here, the Court has determined that the covenant did not exist because there was no breach of an underlying contract.Ir This Court has held that where the relationship between the parties is entirely contractual, there must be an initial finding of breach of contract before a claim of breach of the covenant of good faith and fair dealing may be considered. Montana Bank of Circle v. Meyers & Son (Mont. 1989), 769 P.2d 1208, 1214, 46 St.Rep. 324, 330-31; Nordlund v. School Dist. No. 14 (1987), 227 Mont. 402, 406, 738 P.2d 1299, 1302. Coles, however, argues that in this case the existence of the tort is an independent factual question which does not require an initial claim of breach of contract, so that summary judgment on this issue was improper. A breach of the implied covenant of good faith and fair dealing requires the breaching party to arbitrarily or capriciously engage in an impermissible activity. Blome v. First Nat. Bank of Miles City (Mont. 1989), 776 P.2d 525, 529, 46 St.Rep. 1186, 1191. The nature and extent of the covenant is "measured in a particular contract by the justifiable expectations of the parties." Nichol- son v. United Pacific Ins. Co. (1985), 219 Mont. 32, 41-42, 710 P.2d 1342, 1348. The Simon brothers were well aware of the declining financial position of Coles, and in fact had discussed the need to make changes with Tom Chakos prior to February of 1985. We conclude that they had no justifiable expectation that defendants would continue to loan money to Coles indefinitely. Nor has Coles shown that defendants acted arbitrarily or capriciously. The development of the "Action Planvt was nothing less than prudent banking policy in light of the accelerating financial deterioration of the borrower over a period of several years. Moreover, defendants gave notice to Coles almost six months in advance of the date they intended to stop extending credit to the store. In the absence of a claim of breach of contract we conclude that no claim of breach of the implied covenant of good faith and fair dealing lies. The closing of Coles was undoubtedly a blow to the Simons and to downtown Billings. However, we agree with the District Court that Coles has not presented a case under which defendants may be held responsible for that event. We therefore affirm the summary judgment for defendants. We concur: n A Justices ~ustice William E. Hunt, Sr., dissenting: I dissent. The ~istrict Court incorrectly concluded. that a breach of the implied covenant of good faith and fair dealing depends on the existence of an underlying breach of contract. his is not so. The existence of the tort of bad faith is a question separate and independent from the question of breach of contract. As this Court pointed out in ~icholson v. United pacific Insurance Co. (1985), 219 Mont. 32, 41-42, 710 P.2d 1342, 1348: But whether performing or breaching, each party has a justifiable expectation that the other will act as a reasonable person. [Citation omitted.] The nature and extent of an implied covenant of good faith and fair dealing is measured in a particular contract by the j.ustif iable expectations of the parties. Where one party acts arbitrarily, capriciously or unreasonably, that conduct exceeds the justifiable expectations of the second party. The second party then should be compensated for damages resulting from the others c.ulpable conduct. In Shiplet v. First Sec. Bank (Mont. 19881, 762 P.2d 242, 246, 45 St.Rep. 1816, 1821, we reaffirmed this rule, noting that a breach of contract is not a prerequisite to a breach of the covenant of good faith and fair dealing. ~7hile the existence of a duty to act in good faith is a question of law which may be determined by a district court on summary judgment, the existence of a breach of the duty is a question of fact and is not properly decided on summary judgment. Simmons v. ~enkins (Mont. 1988), 750 P.2d 1067, 1071, 45 St.Rep. 328, 332. In this case, defendants had an obligation to act reasonably and in good faith to its longstanding customer, Coles Department Store. ater rial questions of f a c t i n d i c a t e t h a t t h i s duty may have been breached. Summary judgment w a s improper. I would reverse t h e ~ i s t r i c t Court.	December 12, 1989
97f052c6-3a29-42b2-8f9b-48f147f29995	STATE v CHASSE	N/A	89-369	Montana	Montana Supreme Court	No. 89-369 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Respondent, -vs- BRIJCE JAMES CHASSE, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding. COUNSEL OF RECORD: For Appellant: Terry A. Wallace, Missoula, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Patti Powell, Asst. Atty. General, Helena Robert Deschamps, 111, County Attorney; Betty Wing, Deputy, Missoula, Montana I - . - L ; . l i l Submitted on Briefs: Nov. 21, 1989 L3 CL -c Filed Decided: December 20, 1989 U Y Clerk Justice John Conway Harrison delivered the Opinion of the Court. Defendant Bruce James Chasse appeals his conviction and sentence in District Court, Missoula County, for Driving Under the Influence, Second Offense, contending that such conviction violates the constitutional protection against double jeopardy. We affirm. The District Court's opinion and order in this case were based on the Stipulated Facts filed by both parties. A brief summary of those facts follows. Chasse was first arrested for Driving while Under the Influence on June 1, 1984 and three days later he pleaded guilty to that offense. At the time Chasse, only seventeen years old, was not represented by counsel. Chasse was not advised of his right as a juvenile to have his parents present or of the consequences of enhanced punishment for subsequent DUIs. He was fined $50. By the time of his second offense DUI on September 15, 1984, Chasse was eighteen years old. Chasse appeared before a justice of the peace, whom Chasse claims did not advise him of his rights. Again, Chasse pleaded guilty. He was sentenced to six months in jail and fined $400. After spending seven days in jail, Chasse was released with the condition that he enter an in-treatment center for alcoholism. Chasse admitted himself to treatment in Great Falls, and after release from treatment, he attended ACT school. As the result of an October 25, 1986 motorcycle-pickup truck collision, Chasse was arrested a third time for DUI. A blood sample drawn at the hospital where he was taken after the accident showed Chasse's blood alcohol concentration to be .177. Originally, Chasse was charged with third-offense DUI and the matter was filed in district court. When it was learned that Chasse's first DUI conviction was as a juvenile, the cause was remanded to justice court as a second offense DUI, pursuant to State v. Gee (1986), 222 Mont. 498, 723 P.2d 934. At the justice court trial Chasse was convicted of second offense DUI as well as operating a vehicle without proper registration and driving without a valid driver's license. Appealing only the DUI conviction to the District Court, Chasse reasserted his argument that charging him with second offense DUI violated his constitutional protection against double jeopardy. Because he had already suffered one conviction for second offense DUI, Chasse argued that it would be double jeopardy to try him again for second offense DUI. The District Court rejected this argument and found Chasse guilty of DUI, second offense. On appeal to this Court Chasse presents the same issue: Can a person in Montana be convicted of DUI, second offense, twice within a period of five years under Montana's DUI statutory scheme? Chasse makes exactly the same argument to this Court as he did to the justice and District Courts. Like the justice and District Courts, we also reject his double jeopardy argument. Chasse was charged under section 61-8-401, MCA, for driving under the influence of alcohol. After he was tried and convicted, he was sentenced under the provisions of section 61-8-714, MCA. The gist of Chasse's argument is that, according to the sentencing scheme of section 61-8-714, MCA, two convictions for second offense DUI within a five-year period is not permitted by the statute. Thus, he argues, his twice being convicted for the crime of second offense DUI constitutes double jeopardy. This, Chasse avers, amounts to a denial of procedural and substantive due process because he is now charged, convicted and sentenced for a crime undefined by the law--the crime of "second DUI, second offense. Our Double Jeopardy Clause simply states that Ifno person shall be again put in jeopardy for the same offense previously tried in any juri~diction.~~ Art. 11, sec. 25, Mont. Const. (1972). The Fifth Amendment to the United States Constitution mandates that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb.I1 In a recent criminal case this Court explored the operation of the Double Jeopardy Clause: The basic design of the Double Jeopardy Clause is the prevention of successive prosecutions and the attendant threat of multiple punishments. (Citations omitted.) The appeal of a sentence imposed upon conviction does not expose a defendant to successive prosecutions nor multiple punishments for the same crime. A defendant remains subject to a single determination of guilt or innocence and a single, albeit potentially more severe, punishment. State v. Wirtala (Mont. 1988), 752 P.2d 177, 181, 45 St.Rep. 596, In Wirtala, the nature and purpose of the Double Jeopardy Clause was also discussed: That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. Wirtala, 752 P.2d at 181 (citing United States v. Di Francesco (1980), 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328, 340). None of the three above-listed protections applies to the case at bar. This is not a second prosecution for the same offense after acquittal or conviction. Nor is Chasse's sentence for the 1986 DUI multiple punishment for the same offense. Montana's statutory bar to double jeopardy, found at section 46-11-503, MCA, prohibits ' ' a prosecution based upon the same transaction as a former prosecutiontt under certain circumstances. It is obvious that Chasse's prosecution for the October 1986 DUI was not based upon the same transaction as his September 1984 prosecution. Thus, no double jeopardy attaches. The problem is not with Chasse's present DUI conviction but with the prior convictions. While the two previous convictions were not erroneous, the penalties Chasse received in 1984 may have been improper. Nonetheless, the sentence Chasse received in 1989 was proper and fair. When the error was discovered, the State moved to remand the case to justice court and charged Chasse with DUI, second offense. He was then properly prosecuted, convicted and sentenced in accordance with the laws of the State of Montana for a second offense DUI. We affirm the District Court's holding. We concur:	December 20, 1989
4213358b-cbb8-48a5-a9a4-0d999231f7e5	ESTATE OF HOLM	N/A	14259	Montana	Montana Supreme Court	No. 14259 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 IN THE MATTER OF THE ESTATE OF ANKER H. HOLM, Deceased. HARRY HOLM, JOE HOLM, ROBERT E. HOLM, et al., Contestants and Appellants, HELEN C. PARSONS, Proponent and Respondent. Appeal from: District Court of the Twelfth Judicial District, Honorable Leonard Langen, Judge presiding. Counsel of Record: For Appellants: Burns, Solem & MacKenzie, Chinook, Montana William Solem appeared, Chinook, Montana Morrison, Ettien and Barron, Havre, Montana Robert Morrison argued, Havre, Montana For Respondents: Sias, Ranstrom & Graham, Chinook, Montana Donald Ranstrom and Arthur Graham argued, Chinook, Montana Submitted: November 21, 1978 Decided : JAN - 3 1 g n - . ? , c":;;.; -- 3 1g7(1 Filed: Mr. Justice John C. Sheehy delivered the Opinion of the Court . Anker H. Holm died November 15, 1976, at the age of 78 years. On November 22, 1976, respondent, a niece of decedent, offered for informal probate a will dated October 17, 1973, in which decedent left his entire estate to respondent. Appellants, all nieces and nephews of the decedent then filed a formal petition for adjudication of intestacy, determination of heirs and appointment of personal repre- sentative. Respondent filed in response a formal petition for probate of will, determination of heirs and testacy, and appointment of personal representative. Appellants filed objections to this petition alleging decedent was incompetent to make a testamentary disposition and that decedent was under the undue influence of respondent. The matter was tried to a jury and at the conclusion of appellants' case, the District Court, Twelfth Judicial District, directed a verdict for proponent, holding there was no undue influence. The jury returned a special verdict finding decedent of sound mind when he executed the will in question. The evidence at trial showed that Anker Holm had little formal education and spent most of his time on a homestead north of Chinook. He had lived with his two older brothers and all three were bachelors. The older brothers conducted the business affairs of the ranch and managed the household, with the decedent taking little part in this activity. The oldest brother died in 1961. From approximately 1969 decedent's mind appeared to be failing and he seemed frequently confused and disoriented to his neighbors. This condition was apparently exacerbated by the death of his remaining brother in September 1973. -2- Shortly thereafter, on September 24, 1973, decedent executed a warranty deed to the United States for nearly his entire ranch for no consideration. Decedent's niece, respondent here, petitioned for and was appointed guardian ad litem for decedent. An action was then instituted in the United States District Court for the district of Montana for the rescission of the warranty deed. Testimony in the Federal District Court indicated deceaent was suffering from an organic brain syndrome. The psychiatrist who testified gave his opinion that decedent was not competent to handle his own affairs since about 1969. The court found decedent not legally competent to execute the deed in question and ordered its rescission or in the alternative, payment of the fair market value of the land. The findings of the Federal Court were admitted into evidence in the will contest involved in this appeal. The will which is the subject of this appeal was dated October 17, 1973. It was similar to previous wills executed individually by the Holm brothers in which they devised everything to the surviving brothers and recited testator intentionally left nothing to anyone else. In this case, decedent's will left his entire estate to respondent and made the same recitation of an intention not to leave any- thing to anyone else. Respondent had come to the ranch in 1971 to keep and manage the house for decedent and his older brother. Appellants had very limited contact with decedent during his lifetime. Evidence introduced at the will contest included testimony from several psychiatrists, all of whom agreed that decedent was suffering from chronic brain syndrome (not a disease in itself, rather a collection of symptoms resulting from diseases affecting the functions of the brain). -3- Each of the doctors offered his opinion that decedent was not competent at the time the will was drafted. However, the two doctors who personally examined the deceased did not question him about making a will and they indicated there were degrees of impairment and incompetency due to the syndrome. Respondent testified as an adverse witness she was of the opinion, with respect to business affairs, that at the time Anker Holm made the deed to the federal government he did not have the mental capability to make "a clear and intelligent and voluntary disposition of his property". Expert testimony was also presented at trial on behalf of respondent emphasizing decedent may have been able to comprehend the result of his actions in making the will in question and that the syndrome from which decedent suffered caused varying degrees of impairment. Lay testimony from decedent's acquaintances was introduced indicating decedent understood the nature of his land holdings, understood what he was doing in making the will and was able to recognize neighbors and carry out transactions with them. Three issues are presented in this appeal. First, was there sufficient, substantial credible evidence to support the jury verdict that decedent was competent to make the will in question? Second, did the District Court err in admitting certain testimony objected to as without proper foundation, and if so, was the error harmless? Finally, is this an appeal without merit and thus appropriate for Rule 32, Mont.R.App.Civ.P., sanctions? In considering the first issue, we are guided by a very basic and limited standard of review. " . . . where a fact issue or issues are presented before . . . a court sitting . . . with a jury, and there is substantial evidence -4- to support . . . the jury verdict, such . . . verdict [is] conclusive on appeal." Johnson v. St. Patrick's Hospital (1968), 152 Mont. 300, 448 P.2d 729, 733; Big Sky Livestock, Inc. v. Herzog (1976), Mont . I 558 P.2d 1107, 1110, 33 St-Rep. 1232; In Re Bielenberg's Estate (1930), 86 Mont. 521, 284 P. 546, 549; Murphy v. Nett (1913), 47 Mont. 38, 130 P. 451, 456. We review the evidence in a light most favorable to the prevailing party, and we will reverse only when there is a lack of substantial evidence introduced to support the results. In Re Dillenburg's Estate (1960), 136 Mont. 542, 349 P.2d 573, 574; Big Sky Livestock, Inc. v. Herzog, supra; Johnson v. St. Patrick's Hospital, supra. We have recently stated substantial evidence is evidence such as will convince reasonable men and about which reasonable men will agree supports the case of the prevailing party. Cameron v. Cameron (1978) , Mont . P.2d , 35 St.Rep. 1723, 1729 (citing cases). Furthermore, the evidence may be inherently weak and s t i l l be deemed substantial, and substantial evidence may conflict with other evidence presented. Campeau v. Lewis (1965), 144 Mont. 543, 398 P.2d 960, 962, 963; Cameron v . Cameron, supra. Reviewing the record on appeal with these guidelines in mind, we conclude there was substantial evidence to support the jury verdict and thus affirm the judgment of the District Court entered upon that verdict. Respondent presented testimony from relatives, neighbors and acquaintances of Anker Holm and expert medical testimony. Though Anker Holm suffered from oddities of habit and eccentricities, and exhibited some symptoms of a failing mind, this evidence indicated he nevertheless knew he owned cattle and land, was able to identify the extent and boundaries of his land, and knew he had made a will leaving his estate to the respondent, Helen Parsons. The evidence also indicated that in April 1973, Anker Holm and his surviving older brother had made reciprocal wills naming each other as beneficiary, and subsequent to the brother's death in September 1973, Anker approached his attorney and executed an identical will save for naming the respondent as beneficiary. We find this evidence to meet the requirements of substantiality and to be sufficient to support the jury verdict. It is true there is considerable conflicting evidence in the record. However, the credibility and weight given to conflicting evidence is the province of the trier of fact and not this Court. Cameron, supra; In Re Carroll's Estate (1921), 59 Mont. 403, 196 P. 996. Having reviewed the evidence and concluded it is substantial and sufficient to support the jury verdict, our inquiry on this issue is ended. Although the first issue presented above is dispositive of this appeal, the remaining issues deserve comment. Appellants allege error on the part of the District Court for admitting certain testimony of Grace Benbo, the secretary of Anker Holm's now deceased attorney. The testimony related to possible awareness on the part of the attorney of the existence of the deed to the federal government at the time the will in question was drafted. Appellants allege this testimcny has bearing on the motives of the individuals involved in the drafting of the will. However, as respondent correctly points out, the court directed a verdict in favor of respondent on the allegation of undue influence and appellants have chosen not to appeal from that action. Testimony relating to possible motives of -6- individuals other than the decedent has no relevance to an appeal concerned with the sufficiency of evidence to support a jury verdict declaring the decedent competent. Therefore, the error, if it existed, would have to be deemed harmless under Rule 61, M0nt.R.Civ.P. As to the final issue, respondent has mcved this Court to grant money damages pursuant to Rule 32, Mont.R.App. Civ.P. Rule 32 states this Court may, if satisfied from the record and presentation of appeal that there are no substantial or reasonable grounds for appeal, assess damages if the appeal was for reasons of delay only. The specifica- tions of error in this appeal relate to the sufficiency of the evidence to support the jury verdict. Appellants presented a very strong case for a finding of incompetency. Respondent in her brief admits the evidence tended to su~port the allegations of appellants. While it is true this Court must give great deference to jury verdicts, we are also obligated to examine the evidence supporting those verdicts to test its sufficiency when asked to do so in an appeal such as this. The specifications of error raised by appellants are not groundless or unreasonable, thus Rule 32 damages are not appropriate in this appeal and respondent's motion is denied. Judgment affirmed. b e 5 - Justice We Concur: Chief Justice	January 3, 1979
f2b316f0-5858-4775-ab59-ea4afe275e0e	INMAN v FARMERS NATIONAL COMPANY	N/A	89-302	Montana	Montana Supreme Court	No. 89-302 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ROBERT INMAN, d/b/a B & B AUCTION SALES and SERVICE, Plaintiff and Respondent, -vs- FARMERS NATIONAL COMPANY; FIRST SECURITY BANK OF HAVRE; DUANE "BUD" ANDERSON; JARDLNE STEPHENSON, BLEWETT & WEAVER, P.C.; BLAINE COUNTY, MONTANA; POLLINATION TECHNIQUES, INC.; FARMER'S UNION OIL CO. OF CHINOOK; MILK RIVER PRODUCTION CREDIT ASSOC.; AETNA LIFE INS. CO.; JOHN SCHWARZ; GENERAL AGRICULTURE CORP.; MONTANA AGRICULTURE I1 LIMITED PARTNERSHIP; MONTANA AGRICULTURE I11 LIMITED PARTNERSHIP; GOLDEN BULL CATTLE CO., INC.; and JOHN DOES 1 through 20, Defendants and Appellants. APPEAL FROM: District Court of the Seventeenth ~udicial District, In and for the County of Blaine, The Honorable B. W. Thomas, Judge presiding. COUNSEL OF RECORD: For Appellant: Donald A. Ranstrom; Blaine County Attorney, Chinook, Montana Robert G. Michelotti, Jr.; Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana (Aetna Life Ins.) Glen A. Burbridge; Kutak, Rock & Campbell, Denver, CO For Respondent: Greg A. Luinstra, K. Dale Schwanke; Jardine, Stephenson, Rlewett & Weaver, Great Falls, Montana (Schwarz; Jardine, et al.; Pollination Techniques; General Agriculture Corp.; Montana Agriculture; Golden Bull) Brian Lilletvedt, James M. Kaze; Bosch, ~ u h r , Dugdale, Warner, Martin & Kaze, Havre, Montana (Anderson) Gregory G. Murphy; Moulton, Bellingham, Lonqo & Mather, Billings, Montana (Farmers Natl. Co.) i - Chris R. Young; Morrison, Young Law Firm, Havre, Montana c i - 3 Kevin C. Meek; Alexander, Baucus & Linnell, Great Falls, 0 ' L C> Montana (Milk River Prod. ) L L 1t-j Li' Dan Johnson, Farmer's Union, Chinook, Montana ..1 -4 l i ' L J . Submitted on Briefs: Nov. 2, 1989 Decided: December 6, 1989 e Justice John Conway Harrison delivered the Opinion of the Court. This action arises out of efforts by Blaine County to collect delinquent personal property taxes from respondents, Pollination Technics, Inc.; John Schwarz; General Agriculture Corporation; Montana Agriculture I1 Limited Partnership; and Golden Bull Cattle Company, Inc. (the Schwarz Group). The Seventeenth Judicial District, Blaine County, granted summary judgment in favor of respondents holding that Blaine County could not claim a tax lien on auction proceeds from an auction of personal property owned by the Schwarz Group. Blaine County and Aetna Life Insurance Company appeals that judgment. We reverse and direct entry of judgment in favor of appellants. Appellants present essentially one issue for review: Did the District Court err in ruling that Blaine County was not entitled to execute against the "auction proceeds" to satisfy respondents' delinquent personal property tax obligation. The material facts in this case are not in dispute. Briefly, the facts are that John Schwarz arranged for Inman to publicly auction certain farm equipment and machinery. At the time of the auction sale, Schwarz was delinquent in the personal property taxes assessed against some or all of this machinery and equipment for 1985 and subsequent years. The personal property taxes constituted a lien against this property. Farmer's National Company, receiver named in a foreclosure action brought by Aetna, was notified that John Schwarz had directed Inman to distribute the auction proceeds to Schwarz's creditors without paying the taxes. The taxes are also a lien on the real property involved in the foreclosure suit. After learning of Inman's instructions, Farmer's National filed for injunctive relief to prevent Inman from distributing the auction sale proceeds to the creditors. The District Court held a hearing on April 7, 1988, wherein the parties agreed to convert the suit to an interpleader suit. Blaine County appeared a-t the hearing with a writ of execution and was prepared to levy upon the auction proceeds. However, Blaine County agreed to postpone the levy as long as it did not lose any of its legal rights. The District Court ordered the action converted to an interpleader action and provided that Blaine County would not lose any. of its legal rights. An interpleader complaint was then filed by Inman who also deposited the net auction proceeds with the Clerk of Court. The defendants are the parties with claims on the auction proceeds. The District Court interpreted the tax collection remedies outlined in § 15-16-113, 5 15-16-401 and § 15-17-911, MCA (1387), to require a county to seize and sell at public auction the personal property against which the taxes were assessed. IJnder those statutes, the District Court reasoned that if a sale is not for the purpose of collecting delinquent property taxes, then the law does not allow a tax lien on the proceeds. Thus, the District Court held that Blaine County's statutory remedies for collection of personal property taxes did not include the right to claim a prior lien on the auction proceeds. We disagree. The statutes that specifically define and relate to taxes as judgments or liens and tax lien priority are 5 15-16-401 and. 15-16-402(1), MCA (1987), which read as follows : : 15-16-401. Tax due as a judgment or lien. Every tax has the effect of a judgment against the person, and every lien created by this title has the force and e f f e c t of an execution duly levied a g a i n s t a l l p e r s o n a l property i n t h e possession of t h e person assessed from and a f t e r t h e d a t e t h e assessment i s made. The county t r e a s u r e r may i s s u e a w r i t of execution f o r delinquent personal property t a x e s and d e l i v e r t h e w r i t t o t h e s h e r i f f . The s h e r i f f s h a l l thereupon proceed upon t h e w r i t i n a l l r e s p e c t s , with l i k e e f f e c t , and i n t h e same manner prescribed by law i n r e s p e c t t o executions issued a g a i n s t property upon judgments of a c o u r t of record and s h a l l be e n t i t l e d t o t h e f e e s provided f o r i n 15-17-911. The judgment i s not s a t i s f i e d nor t h e l i e n removed u n t i l t h e taxes a r e paid o r t h e property sold f o r t h e payment t h e r e o f . (Emphasis added. ) 15-16-402. Tax on personal property l i e n on r e a l t y -- s e p a r a t e assessment. (1) Every t a x due upon personal property i s a -- - - p r i o r l i e n upon any o r a l l of such - - property, which l i e n shall- have precedence over any o t h e r l i e n , claim, o r demand upon such property, and except a s h e r e i n a f t e r provided, every t a x upon personal property i s a l s o a l i e n upon t h e - r e a l property of t h e owner thereof on and a f t e r January 1 of each year. (Emphasis added. ) The language of t h e s e s t a t u t e s e s t a b l i s h e s t h a t t h e county has a r i g h t t o a t a x l i e n on a l l personal property of t h e taxpayer. This l i e n i s inchoate and m u s t be perfected by a levy and s e i z u r e of a s p e c i f i c item. The s t a t u t e s do not r e s t r i c t t a x l i e n s t o t h e s p e c i f i c property a g a i n s t which t h e t a x i s assessed. W e have previously s o held i n O'Brien v. Ross (1964), 1 4 4 Mont. 115, 394 P.2d 1013. By d e f i n i t i o n t h e term personal property includes money. See, S 15-1-101(1) ( k ) - ( m ) , MCA. Thus t a x l i e n s can a t t a c h t o money. A s w e l l , 5 15-16-401, MCA /1987), authorizes t h e s h e r i f f upon r e c e i p t of a w r i t of execution f o r delinquent personal property taxes to "proceed upon the writ in all respects, with like effect, and in the same manner prescribed by law in respect to executions issued against property upon judgments of a court of record . . . " In other words, the statute accords the tax lien the same status as a court judgment and gives to the county the same execution remedies as a judgment creditor. Section 25-13-501, MCA, lists what property may be subject to execution to satisfy a judgment. In pertinent part, $ 25-13-501, MCA, states the following: All goods, chattels, moneys, and other property, both real and personal, or any interest therein of the judgment debtor, not exempt by law, . . . are liable to execution. (Emphasis added. ) Because the county possesses the same execution remedies as a judgment creditor, the county has the right to execute on the auction proceeds (moneys) to collect delinquent personal property taxes. The respondents direct our attention to §§ 15-16-113(2), 15-17-911, and 15-16-401, MCA (1987), relied upon by the District Court. All these statutes provide generally for the seizure and sale of personal property as a means of discharging a statutory tax lien. Respondents argue that the District Court correctly interpreted these statutes as limiting the county's collection remedies to a tax sale of the property assessed. This contention is not only without merit but it is illogical. When the property seized to satisfy the tax is money, no sale is required. Contrary to respondents' assertion, as we outlined above, § 15-16-401, MCA (1987), squarely provides a mechanism for the county to perfect the tax lien by levy of execution and seizure just as a judgment creditor has a similar right of execution against a judgment debtor. Those remedies authorized in S 15-16-401, MCA (1987), include executinq on cash funds such as the auction proceeds. Therefore, we hold that Blaine County has a right to a tax lien on the auction proceeds. Blaine County can levy the auction proceeds and use those moneys to satisfy Schwarz's delinquent personal property taxes. Because of our discussion above, we need not discuss other issues raised by the parties. We reverse the District Court and direct entry of judgment for appellants. ').A t"l- 6 ,/$L-LA?*;. - I & P ~ A & ~ ( - - Justices /	December 6, 1989
62fb08e4-9068-47d3-902f-f86a45dfed69	MITCHELL v UNIVERSITY OF MONTANA	N/A	89-373	Montana	Montana Supreme Court	No. 89-373 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 SANDY MITCHELL, Plaintiff and Appellant, -vs- UNIVERSITY OF MONTANA, a branch of the Montana University System, a public entity; Its President, NEAL J. BUCKLEW; and KAY COTTON in his capacity as controller and as an individual, Defendants and Respondents. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Joseph Gary, Judge presiding. COUNSEL OF RECORD: For Appellant: Peter Michael Meloy; Meloy Law Firm, Helena, Montana For Respondent: John 0 . Mudd; Garlington, Lohn & Robinson, Missoula, Montana Fil u 3 Submitted on Briefs: Oct. 20, ., 0 * CJ ' . - 9 L I Decided: December 18, 1989 . - [ i l l * - . - c ' A n W z 0 2E Justice R. C. McDonough delivered the Opinion of the Court. Plaintiff Sandy Mitchell appeals the order of the Fourth Judicial District Court, Missoula County, granting summary judgment to the defendants University of Montana, Neal J. Bucklew, and Kay Cotton in her tort action for breach of the implied covenant of good faith and fair dealing and wrongful discharge. The District Court granted summary judgment based on the immunity provisions of § 2-9-111, MCA. We reverse the District Court and remand the case for further proceedings. Mitchell raises the following issues on appeal: (1) Did the District Court err in determining that the University of Montana and its employees are immune from suit under S 2-9-111, MCA? ( 2 ) Does the legislative history of S 2-9-111, MCA, indicate an intent only to immunize legislative bodies for acts or omissions arising solely out of legislative functions? Mitchell is a certified public accountant. She was employed by the University of Montana beginning in 1978. Prior to her termination in 1981, Mitchell worked as an accounting supervisor in the Controller's office of the University. Mitchell alleges the claim in this matter arose from a long time dispute between Mitchell and the University controller, defendant Cotton, beginning with his tenure as controller. She alleges that this dispute was later compounded when Mitchell competed directly with Cotton for the controllers job. On October 9, 1981, Mitchell received a letter of termination from Cotton. She alleges that "the termination was made without just cause, without notice and without- warni-ng, verbal or written, with respect to her ioh performance." (Amended Complaint, p. 2, para. IV.) Mitchell appealed her termination through the University Grievance Committee. The Committee found the termination was unwarranted and recommended to the University President and Cotton that Mitchell be reinstated. In compliance with the recommendation, Cotton reinstated Mitchell, transferring her to a new, allegedly more difficult department. Mitchell alleges that "Idlefendants knew that Plaintiff's new position was fraught with potential for error, that she would make mistakes and they would have cause for consummating the termination effort which failed in 1981." (Amended Complaint. p.2, para. V.) On February 22, 1983, the defendants terminated Mitchell from her employment a second time. Once again she brought a grievance before the Committee, however this time the Committee found just cause for the termination. After exhausting her possible remedies under administrative grievance procedures, Mitchell filed this lawsuit on March 22, 1984. In her amended complaint, Mitchell alleges that in "[rlelying on the representations of the Defendants that she would be treated as any other employee, in good faith . . . and not experience retaliation from the filing of her initial grievance, she accepted the difficult task of administering the new program. " (Amended Complaint, p. 3, para. VI. ) She contends that because of the length of her satisfactory service, her reinstatement in 1981, and periodic merit salary increases, there was an implied promise by the defendants that she would not be terminated without just cause. Thus, Mitchell alleges that in terminating her employment the defendants breached the covenant of good faith and fair dealing implied in the employment relationship. Defendants assert that the 1983 termination was based on just cause. After a lengthy period of discovery, the defendants filed a motion for summary judgment on February 16, 1989, asserting three grounds as the basis of the motion: (1) that all the defendants are immune from suit, (2) that Montana law does not permit judicial review of routine personnel decisions of the Board of Regents and that even if those decisions are subject to review they are not subject to review by a jury, and (3) the pleadings and undisputed factc show that defendants did not breach their obligation to deal with the plaintiff in good faith. On April 27, 1989, the trial court denied the motion. On May 12, 1989, we handed down our decision in Peterson v. Great Falls School District No. 1 and A (Mont. 1989), 773 P.2d 316, 46 St.Rep. 880. The defendants renewed their motion on May 15, arguing that Peterson was dispositive of this case and granted immunity to all the defendants. The trial court granted defendants' motion on May 23, 1989, solely on the grounds of the immunity provided by the statute. Mitchell now appeals the District Court's May 23 order granting summary judgment, raising the aforementioned issues. The immunity question presented here can be determined from a reading of the plain language of § 2-9-111, MCA. The statute provides: 2-9-111. Immunity from suit for legislative acts and omissions. (1) As used in this section: (a) the term "governmental entity" includes the state, counties, municipalities, and school districts; (b) The term "legislative body" includes the legislature . . . and any local governmental entity given legislative powers by statute, including school hoards. (2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof. ( 3 ) A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body. (4) The immunity provided for in this section does not extend to any tort committed by the use of a motor vehicle, aircraft, or other means of transportation. Section 2-9-111, MCA. (Emphasis added.) Defendants argued in their motion and now on appeal that the Board of Regents the controlling public body of the University of Montana, is the legislative body of the Montana University System, and that President Bucklew and Cotton are officers and agents of that legislative body. Thus defendants contend that pursuant to our decisions in Bieber v. Broadwater County (Mont. 1988), 759 P.2d 145, 45 St.Rep. 1218, and Peterson, § 2-9-111, MCA, clearly grants immunity to the defendants. We disagree. The Board of Regents is not a "local governmental entity given legislative powers by statute" and thus not a "legislative body" as contemplated by the language of subsection (1). One meaning of "local governmental entity" can be found at Article XI, Section 1 of the 1972 Constitution: Section 1. Definition. The term "local government units" includes, but is not limited to, counties and incorporated cities and towns. Other local government units may be established by law. Title 7 of the Montana Code Annotated "Local Governments", deals generally with the powers, characteristics, and operation of local government. Nowhere in this title is the Board of Regents or the university system discussed within the context of beinq a local government entity or unit. Rather, the Board of Regents and the Montana University System is authorized by Article X, Section 9(2) and is controlled by the provisions of Title 20, Chapter 25, MCA. The Board of Regents has authority over the six units of the Montana University System located statewide. Clearly, the Regents are not a local governmental- entity as contemplated by § 2-9-111, MCA. Respondent argues that such an interpretation of subsection (1) of the statute, def ining legislative bodies as exclusively the State legislature or local governmental entities with statutory powers, changes the plain meaning of the word "includes" as written in the statute to a very different meaning: "is limited to". We fail to see any error with this construction. If so intended, the legislature could have easily used the phrase "includes, but is not limited to" in defining governmental entities. Because the legislature chose not to use such language, we apply the familiar maxim of statutory construction: expressio unius est exclusio alterius. (The expression of one thing is the exclusion of another.) Furthermore, this construction of subsection (1) is consistent with our decision in B. M. v. State (1982), 200 Mont. 58, 649 P.2d 425, 33 A.L.R.4th 1157, where we held that it is "our duty to strictly construe any attempted governmental immunity--that is, every act expanding statutory immunity must be clearly expressed." - B.M, 649 P.2d In light of our holding above, we need not discuss the second issue raised by Mitchell on appeal. The Board of Regents is not a local governmental entity, thus no immunity is afforded by the statute in this case. Reversed and remanded f o r f u r t h e r proceedings c o n s i s t e n t with t h i s opinion. W e Concur: f 5 ' 4 ~ & q % Chief J u s t i c e	December 18, 1989
