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b4e6c14b-2e61-4e99-85b4-eca1d51bfca0 | STATE v CRANE | N/A | 89-353 | Montana | Montana Supreme Court | No. 89-353 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 STATE OF MONTANA, Plaintiff and Respondent, -vs - THOMAS LELAND CRANE, Defendant and Appellant. APPEAL FROM: District Court of the Seventh Judicial District, In and for the County of Dawson, The Honorable Roy Rodeghiero, Judge presiding. COUNSEL OF RECORD: For Appellant: Russell D. Yerger; Kurt W. Kroschel & Associates, Billings, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana John Paulson and Kathy Seeley, Asst. Attys'. General Richard A. Simonton, Dawson County Attorney; Marvin Hone, Deputy Co. Atty., Glendive, Montana F- W Filed: , , Submitted on Briefs: Nov. 2, 1 9 8 9 Decided: December 12, 1989 Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the District Court of the Seventh Judicial District, Dawson County, Montana. The appellant, Thomas Leland Crane, was arrested on January 17, 1988, for violation of S 61-8-401, MCA, driving under the influence of alcohol, third offense, a misdemeanor. On January 19, 1988, the appellant appeared before the Glendive City Judge and pled not guilty to the charge. After numerous delays and continuances attributable to both the appellant and the State, the appellant was tried in District Court on March 3, 1989, found guilty by a jury and sentenced on April 14, 1989. The appellant now appeals his conviction, his judgment and execution of sentence being stayed pending his appeal to this Court. We affirm. After appellant's arrest and initial appearance in Justice Court, an information charging him with driving under the influence (DUI), third offense, was filed in the District Court on January 26, 1988. The appellant made his initial appearance with his defense attorney, Jerry D. Cook. On February 10, 1988, following an omnibus hearing before District Court Judge Dale Cox, trial was set for April 5, 1988. On April 4, 1988, Judge Cox entered an order, sua sponte, vacating the April 4, 1988 date and resetting it for April 20, 1988. On April 13, 1988, the State moved for a continuance of the April 20, 1988 trial date because the arresting officer was not available to testify until June 17, 1988. The State specifically requested that the court set the trial date after June 17, 1988 but before July 17, 1988, so the six-month statute of limitations would not be exceeded. Upon oral order of the District Court on April 27, 1988, appellant's jury trial was set for June 28, 1988. On June 22, 1988, the appellant, through his attorney, Mr. Cook, filed a "Motion for Continuance and Waiver of Speedy Trial." Mr. Cook moved the court for a continuance of the June 28, 1988, trial date because he had another trial scheduled for that date. The motion further stated that "Defendant herein specifically waives any objection to speedy trial." On June 29, 1988, the court set August 4, 1988 as appellant's trial date. Prior to August 4, 1988, the deputy county attorney and Mr. Cook orally agreed that the appellant would plead guilty to the charge after December 12, 1988. The agreement to allow a delayed guilty plea was designed to benefit the appellant because after December 12, 1988, more than five years would have elapsed since appellant's first DUL conviction. The deputy county attorney and defense counsel believed this would reduce the administrative penalties the appellant faced. The record indicates nothing further happened in the case until January 4, 1989, when the appellant filed a Substitution of Counsel, Consent and Notice substituting attorney, Russell Yerger, for Jerry Cook. On January 11, 1989, at the State's request, the trial judge set February 3, 1989 as appellant's date for his jury trial. The record indicates through a minute entry made on February 1, 1989, that "Due to severe weather conditions and at the request of defense counsel" the trial was vacated and continued to March 3, 1989. Prior to jury trial, which was held March 3, 1989, the appellant's counsel filed a "Motion for Substitution of District Judge;" "Motion to Dismiss for Lack of Speedy Trial;" and moved for a continuance of the trial date until a decision on his motion to dismiss was entered and filed. Judge Roy E. Rodeghiero assumed jurisdiction on February 23, 1989, heard and denied the appellant's motion to dismiss on March 1, 1989, and heard and denied the appellant's renewed motion to dismiss on March 3, 1989. On March 3, 1989, the jury found the appellant guilty of the offense of DUI, a misdemeanor. The sole issue before this Court is whether the District Court erroneously denied the appellant's motion to dismiss for lack of speedy trial. Appellant argues that every person accused of a crime is guaranteed the fundamental right to a speedy trial by the Sixth Amendment to the United States Constitution, which is made applicable to the States by virtue of the Fourteenth Amendment. State v. Chavez (1984), 213 Mont. 434, 691 P.2d 1365. This right in Montana is also secured by Sec. 24, Art. 11, of the Montana Constitution. State v. Ackley (1982), 201 Mont. 252, 653 P.2d 851. When considering misdemeanor charges, such as the charge aqainst the appellant here, these constitutional requirements are implemented by § 46-13-201(2), MCA, which mandates a six-month statute of limitations in which persons must be brought to trial. It is the appellant's position that under the terms of § 46-13-201 (2), MCA, his right to a speedy trial would have expired on July 17, 1988, but for appellant's counsel's June 22, 1988 motion for continuance because of conflicting trial date. Appellant argues that the waiver of speedy trial date of June 22, 1988, was not specific in scope or length at the time of the waiver, and was not set forth in the motion for continuance. Appellant's counsel did not indicate that the waiver was nothing hut a waiver of a right to a speedy trial with respect to the day of the conflicting trial date. According to the appellant, his speedy trial rights evaporated on either of the following dates: December 22, 1988 (six months after the date of the appellant's motion for continuance); or September 20, 1988 (45 days after the August 4, 1988 trial date which had been set as a result of appellant's motion) . The respondent State argues