c3d937cb-9c6f-4d32-8e6c-8a3f9b2ce967	GILES v FLINT VALLEY FOREST PRODUC	N/A	13732	Montana	Montana Supreme Court	No. 13732 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 JEFFREY A. GILES, Plaintiff and Appellant and Cross-Respondent, - -vs- FLINT VALLEY FOREST PRODUCTS, MONTANA STATE HIGHWAY COMMISSION, a Body Politic and Members thereof and H. J. ANDERSON, Montana State Director of Highways, Defendants and Respondents and Cross-Appellants. Appeal from: District Court of the Third Judicial District, Honorable Robert Boyd, Judge presiding. Counsel of Record: For Appellant: Daniels and Mizner, Deer Lodge, Montana Ted L. Mizner argued, Deer Lodge, Montana For Respondents: Poore, McKenzie, Roth, Robischon & Robinson, Butte, Montana Garlington, Lohn and Robinson, Missoula, Montana Gary Graham argued, Missoula, Montana Submitted: October 16, 1978 Decided: : - ;379 - - ? Filed: J&p - I 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 brought an a c t i o n 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, t o recover damages f o r i n j u r i e s he s u f f e r e d i n a motor v e h i c l e a c c i d e n t on June 11, 1974. The accident occurred approximately one m i l e w e s t of Garrison Junction a t t h e Warm Springs i n t e r - s e c t i o n where I n t e r s t a t e 90, a divided four-lane highway, m e e t s an undivided two-lane road. A t t h e t i m e of t h e c o l l i - s i o n p l a i n t i f f was turning l e f t o f f 1-90 i n t h e t r a n s i t i o n a r e a onto t h e f r o n t a g e road a t t h e Warm Springs i n t e r s e c - t i o n . H i s automobile was s t r u c k by a loaded logging truck driven by Walter Greig Godkin, an employee of defendant F l i n t Valley F o r e s t Products. Godkin ignored s i g n s i n t h e a r e a d i r e c t i n g t r a f f i c t o keep r i g h t and n o t t o p a s s , and a s a r e s u l t , while improperly i n t h e l e f t l a n e , h i s truck s t r u c k p l a i n t i f f ' s v e h i c l e . P l a i n t i f f s u f f e r e d severe i n j u r y t o h i s l e f t l e g , which w a s nearly severed a t t h e ankle. P l a i n t i f f sued F l i n t Valley f o r t h e i r a g e n t ' s a l l e g e d l y negligent operation of t h e logging truck while i n t h e course of h i s employment, and sued t h e S t a t e of Montana f o r t h e a l l e g e d l y negligent construction, design and marking of t h e Warm Springs i n t e r s e c t i o n and t h e t r a n s i t i o n area. On motion t h e a l l e g a t i o n s regarding negligent design and con- s t r u c t i o n were dropped. Negligence as t o marking alone was contended a t t r i a l . The jury returned a v e r d i c t a g a i n s t both defendants and awarded p l a i n t i f f $100,000. Both defen- d a n t s moved f o r judgment notwithstanding t h e v e r d i c t and d i r e c t e d v e r d i c t s and, i n t h e a l t e r n a t i v e , f o r new t r i a l . p l a i n t i f f appeals from an order of t h e D i s t r i c t Court g r a n t i n g a new t r i a l t o defendant S t a t e of Montana. The S t a t e cross-appeals from t h e c o u r t ' s r e f u s a l t o dismiss t h e c a s e a g a i n s t it, a motion on which w a s made a t t h e c l o s e of p l a i n t i f f ' s case-in-chief. With r e s p e c t t o t h e a l l e g a t i o n s on design and c o n s t r u c t i o n , p l a i n t i f f argued during o r a l argument t h a t those claims were s t i l l being advanced and t h a t they should be considered by t h i s Court. There was testimony by t h e engineers t h a t went t o questions of con- s t r u c t i o n and design negligence, as w e l l a s t o t h e problem of marking t h e a c c i d e n t area. I t should be noted t h a t during t h e t r i a l defendants claimed they were unable, a f t e r d i l i g e n t l y seeking, t o f i n d Godkin, t h e d r i v e r of t h e F l i n t Valley logging truck. Within days of t h e conclusion of t h e t r i a l , counsel f o r F l i n t Valley located Godkin, a convict o u t on parole. H e now comes up with a most a r t i c u l a t e statement regarding t h e circumstances of t h e a c c i d e n t which had happened some y e a r s before on a s t r e t c h of road which he had driven ( e x a c t l y , according t o h i s a f f i d a v i t ) eleven t i m e s . I n h i s a f f i d a v i t , Godkin expresses h i s willingness t o r e t u r n t o Montana f o r t r i a l o r t o be deposed. To g e t a new t r i a l where a d d i t i o n a l evidence has come t o l i g h t , t h e moving p a r t y must demonstrate, i n t e r a l i a , t h a t it was n o t lack of d i l i g e n c e which f a i l e d t o t u r n up t h e evidence a t an e a r l i e r time. See Kerrigan v. ~ e r r i g a n (1943), 115 Mont. 136, 144-45, 139 P.2d 533, 535. W e f i n d t h i s evidence does n o t meet t h e standards set i n ~ e r r i g a n t o warrant a new t r i a l . P l a i n t i f f appeals t h e D i s t r i c t Court order g r a n t i n g a new t r i a l , advancing a claim of i n v a l i d i t y f o r f a i l u r e t o p a r t i c u l a r l y s p e c i f y t h e grounds t h e r e f o r a s required by Rule 5 9 ( f ) , M.R.Civ.P., and contending t h e c o u r t abused i t s d i s c r e t i o n i n s o ordering a new t r i a l . A s p l a i n t i f f re- quested and received from t h e D i s t r i c t Court a statement of C e r t i f i c a t i o n of I s s u e s on Appeal, it appears t h e f i r s t claim i s moot. The S t a t e cross-appeals a l l e g i n g t h e D i s - t r i c t Court e r r e d i n f a i l i n g t o dismiss t h e a c t i o n a g a i n s t it a t t h e end of p l a i n t i f f ' s case-in-chief. I n meeting p l a i n t i f f ' s statement of t h e i s s u e s , t h e S t a t e claims t h a t t h e order g r a n t i n g a new t r i a l is supported by t h e evidence. The S t a t e argues a new t r i a l w a s c o r r e c t l y ordered f o r four reasons: 1. P l a i n t i f f ' s attempt a t introducing its Exhibit #28, a p e t i t i o n signed by t h e r e s i d e n t s of t h e Garrison-Warm Springs a r e a p r o t e s t i n g t h e conditions of t h e highway i n t h e v i c i n i t y of t h e accident, was harmful and p r e j u d i c i a l t o t h e S t a t e such t h a t it could n o t r e c e i v e a f a i r t r i a l . 2. The award of damages was excessive, given under t h e influence of passion o r prejudice, such t h a t a new t r i a l was properly ordered. Section 93-5603(5), R.C.M. 1947. 3. The evidence w a s i n s u f f i c i e n t t o support t h e ver- d i c t , e s p e c i a l l y i n l i g h t of t h e testimony given by a high- way patrolman t o t h e e f f e c t t h a t p l a i n t i f f w a s c o n t r i b u t o r i l y n e g l i g e n t such t h a t p l a i n t i f f ' s recovery should have been barred. 4. There w a s e r r o r i n giving I n s t r u c t i o n Nos. 28, 30, 34, and 4 4 , e s p e c i a l l y t h e f i r s t two which employed descrip- t i v e language, e.g., dangerous i n t e r s e c t i o n s , embodying conclusions which w e r e w i t h i n t h e province of t h e jury alone t o make. In its Certification of Issues on Appeal, which the State deems "irregular" but to which it says it does not object, the District Court stated: ". . . the only reason for . . . granting a new trial in this action is as follows: "The Appellant's attempted [sic] to introduce their [sic] Exhibit 28 . . . [which] was not listed in the pre-trial order as a proposed exhibit. As such its attempted introduction was an irregularity in the trial which pre- vented the defendants from having a fair trial, and is a grounds [sic] for a new trial under Section 93-5603(1), R.C.M. 1947." The purposes of requiring a statement of the reasons are to narrow the issues on appeal and to obviate the need for this Court to read the entire record to find the rationale underlying the ruling. Rule 59(f), M.R.Civ.P., ~dvisory Committee's note; Ballantyne v. The Anaconda Company (1978), Mont. , 574 P.2d 582, 35 St.Rep. 172. These pur- poses have been accomplished by the District Court's certi- fication. In virtue of that certification of issues, we need not entertain the last three of defendant's reasons in support of the order for new trial. Granting a new trial is within the sound discretion of the trial court, and its order so granting a new trial will be reversed only if manifest abuse of that discretion is shown. Such an order will be upheld if it can be sustained on any ground stated in the order or opinion accompanying the order. Rule 59(f), M.R.Civ.P. The question thus is whether the order may be sustained on that ground specified by the District Court as the reason for granting the new trial. Plaintiff argues that defendant suffered no prejudice, such that it was denied a fair trial, because of plaintiff's attempt to offer its Exhibit #28. The court refused to admit the exhibit upon defendant's objection and further refused to grant defendant's motion for a mistrial. The jury at no time was allowed to view the exhibit. Counsel's questions were brief and did not convey information calcu- lated to prejudice the jury. Without the exhibit the jury, at the conclusion of trial, had received evidence sufficient to form the foundation for the belief that the intersection- transition area was so confusingly marked as to have con- tributed to the accident and thus to ascribe fault to the State. The State points to the District Court's certification of issues as evidence enough of the prejudice which it suffered by the attempted introduction of Exhibit #28, declaring that that alone demonstrates that the trial judge believed the jury was unduly influenced and that the preju- dice had not been cured, even with instructions. The peti- tion, drafted and signed by local residents, says the State, was likely of greater weight than the testimony of experts, and even the attempt to introduce it would persuade the jury to find against the State. We find the above argument insufficient to warrant the granting of a new trial in view of the fact here that it was not admitted as evidence. We have said the following in respect of granting a new trial: ". . . it is not every error or defect that occurs during the course of a trial that furnishes grounds for granting a new trial. The court must disregard any error or defect which does not affect the substantial rights of the parties. (Rule 61, M.R.Civ.P.) To authorize granting a new trial, the error com- plained of must be an error 'materially af- fecting the substantial rights of [the ag- grieved party] ' (section 93-5603, R.C.M. 1947) and the error must be of such character that refusal to grant a new trial 'appears to the court inconsistent with substantial justice.' (Rule 61, M.R.Civ.P.) In other words, if the substantial rights of the aggrieved party are not prejudiced, only 'harmless error' is involved not authorizing a new trial to be granted, Within these limitations, the trial court has broad discretion to grant a new trial and will not be reversed except for abuse thereof. [Citations omitted.]" Martello v. Darlow (1968), 151 Mont. 232, 235, 441 P.2d 175, 176. As in Martello we find that, under the circumstances of this case, the error did not affect the complaining party's substantial rights. Therefore, the District Court abused its discretion in granting a new trial on this ground alone. Defendant's other issue bears brief consideration. That issue is whether the District Court erred in failing to dismiss the action against the State at the conclusion of plaintiff's case-in-chief. The State contends that plaintiff failed to prove either negligence or proximate cause such that the State could be chargeable for plaintiff's damages. Essential to plaintiff's case, says the State, was proof that the State was negligent in marking the highway at the site of the accident - and that such negligence was the legal (proximate) cause of the accident in which plaintiff received his in- juries. The States further contends that assuming arguendo it was negligent in marking the area, that negligence alone cannot be transformed into the requisite proximate cause. At most, the State says, it furnished the conditions in which the injury occurred by the subsequent independent act of a third person, Flint Valley, and asks us to rely on Boepple v. Mohalt (1936), 101 Mont. 417, 436, 54 P.2d 857, 862. Existence of conditions is not proximate cause; there- fore, plaintiff's case fails for want of proof, according to the State. Although t h e s e arguments a r e sound as f a r a s they go, they f a i l t o go f a r enough. It must be remembered, a s t h i s Court r e c e n t l y s a i d , t h a t ". . . where one has n e g l i g e n t l y caused a condition of danger, he i s n o t r e l i e v e d of respon- s i b i l i t y f o r damage caused t o another merely because t h e i n j u r y a l s o involved t h e later misconduct of someone e l s e . " Halsey v. Uithof (1975), 166 Mont. 319, 327, 532 P.2d 686, 690. A n important q u a l i f i c a t i o n of t h i s r u l e , however, was s t a t e d immediately t h e r e a f t e r . "But, t h i s i s t r u e only i f both negligent a c t s are i n f a c t concurring proximate causes of t h e i n j u r y ; and it i s n o t t r u e i f t h e later negligence i s an independent, intervening s o l e cause of t h e i n c i d e n t . " Halsey, 166 Mont. a t 327, 532 P. 2d a t 690. I n deciding Halsey, t h e Court e n t e r t a i n e d t h e s e thoughts: " I n determining whether t h e negligence i n c r e a t i n g a hazard ( t h e truck s t a l l e d on t h e highway) was a proximate cause of t h e acci- d e n t , t h i s test i s t o be applied: Did t h e wrongful act, i n a n a t u r a l continuous sequence of events, which might reasonably be expected t o follow, produce t h e i n j u r y ? I f s o , it is a concurring proximate cause of t h e i n j u r y even though t h e l a t e r negligent a c t of another [Walker and McWhirk] cooperated t o cause it. On t h e o t h e r hand, i f t h e l a t t e r ' s a c t of negligence i n causing t h e accident was of such a c h a r a c t e r a s n o t reasonably t o be expected t o happen i n t h e n a t u r a l sequence of events, then such later a c t of negligence is t h e inde- pendent, intervening cause and t h e r e f o r e t h e s o l e proximate cause of t h e i n j u r y . (Cita- t i o n s omitted. ) "Applying t h e foregoing t e s t t o t h e i n s t a n t s i t u a t i o n , it was reasonable t o f o r e s e e t h a t t h e eastbound d r i v e r s [Walker and McWhirk] would see t h e t r u c k parked on t h e highway. Considering Montana's case law and t h e f e d e r a l c o u r t views on our l a w , t h i s Court again f i n d s t h a t a b s t r a c t f o r e s e e a b i l i t y is n o t s u f f i c i e n t t o m e e t t h e requirements of proximate cause. "Applying Jimison here, a p p e l l a n t was n o t obliged t o f o r e s e e o r a n t i c i p a t e t h a t e i t h e r Walker o r McWhirk would come over t h e h i l l a t such speeds t h a t they could n o t s t o p within t h e assured c l e a r d i s t a n c e ahead of them. Neither was appellant obliged to foresee that Walker would continue over the hill without braking after seeing the reflector at the top and should have realized there might be trou- ble on the other side. All of this leads to the conviction that the district court should have granted appellant's motion for a directed verdict at the close of respondent's case-in- chief." Halsey v. Uithof, 166 Mont. at 328, 532 P.2d at 690-91. A case should be taken from the jury only when the facts and reasonable inferences drawn from them, when viewed in a light most favorable to the party against whom the motion for a directed verdict is made, cannot sustain a finding for the party against whom it is made. See e.g., Thomas v. Merriam (1959), 135 Mont. 121, 126, 337 P.2d 604 and cases cited therein. Here evidence supporting plain- tiff's case was presented, and whether that evidence was sufficient to sustain a prima facie case undoubtedly was considered by the trial judge in making his ruling against defendant. The court properly let the case go to the jury. As to the other assertions of error made by the State, the following is dispositive. 1. The State claims that the award of damages was excessive, given under the influence of passion and preju- dice. As noted in Brown v. Columbia Amusement Co. (1931), 91 Mont. 174, 193, 6 P.2d 874, no two cases are alike. The rule is that given we have a justice system which confides to juries the duty to determine the issues and to fix the amount of compensation to be paid, unless the award is such to shock the conscience and understanding, it must be ac- cepted as conclusive. The award in the instant case is not so shocking as to be deserving of vacation. 2 . The States claims that the evidence was insuffi- cient to support the verdict and that plaintiff's claim should have been barred because of his contributory negli- gence. he only testimony as to possible contributory negligence was that given as mere speculation by the highway patrolman who investigated the accident, but who did not witness it. Again, it was the task of the jury to determine if the factual circumstances were such that plaintiff could be deemed contributorily negligent; it did not so find. It concluded that plaintiff's testimony to the effect that he did check his rear-view mirror for upcoming traffic, and that he did signal so as to warn any upcoming traffic of his intention to turn left, was believable. 3 . The other objection centers on certain of the instructions given the jury. The State particularly objects to those numbered 28, 30, 34 and 44, putting emphasis on the first two. The charge is that the instruction contained language drawing conclusions which were within the province of the jury to make. While these instructions are not necessarily model, we do not find them to be so prejudicial to defendant as to be made the basis for a new trial. Again, error, to be made the basis for a new trial, must be so significant as to materially affect the substantial rights of the complaining party. See Martello v. Darlow, supra. The order of the District Court granting a new trial is set aside and the verdict and judgment reinstated. We Concur: Chief Justice 2 ' . j; , i L/- d , Justices - I	January 4, 1979
3b66cc8d-db6d-4031-abc9-28c0b9b19d09	CHRESTENSON v CHRESTENSON	N/A	14335	Montana	Montana Supreme Court	No. 14335 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 OLETHA R . CHRESTENSON, Plaintiff and Appellant, -vs- EDWIN J. CHRESTENSON, Defendant and Respondent. Appeal from: District Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Klaus Sitte, Legal Services, argued, Missoula, Montana For Respondent : Raymond J. Fox argued, Missoula, Montana Submitted: December 14, 1978 ~ecided : J A N lug79 Filed: : : y 4 J .,PLS - . Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Plaintiff appeals from a judgment and order of the Dis- trict Court, Missoula County, dismissing with prejudice her petition for a contempt citation against defendant for failure to make child support payments. This appeal questions the effect on child support pro- visions, in divorce decrees entered prior to 1972, of Article 11, Section 14, 1972 Montana Constitution and its implementing stat- ute, section 64-101, R.C.M. 1947, which establish age eighteen as the age of majority. The parties hereto were divorced on June 5, 1963. Custody of their three minor children was awarded to plaintiff, and defendant was ordered to pay $150 per month in child support. Since the time the original decree was entered, two of the children have grown and left home, and several modi- fications of the support obligations have been made. The last modification occurred on July 15, 1975, when defendant was ordered to pay plaintiff $90 per month in support of the one child remain- ing with her. On October 30, 1977, the youngest child became eighteen years of age. On the advice of his attorney, defendant stopped paying any child support to plaintiff after that date. In Feb- ruary 1978 plaintiff initiated contempt proceedings seeking con- tinuation of the support payments. The District Court concluded that because Article 11, Section 14, 1972 Montana Constitution provides that a person eighteen years of age is an adult, defen- dant's obligation to pay child support terminated on the youngest child's eighteenth birthday. This appeal followed. The question of whether an obligation to pay child support which arose at a time when the age of majority was twenty-one years continues until age twenty-one even though the age of major- ity has been lowered to eighteen presents a case of first impression in Montana. The question is not, however, entirely unique. In Arizona, which like Montana has adopted the Uniform Marriage and Divorce Act, it has been held that a child support obligation arising solely by the laws of Arizona terminates upon the date the child reaches the age of majority, eighteen years. Corbett v. Corbett (1977), 116 Ariz. 350, 569 P.2d 292. In Corbett, the parties were divorced in May 1967, at which time the age of majority was twenty-one years. The age was lowered to eighteen in 1972. The child involved turned eighteen years old on December 26, 1974. The Court held that the obligation to pay child support terminated on that date. The only difference between the Arizona and Montana law is that in ~rizona the lower- ing of the age of majority was by statute only. In Montana it was both by statute and by the Constitution. In another earlier case, the Arizona Court ruled that the statute lowering the age of majority fixed the status of minor and adult on its effective date and terminated child support pay- ments for persons eighteen years or older on that date whose pay- ments had been required by a divorce decree entered prior to that date. Stanley v . Stanley (1975), 112 Ariz. 282, 541 P.2d 382. The same result has been reached by a different analysis in a Virginia case. Eaton v. Eaton (1975), 215 Va. 824, 213 S.E.2d 789. In Eaton, the parties were divorced in 1971. On July 1, 1972, the age of majority was lowered to eighteen. On November 20, 1972, the original support provisions of the divorce decree were modified by order of the court. This order provided that support was to be paid until further order of the court. The Supreme Court ruled that the modification of support was a new decree for child support to which the law lowering the age of major- ity applied. Therefore, the support order had no effect after the child reached age eighteen. Here there are circumstances similar to Eaton. The original support order was in 1963. The latest modification in 1975 provided that support would be paid until further order of the court. Under the Eaton rationale, the constitutional and statutory provisions lowering the age of majority would apply to the order of November 1975 because the order was entered after the effec- tive date of those provisions. We agree with the conclusion reached by the ~rizona and Virginia courts. Defendant's obligation to pay child support terminated upon the child's becoming eighteen years old. while we find these authorities from other jurisdictions persuasive, however, we do not adopt them as entirely controlling. Rather, we reach our conclusion on the basis of the applicable Montana stat- utes. Section 61-104, R.C.M. 1947, provides that "the parent or parents entitled to the custody of a child must give him support and education suitable to his circumstances". Section 64-101, R.C.M. 1947, as amended to implement Article 11, section 14, 1972 Montana Constitution, provides that "minors" are males and females under eighteen years of age and that "[all1 other persons are adults". The plain import of these constitutional and statutory provisions is that upon attaining the age of eighteen a person is an adult and is no longer a "child" within the purview of section 61-104 of whom parents are entitled to custody or to whom parents are obligated for support. Thus, at the time this proceeding was initiated, plaintiff was no longer under a duty to support the child, and defendant was likewise no longer obligated to provide funds for the fulfillment of that duty. Plaintiff, in her brief, relies heavily on an Oregon case, Lekas v . Lekas (1975), 23 0r.App. 601, 543 P.2d 308, which reached an opposite result from our conclusion here. In Lekas, however, the divorce decree provided specifically that child support would continue to age twenty-one. Here, the decree and the subsequent modifications stated only that support would continue until further order of the court. We do not by our holding here in anyway contradict the provisions of section 48-330(3), R . C . M . 1947, allowing parties to agree in writing or expressly provide in their decree of dissolution for termination of child support at an agreed upon age or time. Where such specific provision is made, it controls. Such is not the case here. Plaintiff also seems to be claiming that she has a vested right to receive child support until the child reaches age 21. However, as pointed out in Stanley v. Stanley, supra, the claim of child support is not a vested right. Neither is the age of majority or minority a vested right; rather, it is a status. Stanley v . Stanley, supra. We find no error in the District Court's dismissal with prejudice of plaintiff's petition for a contempt citation against defendant. Af firmed. Chief Justice Jus ices J Mr. Justice Daniel J. Shea concurring: I concur with the result in this case but the clear implication of the decision is that no child is entitled to the support of his parents after he reaches the magic age of eighteen years. In doing so, it appears that we have relied too much on 1972 Mont. Const. Art. 11, S14 and perhaps may have locked ourselves into an untenable position for the future. Art. 11, S14, states that "a person 18 years or older is an adult for all purposes." This section impliedly grants rights and impliedly imposes obligations on a person who reaches the age of eighteen years; but it does not release a parent from an obligation to support one who has arrived at the age of eighteen years. I do not believe that this constitutional provision would prohibit the legislature from imposing a duty on parents to support their children who have reached the age of eighteen years. At least we should not make such decision until that particular case comes before us for decision. Nor do I think that section 64-101, R.C.M. 1947 (con- tained in the chapter entitled "Persons and Personal Rights") adds anything as a legitimate basis for the court's conclusion. The statute provides as follows: "64-101. Minors and adults defined. Minors are : "1. Males under eighteen (18) years of age; "2. Females under eighteen (18) years of age. All other persons are adults." This section says no more than what is contained in the constitution. There is no reason to give any weight to this legislative enactment when the constitution mandates that there can be no other substantive definition. The statute does nothing more than declare a status already mandated by the constitution. - 6 - I would uphold the District Court on the basis that there was a sufficient factual basis in the record to conclude that support was not needed for the child. I am not willing however, to tie the hands of a District Court, or the legislature, by holding that the obligation to support, by virtue of the constitution, automatically stops when the child reaches eighteen years of age. I also question the court's conclusion that if the decree expressly provides for the continuation of child support beyond the age of eighteen years, it will control. In light of this Court's interpretation of Art. 11, S14, I fail to see how a District Court would be empowered to place such a provision in a decree of dissolution. I recognize however, that the parties could agree to an obligation to support a child beyond the age of eighteen years. / f 2 i L b g ~ - A - Ju 'ce	January 16, 1979
f53e538b-f5ee-456c-b3dc-5c7d8719a9b0	STATE v DOWNING	N/A	89-155	Montana	Montana Supreme Court	No. 89-155 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, plaintiff and Respondent, -vs- SAMUEL MARK DOWNING, Defendant and Appellant. -U c7 - s u 0 C -L: X I + . APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Ravalli, The Honorable Jack L. Green, Judge presiding. COUNSEL OF RECORD: For Appellant: arti in John Elison, e is sou la, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana James Yellowtail, Asst. Atty. General, Helena John W. ~obinson, ~avalli County Attorney, ~amilton, Montana; Margaret Tonan, Deputy County Atty., ~amilton Submitted on ~riefs: Oct. 20, 1989 ~ecided: December 8, 1989 Filed: Chief Justice J. A. Turnage delivered the Opinion of the Court. Samuel Downing appeals his conviction of accountability in the sale of dangerous drugs, methamphetamine, following a jury trial in the Fourth Judicial District Court, Ravalli County. We affirm. The appellant raises the following issues: 1 . Did the District Court err by failing to grant the defendant's motion for a directed verdict following the State's case-in-chief? 2. Does the record contain sufficient evidence to support the jury verdict? The facts are not in dispute. The State's case-in-chief relied on the testimony of Agents Mark Brady and Robert Fairchild of the Montana Criminal Investigation Bureau. They testified that together with an unidentified informant, they formed an undercover team which attempted to purchase illicit drugs in Hamilton, Montana. The informant identified potential sellers and Agent Brady made contact. Agent Fairchild acted as backup officer monitoring and taping the conversations through a nwire" worn by Brady . The informant introduced Brady to the appellant as a possible source of drugs. When Brady asked the appellant if he could buy some "crank" or methamphetamine, Downing indicated that he had none, but arranged a meeting between Brady and Earl Ohl. Oh1 also had no crank, but expected to receive a shipment that evening. The following day while in route to Ohlls house to purchase the drugs, Agent Brady and the informant came across the appellant. Downing accompanied the party to Ohl's home where Oh1 introduced Brady to Mark Huskins. Huskins sold Brady one gram of methampheta- mine for $110. Brady, Downing, Ohl, and Huskins were all present during the sale. On their way out, Brady passed $10 to Downing. The defense consisted of testimony by appellant Downing and his girlfriend, Julie Phelps. They corroborated most of the facts as given by Agents Brady and Fairchild, but emphasized the inadequacy of the connection between Downing's assistance and Huskins1 drug sale. Downing admitted that he helped set up a deal between Brady and Ohl, but testified that he was not aware that Huskins would actually make the sale. He testified that he did not introduce Brady to Huskins, did not encourage the sale, and took no part in the transaction. The issues presented are whether the record contains suffi- cient evidence to sustain the trial court's refusal to grant the defendant Is motion for a directed verdict and to sustain the jury's verdict. The decision to grant or refuse a directed verdict is within the trial court's discretion. State v. Miller (Mont. 1988), 757 P.2d 1275, 1282, 45 St.Rep. 790, 798. Whether a defendant is an accomplice, however, is a question for the jury. State v. Gonyea (1987), 225 Mont. 56, 59, 730 P.2d 424, 426. The trial courtls standard in considering a directed verdict, and this Court's standard in reviewing the trial court decision, gives full consideration to the jury's role. The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Miller, 757 P.2d at 1283, 45 St.Rep. at 798. (Citation and emphasis deleted. ) This is the same standard for this Court in determining whether the evidence was sufficient to warrant the jury s verdict. Miller, 757 P.2d at 1286, 45 St.Rep. at 803. We must determine whether a reasonable jury could have found the essential elements of account- ability following the State's case-in-chief and following the defendant's case-in-chief. The relevant accountability section incorporates the essential elements. A person is legally accountable for the con- duct of another when: [l] either before or during [2] the commission of an offense [3] with the purpose to promote or facilitate such commission, [4] he soli- cits, aids, abets, agrees, or attempts to aid such other person in the planning or commis- sion of the offense. Section 45-2-302(3), MCA. (Enumeration added.) The first element is not in dispute. The appellant does not contend that evidence fails to show that Downing's actions occurred prior to or during the underlying offense. The second element requires that accountability be predicated upon a separate, underlying offense. See Matter of B.D.C. (1984), 211 Mont. 216, 221, 687 P.2d 655, 657 (holding that accountability is not a separate offense). According to the information filed against Downing, the underlying offense was Huskinst sale of methamphetamine. The parties do not dispute that the underlying crime actually occurred, but they apparently have some contentions as to its parameters for accountability purposes. Downing's accountability is predicated only upon Huskins' sale of drugs. It does not attach to any illegal acts by Earl Ohl. Nor does it attach to Agent Brady's purchase of drugs. See State v. Stokoe (1986), 224 Mont. 461, 464-65, 730 P.2d 415, 417 (holding that the sale and purchase of drugs are distinct crimes). The question, then, is limited to whether Downing assisted Mark Huskins in selling drugs. The third element goes to the defendant's mental state. The statute requires only that the defendant purposely abetted the crime. This Court, however, also requires the accomplice to act "knowingly, voluntarily and with common intent with the principal offender. . . .I1 Gonvea, 225 Mont. at 58, 730 P.2d at 426; State v. Nordahl (1984), 208 Mont. 513, 517, 679 P.2d 241, 243. "Pur- poselyn is defined as having the conscious objective to engage in the criminal act or cause the criminal act. Section 45-2-101(58), MCA. "Knowinglyu is defined as aware that it is highly probable that the criminal act will result. Section 45-2-101(33), MCA. Regardless of whether the "p~rposely~~ or llknowinglylv standard is applied, we, like the jury, are faced with the same decisive question: what criminal act did Downing intend to abet? Downing admittedly intended to abet Agent Brady in purchasing crank. In so doing, the appellant necessarily intended to aid someone in selling the drugs. The appellant argues that he intended only to facilitate a sale by Earl Ohl. He asserts that he did not envision a sale by Mark Huskins and therefore is not accountable for that sale. The District Court and the jury found this interpretation of the evidence to be much too narrow and we agree. During the State's case-in-chief, Agent Brady testified as follows: Q. What happened once you . . . made contact with the defendant? What then happened? A. There were conversations between myself, the informant, and Mr. Downing about the avail- ability of dangerous drugs. Q. What did you ask specifically? Do you recall? A. At one point in time, Mr. Downing asked what type of drug we were looking for and I men- tioned crank. Q. Once that made known [sic] to the defendant, what then happened? A. Mr. Downing told the informant and myself that he did not currently have any but that an individual by the name of Earl may have some, and he would have to check with Earl. Agent Brady also testified about a conversation between himself and Downing following the drug sale at Earl Ohl's residence: Q. Was there any conversation after the $10.00 was transferred to the defendant? A. . . . Asked if he knew of anything else in the area. At that time he didn't know but he told us to -- if that -- if we needed anything at a later date and time to go ahead and contact him and he would see what was available. Viewing this evidence in the light most favorable to the prosecution, a reasonable jury could have found that the appellant intended to aid in a drug sale by whomever had the drugs available. Downing's intent was not necessarily limited to a sale by Earl Ohl. Brady initiated an open invitation to purchase drugs from whomever Downing could contact. On the testimony presented, the fact that Oh1 happened to be the most accessible dealer, would not preclude a jury from finding that the appellant intended to abet a drug sale by some other individual. An open-ended intent does not conflict with the requirement that the accomplice have a common intent with the principal offender. The two parties may move independently toward accom- plishing the same goal. The accomplice need not know all the details of the underlying crime. The evidence is undisputed that both Downing and Huskins intended to accomplish a sale of drugs to Agent Brady. We hold that the District Court did not abuse its discretion in refusing to grant the appellant a directed verdict. The evidence that the appellant intended to aid an open-ended drug sale became even stronger with Downing's own testimony. Downing indicated that he would begin his search for drugs with Earl Oh1 but also indicated that he did not intend to limit his search to Earl Ohl. Downing testified, [Tlhe informant, asked me if I knew where to get any speed, and I said I didn't have any but Earl would probably be as good a place to start as any. We hold the record contained sufficient evidence to support the jury's determination that the appellant intended to aid in the sale of dangerous drugs which was accomplished by Mark Huskins. The fourth element goes to the unlawful acts committed by the defendant. We have repeatedly stated the rules on what acts give rise to accountability and will not unnecessarily repeat them here. We do note that both the appellant and the State offered evidence and now debate whether the sale would have taken place without Downing's assistance. The "but for1' test is not decisive in accountability. The accountability statute allows for attempts to aid in the underlying crime. The Montana statute permits convic- tion of a defendant who tried but failed to abet a crime so long as the underlying crime succeeded. Thus, the question under this element is not whether the defendant's acts were a prerequisite to the underlying crime, but whether the defendant acted to abet the crime. The record is sufficient to support both the refusal of a directed verdict and the jury verdict on this element. By direct- ing Brady to Ohl, the appellant set in motion a chain of events which eventually led to the Huskins sale. Appellant Downing shares responsibility for this drug sale. He set up the transaction and participated at every stage. He would have us overturn his conviction on the grounds that he failed to foresee every detail. The District Court and the jury correctly refused to exonerate Downing simply because Huskins, rather than Ohl, handed the drugs to Agent Brady. Affirmed. We concur: Justice William E. Hunt, Sr.: I concur in the result but not inall that is said. c - , c - 8 Justice	December 8, 1989
6718978b-05f3-49f7-a554-b94a8510c55d	TINDALL v KONITZ CONTRACTING INC	N/A	89-388	Montana	Montana Supreme Court	No. 89-388 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 FRANCIS M. TINDALL, Plaintiff and Appellant, -vs- KONITZ CONTRACTING, INC., Defendant and Respondent. : . . / . - ? - . . - - 4 * ,. - , C j -. APPEAL FROM: District Court of the Tenth Judicial Districq,': In and for the County of Fergus, I l l I The Honorable John Warner, Judge presiding. < - , - . COUNSEL OF RECORD: Filed: For Appellant: Dennis McCafferty; James, Gray & McCafferty, Great Falls, Montana For Respondent: William Berger; Wilkins & Berger, Lewistown, Montana Submitted on Briefs: Oct. 20, 1989 Decided: December 20, 1989 Justice Diane G. Barz delivered the Opinion of the Court. Plaintiff, Francis M. Tindall, filed a complaint against defendant, Konitz Contracting, Inc., on September 6, 1984, alleging that defendant breached a personal service contract that the two parties entered into on November 16, 1981. Defendant filed a counterclaim on October 28, 1985, alleging that plaintiff intentionally and maliciously interfered with a business relationship between defendant and a third-party and that plaintiff intentionally and maliciously sent a libelous letter to a third-party that caused defendant injury. The District Court of the Tenth Judicial District, Fergus County, found that the personal service contract was void for lack of consideration; that plaintiff tortiously interfered with a business relationship; and that plaintiff maliciously committed libel. The court then imposed on Tindall $7,500 in compensatory damages and $8,500 in punitive damages. Plaintiff appeals. We affirm. The issues raised on appeal are: 1. Whether the District Court erred in concluding that no consideration existed for the personal service contract; 2. whether the District Court erred in concluding that plaintiff relied upon "forbearance to sue" as consideration for the personal service contract; 3. whether the District Court erred in finding that defendant agreed to the personal service contract under duress; 4. whether the District Court erred in determining that the counterclaim should not be tried separately; 5. whether the District Court erred in concluding that plaintiff intentionally interfered with a business relationship between defendant and a third-party; 6. whether the District Court erred in concluding that the November 19 letter from plaintiff was libelous per se; - - 7. whether the District Court erred in assessing plaintiff with $8,500 in punitive damages after concluding that plaintiff's actions were malicious; and 8. whether the District Court erred in refusing to hear testimony regarding excessive drinking by defendant at the time he signed the personal service contract. Francis M. Tindall, plaintiff, operated a general contracting business centered in Lewistown, Montana, that primarily dealt with crushing gravel for secondary roadways and runways. In 1979, Tindall wanted to retire. During that same year, Tindall met Thomas Konitz, defendant, who at that time was employed by another general contracting firm. The two had several discussions regarding the sale of Tindall's business to Konitz. Konitz finally agreed to purchase Tindall's business and on August 1, 1979, Konitz and Tindall consummated the sale of the business through the signing of three documents. The documents were prepared by Tindall's attorney to provide tax benefits for Tindall. The three documents included a lease on the business real estate with an option to purchase; an equipment lease; and a buylsell agreement regarding some other specifically listed equipment. Both parties realized that the only way Konitz could successfully take over the business was through Tindall's initial support and active assistance, including Tindall's bonding capacity. During the next few months, Konitz bid on three jobs--0MAD 3, OMAD 4 and the Stanford Airport. Konitz, who had experience in bidding, expediting and supervising smaller jobs, prepared the bids. Tindall, however, signed the bid forms and furnished the bonds. Tindall was granted these jobs, but Konitz did the actual work and paid the bond premiums. The payments received on the jobs first went to Tindall, who did not withhold any service charges for the use of his bonding capacity. In March, 1980, Tindall and Konitz, as a joint venture, bid on and were awarded the Griffin Creek job. Konitz again prepared the bids and accomplished the actual work. Konitz subsequently bid and bonded in his own name, and without assistance by Tindall, the work on the Magpie road. During the spring of 1981, Tindall began presenting Konitz with a personal service contract. The contract provided that Konitz would pay Tindall for his services at a rate of four percent of the gross contract price for assistance in the bidding, preparation and other administrative services necessary to complete the contract and another three and half percent whenever Tindall acted as a guarantor or surety on the contract. In addition, the contract provided that payments would begin sixty-one months from the execution of the contract at a rate of one thousand dollars per month. Konitz initially refused to sign the personal service contract. Tindall, however, was relentless in pressuring Konitz to sign the contract. Tindall threatened Konitz that if he did not sign the contract, he would put Konitz out of business by going to Konitz's suppliers, bankers and bonding companies and by repossessing Konitz's equipment. In light of Konitz's deteriorating financial situation, Konitz could not have successfully fought an economic or legal battle with Tindall and remain in a viable business position. Konitz therefore signed the personal service contract on November 19, 1981 in Tindall.'s attorney's office. The personal service contract that Tindall prepared and that Konitz signed stated that Tindall helped bid and bond five jobs and therefore Tindall was entitled to $138,629.80, with payments of one thousand dollars a month beginning August 1, 1984. Konitzls financial position substantially improved from 1981 to the fall of 1984. In the summer of 1984, Konitz made the last payment to Tindall under the 1979 contracts. At that time, Konitz decided not to exercise the option to purchase the real estate and also not to make the August 1, 1984 payment under the personal service contract. Tindall became very angry and attempted to carry out threats previously made against Konitz in 1981 and the earlier part of 1984. On September 6, 1984, Tindall filed a complaint with the District Court of the Tenth Judicial District, alleging that Konitz breached the personal service contract. Konitz subsequently filed a counterclaim, alleging that Tindall intentionally and maliciously interfered with a business relationship between Konitz and a third-party and that plaintiff maliciously sent a libelous letter to a third-party that caused Konitz injury. Tindall then filed a motion with the District Court under Rule 42(b), M.R.Civ.P. to hear Konitzls counterclaim separately from the original complaint. The District Court denied the motion. A nonjury trial was held on February 9 and 10, 1988. The court issued its Findings of Fact and Conclusions of Law on October 17, 1988, finding that the personal service contract was void for lack of consideration; that Tindall tortiously interfered with a business relationship; and that Tindall maliciously committed libel. The District Court also concluded that Tindall should be subjected to punitive damages. After a hearing was held, the court imposed on Tindall punitive damages in the amount of $8,500. Tindall appeals. The first issue raised on appeal is whether the District Court erred in concluding that no consideration existed for the personal service contract. Consideration is an essential element of a contract. Section 28-2-102(4), MCA; Boise Cascade Corp. v. First Sec. Bank of Anaconda (19791, 183 Mont. 378, 391, 600 P.2d 173, 181. In the present case, the District Court concluded that no consideration existed for the personal service contract. The findings of fact support this conclusion. The personal service contract that Konitz signed on November 16, 1981 stated that WHEREAS TINDALL sold his contracting business to Konitz and thereafter assisted KONITZ in the bidding and bonding of various construction projects without which Konitz would have been unable to operate. NOW, THEREFORE, KONITZ hereby agrees to pay TINDALL from the percentages agreed upon between the parties, for TINDALL'S assistance on said projects, the sum of $138,629.80. Provided further that said sum shall be paid in monthly installments of $1,000.00 per month commencing August 1, 1984, and continuing thereafter until paid in full. The amount of $138,629.80 was derived from the total amount Konitz received from five jobs--0MAD 3, OMAD 4, the Stanford airport, Griffin Creek and the Magpie road. It is undisputed that Konitz initially required Tindallls bonding capacity. Tindall therefore assisted Konitz with bonding for the first four jobs. Most importantly, however, all of these jobs were bonded and executed prior to the signing of the personal service contract in November, 1981. By the time Konitz signed the personal service contract in 1981, he had already developed a bonding capacity for himself and no longer needed Tindallls assistance. The general rule is that past consideration is not sufficient to support a promise. Soukop v. Snyder (Hawaii App. 1985), 709 P.2d 109, 113; Sheehy v. ~ o d i n inn. App. 1984), 349 N.W.2d 353, 354; Smith v. Recrion Corp. (~ev. 19751, 541 P.2d 663, 665; Hansen v. ~ootenai County Bd of Comm'rs (Idaho 1970), 471 P.2d 42, 51. As the United States District Court stated in Citibank, Nat'l Ass'n 17. London (S.D. Texas 1981), 526 F.Supp. 793, [a] promise supported by past consideration is unenforceable because the detriment did not induce the promise. That is, "since the detriment had already been incurred, it cannot be said to have been bargained for in exchange for the promise. " 526 F.Supp. at 803 (quoting J. Calamari & J. Perilo, Contracts 5 4-2, at 135 (2nd Ed. 1977)). Likewise, Tindall's consideration--bonding assistance--was tendered prior to the signing of the personal service contract. Tindall did not incur any new detriment upon the signing of the 1981 contract that would have induced Konitz to pay Tindall an additional $138,629.80. Konitz's promise to pay Tindall $138,629.80 is thus unenforceable because it was supported by past consideration. The record also supports the District Court's finding that when Konitz bought Tindall's equipment, he paid $150,000.00 more than the estimated market value of the equipment. The District Court found that Konitz did not attempt to dicker on Tindall's figures because Konitz took into consideration the assistance Tindall was giving him in the business. Thus, Tindall was apparently already adequately compensated for his bonding capacity. In light of the above, the District Court did not err in concluding that no consideration existed for the 1981 personal service contract and b r a s therefore void as a matter of law. Tindall also argues that the District Court erred because it did not make a finding regarding one of ~indall's witness's testimony. The District Court does not need to address specifically each piece of Tindall's evidence. All that is required is that the District Court set forth adequate findings and conclusions so that this Court does not have to speculate as to the reasons for the District Court's decision. In re Marriage of Jones (1980), 190 Mont. 221, 224, 620 P.2d 850, 851-52. The District Court therefore did not err merely because it did not make a specific finding regarding one of Tindall's witness's testimony. The second and third issues raised on appeal are whether the District Court erred in concluding that Tindall relied upon "forbearance to sue'' as consideration for the personal service contract and whether the District Court erred in finding that Konitz agreed to the personal service contract under duress. This Court does not need to address these issues because we have already affirmed above the District Court's conclusion that the personal service contract was void for lack of consideration. The fourth issue raised on appeal is whether the District Court erred in determining that the counterclaim should not be tried separately. Rule 42, M.R.Civ.P., governing whether a district court should consolidate or separate trials, provides a court with broad discretion in the handling of trial procedures. State ex r e . , Fitzgerald v. Dist. Court of the Eighth Judicial Dist. (1985), 217 Mont. 106, 116, 703 P.2d 148, 155. This rule provides in pertinent part that [tlhe court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues. Rule 42 (b) , M.R.Civ.P. In the absence of prejudice to the parties, this Court recognizes the policy that "[mlultiple trials and appeals arising from a single dispute may create a severe burden in terms of increased costs to litigants, delay in resolution of the controversy, and court congestion. " Fitzgerald, 217 Mont. at 117, 703 P.2d at 155 (quoting Standard Insurance Co. v. Sturdevant (1977) , 173 Mont. 23, 28, 566 P.2d 52, 55). In the present case, Tindall argues that the court confused the facts associated with his complaint with the facts associated with Konitz's counterclaim. Tindall then argues that he was prejudiced because this "confusion" resulted in the court finding that the personal service contract was void because Konitz signed it under duress. We disagree. As already discussed above, the contract was void for lack of consideration. Tindall therefore was not prejudiced as a result of the court also finding that the contract was void because of Konitz signing it under duress. In addition, the facts surrounding the personal service contract and the facts surrounding the bases of Konitz's counterclaim are sufficiently intertwined. The District Court therefore did not err in denying Tindall's motion to separate trials. The next issue raised on appeal is whether the District. Court erred in concluding that Tindall intentionally interfered with a business relationship between Konitz and a third-party, Morgenstern. In Conclusion of Law No. 4, the District Court concluded that TindaII unlawfully interfered with Konitz's and Morgenstern's gravel contract. In particular, the court found that Konitz and Morgenstern had an agreement that Konitz would purchase from Morgenstern 3,000 tons of gravel. Although Tindall owned the gravel pit, Morgenstern leased the pit from Tindall and paid royalties to Tindall on the gravel he sold. Morgenstern primarily used the gravel for himself but also sold gravel to the public. The court found that Tindall interfered with Konitz's and Morgenstern's contract when he directed Morgenstern not to sell the gravel to Konitz. As a result, Morgenstern did not sell the gravel to Konitz and Konitz was forced to go elsewhere and pay $7,500 more. The four elements required to establish the tort of interference with a contract are that the defendant's acts (1) were intentional; (2) were calculated to cause damage to the plaintiff in his or her business; (3) were done with the unlawful purpose of causing damage or loss, without right or justifiable cause on the part of the actor; and (4) actually resulted in damage and loss to the plaintiff. Northwestern Nat'l Bank of Great Falls v. Weaver-Maxwell, Inc. (1986), 224 Mont. 33, 40-41, 729 P.2d 1258, 1262; Bolz v. Myers (1982), 200 Mont. 286, 295, 651 P.2d 606, 611. In light of the District Court's findings of fact, all four of these elements were met in the present case. The court found that Tindall intentionally contacted Morgenstern so as to prevent Morgenstern from selling gravel that Konitz had already contracted to purchase. The court also found that Tindall was angry at Konitz for refusing to abide by the personal service contract and therefore engaged in a number of retaliatory actions, including interfering with the gravel contract between Morgenstern and Konitz. Tindall did not have the right to interfere with a third-party contract merely because he owned the gravel pit that Morqenstern was leasing. If Tindall did not receive royalties as a result of Morgenstern's contract with Konitz, he would then have had the right to bring a complaint against Morgenstern. Furthermore, Tindall's suspicions or beliefs about Konitz also did not give Tindall the right to interfere with a contract between Konitz and Morgenstern. Obviously, Tindall's actions were intentionally calculated to cause damage to Konitz's business and were done without a justifiable cause. Konitz thus had to purchase gravel elsewhere to fulfill his obligations. Konitz had to pay $7,500 more than if he would have been allowed to purchase the gravel from Morgenstern. Konitz thus suffered actual damage in the amount of $7,500. The record supports the District Court's findings and conclusions and we therefore hold that the court did not err in determining that Tindall tortiously interfered with a contract between Konitz and Morgenstern. The sixth issue raised on appeal is whether the District Court erred in concluding that the November 19 letter from Tindall was libelous per se. - In its Conclusion of Law No. 5, the District Court concluded that the November 19, 1984 letter from Tindall was libelous and slanderous per - se. The court also concluded that the letter, which was published to Morgenstern, was sent with the purpose of destroying a lawful business rel-ationship between Konitz and Morgenstern. The letter states Dear Jack, Due to Konitzs' [sic] dishonest activites [sic] with me and defaulting on Contracts I am advising you that I will not allow any of his equipment, men, or any of his associates to be on my property from this day November 19, 1984 forward. Also you will not deliver or have delivered, or be active in any activities in furnishing any materials to Konitz on any of his jobs in this area from this day forward. I just ordered his equipment off my property a few minutes ago, and that is the way it will be from this day forward. The only way this situation will be changed is by your communication from you to me receiving a document in writing, giving me full detail of the conditions and activities that may take place and etc. Sincerely, Francis Tindall Slanderous words are spoken words, whereas libelous words are written. Therefore, the letter cannot by definition be slanderous - per - se, however, this Court must nonetheless determine whether the District Court erred when it determined that the letter was libelous per se. -- Libel is defined in our statutes under S 27-1-802, MCA, a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy or which causes him to be shunned or avoided or which has a tendency to injure him in his occupation. This Court considers several interpretative rules when determining whether words are libelous per se. These rules - - require that the defamatory words be construed according to their usual, popular and natural meaning and their common acceptance in society; the words must also be viewed by the court without the aid of special knowledge possessed by the parties concerned; the words must be susceptible of only one meaning and that meaning must be opprobrious; and the words must also be construed in their entirety and with reference to the entire document. Wainman v. Bowler (1978), 176 Mont. 91, 94, 576 P.2d 268, 270. When interpreting the libel statute, this Court has also stated that if the alleged libelous words impute dishonesty or corruption they are libelous per - se. Manley v. Harer (1925), 73 Mont. 253, 260, 235 P. 757, 759. In the present case, Tindall's letter stated explicitly that Konitz had conducted dishonest activities with him and had defaulted on contracts. In light of the letter as a whole, and the business context in which it was addressed, the District Court did not err in concluding that Tindall's November 19, 1984 letter to Morgenstern was libelous per se. -- The next issue raised on appeal is whether the District Court erred in concluding that Tindall is liable for punitive damages. In the District Court's October 17, 1988 order, the court found that Tindall's actions were malicious and that as a result he should be subjected to punitive damages. However, the court also concluded that a hearing should he held on the assessment of punitive damages. The court subsequently held a hearing, and on May 12, 1989, the District Court ordered Tindall to pay $8,500 in punitive damages. The statutes that govern the granting of punitive damages are 5s 27-1-220 and -221, MCA. Section 27-1-220(1), MCA, allows a judge or jury to award punitive damages for the purpose of punishing a defendant. Section 27-1-221(1), MCA, states that "reasonable punitive damages may be awarded where the defendant has been guilty of actual fraud or actual malice. It The statute also specifies that when awarding punitive damages the judge must clearly state the reasons for making the award in the findings of fact and conclusions of law. In particular, the findings and conclusions must demonstrate a consideration of each of the following matters: (i) the nature and reprehensibility of the defendant's wrongdoing; (ii) the extent of the defendant's wrongdoing; (iii) the intent of the defendant in committing the wrong; (iv) the profitability of the defendant's wrongdoing, if applicable; (v) the amount of actual damages awarded by the jury; (vi) the defendant's net worth; (vii) previous awards of punitive or exemplary damages against the defendant based upon the same wrongful act; (viii) potential or prior criminal sanctions against the defendant based upon the same wrongful act; and (ix) any other circumstances which may operate to increase or reduce, without- wholly defeating, punitive damages. Section 27-1-221 (7) (b) , MCA. In its findings of fact and conclusions of law regarding punitive damages, the District Court addressed each of these issues. The court found that Tindall acted with malice; that Konitz's actual damage was $7,500; that Tindall's net worth was $330,000; that no evidence existed of any previous wrongdoing by Tindall; and that Tindall would reap financial gain through his actions. When addressing the nature, reprehensibility, and extent of Tindall's wrongdoing, the court stated the following: 3. That Francis M. Tindall is guilty of menace and duress, maliciously imposed upon Thomas Konitz in the execution of the Personal Service Contract; that Francis M. Tindall published a letter with the purpose of destroying a lawful business arrangement between Thomas Konitz and Jack Morgenstern, which let'ter was libelous and slanderous per se and Thomas Konitz is entitled to punitive damages as follows: a. That Francis M. Tindall wrongfully used his "clout" which fully amounted to duress to force Thomas Konitz to sign the Personal Service Contract of November 16, 1981; that said action by Francis M. Tindall was reprehensible; that Francis M. Tindall had the ability to carry out the threats made to Thomas Konitz to ruin the business of Thomas Konitz; that Francis M. Tindall attempted to carry out those threats, which the publication of the libelous letter of November 19, 1984 was but one example. c. That the actions of Francis M. Tindall were in part to frighten Thomas Konitz and force him to sign the Personal Service Contract in order for Tindall to reap financial gains. d. That the actions of Francis M. Tindall were intentional. The record supports these findings and therefore the District Court did not err in determining that Tindall should pay $8,500 in punitive damages. The last issue raised on appeal is whether the District Court erred in refusing to hear testimony regarding excessive drinking by Konitz at the time he signed the personal service contract. The personal service contract was void for lack of consideration. We therefore do not need to address Konitz's mental state at the time he signed the contract. Affirmed. We concur: J A, v i e f Justice	December 20, 1989
de1ca8ff-b19e-4968-a076-9401d41557a6	STATE v OTTWELL	N/A	89-428	Montana	Montana Supreme Court	No. 8 9 - 4 2 8 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 STATE OF MONTANA, p l a i n t i f f and R e s p o n d e n t , -vs- TONI LEA OTTWELL, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: 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 , I n and for t h e C o u n t y of L e w i s & C l a r k , T h e H o n o r a b l e J e f f r e y Sherlock, Judge p r e s i d i n g . COUNSEL OF RECORD: For A p p e l l a n t : M i c h a e l D o n a h o e , H e l e n a , M o n t a n a For R e s p o n d e n t : H o n . M a r c R a c i c o t , 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 J a m e s Y e l l o w t a i l , A s s t . A t t y . G e n e r a l , H e l e n a M i k e M c G r a t h , C o u n t y A t t o r n e y ; C a r o l y n C l e m e n s , D e p u t y , H e l e n a , M o n t a n a F i l e d : S u b m i t t e d on B r i e f s : N o v . 2 , 1 9 8 9 D e c i d e d : D e c e m b e r 2 2 , 1 9 8 9 Chief ~ustice J. A. Turnage delivered the opinion of the Court. Toni Lea Ottwell appeals the decision of the First Judicial ~istrict Court, Lewis and Clark County, revoking the appellant's ten-year suspended sentence after her flight from parole. We affirm. The appellant raises the single issue of whether the District Court erred in failing to hold that her flight from parole was justified under the necessity doctrine when the appellant alleged that her foster parent coerced her into a sexual relationship. In December of 1987, Ottwell escaped from the Mountain View School girls correctional facility near Helena, Montana. When school officials attempted to return Ottwell to the school, she threatened them with a handgun. Ottwell was convicted of felony assault and given a ten-year suspended sentence. See State v. Ottwell (Mont. 1989), 779 P.2d 500, 46 St.Rep. 1580 (upholding Ottwell's felony assault conviction). The District Court placed a number of conditions on Ottwell's suspended sentence including ten years probation, psychological therapy, a period of intensive supervision, placement in a Billings, Montana, foster home, continued high school education, and general compliance with the laws. Initially, Ottwell conformed to these conditions and her supervision was gradually relaxed until she was allowed to move out of the foster home. In March of 1989, probation officers discovered that Ottwell had absconded from her Billings residence; she had been arrested in Oakland, California, for prostitution. On her return to Montana, the District Court revoked the suspended sentence and sentenced Ottwell to the Women's Correc- tional Facility with the recommendation that she be transferred to the Life Skills Center in Billings, Montana. The sentencing judge is authorized in his discretion to revoke a suspended sentence. Section 46-18-203 (I), MCA. In reviewing the use of that discretion, the standard is whether the record contains substantial, credible evidence supporting the sentencing court's decision. State v. Lange (Mont. 1989), 775 P.2d 213, 215, 46 St.Rep. 991, 994. In this case, the record contains considerable uncontested evidence that Ottwell violated her probation conditions. She left her Billings residence for Oakland without permission from her probation officer. She failed to remain in school. She failed to comply with the law by soliciting prostitution in California. Ottwell argues that, even in light of this evidence, the District Court should not have revoked her suspended sentence because she absconded from Billings out of necessity. Ottwell alleges that while in the foster home, the male guardian coerced her into a sexual relationship which continued after she moved into her own residence. She contends that had she not complied with his demands, the guardian would have forced her return to jail. The parties apparently disagree on what defense the appellant is raising. Ottwell calls it necessity and relies on the common law rather than the Montana statutes. The State counters that the alleged defense is that of compulsion, as recognized in Montana law under section 45-2-212, MCA. Some disagreement over the proper analysis is not surprising considering the present state of this area of Montana law. As with other jurisdictions, Montana has referred to this type of defense by a variety of names. Section 45-2-212, MCA c compulsion^^) ; State v. Pease (Mont. 1988), 758 P.2d 764, 768, 45 St.Rep. 1296, 1300 ("necessity, 'I "duress, 'I and l'compulsion'l) , cert . den. 109 S . Ct . 845 (1989) ; State v. Strandberg (1986), 223 Mont. 132, 135, 724 P.2d 710, 712 (ttjustificationll); State v. Owens (1979), 182 Mont. 338, 347, 597 P. 2d 72, 77 (ttcompulsionll) ; State v. Stuit (1978) , 176 Mont. 84, 88, 576 P.2d 264, 266 ("justificationw and "necessity1'). In two cases, this Court relied on the common law defense. Strandberq, 223 Mont. at 135, 724 P.2d at 712-13; Stuit, 176 Mont. at 88, 576 P.2d at 266. In another case, we applied the compulsion statute. Owens, 182 Mont. at 347, 597 P.2d at 77. In the most recent case we used both. Pease, 758 P.2d at 768, 45 St.Rep. at 1300. Traditionally, courts recognized necessity as one of only two defenses of this type, the other being duress. Both types excused criminal conduct when the defendant acted under the threat of imminent death or serious bodily harm to himself or another. Duress applied when the threat was from another human being. Necessity applied when the threat was from physical forces. United States v. Bailey (1980), 444 U.S. 394, 409-10, 100 S.Ct. 624, 634, 62 L.Ed.2d 575, 590; see also 1 W. LaFave & A. Scott, Jr., Substantive Criminal Law, 5 5 5.3 (a) and 5.4 (a) . Thus, duress could be a defense to bank robbery for a taxi driver who drove the robber to the bank with a gun pointed at his head. People v. Merhige (Mich. 1920), 180 N.W. 418, 422. Necessity could be a defense to prison escape when the prison was on fire. People v. Whipple (Cal.App. 1929), 279 P. 1008, 1009. The necessity defense has also been characterized by situa- tions in which the defendant faced a choice between two evils. In this type of case, defendants argued that they were justified in breaking the law to prevent a greater harm than the law was intended to cure. Thus, in one case, the defendants claimed necessity as a defense to charges of smuggling Laetrile into the United States to treat cancer patients. United States v. Richard- son (9th Cir. 1978), 588 F.2d 1235, 1239, cert. den. 440 U.S. 947, 99 S.Ct. 636. In another, a defendant who felt a moral obligation to frustrate United States military efforts in Southeast Asia claimed necessity as a defense to charges of burning Selective Service System records. United States v. Simpson (9th Cir. 1972), 460 F.2d 515, 517-18. Modern cases and statutes tend to abandon all distinctions characterizing necessity, duress, and other similar defenses. See Bailey, 444 U.S. at 410, 100 S.Ct. at 634, 62 L.Ed.2d at 590. Montana's compulsion statute follows this trend. A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or serious bodily harm if he reasonably believes that death or serious bodily harm will be inflicted upon him if he does not perform such conduct. Section 45-2-212, MCA. The statute contains no distinctions based on compulsion by human beings, compulsion by natural forces, or by choices between lesser evils. It brings together all of the related defenses, by whatever name called, under a single codification. One apparent exception to the statutory amalgamation is still found in Montana criminal case law. When dealing with prisoners charged with escape, this Court has not applied the compulsion statute. Instead, we have relied on a more appropriate version of the necessity doctrine derived from the California case of People v. Lovercamp (1974), 43 Cal.App.3d 823, 118 Cal.Rep. 110. In State v. Stuit we approved jury instructions derived from Lovercamp and held that justification is an affirmative defense which the defendant must prove by a preponderance of the evidence. Stuit, 176 Mont. at 89, 576 P.2d at 267. Most recently, in State v. Strandberg, we restated the essential elements of a necessity-of- escape defense: 1) The defendant was faced with a specific threat of death, or substantial bodily injury in the immediate future. 2) There is no time for a complaint to the authorities or there exists a history of futile complaints which makes any result from such complaints illusory. 3) There is not time or opportunity to resort to the courts. 4) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat. Strandberq, 223 Mont. at 135, 724 P.2d at 712-13. To justify an escape under these elements, the defendant must Inestablish by a preponderance of the evidence that escape is objectively the only viable and reasonable choice available under the circumstance^.^^ Strandberq, 223 Mont. at 135, 724 P.2d at 713. (Emphasis deleted.) The courts have long recognized that necessity may excuse escape from a prison when warranted by appropriate circumstances. 1 Hale, Pleas of the Crown 611 (1778). In the classic statement of the doctrine, when a prisoner flees a fire, "he is not to be hanged because he would not stay to be burnt." United States v. Kirby (1868), 7 Wall. 482, 487, 19 L.Ed. 278, 280. Use of the necessity defense in this context is now universally accepted. Bailey, 444 U.S. at 425, 100 S.Ct. at 642, 62 L.Ed.2d at 600 (J. Blackmun dissenting); see also, Annotation, Duress, Necessity, or Conditions of Confinement as Justification for Escape from Prison, 69 A.L.R.3d 678 (1976 & 1989 Supp.). In Montana, necessity as a defense to prison escapes overlaps significantly with the compulsion statute. The elements of the statute are: (1) [The defendant] was compelled to perform the offensive conduct (2) by the threat or menace (3) of the imminent infliction (4) of death or serious bodily harm, and that (5) he believed that death or serious bodily harm would be inflicted upon him if he did not perform such conduct, and (6) his belief was reasonable. Owens, 182 Mont. at 347, 597 P.2d at 77. (Emphasis deleted.) Neither distinguishes between natural or human causes. Both impose an objective standard and define the harm faced as death or serious bodily injury. The futility of complaints and resort to the courts required by Strandberq go to the statutory requirement that the defendant was compelled to act and that the resulting actions were objectively reasonable. Under both, the threatened harm must occur imminently or in the immediate future. The statutory and common law defenses differ most markedly in that Strandberg requires the defendant to report immediately to the proper authorities. This is a reasonable additional requirement for prison escapes. An analogous requirement in cases brought under the compulsion statute may be imposed in appropriate circumstances by the legal duty to report a felony. See section 45-7-305, MCA. We conclude that the compulsion statute and necessity doctrine of Strandberq do not provide mutually exclusive defenses; they are complimentary. Strandberq is merely an application of the compul- sion statute tailored to the circumstances of prison escapes. When dealing with prison escapes, therefore, Strandberq provides the appropriate analysis. The Strandberq elements are also appropriate in the present case; as the appellant argues, absconding from parole is analogous to prison escape. In the context of this review, the question is whether the record contains substantial, credible evidence to establish the elements of the necessity defense by a preponderance. We hold that it does not. The first element requires that the defendant be faced with a specific threat of death, or substantial bodily injury in the immediate future. Many courts have considered the defense of necessity when the defendant faced sexual abuse. Most often the defendants faced choices between homosexual rape or severe beatings and possible death. See e.g., lover cam^, 43 Cal.App.3d at 825, 118 Cal.Rep. at 111; People v. Unger (Ill. App. 1975), 338 N.E.2d 442, 443; 69 A.L.R.3d 678, 5 8, supra. Ottwell presented uncontested evidence of a coerced sexual relationship. We need not determine whether that evidence was sufficient to satisfy this element of the necessity defense because Ottwell failed to present any evidence to support the remaining elements. Ottwell failed to report the alleged sexual coercion even though she had ample opportunity to do so. According to the evidence, she developed a close relationship with her parole officer. On numerous occasions they discussed her home life, including Ottwellls life with her foster parents. The appellant admits that she never told her parole officer of sexual harassment. She did not report it to the police, the courts, or anyone else. Ottwell also failed to report to the proper authorities once she escaped but instead was arrested for prostitution. Even then, the appellant apparently did not explain her flight by telling Oakland police about the alleged sexual relationship. If the alleged sexual coercion occurred, Ottwell passed up numerous opportunities to remedy the situation short of violating parole. We hold the record contains sufficient evidence to reject the appellant's necessity defense and to uphold revocation of her suspended sentence. Affirmed. Chief Justice We concur: M228d / Justices Justice John C. Sheehy, dissenting: I am unwilling to sign an opinion which holds that uncontested evidence of a coerced sexual relationship, without more, is not sufficient to justify a parolee to escape the situation.	December 22, 1989
0ef34555-27fe-4463-a639-5449cab8b8df	MONT ASSOC OF CREDIT MANAGEMENT v	N/A	14202	Montana	Montana Supreme Court	No. 14202 IN THE SUPREME C O W OF TIE STATE OF MINTANA 1979 bKlIWANA ASSOCIATION OF CREDIT - , a corporation, Plaintiff and Respondent, -vs- HERGEIiT et a l . , Defendants and Appellants. Appeal f r c a n : District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of W r d : For Appellants: Gary Wilcox argued, Billings, MDntana For Respondent: Fred Dugan argued, Billings, Mntana submitted: m c h 22, 1979 Decided: APR 26 1979 Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Defendant appeals from a judgment rendered by the Dis- trict Court, Yellowstone County, sitting without a jury, that plaintiff may proceed to levy execution against certain mining equipment, title to which the court concluded was held by de- fendant Elmer Hergert as involuntary trustee for Montana Mining and Development Company, now defunct, a corporation of which Hergert was a director. In the fall of 1973, one James M . "Mike" Morgan and several investors, including defendant-appellant, Elmer Hergert, joined together for the purpose of forming a mining venture. Morgan owned a lease on mining property near Virginia City, Mon- tana. The lease and the actual working of the mine were to be Morgan's contribution to the venture, while the other parties were to invest capital. Appellant Hergert contributed a total of $30,000; a check for $15,000 on October 31, 1973, and another check for the same amount two and one-half months later on Jan- uary 14, 1974. The other investors contributed much smaller sums. The initial structure of the venture was such that each investor received for his investment a percentage interest in the lease owned by Mike Morgan. On November 1, 1973, Morgan used some of the invested capital to make a $5,000 down payment on a piece of equipment known as a trornmel, or washing plant, for use in the mining oper- ation. The remaining balance on the trommel was to be paid in two major installments, with a $6,000 payment due in 60 days and the remaining balance of $11,000 due in late spring of 1974. In February 1974 the mining venture was incorporated as "Montana Mining & Development Co." A bank account was opened in the corporate name, into which the invested funds were de- posited. No formalities of incorporation other than the filing of articles, however, were ever complied with; no bylaws were adopted, no meetings held, no stock certificates issued. ~ppel- lant Hergert's name appeared in the articles of incorporation as a director of the corporation, but he never performed any functions in that capacity or received any salary or dividends. The actual operation of the mine was conducted by Mike Morgan and his father. It was they who purchased the mining equipment and incurred the expenses of the venture, and only they were authorized to write checks on the corporation's ac- count. No transfer to the corporation of the lease owned by Mike Morgan, and supposedly divided into percentages among the investors, was ever made. A meeting of the investors in the venture was held on November 14, 1974. The meeting revealed that the Morgans had been less than efficient in operating the mine. They had accumu- lated substantial past due indebtedness and had failed to make the payments on the trommel. The trommel was to be repossessed the next day. To avoid this eventuality, it was agreed that appel- lant Hergert would obtain a loan and pay off the balance on the trommel. Hergert contacted his banker and was informed that he could borrow the necessary funds only if title to the trommel would be in his individual name. The loan was made and appellant paid the balance due on the trommel of $12,000 plus $682 interest, receiving in return a bill of sale reflecting that he was its in- dividual owner. The original purchase price of the trommel was $22,000. At the time Hergert took title in his individual name, $9,940 had been paid towards that purchase price; $5,000 by Mike Morgan on November 1, 1973 (prior to incorporation) from the funds invested by Hergert, and $3,500 in cash and $1,440 in gold by the corporation during the year 1974. Among the obligations incurred by Morgan in the operation of the mine was one for the purchase of equipment from Tri-State Equipment, Inc. This was a matured obligation, due and payable, at the time "ownership" of the trommel was assumed by Hergert. When Montana Mining and Development Co. failed to meet this obli- gation, the account was assigned for collection to respondent, Montana Association of Credit Management. A complaint demand- ing judgment on the account in the sum of $4,494.47 was filed in the District Court on March 11, 1975. Judgment by default was entered in favor of Montana Association of Credit Management on April 9, 1975, for $4,583.28, the amount due plus interest. To satisfy the default judgment, Montana Association of Credit Management attempted under a writ of execution to attach the property of Montana Mining and Development Company. The min- ing company was insolvent and the only piece of equipment of any significant value used in its operations was the trommel. When respondent served notice of attachment under execution on the trommel, however, Hergert denied that the insolvent corporation had any interest in it. He maintained that the bill of sale issued to him in his individual name when he had paid off the balance due on the trommel was conclusive that it was not an asset of the corporation and could not be attached to satisfy the corporate debts. On December 30, 1976, a complaint was filed in the District Court, Yellowstone County, by respondent Montana Association of Credit Management in an attempt to free the trommel for attach- ment. The complaint named both the corporation and Elmer Hergert, individually and as involuntary trustee for the corporation, as defendants. It was framed as two "claims", predicated on two separate although interrelated theories. The first "claim" alleged that the other investors had agreed that Hergert was to take title to the trommel in the name of the corporation, or in his own name in trust for the corpor- ation, but not individually. Thus, it was argued, Hergert was in violation of his fiduciary duty as a director in denying any interest of the corporation in the trommel. The second "claim" alleged that the transfer to Hergert of the title to the trommel "rendered the Defendant corporation insolvent, was given without adequate or fair consideration, and in bad faith with respect to the Defendant corporation on the part of the Defendant Hergert." No statutory authority was cited in the complaint, but the language quoted from the second claim is taken from section 29-104, R.C.M. 1947, now section 31-2-311 MCA, of the Uniform Fraudulent Conveyance Act (UFCA). The single prayer for relief encompassing the two "claims" requested, in pertinent part: "1. That the Defendant, Montana Mining & Development Co., be adjudged to be the owner of and entitled to possession of the [trommel] . . . "2. That the Defendant, Elmer Hergert, be declared to hold the same in trust for said Defendant. "3. That it be adjudicated herein that Plaintiff holds a valid lien by attachment upon said property. "4. That the Defendant, Elmer Hergert, be required to execute a proper instrument of transfer of the legal title to said property to the Defendant corporation, and that both Defen- dants be required to surrender possession of said property to the Sheriff of the County of Madison, State of Montana, subject to Writ of Execution levy and sale . . ." On March 1, 1977, Hergert filed an answer to the complaint, specifically denying the allegations and praying that it be dis- missed. No responsive pleading was ever filed on behalf of the corporation and default was entered against it. Trial of the claims against Hergert was had on August 16, 1977 before Judge Charles Luedke. Extensive findings of fact and conclusions of law were subsequently entered concluding, in summary, that the transfer of the trommel to Hergert by the corporation was voidable with respect to plaintiff because it was made without fair consideration at a time when the corpor- ation was insolvent and was therefore in bad faith as to the creditors of the corporation as a matter of law. From the judgment subsequently entered ordering that plaintiff may pro- ceed to levy execution on the trommel, this appeal has been brought. We find this appeal to be entirely without merit. Be- cause there are several matters of some consequence raised by appellant which we discuss further below, we will not go so far as to say the appeal is frivolous. The simple fact is, however, that here an insolvent corporation transferred its only major asset to appellant for approximately half of the asset's value. Seen from another perspective, appellant took title in his own name to a piece of property in which the corporation had more than $9,000 equity and gave the corporation nothing for that equity. The result of the transaction was that the rights of creditors who had relied on the responsibility of the corpora- tion and its management in extending credit to them were in- fringed. This is clearly a proper case to disregard or set aside the conveyance as fraudulent under the UFCA. Because plaintiffts complaint stated one of its claims in terms of an involuntary trust arising in Hergert for violat- ing his fiduciary obligations as a director of the corporation, much of the argument in appellant's brief is directed to the applicability on these circumstances of section 86-210, R.C.M. 1947, now section 72-20-111 MCA, the statute concerning involun- tary trusts. It is clear from the District Court's findings and conclusions, however, that the case was decided on the basis of the Uniform Fraudulent Conveyance Act (UFCA) rather than on the involuntary trust theory. Therefore, appellant's arguments in this regard are superfluous and will not be rebutted herein. The issues we must address to properly resolve this appeal are as follows: 1 . Whether Montana Association of Credit Management was a proper party to the action. 2. Whether the attached property which is the subject of this suit was a corporate asset. 3. Whether there was sufficient evidence presented to support a finding of constructive fraud under the Uniform Frau- ulent Conveyance Act. 4. Whether the District Court was correct in its find- ing that less than fair consideration was paid for the trommel. Hergert argues that plaintiff was not a proper party to the action because it was not a creditor of the corporation but merely an assignee of Tri-State Equipment Company. The validity of the instrument by which Tri-State Equipment Company assigned its claim against Montana Mining & Development to plaintiff Company for collection was not questioned by appellant. All that is necessary to constitute a plaintiff the "real party in inter- est" within terms of a statute authorizing him to sue is that he be vested with legal title, and hence an assignee of a cause of action for collection may sue. Rae v . Cameron (1941), 112 Mont. 159, 114 P.2d 1060; Washington Water Power Co. v . Morgan Electric Co. (1968), 152 Mont. 126, 448 P.2d 683. The issue of whether the trommel was a corporate asset merely goes to the sufficiency of the evidence to support the court's finding to that effect. Hergert contends that the trom- me1 was not a corporate asset because it was purchased some three months prior to incorporation, with funds supplied by him. He further argues that the only evidence at trial that the trommel was a corporate asset was an unaudited balance sheet prepared by Mike Morgan and supported only by Morgan's self-serving testi- mony. Respondent rebuts these contentions by pointing out that Hergert's funds were invested in the venture, not in the trom- mel, and that substantial payments on the trommel were made after incorporation with funds drawn from the corporate bank account and with gold produced by the corporation utilizing the trommel in the corporate enterprise. "The standard of review in a nonjury case is simply to determine if there is substantial evidence to support the findings of the trial court. This Court will not reverse such findings of fact unless there is a clear preponderance of evidence against the findings." Hayden v . Snowden (1978), Mont . , 576 P.2d 1115, 1117, 35 St.Rep. 367, 369, citing Merritt v . Merritt (1974), 165 Mont. 172, 177, 526 P.2d 1375. " . . . the credibility and weight given to the witness, especially where the evidence is conflicting, is a matter for the District Court's determination in a nonjury case." Olson v. Carter (1977), Mont. , 572 P.2d 1238, 1240, 34 St.Rep. 1539, 1541, citing Miller v . Fox (1977), Mont . I 571 P.2d 804, 34 St.Rep. 1367. We find no error. The remaining two issues of whether there was sufficient evidence to support a finding of constructive fraud under the UFCA and whether the District Court correctly found that Hergert had not paid fair consideration for the trommel are interrelated and will be addressed together. Prefatorily, we note that appel- lant's arguments, both in his brief and during oral presentation, relied on a line of authority represented by Polk v. Polk (1972), 210 Kan. 107, 499 P.2d 1142, for the proposition that construc- tive fraud can only be found where certain "badges of fraud", such as intent to hinder, delay, or defraud creditors, or cooper- ation between a grantor and grantee to that end, are present. Polk did not arise under the UFCA and has no bearing on this case. The UFCA declares certain conveyances to be fraudulent regardless of the presence or absence of any actual intent to defraud. 37 Am Jur 2d Fraudulent Conveyances S3. Montana has adopted the UFCA as Title 29, Chapter 1, R.C.M. 1947, now Title 31, Chapter 2, Part 3, MCA. Section 29- 104, R.C.M. 1947, now section 31-2-311 MCA, provides: "Every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the con- veyance is made or the obligation is incurred without a fair consideration." It is beyond dispute that a corporation is a "person" within the meaning of the UFCA. See Vol. 7A Uniform Laws Annotated, Fraudulent Conveyance Act 54 Note 32. Thus, the only questions the District Court faced in reaching its conclusion here were whether Montana Mining & Development Company was in- solvent at the time Hergert took title to the trommel in his own name or was rendered insolvent thereby, and whether the con- veyance to Hergert was made without fair consideration. In a trial memorandum submitted to the District Court in conjunction with this action, Hergert admits that the corporation was insolvent at the time he "purchased" the trommel. Trial Memorandum of Elmer Hergert, p . 6, line 6-7. There is therefore no issue as to sufficiency of the evidence in that regard. As to the issue of fair consideration, the UFCA provides: "Fair consideration is given for property, or obligation, "(a) When in exchange for such property, or obli- gation, as a fair equivalent therefore, and in good faith, property is conveyed or an antecedent debt is satisfied, or "(b) When such property, or obligation is received in good faith to secure a present advance or antecedent debt in amount not disproportionately small as compared with the value of the property or obligation obtained." Section 29-103, R . C . M . 1947, now section 31-2-303 MCA. Hergert directs our attention to White v. Nollmeyer (1968), 151 Mont. 387, 443 P.2d 873, where we said that the test to be applied to determine fair consideration for purposes of the UFCA is "whether the disparity between the true value of the property transferred and the price paid is so great as to shock the conscience and strike the understanding at once with the conviction that such transfer never could have been made in good faith." Nollmeyer, 151 Mont. at 406, 443 P.2d at 883. This language in Nollmeyer is taken from Hart-Parr Co. v . Schafer (1925), 73 Mont. 429, 236 P. 675, and applies to the phrase "adequate consideration" in relation to an alleged fraudulent conveyance under the law in existence prior to enactment of the UFCA. It sets a much more stringent standard for finding a lack of fair consideration under the UFCA than do the authorities generally, and we hereby repudiate it. Under the UFCA: "What is 'fair consideration' must, of course be determined on the facts and circumstances of each particular case, and the question must be determined from the standpoint of creditors. A 'fair consideration' may be defined generally as one which fairly represents the value of the property transferred, and as against creditors, a consideration that is merely good and valuable will not support a conveyance which will render the grantor insolvent. In general, the test of what constitutes a fair consideration would seem to be whether or not the conveyance renders the debtor execution proof . . . It is also essential that the consideration be not only fair, but that it pass into insolvent's estate." 37 C . J . S . Fraudulent Conveyances S140. Applying these standards to the circumstances present here, it is apparent to us that the District Court was correct in its conclusion that Hergert did not give fair consideration when he assumed ownership of the trommel in his own name. In order to determine fair consideration, however, "the value of the property on the date of the transfer is the critical date against which the validity of the transfer must be tested." 37 Am Jur 2d Fraudulent Conveyances S18. The District Court's find- ings in this case did not include a specific finding of the value of the trommel on the date Hergert assumed ownership. Respondent contends that even in the absence of such a specific finding, the surrounding circumstances were sufficient to support the conclusion that less than fair consideration was paid be- cause at the time Hergert paid $12,000 and took title to the trommel in his own name, only a year had passed from the time its original purchase price was set at $22,000. Hergert, on the other hand, argues that without a specific finding of the value of the trommel on the date of the transfer to him, the court had no basis to determine whether or not the consideration paid was "fair". He contends that the District Court's failure to make such a specific finding requires reversal, and cites Bailey v . Leeper (1956), 142 Cal.App.2d 460, 298 P.2d 684, in support of that contention. Hergert has misconstrued Bailey; the case stands for just the opposite principle. In a suit to set aside a fraud- ulent conveyance, where the disparity between value received and obligations assumed is so great that the trial court would and should have made the same decision, failure to make a specific finding of the value of the property transferred as of the date of the transfer is not reversible error. Bailey v . Leeper, supra. We hold that the circumstances present here fall within this rule. Section 29-109, R . C . M . 1947, now section 31-2-321 MCA, provides in pertinent part: "(1) Where a conveyance or obligation is fraud- ulent as to a creditor, such creditor, when his claim has matured, may as against any person ex- cept a purchaser for fair consideration without knowledge of the fraud at the time of the purchase or one who has derived title immediately or med- iately from such a purchaser: "(a) have the conveyance set aside or obligation annulled to the extent necessary to satisfy his claim; or "(b) disregard the conveyance and attach or levy execution upon the property conveyed." The judgment entered here by the District Court ordered that plaintiff may proceed to levy execution against the trommel. This is a remedy clearly within paragraph (1) (b) above. The District Court has properly applied the UFCA in all respects. The judgment appealed from is affirmed. Chief Justice We concur:	April 25, 1979
0342c137-d8a4-4da6-8ba7-c9f8fe628b7e	DIEHL ASSOCIATES v HOUTCHENS	N/A	14369	Montana	Montana Supreme Court	No. 14369 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 DIEHL AND ASSOCIATES, INC., et al., Plaintiff and Appellant, -vs- L. R. HOUTCHENS, Defendant and Respondent. Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Kline and Niklas, Helena, Montana John R. Kline argued, Helena, Montana For Respondent : Smith and Harper, Helena, Montana Jack Harper argued, Helena, Montana Submitted: December 14, 1978 Decided: JAN 11 1979 Filed: JAN f 1 I ! : - : M r . J u s t i c e Gene B. Daly delivered t h e Opinion of the Court. This i s the second time t h i s case has been before t h i s Court. Diehl and Associates (Diehl) f i r s t f i l e d t h i s action on July 3, 1975, i n the D i s t r i c t Court, Lewis and Clark County, t o recover r e a l e s t a t e broker's commissions of $5,450 f o r procuring purchasers f o r two separate parcels of r e a l property owned by defendant. Diehl, i n addition, sought t o recover i t s attorney fees and costs. Houtchens f i l e d an answer and counterclaimed seeking a $500 earnest money deposit made by one of the above-referenced purchasers plus attorney f e e s and costs. The p a r t i e s subsequently stipulated t h a t the D i s t r i c t Court could render a decision on the basis of the record. O n August 13, 1976, the D i s t r i c t Court entered its findings and conclusions i n favor of Diehl and on August 19, 1976, entered judgment f o r $5,450 plus $400 i n attorney fees. Houtchens t h e r e a f t e r appealed t o t h i s Court s t a t i n g i n the conclusion of h i s brief: "We respectfully submit the judgment of the lower court should be reversed and s e t aside and the lower Court directed t o enter judg- ment i n favor of Defendant together with c o s t s and attorney fees." (Emphasis added.) This Court reversed the judgment and remanded the cause t o the D i s t r i c t Court by decision dated August 8, 1977. Diehl and Associates, Inc. v. Houtchens (1977), Mont. , 567 P.2d 930, 34 St.Rep. 814. Specifically, the l a s t two paragraphs of our previous decision read: "Therefore, w e remand t h i s matter t o the d i s t r i c t court f o r determination of any 'agents incurred expense r e l a t e d t o t h i s s a l e ' , the balance of the deposit t o be equally apportioned between p l a i n t i f f and defendant. "The judgment of t h e d i s t r i c t c o u r t is re- versed and t h e cause is remanded t o t h e -- d i s t r i c t c o u r t f o r f u r t h e r consideration c o n s i s t e n t with -- t h i s opinion." (Emphasis added. ) O n September 12, 1977, Houtchens moved t h e D i s t r i c t Court t o hold a hearing to: "1. Determine any agents incurred expense r e l a t e d t o t h e s a l e i n accordance with t h e d e c i s i o n of t h e Montana Supreme Court herein; and "2. Fix reasonable a t t o r n e y s f e e s f o r t h e s e r v i c e s of defendants a t t o r n e y h e r e i n pursuant t o Section 93-8601.1, R.C.M. 1947 and Flaherty v. Hensley, 165 Mont. 434." On March 21, 1978, Diehl moved t h e D i s t r i c t Court t o s t r i k e Houtchens' r e q u e s t f o r a t t o r n e y f e e s , s t a t i n g t h a t t h e r e q u e s t was o u t s i d e t h e scope of t h e Supreme C o u r t ' s decision. A hearing w a s held on t h e matter on A p r i l 4 , 1978, and t h e D i s t r i c t Court, over Diehl's o b j e c t i o n s , allowed Hout- chens t o produce evidence on t h e matter of h i s a t t o r n e y f e e s . This evidence c o n s i s t e d of testimony by Houtchens' a t t o r n e y t h a t he had worked on t h e c a s e 57 hours during t h e D i s t r i c t Court s t a g e and 20 hours during t h e appeal s t a g e ; t h a t h i s normal f e e was $40 per hour, and t h a t h i s agreement with Houtchens w a s a f l a t $1,000 f e e f o r t h e Supreme Court appeal. Houtchens a l s o c a l l e d Donald G a r r i t y , a Helena attorney. H e t e s t i f i e d t h a t $40 per hour and $1,000 f o r an appeal w e r e reasonable charges, t h a t it was h i s opinion t h a t t h e t i m e spent by each s i d e would be roughly comparable, and t h a t t h e $400 f e e o r i g i n a l l y awarded by t h e D i s t r i c t Court t o Diehl was reasonable. O n r e q u e s t of t h e c o u r t , Houtchens' a t t o r n e y subsequently submitted h i s t i m e records i n support of t h e 77 hours he claimed t o have s p e n t on t h e case p l u s an a d d i t i o n a l statement claiming 6-1/4 a d d i t i o n a l hours n o t previously claimed. O n May 30, 1978, t h e D i s t r i c t Court entered judgment f o r Houtchens f o r "the s u m of $250 a s and f o r h i s one-half share of the earnest money deposit together with the s u m of $3,986.75 a s and f o r h i s reasonable a t t o r n e y ' s fees t o date." Diehl appeals from the judgment insofar a s it awards attorney fees t o Houtchens. Houtchens now seeks t o be awarded attorney fees and costs i n connection with t h i s appeal. The issues presented f o r review by t h i s Court are: 1. Did the D i s t r i c t Court lack authority t o consider Houtchens' request f o r attorney fees? 2. I f the D i s t r i c t Court did have authority t o con- s i d e r attorney fees, were the attorney f e e s awarded exces- s i v e i n l i g h t of the evidence presented? Diehl f i l e d the o r i g i n a l action eventually leading t o t h i s appeal t o c o l l e c t broker's commission allegedly owed t o it by Houtchens. This action was based on a broker's con- t r a c t which included t h e following provision: "In case of s u i t o r action on t h i s contract, I [referring t o Houtchens] agree t o pay such additional sum a s the court, both t r i a l and appellate, may adjudge reasonable a s p l a i n t i f f ' s a t t o r - neys fees." Although Diehl o r i g i n a l l y prevailed on its action t o recover these broker's commissions a t the D i s t r i c t Court l e v e l , we reversed and remanded the cause t o the D i s t r i c t Court f o r "further consideration consistent w i t h t h i s opinion." Diehl and Associates, Inc. v, Houtchens (1977), Mont . , 567 P.2d 930, 936, 34 St.Rep. 814, 820. The e f f e c t of our ruling was t o make Houtchens, not Diehl, the prevailing party i n the action. Section 93-8601.1, R.C.M. 1947, s t a t e s : "Whenever by v i r t u e of the provisions of any contract . . . one party t o such contract o r obligation has an express r i g h t t o recover attorney f e e s from any other party t o t h e contract o r obligation i n the event t h e party having t h a t r i g h t s h a l l bring an action upon the contract o r obligation, then i n any action on such contract o r obligation a l l p a r t i e s t o t h e contract o r obligation s h a l l be deemed t o have the same r i g h t t o recover attorney fees, and the prevailing party i n any such action, whether by v i r t u e of the express contractual r i g h t , o r by v i r t u e of t h i s a c t , s h a l l be e n t i t l e d t o recover h i s reasonable attorney f e e s f r o m t h e losing party o r parties." (Em- --- - phasis added.) Here, the contract gave ~ i e h l the express r i g h t t o c o l l e c t attorney fees. The above s t a t u t e made t h i s r i g h t reciprocal a s t o Houtchens. B y v i r t u e of our previous r u l i n g Houtchens, a s t h e prevailing party, became e n t i t l e d a s a matter of law t o h i s reasonable attorney fees. Fla- herty v. Hensley (1974), 165 Mont. 434, 437, 529 P.2d 1389, Diehl argues t h a t i n remanding the cause f o r "further consideration consistent with t h i s opinion" w e limited the D i s t r i c t Court t o addressing only those issues we speci- f i c a l l y addressed i n our p r i o r opinion. A s we did not discuss Houtchens' s t a t u t o r y r i g h t t o attorney f e e s , t h e argument continues, t h e D i s t r i c t Court was powerless t o make t h e s t a t u t o r y award. W e disagree. Our remand f o r further consideration "consistent with t h i s opinion" meant only t h a t i n a l l f u t u r e proceedings on t h e action Houtchens, not Diehl, was t o be regarded a s the prevailing party. The determination of attorney fees t o be awarded Houtchens, a s the new prevailing party, i s completely consistent with our p r i o r opinion. Equally without m e r i t is Diehl's contention t h a t Houtchens waived h i s r i g h t t o attorney fees. A review of t h e record r e v e a l s no such waiver. Houtchens sought a t t o r - ney f e e s i n h i s answer and counterclaim t o Diehl's o r i g i n a l a c t i o n and renewed h i s claim f o r f e e s i n t h e conclusion t o h i s brief on t h e f i r s t appeal. I n view of t h i s continuing claim by Houtchens f o r these f e e s , w e f a i l t o see any sup- p o r t f o r t h e argument t h a t he somehow waived them. Diehl a l s o a t t a c k s t h e amount of t h e f e e s awarded a s excessive. Again, w e disagree. The D i s t r i c t Court heard testimony from Houtchens' attorney, Charles Smith, as t o t h e amount of time he spent on t h e case (77 hours l a t e r increased t o 83-1/4 hours), t h e amount of h i s normal f e e ($40 per hour i n 1975, increasing t o $50 per hour i n 1976 and 1977), and t h e d e t a i l s of h i s f e e arrangement with Houtchens ($40 per hour plus $1,000 f o r f i r s t appeal). Donald Garrity, a l o c a l Helena attorney, t e s t i f i e d concerning t h e range of f e e s charged by attorneys i n Helena ($30 t o $60 per hour), t h e a b i l i t y , experience and reputation of Smith, and t h e reason- ableness of t h e t i m e spent by Smith on t h e case. G a r r i t y a l s o commented he f e l t t h e $400 awarded Diehl a s attorney f e e s before the Supreme Court's r e v e r s a l was a reasonable f e e f o r t h e work done by Diehl's attorney i n t h e case, which G a r r i t y characterized a s "roughly comparable" t o what smith had done f o r Houtchens. The D i s t r i c t Court a l s o examined t h e t i m e records submitted t o it d e t a i l i n g t h e t i m e Hout- chens' attorney spent on t h e case. W e cannot say a s a m a t t e r of l a w and applying t h e guidelines set f o r t h i n Crncevich v. Georgetown ~ e c r e a t i o n Corp. (1975), 168 Mont. 113, 119-20, 541 P.2d 56, 59, t h a t t h e award is excessive o r not supported by s u f f i c i e n t evidence. Finally, Houtchens requests t h a t we award him reason- a b l e attorney fees and c o s t s i n connection with t h i s appeal. Houtchens' r i g h t t o any attorney fees i s based i n p a r t on the broker's contract o r i g i n a l l y sued on by Diehl. A s quoted above, t h a t contract provided t h a t Diehl had the express r i g h t t o c o l l e c t attorney fees awarded by "both t r i a l and appellate" courts. Thus, the contract obviously contemplated t h a t attorney fees on appeal a s well a s a t t r i a l were t o be charged by Diehl t o Houtchens. Section 92- 8601.1, R.C.M. 1947, makes t h i s r i g h t t o attorney fees reciprocal a s t o Houtchens. W e do not find $1,000 a s attorney fees f o r t h i s appeal t o be unreasonable and there- f o r e order the same t o be paid by Diehl t o Houtchens. The judgment of t h e D i s t r i c t Court is affirmed. W e Concur:	January 11, 1979
a767c0f4-210b-442b-8651-604ed83a2c15	TAPPAN v HIGGINS	N/A	89-342	Montana	Montana Supreme Court	No. 89-342 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 SHERRI LENORE TAPPAN, Plaintiff and Respondent, -VS- JEFFERY C. HIGGINS, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael Keedy, Judge presiding. COUNSEL OF RECORD: For Appellant: Stephen C. Berg; Warden, ~hristiansen, Johnson & Berg, Kalispell, Montana For Respondent : David W. Lauridsen; Bothe & ~auridsen, Columbia Falls, Montana Submitted on ~riefs: Aug. 31, 1989 Decided: December 1, 1989 Justice John C. Sheehy delivered the Opinion of the Court.. Defendant, Jeffery C. Higgins, appeals an order of the Flathead County District Court granting a new trial to the plaintiff, Sherri Lenore Tappan. In a personal injury action, the jury found in favor of the plaintiff in the amount of $3,450.00. plaintiff moved for a new trial on the ground of inadequacy of damages and the trial court granted the motion. Defendant now appeals the ~istrict Court order. We affirm. The sole issue on appeal is: Whether the District Court abused its discretion in granting Tappan's motion for a new trial. On July 29, 1986, Tappan and Higgins were involved in an automobile accident on Highway 93 near whitefish, Montana. Tappan's vehicle was struck from behind by HigginsVehicle while Tappan attempted to make a left hand turn. Tappan's vehicle sustained approximately $5,000.00 in damages and was totaled. In addition, Tappan sustained neck injuries. Tappan sued Higgins in ~istrict Court for damages consisting of medical expenses, lost past and future income, and general damages. In the pretrial order, defendant Higgins admitted negligence. The case went to trial on the issues of proximate cause and plaintiff's damages. In closing argument, Tappan's counsel asked the jury to award $15,118.53 in past wage loss, $400.00 in miscellaneous expenses, $51,870.00 in future wage loss, $4,385.59 in past medical expenses, and $15,000.00 each for pain and suffering and loss of enjoyment of life, for an approximate total of $100,000.00. ~iggin's counsel advised the jury to award $6,300.00 of past wage loss, nothing for future wage loss, $400.00 for miscellaneous expenses, and an unspecified amount for pain and suffering and loss of enjoyment of life. The jury returned the verdict for Tappan in the amount. of $3,450.00, allocating $2,400.00 to past wage loss, $200.00 for miscellaneous expenses, and $850.00 for past medical expenses. Tappan moved the court for a new trial pursuant to S 25-11-102(6), MCA, for insufficiency of the evidence to justify the verdict. The ~istrict Court granted Tappan's motion. ~iggins argues on appeal that the ~istrict Court abused its discretion in ordering a new trial because there was substantial credible evidence in the record supporting the jury's verdict. Tappan contends that the jury overlooked the overwhelming evidence of her damages, and the judge properly granted her a new trial. In granting Tappan's motion for a new trial, the ~istrict Court found the verdict was not supported by the evidence pursuant to Rule 59fa), M.R.civ.P., and S 25-11-102 (6) , MCA. The decision to grant or deny a new trial is within the sound discretion of the trial court, Fredericksen v. Fredericksen (1980), 185 Mont. 548, 605 P.2d 1135, 1137, and will not be overturned absent a showing of manifest abuse of that discretion. ~ i l e s v. Flint Val. Forest Products (1979), 179 Mont. 382, 387, 588 P.2d 535, 538; Walter v. Evans Products Company (1983), 207 Mont. 26, 31, 672 P.2d 613, 616. This Court recognizes that only in rare cases should a jury verdict be set aside and a new trial granted. Nevertheless, though the amount is solely within the province of the jury, the jury is not given carte blanche. Sanders v. Mount ~aggin ~ivestock Co. (1972), 160 Mont. 73, 89, 500 P.2d 397, 406. Some substantial evidence must exist to support the jury verdict. Maykuth v. Eaton (1984), 212 Mont. 370, 373, 687 In Maykuth, the ~istrict Court held insufficient as a matter of law a $700.00 award for pain and suffering. We reversed the holding: To permit the undoing of this verdict by affirming the trial court decision granting a new trial, would in the language of Nelson v. Hartman (Mont. 1982), 648 P.2d 1176, 1179 ". . . create a bench supremacy and sap the vitality of jury verdicts." While the trial court, or this Court sitting as a jury, or another jury, may have awarded plaintiff more for pain and suffering in the year following the accident, we cannot say as a matter of law that substantial evidence did not support the jury's award. Maykuth, 687 P.2d at 727; Walls v. Rue (Mont. 1988), 759 P.2d 169, 171. In contrast, this Court has held that a jury's failure to award damages for pain and suffering constituted an inadequate award where "the evidence clearly indicates that plaintiff suffered serious and painful injury. I ' Gehnert v. Cullinan (Mont. 1984), 211 Mont. 435, 439, 685 ~ . 2 d 352, 354. Tappan contends that in this case, as in Gehnert, the jury failed to award the proper amount of damages when the evidence has clearly showed injury due to defendant's conduct. ~iggins responds that the jury's failure to award greater damages resulted from his attacks on the credibility of Tappan and the certainty of her evidence. Higgins argues that there is substantial credible evidence to support the jury verdict. To resolve this issue, a review of the medical evidence and Tappan's employment history is necessary. Immediately after the collision, Tappan felt pain in her neck and several minutes later felt numbness in both upper extremities. An ambulance transported Tappan to North Valley ~ospital where she was treated by Dr. ~icker. He x-rayed her cervical spine and found nothing broken. Dr. Ricker told Tappan she would be sore and advised her to obtain a cervical collar and take medication if necessary. Tappan missed work the next day in that she could not raise her head off her pillow due to intense neck pain. She returned to work the next day in the belief that her symptoms would subside; however, the symptoms persisted and she was then seen by a Dr. Heaps, a Kalispell chiropractor. Tappan initially saw Dr. Heaps on August 18, 1986. The doctor took Tappan off work from August 21, 1986 until September 22, 1986. Dr. Heaps testified that he took x-rays on August 18, 1986, and on January 8, 1988. The x-rays showed a mild scoliosis and he diagnosed nerve root irritation and a sprain of the cervical and lumbosacral area. Dr. Heaps treated her with spinal manipulation. The doctor's charges for treatment to Tappan were $1,309.50. Dr. Stevens first saw Tappan on March 10, 1987, and obtained a history identifying her problems dating back to the automobile accident on July 29, 1986. Dr. Stevens testified by deposition and opinion that the plaintiffs' suffered from post-traumatic muscle contraction headaches and myofacial pain syndrome. Myofacial pain syndrome is a reoccurrence of muscle pain triggered by spasms. Dr. Heaps agreed with Dr. Stevens' diagnosis of myofacial pain syndrome. Tappan's injuries resulted in her inability to perform her job as bakery manager at Excel Foods. When the plaintiff attempted to perform her regular duties in the bakery, her pain increased and she went through a series of authorizations of absence from work at the direction of Dr. Heaps. After attempting to perform her full bakery manager duties properly for over one year, she terminated her employment with Excel Foods. After a series of unsuccessful jobs, plaintiff now works at Keenan's Jewelry in Kalispell, Montana, earning $4.00 per hour. The evidence presented at trial overwhelmingly shows that the plaintiff could no longer work at the bakery. Dr. Stevens was presented with two job descriptions detailing the plaintiff's duties as a bakery manager and cake decorator, both of which he disapproved due to the lifting, bending and twisting requirements of those occupations. Bob Markus, manager of Excel Foods, concurred with Dr. Stevens that Tappan could no longer perform her job at the bakery. Mr. Markus stated that the plaintiff's work was satisfactory and she was able to perform her duties prior to the accident. ~ollowing the accident, however, Mr. Markus noted that the plaintiff did not look well and that she was occasionally tearful. Markus testified that Tappan was not able to physically perform her job following the automobile accident. Markus speculated that had Tappan been able to continue her job as bakery manager, she would be earning $10.50 per hour plus benefits as of the time of trial. Both parties hired experts to determine Tappan's wage loss. ~ennis O'Donnell, an economics professor at the university of Montana, calculated Tappan's past wage loss, including benefits, at $17,922.32, based upon a loss of $8,645.00 per year. Over a ten year period, Professor O'Donnell, estimates Tappan economic loss is $100,598.00. The defense expert, Barbara Muellen, vocational rehabilitation consultant, opined that Tappan lost $1,654.75 in 1986 and $9,562.00 in 1987, for a total wage loss of $11,217.51. Thus the defendant's own expert's opinion of Tappan's wage loss is approximately $8,800.00 more than the jury awarded Tappan in their verdict. Clearly the evidence at trial does not support a wage loss damage of only $2,400.00. The jury awarded Tappan nothing for loss of future earnings or earning capacity. This portion of the verdict is also not supported by the evidence. Dr. Stevens testified that Tappan's injury permanently excluded her from working as a cake decorator and bakery manager. Brian Moltslag, a vocational specialist, concluded at trial that Tappan could not continue in the bakery field due to the physical limitations imposed by Dr. Stevens. Her employer, Bob Markus testified that Tappan could now be earning $10.50 per hour or in excess of $1,700.00 per month. Tappan's current employment at Keenan's Jewelry pays Tappan $4.00 per hour. Though the evidence clearly supported future wage loss damages, the jury chose to grant the plaintiff nothing for the loss of earning capacity. The jury awarded Tappan $850.00 in medical expenses. This reduced amount is unsubstantiated by the evidence. That evidence reveals that Tappan incurred $4,385.59 in medical expenses as a direct result of treatment related to injuries sustained in the accident. The evidence presented at trial justified a verdict for past medical expenses in excess of the $850.00 award. The jury did not award damages for pain and suffering, nor for Tappan's loss of the capacity to pursue an established course of life. In examining the pain and suffering of Tappan, it is once again clear that the jury disregarded the weight of the evidence presented at trial. Both Drs. Stevens and Heaps determined Tappan suffered from myofacial pain sydrome. Mr. Markus stated that he had observed Tappan in tears due to pain on several occasions following the accident. Dr. Heaps testified that he noted consistent spasms in Tappan's neck, and the pain from these spasms played a role in removing Tappan from work and later limiting her to part-time work. This pain, severely limited Tappan's lifestyle, and changed her course of life. While the evidence for pain and suffering is not as abundant as the evidence for loss of wages, there is substantial evidence to support a jury award greater than zero. The evidence presented at trial does support some award for pain and suffering. The defense presented no medical testimony of its own, but instead attacked the plaintiff's case by attempting to discredit Tappan herself. Higgins maintains that there is substantial credible evidence to support the jury verdict. Higgins contends, now, as he did in the ~istrict Court, that the question of Tappan's pain and suffering rests on her credibility. Defendant argues that Tappan's pain was subjective, and that her credibility regarding the amount of bending and lifting required by the bakery job was put into question by testimony of her former employer. while there is conflicting evidence in regard to job requirements at the bakery, the overwhelming evidence in the record supports the plaintiff's position that she can no longer work at the bakery. Defendant also contends that Tappan saw no health care provider following the accident. ~ccording to Higgins, this allowed the jury to conclude that she was either not injured or her injury was slight. Furthermore, Higgins claims that Tappan aggravated her symptoms by returning to work against her doctor's orders. ina ally, the defendant argues that Tappan exaggerated her past and future wage loss. The jury, according to Higgins, chose to believe defendant's expert witness on wage loss, and this is reflected in the verdict. The defendant is correct in his assertion that the jury verdict is determined in large part by the credibility of the party and the witnesses. However, in this case, there are some glaring discrepancies in the amount of damages presented at trial and the verdict handed down by the jury aside from the credibility of any witness. The ~istrict Court was correct in holding that the verdict was not supported by the evidence; in effect the evidence was insufficient to justify the verdict. section 25-11-102(6), MCA. The District Court did not abuse its discretion in granting a new trial. We affirm the ~istrict Court. We Concur: A A Chief ~ustice Justices Honorable L. C. Gulbrandson, concurring: I concur in the result. Honorable R. C. McDonough, h 7 r , & k Justice concurring : / I concur in the result. Justice Justice Fred J. Weber did not participate.	December 1, 1989
17820207-13b4-44fc-bb43-7e16b41ce817	MATTER OF T C	N/A	89-251	Montana	Montana Supreme Court	No. 89-251 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN THE MATTER OF T.C. & R.C., Youth in Need of Care. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable G. Todd Baugh, Judge presiding. COUNSEL OF RECORD: For Appellant: Sally M. Johnson, Bill-ings, Montana For Respondent : Hon. Marc Racicot, Attorney General, Helena, Montana Kathy Seeley, Asst. Atty. General, Helena Harold Hanser, County Attorney; Greg Mullowney, Deputy, Billings, Montana Damon L. Gannett; Olsen, Christensen & Gannett, Billings, Montana -- C- c z cu 3 Submitted on Briefs: Oct. 20, 1989 N 0 'vl c j ~ ~ ~ i d ~ d : December 20, 1989 - I :ju, --I 7 : E C , , i " File:Q . -: , < s tv d . - ', . { A d : , ! k') &"" - C) : - L o % L L CU ; : , - f w .A i/ $ J ! ! & v 9 & 1 4 4 $ . : - - 9 - ) $ & : , &.J (2 1 : ------- st ., u w;z: '' Clerk Justice Fred J. Weber delivered the Opinion of the Court. In a hearing for permanent custody, the District Court for the Thirteenth Judicial District, Yellowstone County, ordered the parental rights of T.C. and R.C. terminated and awarded custody to the Montana Department of Family Services. Court-appointed guardian ad litem Damon L. Gannet appeared on behalf of the children. The natural mother, appellant, appeared in person and was represented by court-appointed counsel, Sally M. Johnson. The putative fathers were served by publication with notice of the proceedings but failed to appear. Defaults were entered. The natural mother appeals the termination of the parental rights of R.C. Two issues are presented on appeal: 1. Was the District Court's finding that R.C. was a "youth in need of care" supported by substantial credible evidence? 2. Did due process require appointment of counsel for the mother prior to the award of temporary custody of the children to the State? The appellant is the natural mother of T.C. and R.C. The children have different fathers with whom appellant does not have contact. She never married either of the children's fathers nor do either of the children know their father. At the time of the hearing, appellant was 26 and her husband, Mr. H., was 64. This appeal concerns only R.C. However, we feel it necessary to set forth the facts as they apply to T.C. since the overwhelming evidence with regard to her abuse was prop- erly considered in the determination as to R.C. Appellant became pregnant with T.C. when she was 16 years old. T.C. is now a 10 year old girl. The Children's Protective Services (CPS) invol~rement heqan when T.C. was born. Appellant had difficulty in comprehending parenthood and exhibited problems in responding to T.C. 's needs. Appellant and T.C. werp living with appellant's maternal grandparents. In 1979, Dr. Richard Agosto, a clinical psychologist evaluated appellant and determined her I.Q. to be in the borderline range of mental retardation due to poor educa- tional background and lack of environmental and cultural stimulation. The Montana Center for Handicapped Children clinically evaluated T.C. and found she exhibited "signifi- cant delays in the area of cognitive skills, self-help skills, and severe delays in the area of speech and lan- guage." At this time in her life, appellant's grandparents were the primary caretakers of T.C. During the next year, T.C. demonstrated only a "two to four month gain in intellec- tual skills. " Several agencies were involved with T.C., appellant, and appellant's grandparents over this period but due to the family's refusal to cooperate, the agencies termi- nated their contact. Late in 1980, CPS reestablished twice monthly contact with appellant to help her obtain employable skills, develop parenting skills, and clarify who was parenting T.C. Appel- lant's grandparents were T.C.'s primary caretakers until she was three, at which time appellant's mother, A.C., assumed parenting responsibilities with appellant having infrequent visitations. In 1985, CPS was again contacted by appellant, this time regarding R. C. , appellant ' s 8-month old baby boy. She was overwhelmed by parenting responsibilities and agreed to allow grandmother A.C. to parent R.C. Ongoing services were again terminated by CPS. In 1987, the Montana Department of Family Services interviewed T.C. at school in response to a referral received concerninq possible sexual abuse of T.C. by an uncle. At this point, T.C. was living with A.C., an aunt (age 16) , and R.C. (age 2). T.C. disclosed to the social worker that her Aunt J. was doing "nasties" to her. She explained that Aunt J. was touching and kissing her on her "boobs," " ass," and "lucy," indicating her vaginal area, and made T.C. also touch her in the same places. T.C. further told of seeing Aunt J. and her boyfriend have sex. T.C. said that she had seen Aunt J. perform the same acts on her brother, R.C., and touched and licked his "weiner." Throughout the interview, T.C. displayed abnormal sexual behavior. At the conclusion of the interview, T.C. said she made up the story in order to hurt her Aunt J. However, just two days later, another interview was conducted in which T.C.'s story remained consistent. She also demonstrated with anatomical drawings where J. touched, kissed, and licked her, and explained that both she and J. wore no clothing during these encounters. She also used the drawings to show where J. touched and kissed R.C. T.C. was video taped playing with anatomically correct dolls. Her behavior with the dolls repeated her story with the drawings. At one point, T.C. asked the social worker if she could remain in foster care until age 18, at which time she would return home "to beat up [J] . " Soon thereafter, Dr. Linda Johnson, a pediatrician at Billings Clinic, conducted a physical examination of T.C. She noted "a vaginal discharge being present" and a "definite fissure in the rectum with the cause being that of an exter- nal to an internal force. " Dr. Johnson concluded that the results of the examination were consistent with sexual abuse findings. During the course of the examination, T.C. again showed where she was touched by J. She also added explana- tions which indicated that Mr. H., appellant's husband, was havinq sexual intercourse with her. On February 18, 1987, the State petitioned the District Court for Temporary Investiqative Authority of appellant's two minor children, T.C. and R.C. On the basis of physical, sexual, and emotional abuse and neglect of the children, the petition was granted. On June 11, 1987, after a hearing, the District Court granted temporary custody to the State. Over the next year, T.C. remained adamant about not wanting to return to live with her family or even see them. She displayed an intense fear of her mother when she would come to visit. A May 1988 visitation was supervised. During that visit T.C.'s "first act once we were all upstairs in the conference room was to attempt to take off her sweater and shirt and to 'show my boobs' to [appellant and appellant's mother]." After this visit, visitations were terminated. Continued therapy sessions revealed more and more infor- mation regarding the abuse suffered by these two children, including being burned with cigarette lighters. Both the things T.C. said and the things she did confirmed her stories of abuse. Her social behavior and intellectual skills im- proved "remarkably" during the time she stayed with the foster families. Due to "the children's special needs and the apparent inability of the parent to change in a reason- able amount of time," in late May 1988, the social worker recommended permanent custody he granted to the Montana Department of Family Services with consent to adopt. In July 1988, the District Court granted permanent custody of 10-year old T.C. and 4-year old R.C. to the Department and terminated parental rights. The natural mother appeals only as to R.C. I Was the District Court's finding that R.C. was a "youth in need of care" supported by substantial credible evidence? Appellant asserts that the District Court erred in terminating parental rights of R. C. based solely upon statements made by T.C., an emotionally disturbed child. She contends that at the time of the hearing, there was no psy- chological, medical or physical data generated as to R.C. Thus, she urges that there is no evidence to support the finding that R.C. is a "youth in need of care" as defined in § 41-3-102(2), MCA. She cites In re M.R.L. (1980), 186 Mont. 468, 608 P.2d 134, for the proposition that professional personnel must conclude that the child would be better off if the parental rights were terminated. She maintains that in M.R.L. there was considerable evidence based on the testimony of professionals, to support the court's decision, and that in this case there was no "professional" testimony as to R.C. She contends that the only person who testified about R.C. was social worker, Dan Carlson-Thompson, and that his testi- mony alone is insufficient. She further contends that the court failed to order an evaluation of R.C. as required by § 41-3-609 (3) , MCA. The State correctly points out that 5 41-3-609 (1) , MCA, authorizes the district court to terminate parental rights if certain criteria are found to exist, and it is shown by clear and convincing evidence that the statutory criteria for such termination have been met. Matter of A.H., A.H., J.A.H. (Mont. 1989), 769 P.2d 1245, 1247, 46 St.Rep. 395, 397. Furthermore, it asserts that the district court's decision will not be disturbed unless a mistake of law exists or the factual findings are not supported by substantial credible evidence. Matter of J.L.S. and A.D.S. (Mont. 1988), 761 P.2d 838, 840, 45 St.Rep. 1842, 1845. The State contends the record supports the termination of parental rights in this case. It maintains that after the temporary custody hearing, the order adjudicating T.C. and R.C. youths in need of care, was never appealed and is irrelevant in an appeal of a new proceeding for permanent custody. Relying on In the Matter of T.Y.K. & D.A.W.R. (1979), 183 Mont. 91, 95-96, 598 P.2d 593, 596, the State urges that when the d-istrict court ob- serves abuse of one child, it should not be forced to refrain from taking action until the next child suffers injury. Regardless of the statements by T.C. regarding R.C., the State maintains that there was sufficient evidence to support that R.C. was a youth in need of care. We agree. This Court will not overturn a transfer of custody of abused, neglected, or dependent youth to the State absent a clear showing of abuse of discretion. Matter of A.H., A.H., J.A.H., 769 P.2d at 1249. Section 41-3-609 (1) (c) , MCA, provides for termination of the parent-child relationship if the child is an adjudicated youth in need of care and if both (i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. Youth in need of care means a youth who is dependent, abused, or neglected as defined in this section. Section 41-3-102(11), MCA. An "abused or neglected" child is one whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare. Section 41-3-102(2), MCA. A "dependent youth" is one who has no proper g,uidance to provide for his necessary physical, moral, and emotional well-being, Section 41-3-102 (10) (c) , MCA. In its 1987 order for temporary custody, the District Court found T.C. and R.C. to be dependent youths in need of care because they were in "immediate or apparent danger of harm." The District Court made this finding based on a culmination of reports on T.C. and R.C. from various social workers, psychologists and psychiatrists of various State agencies. T.C. had been involved with S t a t e agencies over a p e r i o d o f e i g h t y e a r s . The f a c t t h a t T.C. i s a youth i n need o f c a r e i s n o t i n d i s p u t e . R.C. l i v e d i n f o s t e r homes s i n c e he was only 2 y e a r s o l d . During t h a t t i m e , h e e x h i b i t e d behavior problems such a s u r i n a t i n g on t h e f l o o r , becoming s e l f - d e s t r u c t i v e , h i t t i n g himself on t h e head, s p i t t i n g and h i s a t t e n t i o n span was "very s h o r t . " Dan Carlson-Thompson t e s t i f i e d t h a t he n o t only r e l i e d on s t a t e m e n t s from T.C. f o r h i s determination t h a t R.C. had been abused and neglected, b u t t h a t i n a d d i t i o n a p p e l l a n t "has n o t parented [R.C.] and h a s n o t demonstrated an a b i l i t y t o do s o , " and " t h e family members and extended family members1 apparent i n a b i l i t y t o p r o t e c t [T.C.] would p l a c e [R.C.] a t g r e a t r i s k i f he was r e t u r n e d t o t h a t envi- ronment . . . " The D i s t r i c t Court reviewed e x t e n s i v e e v i - dence. C l e a r l y , i t s determination t h a t R.C. was a youth i n need o f c a r e was based on more than j u s t T.C. ' s s t a t e m e n t s , and 5 41-3-102 ( 2 ) and ( 1 0 ) ( c ) , MCA, have been s a t i s f i e d . This Court h a s followed t h e m a j o r i t y r u l e t h a t i f it i s shown t h a t one c h i l d i s a youth i n need of c a r e , " t h e p a r e n t does n o t have t h e p r i v i l e g e of i n f l i c t i n g b r u t a l t r e a t m e n t upon each o f h i s c h i l d r e n i n succession b e f o r e t h e y may individu- a l l y o b t a i n t h e p r o t e c t i o n of t h e s t a t e . " See I n t h e Matter o f T . Y . K . & D.A.W.R, 598 P.2d 593, 596. Once t h e r e h a s been a determination t h a t t h e c h i l d i s a youth i n need o f c a r e , t h e d i s t r i c t c o u r t may t e r m i n a t e p a r e n t a l r i g h t s i f two requirements have been m e t : 1. an a p p r o p r i a t e t r e a t m e n t p l a n t h a t a s been approved by t h e c o u r t h a s n o t been complied w i t h by t h e p a r e n t s o r h a s n o t been s u c c e s s f u l ; and 2. t h e conduct o r c o n d i t i o n o f t h e p a r e n t s render- i n g them u n f i t i s u n l i k e l y t o change w i t h i n a reasonable t i m e . Section 41-3-609 (1) (c) , MCA. These criteria have clearly been met. These children have been parented by appellant for only a brief portion of their lives. Their caretaking need-s were tossed from family member to family member and they were abused by several family members. The family denied any abuse even after overwhelming physical and emotional evi- dence. Appellant, her grandmother, mother, husband and sister all adamantly rejected agency involvement and refused to cooperate with programs the State suggested in attempts to keep the family together. This Court has carefully reviewed the record and we note that it reveals much more abuse than has been elaborated in this opinion. F 7 e hold the District Court's finding that R.C. was a "youth in need of care" is supported by substantial credible evidence. I1 Did due process require appointment of counsel for the mother prior to the award of temporary custody of the chil- dren to the State? Appellant contends that because she was not represented by counsel during the temporary custody proceedings, her due process rights were violated. She relies on Lassiter v. Department of Social Serv. (1981), 452 U.S. 18, which stated that in deciding what due process requires, there are three elements which must be balanced: (1) the private interests at stake; (2) the government's interest; and (3) the risk that the procedures used will lead to erroneous decisions. In short, because as she asserts, parental rights are funda- mental rights under the Constitution, she claims she was entitled to appointed counsel throughout the temporary pro- ceedings as a matter of due process. The State maintains that appointment of counsel is not required for "temporary" custody hearings. We agree. In child protective proceedings culminating in the termination of parental rights, due process of law requires only that the parents have counsel prior to the Permanent custody hearings. Due process does not require that the parents have counsel during the initial stages of the proceedings. Matter of M.F. (1982), 201 Mont. 177, 653 P.2d 1205. In so holding, this Court relied upon the United States Supreme Court in Lassiter v. Depart- ment of Social Services (1981), 452 U.S. 18. Matter of A.B. (Mont. 1989), 780 P.2d 622, 46 St.Rep. 1734. In Matter of H.R.R. (Mont. 1989), 780 P.2d 1139, 4 0 St.Rep. 1771, we held that: Because the parents' right to custody is a funda- mental interest, the State must show by clear and convincing evidence that the statutory criteria have been met. Our decisions hold that we will not reverse a district court's decision regarding findings of fact unless the findings of fact are not supported by substantial credible evidence. (Citations omitted. ) "All reasonable presumptions as to the correctness of the determination by the district court will be made" on appeal. See Matter of J.L.S.and A.D.S. 761 P.2d 838. Appellant was represented by counsel throughout the proceedings for permanent custody. Clearly, she was not deprived of due process. We hold that due process does not require appointment of counsel for the mother prior to the award of temporary custody of the children to the State. Affirmed. Justices	December 20, 1989
ee0e6790-9288-4174-823a-21883dcdc27d	MARRIAGE OF CROMWELL	N/A	14245	Montana	Montana Supreme Court	No. 14245 IN THE SUPREME C m O F T H E : S T A T E O F MOfii'TANA 1978 I N THE MARRIAGE O F C . R. CWWELL, Petitioner and Appellant, Respondent and Respondent. Appeal f r m : D i s t r i c t Court of the Fourth Judicial D i s t r i c t , Honorable mbert Holter, Judge presiding. Counsel of Record: For Appellant: Garlington, Lohn and mbinson, Missoula, Mntana Larrey E. Riley argued, Missoula, IWntana For Respondent: Mulroney, Delaney, Dalby and Mudd, Missoula, mntana Dexter L. Delaney argued, Missoula, Montana Sutmitted: Novmber 16, 1978 Decided: J A N 1 :979 Filed: j m 1- - - f L - , - Mr. Justice Gene B. Daly delivered the Opinion of the Court. This appeal is brought by petitioner-appellant, Carley R . Cromwell, from a final property settlement and maintenance judgment and decree of the Fourth Judicial District Court, County of Missoula, following the dissolution of the parties' marriage. The District Court, the Honorable Robert M. Holter presiding without a jury, awarded the petitioner the former family home free and clear of mortgage indebtedness, the home furnishings, a $3,000 lump sum with which to pay her outstanding debts, and $2,000 as attorney fees. The decree further includes a maintenance award of $250 per month during the twelve months following February 1, 1978, $125 per month during the succeeding eighteen months, and none thereafter. The decree provides that the petitioner's eligibility for maintenance terminates with her death or remarriage. On appeal petitioner requests a modification of the decree to provide for: 1. A permanent award of $500 maintenance per month; and 2 . Security for future maintenance payments in the form of a claim against respondent's Teachers' Retirement or Social Security Funds. Petitioner requests this Court to modify the decree without remand in view of the fact that the matters at issue have been thoroughly litigated in two trials. After a first trial and decree dated November 30, 1976, in which petitioner's claim for maintenance was entirely denied, petitioner appealed to this Court. In remanding the matter, this Court held that the District Court had abused its discretion in refusing to consider petitioner's needs for "some financial assistance during the transition from housewife to a single person." Cromwell v. Cromwell (1977), Mont . , 570 P.2d 1129, 1131, 34 St.Rep. 1193, 1196. On remand, the District Court heard full testimony on the parties' earning capacities and monthly expenses, and on respondent's ability to pay main- tenance before it modified both the property settlement and maintenance provisions. The issue on appeal is whether the District Court abused its discretion in awarding petitioner only $250 per month maintenance for twelve months, $125 per month for the succeeding eighteen months, and no maintenance thereafter. The parties in this case were married in 1947. Peti- tioner, Carley Cromwell, was then age 25 and had been em- ployed as a nurse prior to her marriage. In September, 1947, respondent Gardner Cromwell began his legal education at the University of Montana School of Law. During the next three years, while respondent attended school, petitioner worked as a housewife and cared for the parties' oldest son, who was born in May, 1948. Respondent worked for the Bonne- ville Power Administration following his graduation in 1950. Two more children were born before the end of 1953. In September, 1954, respondent entered the University of Michi- gan Law School and worked toward an LL.M. degree which he obtained in June, 1955. During that time petitioner cared for the parties' three children and worked two nights a week at the University of Michigan Hospital. Respondent taught at the New York University during the next two academic years, while petitioner cared for the children. A fourth child was born in June, 1957. In 1957 the family returned to Montana where respondent accepted a teaching position at the University of Montana School of Law. Respondent has taught each year since 1957 and obtained the degree of S.J.D. from the University of Michigan by submission of a thesis. During this time, 1957 through 1975, petitioner put most of her working time into caring for her family. She did work part-time during quarterly registration at the University of Montana from 1957 to 1965. She spent only one year since 1957, however, working part-time as a night nurse at the N.P. hospital in Missoula. The parties separated in 1975, some twenty-eight years after their marriage. In May of 1975 petitioner began work as a hostess in a Missoula restaurant. That employment lasted about eighteen months, until October, 1976, when her job was terminated due to remodeling. Her highest wage during that period was $2.475 per hour. Between October and December, 1976, petitioner was unable to find work despite repeated applications. During that time she obtained unemployment compensation of $68 per week. In December she secured employment with the Missoula County Food Stamp program and continued working there until a nursing position opened at a Missoula nursing home in April, 1977. As of this date, she continues to work at the nursing home as a relief nurse at irregular hours averaging about $500 per month of net income. There are no fringe benefits and no retirement plan available to her at the nursing home. Petitioner also sought employment at St. Patrick's Hospital in Missoula, but upon learning her age and the number of years since she had actively worked as a nurse, the hospital refused to accept her application. The per- sonnel director of the hospital testified that there cur- rently are no openings for registered nurses at St. Patrick's; that there are presently about eighty full-time nurses and forty part-time nurses employed there; and that there are approximately 100 applications for registered nurse posi- tions on file. In the director's opinion, the same situation exists in the other two Missoula hospitals. The District Court found that petitioner's reasonable monthly living expense is $789.50. That figure includes her present rental costs, but the court noted that when peti- tioner moves back into the family home, she will continue to have costs such as taxes and insurance which will replace the rental expense. Paragraph 5 of the District Court's findings appears to state the rationale for its decree of $250 per month, then $125 per month, then zero maintenance. The second sentence of that finding concludes that "[ilt is likely that [peti- tioner] will, through diligent application and some assis- tance, continue to progress in her employment; there is little likelihood, however, that she will be able to sub- stantially gain retirement benefits or accrue savings." The District Court's findings show that respondent is a tenured professor of law at the University of Montana School of Law. His gross salary for the 1976-77 academic year was $22,862 and for the 1977-78 year was $25,862. His net income during this latter year was approximately $1,778.53 per month for each of the ten months during which he taught. The Court further found that respondent's living expenses are "about equal in amount to those of petitioner." Respondent was remarried on December 18, 1976, to a woman with a five year old daughter. Respondent and his present wife agreed before their marriage that all of the interest in her property would remain in her name. Respon- dent has lived in his present wife's home outside Missoula since his remarriage. His present wife, as manager of a Missoula business, has an average monthly income of $922.27 and additionally receives $75 per month in child support from her previous husband. Thus, as the District Court noted in paragraph 6 of its findings the "'family' net take- home of Respondent's new family [is] approximately $2,500" per month. In addition respondent had, as of the date of trial, accumulated some twenty-six years toward retirement under the Montana Teachers' Retirement System. The District Court, in paragraph 4D of its findings, indicates that there have been contributions made into respcndent's account "from income during the marriage" of approximately $19,000. That amount would be available to respondent now only if he quit his job and cashed in his account. However, if he were to continue in his position as a law professor and retire at age 60, respondent's interest in the retirement system would greatly increase. In a footnote to paragraph 4D, the Dis- trict Court calculated the "present" value to the petitioner when he reached age 60 to be $224,239.32. This figure is based upon life expectancy, interest rate, final average salary and creditable years of service assumptions, and would be available to respondent only on a monthly pay basis. Respondent testified that he did not intend to retire until age 65. Thus, while life expectancy at that age would be sonewhat decreased, the average annual compen- sation may be somewhat higher and the number of years of creditable service increased by five. In any case, as the District Court concluded, the actual value of his retirement to respondent cannot be calculated with exact certainty, but it does clearly represent "a considerable asset and security" to him. Finally, the District Court found that respondent is "free to pursue other remunerative employment during the summer months." Section 48-322, R.C.M. 1947, of the Montana Uniform Marriage and Divorce Act establishes two criteria upon which to determine a spouse's eligibility for maintenance following dissolution of marriage. These are that the spouse seeking maintenance (1) lacks sufficient property to provide for his or her reasonable needs, and (2) is unable to support him- self or herself through appropriate employment. The Dis- trict Court concluded that petitioner met both of these criteria, at least for two years following its decree. Petitioner's contention, that she will continue to be in this category indefinitely, must be weighed in terms of the next six criteria listed in subsection (2) of section 48- 322. Those criteria require the District Court to consider the petitioner's financial resources, including the property apportioned to her in the decree, and her ability to meet her needs independently; the time necessary for her to make a transition to a single person, including any additional education or retraining; the standard of living established during the marriage; the duration of the marriage; her age and physical and emotional condition; and the respondent's ability to meet his own needs while providing additional support to her. Petitioner has received in the decree full interest in the family home, worth about $48,000, and $3,000 cash with which to pay most of her outstanding debts. But her rea- sonable monthly needs, according to the District Court's findings, are $789.50, while her take-home pay is only $500 per month. At age fifty-six and having been separated from nursing for some twenty years, her opportunities for full- time nursing work appear bleak. Additionally, she has no retirement plan in her present position. On the other hand, respondent has retained his teaching position, his salary and his retirement benefits. He has remarried and his present wife and he have together nearly $2,500 per month in take-home pay. Considering the criteria listed in section 48-322(2), it is clear that at present petitioner is unable to meet her present monthly needs through appropriate employment. The District Court decree, however, assumes that within a year she will be nearer to self-sufficiency, and that after two and one-half years, she will be able to support herself entirely. No evidence in the record supports this finding. Under the criteria of the standard of living estab- lished during the marriage and duration of the marriage, the court is silent as to petitioner's expectation of a secure retirement prior to the dissolution. The District Court made elaborate findings concerning the "considerable" value to respondent of his interest in the Montana Teachers' Retirement System. Yet the decree makes no mention of the petitioner's needs at retirement age. Cf. Wilson v. Wilson (Or. 19721, 499 P.2d 828, 828-29. Finally, the District Court notes that this case is typical in that "there really is not enough to satisfy all of the demands and requests of the Petitioner and Respon- dent" and that a decree requiring all petitioner asks for could be "disastrous to the party from whom payment is required." Yet the court ignores the competent evidence of respondent's ability to pay. The court did make a finding that the reasonable monthly needs of respondent are roughly equivalent to petitioner's needs, that is, about $789.50. It also found that respondent's monthly take-home pay on a twelve month basis is $1,482.11. Thus, there appears no reason from the District Court's findings why respondent cannot continue to assist his former wife, to help her meet not only her present needs, but also to help prepare her for retirement. Petitioner appears to justify her request for $500 per month on the decision in Eschenberg v. Eschenberg (1976), Mont . , 557 P.2d 1014, 33 St.Rep. 1198. In that case, an award of $500 per month alimony was approved, but the husband was somewhat better off financially than respon- dent here, and the wife somewhat less capable of earning income than petitioner here. 557 P.2d at 1015-16, 33 St.Rep. at 1200, 1201-02. Appellate courts in other states have seen fit to increase awards of maintenance where the result at the trial court level appeared unjust or inequitable. See In re Marriage of Fisher (Iowa 19761, 237 N.W.2d 452, 454; Wheeler v . Wheeler (19751, 193 Neb. 615, 228 N.W.2d 594, 596. In light of the trial court's finding of petitioner's needs for support in addition to her own earnings, the standard of living during her marriage, which included an anticipated secure retirement and respondent's ability to provide continuing support to his former wife, this Court orders the decree modified so as to provide continued main- tenance to petitioner. An equitable amount would be one which would assist her to meet her reasonable monthly ex- penses in excess of the $500 take-home pay she receives as a nurse. Thus, the amount should be at least $300 per month, until her death or remarriage. In addition petitioner is also entitled to enjoy something of the secure retirement which she helped respondent to achieve. Therefore and for that purpose, an additional $100 per month until her death or remarriage which she could save toward retirement does not appear unfair to either her or respondent. The decree is ordered modified in accordance with these .suggested amounts. Paragraph Nos. 1, 2, 3, 4 (a), and (5) of the decree of the District Court are affirmed. Paragraph 4(b) and 4 ( c ) are vacated and shall be amended as ordered herein. Paragraph No. 6 is vacated on order of this Court and shall read instead: "That upon completion of the various transfers and all payments set forth herein the jurisdiction of the pre- siding Judge shall cease, however; continuing jurisdiction shall remain in the District Court of the Fourth Judicial District, County of Missoula." The cause is remanded to the District Court to enter judgment according to this opinion. , ? kg?/ Justice We Concur: 7 ~ d d pddd. Chief Justice n	January 11, 1979
f93ba84b-757e-4add-9583-9230b7eac5e5	MARRIAGE OF ANDERSON	N/A	89-307	Montana	Montana Supreme Court	No. 89-307 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF ROXY L. ANDERSON, Petitioner and Appellant, and ARVID W. ANDERSON, Respondent and Respondent. APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Dawson, The Honorable H. R. Obert, Judge presiding. COTJNSEL OF RECORD: For Appellant: Kevin T. Sweeney; Sweeney & Healow, Billings, Montana For Respondent: Greg W. Hennessy; Bjella, Neff, Rathert, Wahl & Eiken, Willistown, North Dakota led D W J 4 LL Submitted on Briefs: Oct. 25, 1989 Decided: December 20, 1989 3 Justice Fred J. Weber delivered the Opinion of the Court. This is an appeal from an order by the District Court, Seventh Judicial District, Dawson County, Montana, modifying a custody order. Roxy Anderson Denning appeals. We affirm. The issues presented for our review are: 1. Does substantial credible evidence support the District Court's findings of fact in regard to modification of custody pursuant to 5 40-4-219(1), MCA? 2. Does the petition for modification of custody meet the jurisdictional requirements of 5 40-4-220, MCA? Mr. Arvid W. Anderson (father) and Ms. Roxy L. Anderson Denning (mother) were married in 1968. They had three sons, Duane, Kory and Shane. Father and mother were divorced in 1985. The divorce decree granted joint custody, with resi- dential custody to mother. Mother and the children have since resided in Glendive, Montana, and mother is remarried to Mr. Michael Denning. Father moved to Williston, North Dakota, and married his present wife, Carol Anderson, in April 1988. Father exercised his visitation rights regularly after the divorce. In the summer of 1988 the two younger sons expressed a desire to live with father. At this time Duane was 18, and Kory and Shane were 13 and 11, respectively, When mother did not agree to this suggestion, father filed a petition for modification of custody, requesting that the two younger sons be allowed to live with him and his new wife in Williston, North Dakota. The older son was approaching his senior year in high school and elected to stay in Glendive, Montana, to finish his schooling. After a hearing, the District Court granted father's petition. Mother appeals. Does substantial credible evidence support the District Court's findings of fact in regard to modification of custody pursuant to 40-4-219 (1) , MCA? This Court's standard of review of a custody order is whether the district court' s findings of fact are supported by substantial credible evidence. In re Marriage of Morazan (Mont. 1989), 772 P.2d 872, 874, 46 St.Rep. 814, 817. Dis- trict court findings of fact will be overturned only if clearly erroneous. Rule 52(a), M.R.Civ.P. Modification of a prior custody decree is governed by R 40-4-219, MCA, which provides in pertinent part: Modification. (1) The court may in its dis- cretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that: (c) the child's present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him: (d) the child is 14 years of age or older and desires the modification; Pursuant to S 40-4-219(1), MCA, the court must find that a change has occurred in the circumstances of the child, that the modification is in the best interests of the child, and that the requirement of one of the subsections is satisfied. In the present case father contends that subsection (c) is satisfied in that the children's environment in mother's home seriously endangers the children's physical, mental, moral or emotional health and that the advantage of a change would outweigh any harm. Father also notes that his son, Kory, is now 14 and may choose his residential parent pursuant to subsection (d) . On December 21, 1988, the District Court held a hearinq on father's motion. The court heard testimony from all parties concerned, including father and his new wife, mother and her new husband, and the older son, Duane. The court interviewed the two younger sons, Kory and Shane, in chambers without any other parties present. In substance, the District Court found that the presence of the stepfather, Michael Denning , had created a "hostile, seige-like" environment in the home, partially because of Mr. Denning's alcohol consumption. When Mr. Denning consumes alcohol he becomes angry and yells at the boys. The boys spend increasing time in their rooms in order to avoid the stepfather. Mr. Denning has been verbally abusive, and threatened to take the older son out and hit him. He has mistreated the children's dog, both throwing and kickinq it. The court noted that Mr. Denning had previously been through alcohol treatment and had recently instigated two bar fights. On one occasion, when Mr. Anderson came to visit his sons, Mr. Denning slammed the door in his face. At the hearing the District Court also found it signifi- cant that Kory would be 14 years old on January 24, 1989, and would at that point be able to choose his residential parent, and that Shane expressed the desire to remain with his broth- er Kory. In its order modifying custody, the court concluded that the remarriage of the mother which had caused the boys to feel like strangers in their own home was a change in circum- stances and that custody modification was in the boys1 best interests. It further concluded that the boys' present environment seriously endangered their mental, moral, emo- tional and perhaps their physical health. Mother contends that these findings are not supported by substantial credible evidence, and alternatively that they do not satisfy the "serious endangerment" standard as required by the statute. Our review of the record, however, reveals substantial credible evidence to support the District Court's findings. Testimony by all three children supported the court's findings on the home environment, the stepfather's drinking, and their apprehension of him. The children con- firmed the abusive treatment of their dog. Kory and Shane stated their desire to live with their father and new stepmother. We further conclude that these circumstances satisfy the statutory requirements. The presence of the stepfather in the home and the consequent change in the home environment to one of strained relations and apprehension satisfies the requirement of changed circumstances. The modification of custody is in the best interests of the children since they both desire to live with their father, and feel very comfort- able with their new stepmother. The children's fear of their stepfather, heightened by his drinking episodes, the hostile home environment, and the potential for physical abuse, is sufficient to meet the standard of serious endangerment. Marriage of Morazan, - (evidence of mother's unstable life- style, combined with allegations that stepbrothers had sexu-. ally abused M.M., was sufficient to meet custody modification standard); In re Marriage of Cole (Mont. 1988), 763 P.2d 39, 45 St.Rep. 1965, (evidence that children feared their father and that living with him was an extremely unhappy experience, creating stressful home environment, was sufficient to modify custody); In re Marriage of Cook (1986), 223 Mont. 293, 725 P.2d 562, (evidence of mother's attempt to stifle children's relationship with father and her interference with communi- cation with father was sufficient to modify custody); In re Marriage of Stout (1985), 216 Mont. 342, 701 P.2d 729, (evi- dence of mother's lack of stability and fact that she had been arrested for driving under the influence with child in car, was sufficient to support trial court's order modifying custody); In re Custody of Dumont (1985), 216 Mont. 118, 700 P.2d 167, (evidence that child was subjected to harsh, re- peated, inappropriate and excessive physical discipline and exhibited signs of fear of stepfather was sufficient to meet standard) . In cases involving custody of children, it is particu- larly important that an appellate court defer to the district court, which is able to personally evaluate the testimony of the children and other witnesses. We do not attempt to judge the facts based on a cold record. In this case, involving present abuse, and the potential for future abuse by someone with an alcohol problem, we underscore the reliance that an appellate court places on the district court. In re Marriaqe of West (Mont. 1988), 758 P.2d 282, 285, 45 St.Rep. 1281, 1283; Connolly v. Connolly (1981), 209 Mont. 198, 305-06, 680 P.2d 568, 572; Malcolm v. Malcolm (1982), 196 Mont. 477, 478, 640 P.2d 450, 451. We conclude that substantial credible evidence supports the District Court's findings, and that the statutory requirements for modification of custody were met. We affirm the order by the District Court. II Does the petition for modification of custody meet the jurisdictional requirements of § 40-4-220, MCA? Before the district court may grant a hearing on modifi- cation of custody, the party seeking modification must submit an affidavit pursuant to § 40-4-220(1), MCA, which provides: Affidavit practice. (1) A party seeking a temporary custody order or modification of a custo- dy decree shall submit, together with his moving papers, an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affida- vits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not he granted. In the present case, father provided the District Court with an affidavit stating that the boys had always expressed a desire to reside with him, but that this expressed desire "has now reached such a degree that the youngest boy has said he is willing to give up the friends he has in Glendive i.n order to move to Williston." He stated that the boys repeat- edly express to him a lack of "feeling at home" in Glendive, possibly resulting from the strained relationship with the new stepfather. He stated the boys perceive their present homelife as "uncomfortable." He noted that they have cousins their age in North Dakota. Mother contends that this affida- vit failed to establish adequate cause for a hearing, which is the preliminary jurisdictional requirement. There must be substantial compliance with the procedures set forth in 5 40-4-220 ( I ) , MCA, in order to insure that all parties have notice and an opportunity to respond. Marriage of Stout, 701 P.2d at 732. In Marriage of Stout a verified petition averred that the mother had a severe drink- ing problem and had taken the minor children from the court's jurisdiction without notice to the father. This Court con- cluded that these averred facts, combined with allegations that the mother's living situation had. changed and it would be in the child.renls best interests to live with the f a t h e r , were sufficient to confer jurisdiction upon the District Court. In the present case, we conclude that father's affi- davit stated facts constituting adequate cause for a hearing and the District Court properly assumed jurisdiction. Affirmed. F J e Concur: A 4. F T Chief Justice J11,ctice R. C. McDonaugh did not participate in this opinion.	December 20, 1989
6f929f36-4d40-4099-b74c-636d15cb5758	MARRIAGE OF WROOT	N/A	89-472	Montana	Montana Supreme Court	No. 89-472 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF m LORETTA LAEL WROOT, Petitioner and Respondent, and TTANCE WAYNE WROOT, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Barz, Judqe presidinq. COUNSEL OF RECORD: For Appellant: Craig W. Holt, Billings, Montana Alan J. Lerner, Kalispell, Montana For Respondent : Linda L. Harris; Harris & Ventrell, Ril.lings, Montana Submitted on Briefs: Dec. 7, 1989 Decided: December 28, 1989 Filed: Justice John Conway Harrison delivered the Opinion of the Court. Vance W. Wroot appeals a decision of the ~hirteenth Judicial District, Yellowstone County, Montana, awarding Loretta L. Wroot $4,439 in child support arrearage. We affirm. Appellant raises essentially three issues for review: 1. Did the District Court err in not crediting health care payments made by appellant for his minor children against his child support obligation? 2. id the District Court err in computing the amount of child support due respondent? 3. id the ~istrict Court err in awarding attorney's fees to respondent? The partiest marriage was dissolved on May 27, 1981 on which date the District Court entered its Final Decree. The Final Decree was amended on August 24, 1981. The Amended Final Decree required the appellant to pay child support in the amount of $125 per month per minor unemancipated child of the parties' marriage, subject to abatement for all times the children visited with appellant. At the time of the Amended Final Decree there were three minor children, Dawn, Theresa and Leah. On July 3, 1982, prior to reaching her eighteenth birthday, Dawn married, terminating appellant's child support obligation for her. Theresa's eighteenth birthday came on June 22, 1987. Leah still resides with respondent and will be eighteen years of age on April 24, 1990. Since August of 1985, with respondent's consent, Theresa has lived with either appellant or her older sisters. Respondent consented to allowing appellant to pay the $125 per month child support payment to Theresa and her older sisters when Theresa lived with them. The parties agreed no child support was due for Theresa when Theresa resided with appellant. The Amended Decree provided that appellant was to maintain his minor children on his work-related health insurance policies or on a similar policy. Respondent was to pay all other medical, dental, hospital and optical expenses of the minor children which were not paid by appellant's insurance. However, appellant paid certain health care costs of the minor children that were not covered by his insurance. Appellant testified that the parties had an agreement whereby respondent would reimburse appellant for these costs. Respondent testified that no such agreement existed. It is undisputed that appellant has not paid any child support for Leah since March, 1986, except for $250 in 1987. While living in Colorado, respondent initiated an action to collect back child support with the Colorado State Child Support Enforcement Bureau. That action resulted in appellant executing a holdback agreement whereby First Montana Title held in escrow for satisfaction of the child support judgment, monies due appellant from a real estate transaction. The District Court granted appellant's request for a preliminary injunction preventing the reserved funds from being distributed to respondent through the Colorado and Montana Child Support Enforcement Bureaus. The District Court ordered that the Montana Child Support Enforcement Bureau should hold the funds pending a hearing. The decision from that hearing forms the basis of this appeal. Did the District Court err in not crediting health care payments made by appellant for his minor children against his child support obligation? Appellant cites us two cases, In re the Marriage of Good (1984), 213 Mont. 269, 691 P.2d 1337, and Haaby v. Haaby (1974), 165 Mont. 475, 529 P.2d 1387, where parents owing child support were given credit against that obligation because the parents had paid expenses they were not required to pay. However, all of the cases cited by appellant can be distinguished from the instant case. Those decisions to credit other payments against the child support obligation were predicated upon a finding that the parties had reached an agreement to credit such payments against the child support obligation. In the instant case, the District Court found no similar agreement existed. The District Court specifically found that no express or implied agreement existed between the parties that respondent was to reimburse appellant for the health related costs that were respondent's obligation under the Amended Decree. The District Court heard conflicting testimony on this factual issue and, as trier of fact, resolved the conflict in respondent s favor. Substantial evidence supports this finding and we will not disturb it. 11. Did the District Court err in computing the amount of child support due respondent? Appellant contends that the District Court neither credited appellant with the correct amount of child support he has paid nor calculated his total support obligation correctly. At the hearing, respondent testified that she was claiming child support arrearage for Leah. Upon review, we note undisputed testimony that appellant had not paid any child support for Leah since March of 1986 except for $250 in 1987. Thus, appellant owed respondent 36 months of child support at $125 per month which totals $4,500. The District Court awarded $4,439. We find no reversible error. Did the District Court err in awarding attorney's fees to respondent? Appellant argues that respondent should not be awarded attorney's fees because she initiated her claim for child support arrearage under false pretext. While an error did exist in the initial claim, the record discloses that respondent corrected the error when she discovered it. The Amended Final Decree provided in part, 1 0 . Future Attornevls Fees: Should any action be commenced to enforce . . . any provision contained herein, the court, as a cost of suit, shall award a reasonable attorney's fee to the successful party. (Emphasis added.) Because respondent had to begin an action to collect back child support, under the clear terms of the Amended Final Decree, she was entitled to attorneyls fees. In light of our decisions above, we find it unnecessary to discuss the procedural issue raised by appellant. Affirmed. We concur: A	December 28, 1989
36acac17-89a1-460c-8f63-46085786336a	MARTIN v VINCENT	N/A	14487	Montana	Montana Supreme Court	No. 14487 I N THE SUPREME m OF THE S T = OF ImNTANA 1979 HaMER D . M A F U ' I N and LOFElTA L. W I N , Plaintiffs a d Appellants, WILLIAM A. VINCEXC and ISABELL C . mm, Defendants and Respondents. Appal f m : District Court of the Fourth Judicial District, Honorable Edward T . Dussault, Judge presiding. Counsel of Record: For Appellants: Milodragovich, Dale and Dye, Missoula, Mntana Harold V . Dye argued, Missoula, Mntana For Respondents: Gene A . Picotte argued, Helena, bbntana Sukmitted: March 15, 1979 - r Filed: - M r . J u s t i c e Daniel J. Shea 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 (real estate brokers) appeal from d i s m i s s a l of t h e i r claim f o r breach of two c o n t r a c t s , a r e a l estate l i s t i n g c o n t r a c t and a land s a l e c o n t r a c t , w i t h defendants (landowners) by t h e R a v a l l i County D i s t r i c t Court. W e r e v e r s e and remand t h e cause f o r f u r t h e r proceedings. The f a c t s t h a t appear on t h e f a c e of t h e complaint and its two e x h i b i t s ( t h e l i s t i n g c o n t r a c t and t h e land sale c o n t r a c t ) a r e a s follows. P l a i n t i f f s , ( h e r e i n a f t e r " b r o k e r s " ) a r e l i c e n s e d r e a l e s t a t e brokers doing b u s i n e s s a s Martin Realty. Defendants, t h e Vincents, a r e owners of r e a l pro- p e r t y (approximately 60 a c r e s ) known as Summerdale Orchards, l o c a t e d i n C o r v a l l i s , R a v a l l i County, Montana. Although t h e Vincents w e r e formerly married, a t a l l t i m e s r e l e v a n t h e r e i n t h e y w e r e divorced, and William Vincent l i v e d i n R a v a l l i County w h i l e I s a b e l l Vincent l i v e d i n Lewis and Clark County. On February 27, 1978, W i l l i a m Vincent and t h e b r o k e r s e n t e r e d i n t o a nonexclusive l i s t i n g agreement under which t h e b r o k e r s w e r e a u t h o r i z e d t o market and s e l l Summerdale Orchards f o r $150,000 i n exchange f o r a 6 p e r c e n t b r c k e r ' s commission on t h e s a l e . ( I s a b e l 1 Vincent signed t h i s l i s t i n g agreement on March 6, 1978.) O n March 6 , 1978, W i l l i a m Vincent and t h e b r o k e r s e n t e r e d i n t o a c o n t r a c t e n t i t l e d " r e c e i p t and agreement t o sell and purchase" whereby t h e brokers agreed t o purchase Surrur~erdale Orchards f o r $150,000 minus t h e i r 6 p e r c e n t commission ($9,000). The brokers, who prepared both c o n t r a c t s , had signed t h i s land s a l e c o n t r a c t on February 27, 1978, t h e same d a t e t h e y signed t h e l i s t i n g agreement. ( I s a b e l l Vincent signed t h e land s a l e c o n t r a c t on March 6, 1978.) -2- Sometime later, the Vincents contracted to sell Summerdale Orchards to third persons for $165,000. On June 16, 1978, the brokers filed suit for breach of their contracts with the Vincents. The complaint sought damages for breach of the land sale contract and their $9,000 commission under the listing agreement. On July 13, the Vincents moved to dismiss the complaint for failure to state a cause of action. The motion was supported by a brief that, in essence, alleged the transactions "reek of" fraud, misrepresentation and breach of various fiduciary duties owed by a broker to his client. The brokers' memorandum in opposition to the motion to dismiss alleged that there was no fraud, misrepresentation or breach of fiduciary duty in the transactions and contended that these charges are not contained on the face of the complaint, but constitute affirmative defenses which cannot support a motion to dismiss. On August 11, 1978, the District Court ordered the complaint and case dismissed for the reasons that : ". . .the Plaintiffs are treading on grounds that are frowned upon by the Montana Supreme Court in several decisions that have been decided by the Court, particularly in the last two years. It is this Court's opinion that the Plaintiffs did not disclose to the Defendants, the principal for whom they were acting even though they were ostensibly, and as of record, the brokers for the Defendants in their sale of Defendant's property." The sole issue on appeal is whether the District Court erred in granting defendants' motion to dismiss for failure to state a claim upon which relief can be granted. Embodied in Rule 12(b)(6), Mont.R.Civ.P., a motion to dismiss for failure to state a claim upon which relief can be granted, is the usual and proper method of testing the legal sufficiency of a complaint. 2A Moore's Federal Practice, S12.08, p. 2266. A complaint should not be dismissed for insufficiency "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Local No. 8 Inter- national Association of Firefighters v. City of Great Falls (1977) Mont I- , 568 P.2d 541, 546, 34 St.Rep. 991, 997 (and authority cited therein); Tobacco River Lumber Co., Inc. v. Yoppe (1978) I - Mont . , 577 P.2d 855, 856, 35 St. Rep. 477, 479. The brokers contend that the District Court could only dismiss their complaint if there was a -- per se rule prohibiting brokers from purchasing land that they have listed, which there is not. On the other hand, the landowners insist that there is such a rule contained in section 66-1937(7), R.C.M. 1947, now section 37-51-321(7) MCA and in section 2-129 (1) , R.C.M. 1947, now section 28-10-407 (1) MCA. Section 66-1937, R.C.M. 1947, now section 37-51-321 MCA, of the Montana Real Estate License Act sets out the ethical standards for licensed real estate brokers doing business in Montana. Although these standards specifically govern refusal, suspension and revocation of broker licenses by the Licensing Board, this Court has considered breach of the duties enumerated, "an independent reason to deny a commission to a broker. " Carnell v. Watson (1978) , Mont . , 578 P.2d 308, 312, 35 St.Rep. 550, 555. Section 66-1937 (7), supra, prohibits brokers from "[alcting in a dual capacity of broker and undisclosed principal in a transaction." As is clear from the District Court order dismissing the brokers' complaint, it was the court's "opinion" that the brokers did not disclose their dual capacity as both broker and buyer that compelled dismissal of the com- plaint. Nothing on the face of the complaint allowed this conclusion. The only hint of nondisclosure exhibited on the face of the complaint and the attached contracts is the fact that the brokers' signatures on both the listings and land sale contracts were affixed on the same day, February 27, 1978. The brokers claim that this coincidence is explainable in that on the date the listings agreement was signed, they inspected Sumrnerdale Orchards, decided they wanted to buy it on the owner's terms, and reached an oral agreement with William Vincent to do so, deducting their commission from the sale price. If this account was true, there was no nondisclosure. Indeed, the landowners' signatures on the sales contracts naming the brokers as purchasers tend to negate any inference of nondisclosure. It cannot be held "beyond doubt" that the facts did not occur in this manner. The landowners' reliance on section 2-129(1), R.C.M. 1947, now section 28-10-407(1) MCA is misplaced. Section 2- 129 (1) , supra, provides : ". . . EXCEPTIONS TO GENERAL AUTHORITY. An authority expressed in general terms, however broad, does not authorize an agent: (1) To act in his own name, unless it is the usual course of business to do so; . . ." A real estate broker does not enjoy general authority, but is only authorized to do what is specifically assigned in his contract of employment. Diehl and Assoc., Inc. v. Mont . Houtchens (1977), , 567 P.2d 930, 933-34, 34 St.Rep. 814, 817. Therefore, section 2-129(1), supra, does not apply. In formulating its "opinion", the District Court apparently referred to matters outside the allegations of the complaint. The case however, was not treated as one for summary judgment, and could not have been so treated, since the only pleadings before the court were the complaint and the motion to dismiss. Clearly, the complaint stated a cause of action. The court order dismissing the case is reversed and the cause remanded for further proceedings 7-7 We Concur: Justices f	April 11, 1979
fe93e371-3436-426a-83b5-d61d28deecc6	CARROLL v WELLS FARGO ARMORED SERV	N/A	89-335	Montana	Montana Supreme Court	No. 89-335 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 LAINE P. CARROLL, Claimant and Appellant, -v- WELLS FARGO ARMORED SERVICE CORPORATION, Employer, and CNA INSURANCE COMPANY, Defendant and Respondent. APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Eric R. Thueson, Thueson L a w Office, Helena, Montana For Respondent: Larry W. Jones, Garlington, Lohn & Robinson, Missoula, Montana Submitted on Briefs: October 20, 1 9 8 9 Decided: December 1, 1989 a Justice John Conway Harrison delivered the Opinion of the Court. Claimant Laine Carroll appeals a decision of the Workers' Compensation Court wherein the Workers' Compensation Court awarded claimant 175 weeks of partial disability benefits. As part of its decision the Workers' Compensation Court denied several of claimant's requests including the following: (1) denial of a lump sum advance; (2) denial of payment of certain medical expenses; (3) denial of request to include overtime hours as part of wage calculation; and (4) denial- of attorney's fees and costs. We affirm in part, reverse in part, and remand to the Workers' Compensation Court. Claimant presents four issues for review: 1. Did the Workers' Compensation Court err because it failed to discuss the factors that must be evaluated when determining a claimant's disability factor under 5 s 39-71-705, -708, MCA (1985)? 2. Did the Workers' Compensation Court err by not including claimant's overtime hours in determining his pre-injury wages? 3. Did the Hearings Examiner err by not requiring the defendant to pay certain medical expenses? 4. Did the Workers' Compensation Court err in holding that 5 39-71-612, MCA (1985), controlled the determination of attorney's fees rather than 5 39-71-611, MCA (1985)? On November 15, 1985, claimant injured his back during the course and scope of his employment as an armored car driver for Wells Fargo. Defendant initially accepted liability for claimant's injury and paid temporary total disability benefits and medical benefits. In a letter dated June 22, 1987, defendant offered to settle claimant's case for $30,317.58, representing 170 weeks of permanent partial disability benefits at the rate of $142.67 per week plus $6,063.48 in attorney's fees. Defendant stated in the letter that the offer was good for fifteen days. The Pretrial Order discloses that as of the hearing date, December 14, 1987, defendant had taken the position that claimant was not entitled to any indemnity benefits. At trial the Hearings Examiner heard the claimant's testimony and testimony from two vocational rehabilitation experts. Also part of the record are various depositions including depositions of medical doctors who had treated or examined the claimant. At the time of trial the claimant was 27 years old. He had a high school education and his work history included work as a gas station attendant, dishwasher, construction helper, and armored truck driver. At the date of his injury, claimant earned $5.35 per hour. It was undisputed that the claimant could not return to his former employment and that he is now limited to light or sedentary jobs that have starting wages of $3.50 to $4.50 per hour. Other facts will be discussed as necessary. I. Did the Workers' Compensation Court err because it failed to discuss the factors that must be evaluated when determining a claimant's disability factor under §§ 39-71-705, -708, MCA (1985)? This Court's task in reviewing a Workers' Compensation Court decision is to determine whether substantial evidence supports the Workers' Compensation Court's findings of fact and conclusions of law. Coles T T . Seven Eleven Stores (1985), 217 Mont. 343, 347, 704 P.2d 1048, 1050. It is well established that SS 39-71-705, -708, MCA (1985), permanent partial disability benefits indemnify the claimant for possible loss of future earning capacity. McDanold v. B.N. Transport, Inc. (1384), 208 Mont. 470, 476, 679 P.2d 1188, 1191. Also well established are the factors the court must consider in determining a claimant's disability under SS 39-71-705, -708, MCA (1985). The court must consider the claimant's age, education, work experience, pain and disability, actual wage loss, and loss of future earning capacity. Holton v. F.H. Stoltze Land and Lumber Co. (1981), 195 Mont. 263, 266, 637 P.2d 10, 12. The Conclr~sions of Law recognized these factors. After stating the appropriate standard for a SS 39-71-705, -708, MCA (1985), disability determination, the court set forth its rationale for its conclusion that claimant was 35% disabled. Appellant argues that the court's legal conclusion that the claimant is 35% disabled is flawed because the rationale does not reflect how, or even if, the court considered the above mentioned factors in reachinq its decision. We agree. As mentioned, case law interpreting §S 39-71-705, -708, MCA, requires that the court consider a claimant's age, education, work experience, pain and disability, actual waqe loss and possible loss of future earning capacity. Rased on the court's discussion, the only apparent consideration made by the court in determining claimant's disability was pre-injury versus post-injury earnings. Although the court listed the appropriate factors, it discussed only actual wage loss. The court's opinion contains no discussion of how any of the other factors weighed in its decision that claimant is 35% disabled, which nearly approximates claimant's actual wage loss. Thus, on its face, the court's decision reads like a permanent partial disability determination under 5 39-71-703, MCA (1985), which does look only to actual diminution in wages as the basis upon which benefits are determined. Because the court only discussed the claimant's actual wage loss and failed to discuss any of the other criteria, we hold that the court's decision is not supported by substantial evidence. Respondent asks us to adopt its version of what the Hearings Examiner must have thought in reaching his decision. Similarly, claimant asks us to adopt his version of what the Hearings Examiner should have thought and increase the compensation award. However, this Court cannot second guess how the Workers' Compensation Court must have arrived at its decision or dictate what decision it should have made. Both respondent and claimant supplied this Court with Workers' Compensation Court decisions. A review of the cases decided under 5 s 39-71-705, -708, MCA (1985) , reveal in all some discussion of the necessary factors. Such a discussion is required so that the reviewing court can ascertain that all of the factors were indeed considered and discern the court's rationale. In the instant case the opinion discussed only the actual wage loss factor and none of the other mandatory considerations. We vacate the Workers' Compensation Court's award under 55 39-71-705, -708, MCA (1985), and remand to the Workers' Compensation Court for a redetermination of benefits consistent with the requirements of § S 39-71-7'05, -708, MCA (1985). 11. Did the Workers' Compensation Court err by not including claimant's overtime hours in determining his pre-injury wages? Generally, overtime earnings are not included in determining a claimant's "usual hours of employment." Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 348-49, 704 P.2d 1048, 1052. "However, if the work record shows that the employer hired the claimant expecting overtime work and the claimant actually worked overtime on a consistent, regular basis . . . then that overtime becomes part of the usual hours of employment." Coles, 704 P.2d at 1052. In Coles, the claimant worked overtime in each of the weeks she worked at the Seven Eleven store. Claimant contends that the Workers' Compensation Court erred by not including overtime hours in his pre-injury wages because he worked overtime in 24 of the 48 weeks preceding his injury. Thus, claimant contends that his case falls within the Coles decision on overtime and that the Workers' Compensation Court's decision is not supported by substantial. evidence. We disagree. As the Workers' Compensation Court found, the claimant did not receive overtime wages for 21 weekly pay periods prior to his injury. In other words, claimant had not worked overtime in the five months preceding his injury. The record contains no other evidence of any overtime claimant worked. On its face claimant's overtime hours do not approach the standard of a "consistent, regular basis" set in Coles. We hold that the Workers' Compensation Court's decision not to include overtime hours in determining pre-injury wages is supported by substantial evidence. 111. Did the Hearings Examiner err by not requirins the defendant to pay certain medical expenses? Claimant received medical treatment from Dr. Baggenstos for which defendant refused to pay. Defendant refused to pay Dr. Baggenstos' costs because neither did claimant's treating physician refer claimant to Dr. Baggenstos nor did defendant authorize Dr. Baggenstos' visit. Montana law specifically requires either a referral from a claimant's treating physician or an authorization by the insurer before an insurer will he liable for medical treatment expenses. Garland v. The Anaconda Co. (19781, 177 Mont. 240, 581 P.2d 431. Claimant's visit to Dr. Baggenstos was clearly unauthorized under Montana law, even though claimant felt he had good reason for his actions. We affirm the Workers' Compensation Court's decision disallowing payment of Dr. Baggenstos' medical costs. IV. Did the Workers' Compensation Court err in holding that § 39-71-612, MCA (1985) , controlled the determination of attorney's fees rather than S 39-71-611, MCA (1985)? Workers' Compensation statutes provide two methods of determining attorney ' s fees. Section 39-71-611, MCA (1985) , applies when an insurer denies liability while $ 39-71-612, MCA (1985), applies when an insurer accepts liability but disputes the amount of compensation due the claimant. Hartman v. Staley Continental (Mont. 1989), 768 P.2d 1380, 46 St.Rep. 248. If the court awards more compensation than the defendant has offered, then attorney's fees are based on the difference. If the court awards less compensation then no attorney's fees are due. The Workers' Compensation Court awarded attorney's fees to claimant pursuant to § 39-71-612, MCA (1985) , and ordered claimant to submit his attorney's fees request. Defendant disputed attorney's fees and moved for summary judgment which the Workers' Compensation Court granted. The Workers' Compensation Court held that claimant was not entitled to attorney's fees because the court-awarded indemnity benefits ($24,967.25 + $235.41 for attorney's fees) were less than the defendant's pretrial settlement offer ($30,317.58). Claimant contends that defendant denied liability and that the Workers' Compensation Court erred in not applying S 39-71-611, MCA (1985). In both its pretrial order and its proposed findings of fact and conclusions of law, defendant asserted that the claimant was not entitled to any permanent partial disability benefits. Claimant argues that under our Hartman holding these assertions constitute a denial of liability regardless of any pretrial settlement offer. We agree. The Hartman case is directly analogous to the instant case. In Hartman, the defendant made a pretrial settlement offer but asserted in its pretrial order and proposed findings and conclusions that the claimant was not entitled to any permanent partial disability benefits. Similar to defendant in this case, the Hartman defendant argued that $ 39-71-612, MCA (1985), applied because it was not denying liability but merely disputing the amount of compensation. We found that the record, in which defendant steadfastly claimed that claimant was entitled to nothing, did not support defendant's assertion that it was only disputing the amount of compensation. Hartman, 768 P.2d at 1385. The same reasoning applies to the instant case. If defendant were merely disputing the amount of compensation, then defendant would acknowledge that claimant was entitled to permanent partial disability benefits. See, Lamb v. Missoula Imports, Inc. (Mont. 1988), 748 P.2d 965, 45 St.Rep. 127. To the contrary however, here defendant denied that claimant was entitled to compensation. In other words, defendant denied any liability for permanent partial benefits. We hold that claimant's attorney's fees are to be determined under § 39-71-611, MCA (1985). We remand to the Workers' Compensation Court for a determination of indemnity benefits and attorney's fees in accordance with this opinion. We concur: Justices I '	December 1, 1989
7e39c3e3-cb16-4cb1-a0a9-6d1f6251f20d	STATE v LARSON	N/A	88-577	Montana	Montana Supreme Court	NO. 8 8 - 5 7 7 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 STATE OF MONTANA, p l a i n t i f f and R e s p o n d e n t , -VS- DUANE ROBERT LARSON, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: ~ i s t r i c t C o u r t of t h e N i n t h ~ u d i c i a l ~ i s t r i c t , I n and for t h e C o . u n t y of T e t o n , T h e H o n o r a b l e R. D. M c P h i l l i p s , J u d g e presiding. COUNSEL O F RECORD: For A p p e l l a n t : C h a r l e s M. J o s l y n , C h o u t e a u , M o n t a n a For R e s p o n d e n t : H o n . M a r c R a c i c o t , 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 J a m e s Y e l l o w t a i l , A s s t . A t t y . G e n e r a l , H e l e n a R u s s e l l R. A n d r e w s , T e t o n C o u n t y A t t o r n e y , C h o u t e a . ~ , M o n t a n a S u b m i t t e d on ~ r i e f s : O c t . 2 5 , 1 9 8 9 D e c i d e d : D e c e m b e r 8, 1 9 8 9 Chief Justice J. A. Turnage delivered the Opinion of the Court. Duane Robert Larson appeals from his conviction of burglary and theft (misdemeanor) in a jury trial in the District Court for the Ninth Judicial District, Teton County. We affirm. The issues are: 1 . Did the District Court err by converting Count I1 from a charge of felony theft to a charge of misdemeanor theft? 2. Was sufficient proof of ownership of the property presented? 3 . Was the jury properly instructed on the offense of theft? 4 . Was the jury properly instructed on accomplice testimony? In October 1985 a quonset shed on the Luinstra farm was broken into and a Craftsman tool chest, battery charger, and various tools were stolen. The crime remained unsolved until, two years later, Larson's wife and teenage stepson reported to a county deputy sheriff that Larson and the stepson had stolen a tool chest out of the Luinstrals shed. Larson was charged with the offense in February 1988. At trial, the stepson recanted his statement to the deputy sheriff. He said he had lied because he was angry with Larson. However, Larson's wife's uncle testified that sometime in 1986, Larson had sold him a Craftsman tool chest, some tools, and a battery charger. These items were placed into evidence. The uncle testified that Larson had told him that he got the tool chest from his father, that he had found the tools in various places, and that he bought the battery charger from a pawnshop. Mike Luinstra identified the tool chest as the farm's. Sam Luinstra identified several of the tools and the battery charger as identical to those which had been stolen. At the end of trial, the judge reduced the theft charge from felony to misdemeanor, based on the evidence concerning the value of the items stolen. The jury returned a verdict of guilty on both counts. Larson was sentenced to a term of ten years, based in part upon his previous criminal record. I Did the District Court err by converting Count I1 from a charge of felony theft to a charge of misdemeanor theft? As stated above, the court reduced this charge after receiving evidence of the value of the items taken. Larson argues that after it reduced the theft charge to a misdemeanor, the court was no longer within its jurisdiction because the statute of limitations for a misdemeanor is one year under 9 45-1-205 (2) (b) , MCA. The crime occurred in October 1985 and the information was filed against Larson on February 17, 1988. As a general rule, a defendant may not be convicted of a lesser included offense when the statute of limitations has run on that offense but not on the larger offense charged. a, Criminal Law Commission Comments, 9 45-1-205, MCA. However, in this case, no objection was made in the lower court to reduction of the theft charge to a misdemeanor, nor was objection made to the instruction on misdemeanor theft. The question then becomes whether it is too late for Larson to bring this claim. The State points out that this Court has categorized statutes of limitation as a defense which is waived if not raised before conviction. State v. Atlas (1926), 75 Mont. 547, 244 P. 477. But, this Court has more recently held that the statute of limitations is a jurisdictional issue. Milarovich v . Milarovich (1982), 201 Mont. 332, 334, 655 P.2d 963, 964, affld after remand, 215 Mont. 367, 697 P.2d 927. Therefore, 5 46-20-701(2), MCA, governs. (2) Any error, defect, irregularity, or vari- ance which does not affect substantial rights shall be disregarded. No claim alleging an error affecting jurisdictional or constitu- tional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that: (a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its applica- tion; (b) the prosecutor, the judge, or a law en- forcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or (c) material and controlling facts upon which the claim is predicated were not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence. The statute requires both that the error was prejudicial to defendant s guilt or punishment and that condition (a) , (b) , or (c) was met. Larson has not presented any argument that his claim qualifies under (a), (b), or (c) as one not required to have been raised at trial. We conclude that this claim is precluded because it is raised for the first time on appeal. I1 Was sufficient proof of ownership of the property presented? Larson contends that ownership was not sufficiently proven because of the sloppiness of the State's proof on whether the stolen items belonged to Mike Luinstra, Sam Luinstra (Mike's father), or the corporation, Sam Luinstra & Sons, Inc. The State argues that proof of possession was sufficient. In Montana, proof of possession suffices to prove ownership for purposes of theft. [Cita- tions omitted.] This is true whether an individual or a corporation is the owner of the property. State v. Johnson (1982), 199 Mont. 211, 217, 646 P.2d 507, 511. We hold that sufficient proof of ownership of the stolen property was made in the testimony of Sam and Mike Luinstra that the stolen property was possessed by them at their farm. I11 Was the jury properly instructed on the offense of theft? Larson objects to Instruction No. 15: To convict the defendant of the charge of theft, the State must prove the following elements : First: That Sam Luinstra and Mike Luinstra were the owner or owners of the Craftsman 10- drawer toolbox, with numerous tools, 6 gal- lons Tru-Value antifreeze, one (1) Hi-Lift Jack, and one (1) Black and Decker 1/2" drill in questions [sic]; and Second: That the defendant purposely or knowingly obtained or exerted unauthorized control over the property just described; and Third: That the defendant had the purpose of depriving Sam Luinstra and Mike Luinstra of the property; If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty of misde- meanor theft. If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty. Larson's objection is that the instruction is a comment on the evidence in that it assumes Sam and Mike Luinstra were the owners of the property and that the State proved that specific property had been taken. Larsonls argument is without merit. The sentence after llFirstll in Instruction No. 15 gave the jury the task of deter- mining whether the State had proven that Sam and Mike Luinstra were the owners of the property. The sentence after llSecondll gave the jury the task of determining whether the State had proven that the specific property had been taken. The next-to-last sentence set forth the requirement that the State must prove each element of its case beyond a reasonable doubt. We hold that the court did not err in giving Instruction No. 15. IV Was the jury properly instructed on accomplice testimony? Larson argues that the jury was not adequately instructed on what corroboration is and what is required for corroboration of an accomplicels testimony. The jury was given the following instruc- tion regarding the testimony of the accomplice, Larson's stepson: Testimony has been presented that witness, Travis McLaughlin, may be an accomplice in this case. In this respect, you are to be guided by the following rules of law: 1) An accomplice is one who knowingly and voluntarily, with common intent with the principal of fender, unites in the commission of a crime. One may become an accomplice by being present and joining the criminal act, by aiding and abetting, with criminal intent, another in its commission or in being present by advising and encouraging its commission, but knowledge and voluntary action are essen- tial in order to impute guilt. 2) It is a question of fact for the jury to determine from the evidence and from the law as given you by the Court, whether or not, in this particular case, witness, Travis McLaughlin, was or was not an accomplice within the meaning of the law. 3 ) The testimony of an accomplice ought to be viewed with distrust. 4 ) A conviction cannot be had on the testi- mony of an accomplice unless he is corrobor- ated by other evidence which in itself, and without the aid of the testimony of the accom- plice, tends to connect the Defendant with the commission of the offense, and the corrobora- tion is not sufficient if it merely shows the commission of the offense or the circumstances thereof. This instruction is virtually identical to Instruction NO. 1-012, Montana Criminal Jury Instructions. Paragraph 4 addresses the definition of corroboration. It accurately reflects the law as summarized in State v. Case (1980), 190 Mont. 450, 455-56, 621 p.2d 1066, 1070. We hold that the jury was adequately instructed on accomplice testimony. We concur:	December 8, 1989
f4fb9fc0-e5d4-4552-85e7-ae593360a3e1	MILLER v FALLON COUNTY	N/A	89-168	Montana	Montana Supreme Court	No. 89-168 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 CECIL P. MILLER, Plaintiff and Appellant, -VS- FALLON COUNTY, Defendant and Respondent. APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Fallon, The Honorable Roy Rodeghiero, Judge presiding. COUNSEL OF RECORD: For Appellant: Donald W. Molloy argued; Anderson, Edwards & Molloy, Billings, Montana For Respondent: Calvin J. Stacey argued; Keefer, Roybal, Hansen, Stacey & Walen, Billings, Montana Denzil R. Young argued, Fallon County Attorney, Baker, Montana For Amicus Curiae: William L. Crowley; Boone, Karlberg & Haddon, (David '-R. Brown), Missoula, Montana H c= CU 3 0 bc c , : . ; LL1 Submitted: September 25, 1989 Degided: December 13, 1989 Justice Fred J. Weber delivered the Opinion of the Court. This appeal arises from an order by the District Court, Sixteenth Judicial District, Fallon County, Montana. The District Court granted summary judgment in favor of defen- dant, concluding that plaintiff's suit against Fallon County was barred because the county was statutorily immune from suit. Plaintiff appeals. We affirm. The issues on appeal are: 1. Did the District Court err in grantinq summary judgment in favor of defendant Fallon County by determining that, pursuant to 5 2-9-111, MCA, the County is immune from suit? 2. Is § 2-9-111, MCA, constitutional? Cecil Miller was injured when his truck, an 18-wheeler, failed to negotiate a curve on a county road on November 3, 1982. Mr. Miller was an independent trucker. He and his wife were carrying a load of lumber from Townsend, Montana, to Minnesota and elected to use secondary roads since they did not possess the required permits to travel on the inter- state highway. South of Baker, Montana, Mr. Miller began traveling on a two-lane graveled county road. He approached a curve known as "Russley's Corner," which was unsigned at that time. Mr. Miller lost control of the truck on this curve and went off the road and down an embankment. Mr. Miller's wife, Linda, was also injured in this accident. She previously filed suit against her husband and his alleged employer. That case was appealed to this Court and decided in Miller v. Fallon County (1986), 222 Mont. 214, 721 P.2d 342. Cecil Miller subsequently filed suit on his own behalf against Fallon County, alleging negligence in construction, maintenance, and signing of the county road. Defendant moved nity. We begin therefore by explaining the county's system for road construction and maintenance. Fallon County is divided into three road districts. The Fallon County Board of Commissioners (Board) is in charge of the county roads, with one commissioner assigned to each district. Mr. Delane Beach, a member of the Board, was assigned to the road district in which Mr. Miller's accident occurred. At the time of the accident, the road foreman for this district was Mr. Harold Wiseman. In applying § 2-9-111, MCA, to the present case, Fallon County is a "governmental entity" and the Board of Commis- sioners is its "legislative body." Pursuant to subsection (2) the County is immune from suit for an act or omission of its Board of Commissioners or a "member, officer. or agent thereof." Therefore, on its face, the language of the stat- ute grants immunity to Fallon County for any act or omission of its Board of Commissioners. Additionally, it grants immunity to the County for acts or omissions of Mr. Beach, a member of the Board, or for acts or omissions of agents of the Board. In the present case, it is not disputed that the road foreman, Mr. Wiseman, was an agent of the Board. "Agency" is defined as follows: Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and be subject to his control, and consent by the other so to act. Restatement of the Law of Agency 2d 5 1 (1958). Additional- ly, the agency status of the road foreman is contemplated by statute. Section 7-14-2121, MCA, authorizes the Board to divide the county into road districts and place a road super- visor in charge of each district. Section 7-14-2122, MCA, delineates the road supervisor's responsibilities, which are to be performed " [ulnder the direction and control of the board.'' We conclude that Mr. Wiseman was clearly an agent of the Board. We point out that this agency status could be extended to the road crews pursuant to our recent holding in State of Montana ex rel. Eccleston v. Montana Third Judicial District Court (Mont. 1989), - P.2d - , 46 St.Rep. 1929, (custodians of school district are agents of school board for purposes of immunity under S 2-9-111, MCA) . The plain lan- guage of the statute therefore extends immunity to Fallon County for acts or omissions of the Board, Mr. Reach, and Mr. Wiseman. In its grant of summary judgment the District Court relied on this Court's previous holdings in W.D. Const. Inc. v. Bd. of County Com'rs (1985), 218 Mont. 348, 707 P.2d 1111 (county and commissioners were immune from suit arising out of commissionersf approval of a plat for subdivision); Barnes v. Koepke (1987), 226 Mont. 470, 736 P.2d 132 (county and commissioners were immune from suit which arose out of com- missioners' decision not to renew a hospital lease) ; Bieber v. Broadwater County (Mont. 1988), 759 P.2d 145, 45 St-Rep. 1218 (county and commissioners were immune from suit for commissioners' termination of county employee). Recently, the decision of Peterson v. Great Falls School District 1 and A (Mont. 1989), 773 P.2d 316, 46 St.Rep. 880, has been is- sued, which follows the holdings of the previous cases. In Peterson this Court determined that the school district was immune from suit for the discharge of a custodian. Plaintiff attempts to distinguish these cases by stat- ing that all prior cases involved a decision by the Board, which was found to be a legislative act. He urges that the present case does not involve a decision by the Board. Plaintiff contends that the only involvement the Board of for summary judgment asserting immunity as an affirmative defense. That motion was granted. Did the District Co,urt err in granting summary judgment in favor of defendant Fallon County by determining that, pursuant to § 2-9-111, MCA, the County is immune from suit? Plaintiff's complaint alleged that Fallon County was negliqent in designing, constructing, maintaining and signing the corner where the accident occurred. Defendant Fallon County moved for summary judgment, claiming immunity. The District Court granted summary judgment in favor of defendant pursuant to 5 2-9-111, MCA, which provides: Immunity from suit for legislative acts and omissions. (1) As used in this section: (a) the term "governmental entity'' includes the state, counties, municipalities, and school districts; (b) the term "legislative body" includes the legislature vested with legislative power by Arti- cle V of The Constitution of the State of Montana and any local governmental entity given legislative powers by statute, including school boards. (2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officex, or agent thereof. (3) A member, officer, or agent of a legisla- tive body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body. (4) The immunity provided for in this section does not extend to any tort committed by the use of a motor vehicle, aircraft, or other means of transportation. The issue before this Court is whether the District Court was correct in determining that the acts or omissions in the present case fit within this statutory grant of immu- Commissioners had in the construction, maintenance, and signing of the road where the accident occurred, was the initial decision to build the road. He urges that the present case only involves acts or omissions of employees. Thus, he distinguishes the present case on a factual basis. As a legal argument, plaintiff also urges that the language of the statute only grants immunity for legislative acts, not administrative acts. He contends that the present case only involves administrative acts. We conclude that plaintiff's contentions fail both factually and legally. Altho.ugh plaintiff contends that as a matter of fact, the only involvement by the Board of Commis- sioners was the decision to build the road, deposition testi- mony belies this contention. The deposition of the County Commissioner in charge of this road, Mr. Delane Beach, and the deposition of Mr. Harold Wiseman, demonstrate rather extensive and continuous involvement by the Board of Commis- sioners in road construction and maintenance. Because factually this involvement unequivocally estab- lishes the county's right to claim immunity in this case, we set out this involvement in some detail. In substance this testimony established that all three commissioners determined priorities on new construction, on any major project, and on budgeting. The commissioners as a group made decisions regarding implementation of state recommendations regarding roads, bridges, etc. In regard to new construction, Mr. Beach stated that he gave general direction to the road crews, such as directing that a road be constructed along section lines. While many details were left up to the judgment of the road foreman and road crews, Mr. Beach also participated in specific decisions regarding the width and slope of certain roads. In regard to maintenance, Mr. Beach testified that he drove all the roads in his district twice a year, identifying roads, bridges, and culverts which needed repair. This information was then given to the road foreman, along with any complaints Mr. Beach had received. He stated that he would work closely with the road foreman and the crew in deciding where repairs were needed, and that he would personally follow up to be sure the actual repairs were made. Mr. Beach stated that the road foreman was to use his judgment as to which corners required signs, and once the decision to sign was made, the sign was to be in accordance with the Traffic Control Manual. Mr. Beach also stated that he was the individual who gave the order for the reconstruction of Russley's Corner in the mid-1970's. He stated that it was he who determined that the corner needed a "gentler" curve. Additionally, Mr. Wiseman's testimony indicated that Mr. Beach was personally involved in decisions regarding the construction and mainte- nance of the roads. We conclude that any acts or omissions complained of in the present case were acts or omissions of the Board, its members, and its agents. On a legal basis, plaintiff contends that only legisla- tive acts are immune, not administrative acts. He urges that the acts complained of in the present case are administrative rather than legislative or discretionary. Plaintiff suggests the effect of granting immunity in this case is to create blanket immunity to the county. He urges this is not the intent of S 2-9-111, MCA. In urging this distinction between legislative and administrative acts, plaintiff refers the Court to the lan- guage of the Montana Constitution, Article 11, Section 18, and § 2-9-102, MCA. Article 11, Section 18, states: State subject to suit. The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature. Section 2-9-102, MCA, states: Governmental entities liable for torts except as specifically provided by legislature. Every governmental entity is subject to liability for its torts and those of its employees acting within the scope of their employment or duties whether arising out of a governmental or proprietary function except as specifically provided by the legislature under Article 11, section 18, of The Constitution of the State of Montana. Plaintiff urges that any statute granting immunity is an exception to the general rule of liability and must be nar- rowly construed, citing R.M. v. State (1982), 200 Mont. 58, 649 P.2d 425. The present Montana Constitution, enacted in 1372, abolished sovereign immunity through Article 11, Section 18, yet empowered the legislature to reestablish immunity by a two-thirds vote of each house. In 1977 the legislature enacted 2-9-111, MCA, and also amended S 2-9-102, MCA, to its present form. By enacting § 2-9-111, MCA, the legisla- ture, by its power, granted immunity to counties. Although the statute is entitled "Immunity from suit for legislative acts and omissions," our previous interpreta- tions of this statute have rejected the contention that only acts or omissions which are legislative in nature are immu- nized. In Bieber, this Court stated, Bieber initially argues that the District Court incorrectly assessed the meaning of § 2-9-111, MCA, and its applicability to the Commis- sioners' action. He asserts that the statute represents a narrow exception to the constitution- ally mandated rule of no sovereign immunity and as such its protection is limited to purely "legisla- tive" acts and excludes day to day "administrative" responsibilities such as the firing of a county employee. Appellant asks that we recognize the distinc- tion between administrative acts which should not be protected and legislative acts which should be protected. We decline to give credence to appel- lant's argument because the plain language of the statute makes no such distinction. As we have stated, this Court will not delve outside the plain meaning of the words used in a statute. See, W.D. Construction, 707 P.2d at 1113 and Barnes, 736 P.2d at 134. Bieber, 759 P.2d at 146, 147. Recently, in Peterson we reiterated that "the action of the legislative body need not be legislative in nature to afford immunity." Peterson, 773 P.2d at 318. Peterson involved the termination of a school district custodian by an administrative assistant. The discharge was ratified by the school board at a subsequent meeting. We noted that $ 2-9-111, MCA, clearly extended immunity to school dis- tricts, school boards, and their agents. We also found it significant that school districts are statutorily authorized to hire and dismiss custodians pursuant to $ 20-3-324(2), MCA. Thus we concluded that the immunity statute clearly applied to that situation. The present case is analogous to Peterson, and we conclude that the holding in Peterson is controlling. As previously established, the plain language of the stat.ute grants immunity to the county for actions of its Board, and the Board's members and agents. This immunity is fortified in the present case since by statute the Board is assessed many statutory powers and duties in relation to the county roads. See 7-14-2101 through 2125, MCA. These statutorily mandated duties necessitate extensive involvement by the Board and its agents in decisions regarding road construction and maintenance. We conclude that the acts or omissions complained of are acts by the Board of Commissioners, or by a member, or by its agent, for which Fallon County is immune from suit. Accordingly, we affirm the grant of summary judgment in favor of Fallon County. I1 Is 5 2-9-111, MCA, constitutional? Plaintiff contends that § 2-9-111, MCA, is unconstitu- tional because it denies him full legal redress, which is a fundamental right. He urges that granting immunity to coun- ties classifies victims of torts according to whether they are injured by the state, county, or a private party, which is a denial of equal protection. He contends that since this classification affects a fundamental right, it requires a compelling state interest. He urges there is no compelling state interest. In Peterson we addressed this same contention, stating that the right involved was access to the courts, rather than full legal redress. Since access to the courts is not a fundamental right, Bieber, 759 P. 2d at 148; Linder v. Smith (Mont. 1981), 629 P.2d 1187, 1190, 38 St.Rep. 912, 915, the State need only show a rational relationship. As in Peter- son, we reaffirm the determination that the statute at issue - has previously passed the rational relationship test. We also note that this Court has recently decided that f.ul1 legal redress is not a fundamental right under the Montana Constitution. See Meech v. Hillhaven West, Inc. (Mont. 2-9-111, MCA, is constitutional. Affirmed. We Concur: A Justices Justice J o h n C. Sheehy, dissenting: F o r t h e same reason I expressed in t h e case of Peterson v. Great F a l l s School Dist. No. 1 and A (19891, - Mont. , 773 P.2d 316, 319, I dissent to the foregoing Opinion. -\ \ __i-L4+- Justice v > i I concur in t h e foregoing d i s s e k y o f Justice Sheehy. Justice	December 13, 1989
6bac3365-9e3b-4035-a964-5457646c8699	STATE EX REL FIRST BANK v DIST C	N/A	89-257	Montana	Montana Supreme Court	No. 89-257 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, ex rel., FIRST RANK SYSTEM, FIRST BANK WEST GREAT FALLS, and JOHN REICHEL, Relators, -vs- THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTAbJA, IN AND FOR THE COUNTY OF CASCADE, THE HONORABLE NAT ALLEN, Presiding Judge, and ROBERT M. PANC ICH , Respondents. ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Relators: Stephen D . Bell & Keith Strong; Dnrsey & Whitney, Billings, Montana For Respondent: Ralph L. Herriott, Billings, Montana Walter M. Hennessey, Butte, Montana ~illiam L. Baillie, Great Falls, Montana Gene B. Daly, Helena, Montana Submitted: September 5, 1989 Decided: November 28, 1989 0 Filed: Justice Fred J. Weber delivered the Opinion of the Court. Relators First Bank System, First Rank West Great Falls, and John Reichel seek a writ of supervisory control from this Court following an order entered in the District Court for the Eighth Judicial District, Cascade County. In exercising our power of supervisory control, we vacate the lower court's order and remand for further proceedings. The issues presented for our review are: 1. Did the District Court err in granting summary judgment in favor of plaintiff on the issue of liability? 2. Is supervisory control appropriate when the Dis- trict Court granted summary judgment despite the presence of numerous factual issues? Relators are the named defendants in a civil action brought by Robert Pancich, a former employee of First Bank West Great Falls. First Bank System is the parent corpora- tion of First Bank West, and John Reichel was the Managing Director of the Western Montana Region of First Bank System at the time pertinent to this lawsuit. Mr. Reichel had also been elected a member of First Bank West's Board of Directors. The incident giving rise to the present controversy occurred in 1983. In that year the Office of the Comptroller of the Currency (OCC) investigated First Bank West Great Falls and determined that it was engaged in "unsafe and unsound" banking practices. An affidavit by Mr. Reichel states that the deficiencies existing in the bank at that time included "ineffectiveness of some existing management personnel, high operating expenses, financial imbalance, unnecessary expenses, and inefficient use of resources." After the report by the OCC, on August 12, 1983, Mr. Reichel terminated Mr. Pancich's employment as president of the bank. Prior to termination, Mr. Reichel contacted four members of the bank board, recommending that Mr. Pancich be terminated. Six days later, on August 18, 1983, during a special meeting of the board of directors, a new president was elected. During a regular meeting of the board, on September 15, 1983, the board unanimously accepted a letter of resignation from Mr. Pancich. The affidavit by Mr. Reichel states that of the bank's board of directors, nine members were eligible to vote on decisions involving employment termination, one of whom was himself. Affidavits by the four members whom Mr. Reichel contacted state that prior to the August 12 termination Mr. Reichel discussed with them the need for a new president because of the Bank's serious financial setbacks. The affi- davit of each of these four members states, "I concluded and agreed that Robert M. Pancich should be terminated from his employment at the Bank.'' Affidavits by three other members of the board state that prior to the termination, each of these three individuals had formed the opinion that the bank needed new leadership. All nine members of the board state by affidavit that on August 18, 1983, each attended a special meeting of the board during which each concurred in the termination of Mr. Pancich. The affidavits further state that at this meeting each member voted to elect a successor to Mr. Pancich. These affidavits are uncontradicted. Subsequently Mr. Pancich brought suit against the Bank, its parent corporation and Mr. Reichel individually, allegina wrongful termination and breach of an implied covenant of good faith and fair dealing. Initially defendants moved for summary judgment, which was denied by the District Court. Following denial of this motion, on December 7, 1987, defendants applied to this Court for a writ of supervisory control which was denied on two grounds: (1) t h a t t h e D i s t r i c t C o u r t ' s o r d e r denying summary judgment was i n t e r l o c u t o r y ; and ( 2 ) t h a t r e l a t o r s had an adequate remedy by appeal from t h e f i n a l judgment. A y e a r l a t e r p l a i n t i f f moved f o r summary judgment on t h e i s s u e of l i a b i l i t y . P l a i n t i f f ' s motion was g r a n t e d by t h e D i s t r i c t Court without e x p l a n a t i o n o r accompanying memorandum. Defen- d a n t s moved t h e lower c o u r t t o r e c o n s i d e r i t s o r d e r o r t o c e r t i f y t o t h i s Court pursuant t o Rule 5 4 ( b ) , M.R.Civ.P. This motion a l s o was summarily denied. The D i s t r i c t Court t h e n s e t a d a t e f o r t r i a l on t h e i s s u e of damages. I Did t h e D i s t r i c t Court e r r i n g r a n t i n g summary judgment i n f a v o r of p l a i n t i f f on t h e i s s u e of l i a b i l i t y ? I n o u r a n a l y s i s , w e begin by emphasizing t h a t summary judgment i s only a p p r o p r i a t e when t h e r e a r e no genuine i s s u e s of m a t e r i a l f a c t and 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 m a t t e r o f law. Rule 56 ( c ) , M.R.Civ.P. Any i n f e r e n c e s t o be drawn from t h e f a c t u a l record must be r e s o l v e d i n favor o f t h e p a r t y opposing summary judgment. Simmons v. Jenkins (1988), 750 P.2d 1067, 45 St.Rep. 328. Defendants contend t h a t t h e c o u r t g r a n t e d summary judgment based on an i n c o r r e c t assumption t h a t t h e d e n i a l of d e f e n d a n t s ' motion f o r summary judgment e n t i t l e d p l a i n t i f f t o summary judgment i n h i s f a v o r . Defendants' o r i g i n a l motion f o r summary judgment was based upon t h e f a c t t h a t F i r s t Bank W e s t i s a n a t i o n a l bank governed by t h e National Bank Act, 12 U.S.C. § 2 1 , e t seq. Defendants' claimed t h a t t h i s s t a t u t e preempts s t a t e law, and t h a t pursuant t o 12 U.S.C. § 2 4 ( 5 ) , a n a t i o n a l banking a s s o c i a t i o n has t h e power t o a p p o i n t a p r e s i d e n t and t o d i s m i s s an o f f i c e r " a t p l e a s u r e . " The D i s t r i c t Court denied d e f e n d a n t ' s motion by simply s t a t i n g : IT IS ORDERED that said motion is overruled and denied for the reason that a discharge is not ratifiable by the board after defendants executed the discharge of plaintiff and for the further conflicts in the admissible evidence revealed in defendants' Answers to Interrogatories #40, #SO, #58, #70, #73, and #74, and others. While we do not rule on this denial of summary judg- ment, we point out that it contains neither a factual nor a legal analysis. A year later plaintiff moved for summary judgment on the issue of liability. In this motion plaintiff contended that the court's denial of defendants' motion for summary judgment entitled plaintiff to summary judgment in his favor. Defendants contend that the court erroneously granted plaintiff's motion on this basis. While we cannot ascertain the court's reason for its decision, we do empha- size that summary judgment is not a decision on the merits. A denial of summary judgment is simply a decision that there are factual issues. As stated by one authority: [Tlhe denial of summary judgment does not preclude either party from raising at trial any of the issues dealt with on the motion. This is because the denial of summary judgment is not decision on the merits; it simply is a decision that there is a material factual issue to he tried. 10 Wright, Miller & Kane, Federal Practice and Procedure, S 2712 at p. 587. While the District Co.urtls determination on defendants' motion for summary judgment was made a year earlier, and is not binding on the present motion, we point out that the District Court concluded that there were factual disputes. If there were material factual disp,utes, neither plaintiff nor defendant were entitled to summary judgment. Defendants also contend that the court erroneously granted summary judqment since genu-ine issues of material fact remain as to each of plaintiff's allegations, and as to defendants' affirmative defenses. In the petition for a writ of supervisory control, defendants list the following as issues involving factual determinations: (a) Whether the court improperly removed from jury consideration the issue of whether there was a breach of an implied covenant of qood faith and fair dealing when numerous affidavits described a fair and honest reason for the discharge from employment; (b) Whether an alleqed failure to meet the re- quirements of a federal preemption defense provides grounds for summary ruling that the implied cove- nant of good faith and fair dealing was breached or wrongful discharge occurred; (c) Whether mere discharge from employment, with- out more, entitled respondent to summary iudgment on the issue of liability for breach of implied covenant of good faith and fair dealing; (dl Whether denial of relators' summary judgment motion, without more, entitled respondent to entry of summary judgment; (e) Whether the Bank's parent corporation is subiect to liability for breach of implied cove- nant, based on discharge of its subsidiary's em- ployee, when respondent offered no proof that the corporate form was used as a subterfuge to perpe- trate fraud, justify wrong, or defeat public convenience; (f) Whether a director of a corporation is subject to personal liability when his acts were clearly taken in furtherance of corporate purpose. In reviewing the applicable law, we emphasize the following standards. The covenant of good faith and fair dealing does not arise unless the employee has been given objective manifestations of job security. Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1 0 1 5 . Even if the covenant is implied in the relationship, it is not breached if the employer had a fair and honest or legiti- mate business reason for the discharge. Barrett v. ASARCO, Inc. (Mont. 1988), 763 P.2d 27, 45 St.Rep. 1865. In the present case defendants claim that Mr. Pancich was an at-will employee in that he had no objective manifes- tations of continued employment. They allege therefore that the covenant of good faith and fair dealing may not even apply to the termination. Additionally, the uncontradicted affidavits identify the OCC's determination that the bank was engaged in unsound banking practices as a fair and honest business reason for the discharge. The District Court had these affidavits for review prior to granting summary judg- ment. The affidavits clearly raise genuine issues of materi- al fact. Further, the District Court had reviewed interrogatories and had expressly stated that there were conflicts in the evidence. It is clear that plaintiff estab- lished no basis from which the court could conclude that as a matter of law Mr. Pancich was wrongfully discharged and the covenant was breached. We conclude that genuine issues of material fact exist relative to the issues of wrongful dis- charge and breach of the covenant of good faith and fair dealing, precluding summary judgment. Additionally, there remain genuine issues of material fact regarding defendants' affirmative defense that the Banking Act insulates them from liability. Through uncon- tested affidavits, defendants present evidence supporting their position that the termination of Mr. Pancich had prior authorization by the board. They also present facts indicat- ing that the termination was ratified by the board, both at the special meeting of August 18 where a new president was elected, and again at the September 15 meeting where each member voted to accept Mr. Pancich's letter of resiqnation. Although plaintiff contends that Mr. Reichel did not have the authority to discharge Mr. Pancich, the plaintiff failed to support this contention by affidavit or otherwise. In response to Justice Sheehy's dissent, we note that while defendants do argue that cases interpreting the Ranking Act would allow them this defense, we conclude that this is simply one more area in which issues of fact remain. We further point out that whether discharge "at pleasure" is available to defendants is only relevant to one of their defenses. Even if it were determined that the discharge was not authorized, or that ratification was not effective, this does not establish liability. It only eliminates that par- ticular defense. The issue presently before this Court is only whether summary judgment against all defendants on the issue of liability was proper. The argument in regard to the Banking Act does not dispose of that issue. We also agree with defendants' contention that plain- tiff has failed to present facts from which it may be con- cluded that, as a matter of law, the parent corporation of First Bank West is liable for breach of the covenant of good faith and fair dealing, or that Mr. Reichel is personally liable in this suit. Meridian Minerals Co. v. Nicor Miner- als, Inc. (1987), 228 Mont. 274, 742 P.2d 456, (parent corpo- ration not a participant in action of subsidiary unless corporate form is used as subterfuge) ; Bottrell v. American Bank (1989), 773 P.2d 694, 46 St.Rep. 561, (actions of bank officers protected by corporate shield from personal liabili- ty). Genuine issues of material fact remain on these issues. Because of the numerous genuine issues of material fact on each of the above issues, we conclude that the District Court's grant of summary judgment was manifestly incorrect. Is supervisory c o n t r o l a p p r o p r i a t e when t h e District Court g r a n t e d summary judgment i n favor of P l a i n t i f f d e s p i t e t h e presence of numerous f a c t u a l i s s u e s ? This Court d i s c u s s e d t h e r o l e of s.upervisory c o n t r o l i n S t a t e ex re1 Whiteside v . D i s t r i c t Court (1900), 2 4 Mont. 539, 562-63, 63 P. 395, 400, a s follows: It has i t s own a p p r o p r i a t e f u n c t i o n s , and, without undertaking t o d e f i n e p a r t i c u l a r l y what t h e s e f u n c t i o n s a r e , w e t h i n k one o f them i s t o e n a b l e t h i s c o u r t t o c o n t r o l t h e c o u r s e of l i t i g a t i o n i n t h e i n f e r i o r c o u r t s where t h o s e c o u r t s a r e proceed- i n g w i t h i n t h e i r j u r i s d i c t i o n , b u t by a mistake of law, o r w i l l f u l d i s r e g a r d o f it, a r e doing a g r o s s i n j u s t i c e , and t h e r e i s no appeal, o r t h e remedy by appeal i s inadequate. Under such circumstances, t h e c a s e being e x i g e n t , no r e l i e f could he g r a n t e d under t h e o t h e r powers o f t h i s Court, and a d e n i a l o f a speedy remedy wo.uld be tantamount t o a d e n i a l o f j u s t i c e . Cases may a r i s e a l s o where some r e l i e f could be granted under some one o f t h e o t h e r o r i g i - n a l w r i t s named, b u t such r e l i e f would n o t be complete and adequate because o f some e r r o r which could n o t be c o r r e c t e d by means o f t h e l i m i t e d f u n c t i o n s o f t h e p a r t i c u l a r w r i t , while t h e super- v i s o r y power i s unlimited i n t h e means a t our d i s p o s a l f o r i t s a p p r o p r i a t e e x e r c i s e . T h i s Court may a c c e p t supervisory c o n t r o l pursuant t o Rule 17, M.R.App.P., when due appeal i s an inadequate remedy. I n applying t h i s s t a n d a r d w e have r e p e a t e d l y s t a t e d t h a t a w r i t may i s s u e t o p r e v e n t extended and n e e d l e s s l i t i g a t i o n : . . . This Court w i l l nonetheless a c c e p t j u r i s d i c - t i o n t o p r o t e c t F i r s t Bank from p a r t i c i p a t i n g i n n e e d l e s s l i g i g a t i o n , a purpose f o r which a w r i t of s u p e r v i s o r y c o n t r o l i s intended: " . . . it i s i n t h e n a t u r e of a summary appeal--a shortcut--to c o n t r o l t h e c o u r s e o f l i t i g a t i o n i n t h e t r i a l c o u r t . . . and may be employed t o p r e v e n t extended and n e e d l e s s l i t i g a t i o n . " ( C i t a t i o n s omitted.) First Bank v. Fourth ~udicial Dist. Court (1987), 227 Mont. 515, 519, 737 P.2d 1132, 1134. We also issued the writ in Continental Oil v. Elks Nat. Foundation (Mont. 1989), 767 P.2d 1324, 46 St.Rep. 121, to correct a partial summary judgment order, and in Great West- ern Sugar Co. v. District Court (1980), 188 Mont. 1, 778 P.2d. 272, the writ issued to prevent needless litigation where the district court had refused to dismiss a defendant whose affirmative defense clearly allowed dismissal. Appellate review of an interlocutory order by the district court is not favored because of this Court's reluc- tance to intervene in district court decisions and because there normally is an adequate remedy by appeal, State ex rel. Guar. Ins. v. District Court (Mont. 1981), 634 P.2d 648, 38 St.Rep. 1682. However, issuance of an extraordinary writ is discretionary, 16 Wright, Miller and Kane, Federal Practice and Procedure, 5 3932 at p. 187, and this Court has previous- ly accepted review in an appropriate case. See, e.g., State - - ex rel. Burlington Northern v. Dist. Ct. (Mont. 1989), 779 P.2d 885, 46 St.Rep. 1625 (writ issued because an order placed a party at a significant disadvantage in litigating the merits of a case); ~uiper v. Dist. Court of Eighth Judi- cial Dist. (Mont. 1981), 632 P.2d 694, 38 St.Rep. 1288 (writ issued to determine whether district court properly granted a protective order) ; Jaap v. District Court of Eighth Judicial Dist. (Mont. 1981), 623 P.2d 1389, 38 St.Rep. 280 (writ issued where district court exceeded its jurisdiction by allowing defendant's attorney to privately interview plain- tiff's physicians). A case by case analysis must be employed in determining whether supervisory control should be accept- ed. State ex rel. Deere and Co. v. District Court (1986), 224 Mont.. 384, 730 P.2d 396. The record here establishes genuine issues of material fact regarding the liability of each of three separate defen- dants. It is premature to allow a trial on damages as to any one or all three of the defendants under that circumstance. Such a trial on damages becomes needless and expensive liti- gation. The attendant publicity of such a trial on damages and its adverse effect upon defendants is not easily calcu- lated. We conclude that the order of the District Court was was manifestly incorrect and created problems sufficiently burdensome to the defendants to require this Court to take supervisory control. We conclude that supervisory control is appropriate to prevent needless and potentially damaging litigation. We vacate the District Court's order of summary judgment and remand for further proceedings consistent with this opinion. We Concur: H , / ' 1 I r 7 - Hdnorable H e n r y - l e , Re- Harrison Justice R. C. McDonough dissenting. I would deny the writ. Relators here have an adequate remedy by appeal. 1 @ & % z d 4 z d 7 d Justice Justice John C. Sheehy, dissenting: The first mistake of the majority is its unwarranted interference with the ~istrict Court's interlocutory order for which, if wrong, there is a complete and speedy remedy by appeal. The second mistake of the majority is, having determined to interfere, the members have failed to interpret properly the applicable law relating to the discharcre of a bank officer. Had they properly interpreted the law, they had then discovered that there was no genuine issue of material fact before the District Court. It should have piqued the interest of the majority that in all of the briefs filed by the banks, there is not a single whisper of contention that Pancich was an at-will employee. It should further have piqued the interest of the majority that in all of the briefs filed by the banks, there is not a single reference to federal law or federal cases bearing on the discharge of a bank officer, although in this case the banks involved are national associations. Had their interest been piqued, they should first have looked at the provisions of 12 U.S.C. § 24, which relates to the discharge of bank officers. The statute provides that a national bank has the power: FIFTH. To elect or appoint directors, and by its board of directors to appoint a president, v z presideyt, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, -dismiss such officers or any of them at pleasure, and appoint others t o fill in - - their places. (Emphasis added.) The effect of 12 U.S.C. § 24 was discussed in McWhorter v. First Interstate Bank (0r.App. 1986), 724 P.2d 877, 879, wherein it was contended that the president of a national bank had authority to dismiss a bank officer. The Oregon court said: The difficulty with defendant's argument is that we are concerned here with the delegation of a specific statutory duty, not simply with the managerial powers that normally accompany a general conferral of authority in the articles or bylaws of a corporation. Section 24 (Fifth) explicitly confers the responsibility for the hiring and dismissal of officers on the board of directors. Other provisions of the national banking laws make it clear that Congress knows how to manifest its intent about what powers are exercisable only by the board and what powers may be exercised by subordinate entities. See, e . g . 12 U.S.C. 5 24 . - (Seventh) ("board of directors or duly authorized officer or agents"). We consider that premise to be incorrect, because the authority to hire and fire the officers of national banks is not simply a matter of corporate organization; it is a matter which Congress has deemed sufficiently important to regulate by statute and to entrust to the highest decision making entity in the corporate structure . . . In Mahoney v. Crocker Nat'l Bank (N.~ist.cal, 1983), 571 F.Supp. 287, discharged national bank officers brought suit against the bank based on the federal Age ~iscrimination in Employment Act. The bank sought to interpose the defense that because it was a national bank, its bank officers served at pleasure under the National an king Act, 12 U.S.C., section 24. The appeals court held that because the plaintiff bank officers had not been discharged by the bank's board of directions, nor by an officer empowered by the by-laws to discharge bank officers, the defense of at-will employment was not available to the bank, since the dismissal of the bank officers was not done in a manner authorized by the National ank king Act, 12 U.S.C., section 24. Mahoney, 571 F.Supp. at 290-291. In this case, one member of the majority has concluded that because in Mahoney the bank sought to use the National Banking Act in defense, the provisions of the Act are available only to banks as a defense, and that plaintiffs cannot rely on those same provisions to prove an improper discharge. On that basis the member of the majority refuses to acknowledge the right of a discharged bank officer to rely on the procedures established by Congress for the hiring and firing of bank officers in 12 U.S.C., section 24, saying the Act is only available to a bank as a matter of defense. There is no way for me to explain that rationale: Clearly, it seems to me, while it is true that under the National ank king Act, a bank officer is an at-will employee, under the same Act, his dismissal can only be by the board of directors in concert, or by someone authorized in the by-laws to dismiss the bank officer. Any other kind of dismissal is against law and gives rise to liability. In this case, the discharge of ~ancich was by John Reichel, and not by the board of directors. Attempt was made by the bank to show that the board of directors ratified the discharge. Under the cases, they are not helped by that attempt. It is old law and undisputed to this date that the assent of the individual members of the board, acting separately and singly, and not when acting as a unit, is not the assent of the bank, and is not binding on the bank. ~ i r s t Nat. Bank v. Drake (Kan. 1886), 11 P. 445, 447. In ~iskotoni v. ~ichigan Nat. Rank-West (6th ~ i r . 1983) , 716, F.2d 378, 387, the federal court held that an attempt by the board of directors to ratify the president's action in terminating an officer did not satisfy the statutory requirement that officers of a national bank be dismissed by an action of the bank's board of directors. Ratification therefore is impossible. The Oregon court recognized the authority of ~iskotoni and refused to recognize an attempted ratification of a discharge by the board of directors after the fact. McWhorter v. ~ i r s t Interstate Bank (0r.App. 1986), 724 P.2d 877, 879. In the light of those decisions and the plain statutory language of 12 U.S.C. $ 24 (~ifth), the ~istrict Court was eminently correct in holding: IT IS ORDERED that said motion is overruled and denied for the reason that a discharge is not ratifiable by the board after defendants executed the discharge of plaintiff . . . There is no legal requirement that a district court in ordering summary judgment should express reasons or give a legal analysis as referred to in the majority opinion. We have suggested that such be done but if the district court does not do so, this Court is not excused from its duty to examine the law to determine if the summary judgment is proper. In this case, an examination of the applicable law shows that the order of the district court was correct. The legal situation in this case boils down to this: John Reichel, as the regional managing director of the western Montana region of First Bank System, or as a director of the bank, in discharging Robert M. Pancich from the presidency of ~ i r s t Bank West, Great Falls, acted completely against a Congressional statute. It is not relevant in this situation that First Bank West might otherwise have had good cause to discharge the president. If it had such cause, it could only act through its board of directors. Reichel plainly tortiously interfered with the contractual relation between Pancich and his bank. A violation of a federal statute with respect to discharge is certainly a breach of the implied covenant of good faith and fair dealing---if expected compliance with federal statutes is not inherent in a national bank officer, what importance can we attach to mere personnel brochures upon which we have previously supported implied covenants? Public policy ordained by Congress through its national banking laws requires that an officer be discharged only by the board of directors of a national bank. When public policy has been violated in connection with a wrongful discharge, a cause of action arises. Keneally v. Orgain (1980), 186 Mont. 1, 5-6, 606 P.2d 127, 129. Moreover, there is no basis for the contention that John Reichel has no personal liability in this matter. He is the person who violated the congressional statute. Under the National Banking Act he had no authority to remove Pancich as a bank officer. The order of the District Court fixing liability for a wrongful discharge upon the defendant Reichel was eminently proper in this case. There is further no basis to contend that a question of fact exists as to the liability of First Bank System. In discharging ~ancich, ~eichel was acting as the agent of ~ i r s t Bank System. A corporation is liable for the wrongful acts of its agents when the agents are acting in the course and scope of their employment. ~ i r s t Bank System is responsible for Reichel's wrongful acts. The foregoing applicable law convinces me that there is no genuine issue of material fact as to the liability of the defendants and that the ~istrict Court properly ordered summary judgment on that point. Even if I were not so convinced, however, I would still not grant supervisory control because such action is a plain interference with the District Court proceedings from which there is complete, adequate and speedy remedy by appeal. The majority cites a number of cases in which we granted summary judgment but that simply glosses over what is occurring here, a direct interloping into the district court process on improvident grounds. I am outraged at the effect on the ~istrict Court proceedings. The District Court, after granting partial summary judgment had fixed trial of the cause for September 29, 1989. This Court vacated that trial setting, acting through its majority. In their exorbitant worry over "needless and expensive litigation" and "attendant publicity" the majority here have made the district court trials more expensive and burdensome, and necessarily increased the expense of the litigation--quite needlessly, in view of the law. The same thing happened recently in State ex rel. Burlington Northern v. ~istrict Court (Mont. 1989) , - P.2d , 46 St.Rep. 1625. There, an injured railroad worker lost his trial setting by the action of this Court. It is too late to rectify the loss of a trial setting in the case at bar but we should at least refuse supervisory control. Justice William E. Hunt, Sr.: I concur in the dissent of Justice Sheehy.	November 28, 1989

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