that the appellant was not denied his right to a speedy trial under B 46-13-201(2), MCA, in that it does not apply in this case. Section 46-13-201 (2) , MCA, states: (2) The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed if a defendant whose trial has not been postponed upon his application is not brought to trial within 6 months after entry of plea upon a complaint, information, or indictment charging a misdemeanor. The above section mandates dismissal of a misdemeanor charge not brought to trial within six months if the defendant has not asked for a postponement, and if the State has not shown good cause for the delay. While this Court has not specifically ruled on the applicability of this section when a defendant has asked for a postponement, the language of the statute makes it clear that the six-month limitation does not apply in this case. In construing a statute, it is our function as an appellate court to ascertain and declare what in terms or in substance is contained in a statute and not insert what has been omitted. Dunphy v. Anaconda (1968), 151 Mont. 76, 438 P.2d 660. In State v. Ronningen (1984), 213 Mont. 358, 691 P.2d 1348, this Court stated: "But the statute is clear and the facts are clear. If the defendant requests the postponement the six-month trial deadline does not apply." Ronningen, 691 P.2d at 1350. Here the appellant's trial was postponed upon his own application of June 22, 1988, before the six-month time limit had expired. We find no statute which allows the six-month period to be extend-ed after a delay has been caused by the appellant. Thus, we hold that § 46-13-201(2), MCA, has no application in the instant case. F 7 e find the length of the delay is what triggers a speedy trial inquiry. Here there were 410 days between the appellant's arrest and his jury trial. However, in determining whether the appellant was denied his right to a speedy trial, that period of time from the date of arrest and the length of the delay before trial are not interchangeable terms. "Length of delay refers only to the time period chargeable to the State." State v. Wirtala (Mont. 1988), 752 P.2d 177, 180, 45 St.Rep. 596, 599. In State v. Grant (Mont. 1987), 738 P.2d 106, 109, 44 St.Rep. 994, 997, this Court noted that any delay in bringing a defendant to trial which is attributable to defendant's own actions must be deducted from the total delay for purposes of determining whether speedy trial rights were violated. Also, " Idlelays in bringing the defendant to trial caused or consented to by defendant are copsidered to constitute a waiver of the right to be tried within the time fixed by statute or required by the constitution. (Citations omitted.)" State v. Robbins (1985), 218 Mont. 107, 116, 708 P.2d 227, 233. When appellant, through his counsel, moved on June 22, 1988 for a continuance of his trial date, 164 days had elapsed from the date of his arraignment. He coupled his motion for continuance with a waiver of any objection on the grounds of speedy trial. The rescheduled trial date of August 4, 1988 took the case beyond the six-month period, which was solely the responsibility of the appellant. The period from June 22 to August 4 was 43 days. The further postponement of the trial date was 130 days, from August 4, 1988 to December 12, 1988. This delay also was caused or consented to by the appellant. He is therefore responsible for, or waived objection to, a total of 339 days of the total delay. The remaining time, consisting only of 73 days, is attributable to the State. While the appellant argues that the 130-day delay resulted from a continuing plea bargaining process and is attributable to the State, the evidence is uncontroverted that in order to benefit his client, appellant's attorney consented to delaying the trial until after December 12, 1988. We note that shortly after the time set in December, 1988, for the entrance of plea, the appellant obtained new counsel. On appeal, new counsel alleges that inasmuch as the agreement to delay was for his client's benefit, this delay was not a written order nor signed by either the appellant, his counsel or the deputy county attorney, and therefore the delay should be counted against the State and not against his client. We disagree. In State v. Dinndorf (1983), 220 Mont. 308, 658 P.2d 372, a case involving the withdrawal of a guilty plea, the county attorney agreed with the defendant not to make a sentencing recommendation. However, just before the hearing, the county attorney recommended at the sentence hearing a ten-year sentence. The district court denied the withdrawal stating there was nothing on record to support the conversations between the defense attorney and the county attorney. In that case this Court remanded the case back for resentencing noting the district court erred in not considering other factors including an oral agreement or a promise. This Court held that the district court improperly denied the motion to withdraw and remanded the case for resentencing. The same can be said in this case. The change of defense counsel after one attorney had represented the appellant for nearly an entire year and had in effect lulled the county attorney's office into believing that in order to benefit the appellant they would wait until December to enter a plea, it is not necessary i.n this case tn have a written signed aqreement of the parties. Affirmed. We concur: | December 12, 1989 |
3e1a6c7e-0ba4-4d0e-8987-45ac90d27be5 | SCOTT v DUPONT DE NEMOURS CO | N/A | 89-127 | Montana | Montana Supreme Court | NO. 89-127 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 FLOYD E. SCOTT, Plaintiff and Appellant, -vs- E. I. DUPONT DE NEMOURS & CO., a corporation, Defendant and Respondent. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding. COUNSEL OF RECORD: For Appellant: K. P. Ryan; Ryan & ~ c ~ l l i s t e r , Billings, Montana For Respondent: Charles R. Cashmore; Crowley Law ~ i r m , Billings, P$ntana Submitted on ~riefs: Nov. 21, 1989 Decided: December 19, 1989 . . 0 rn 2 Filed r a 1 3 i - I c n 0 m r . , Clerk . . Chief Justice J. A. Turnage delivered the Opinion of the Court. Floyd Scott brought this suit under a theory of strict liability, claiming that exposure to defendant's paint caused his respiratory disability. A jury in the District Court for the Thirteenth Judicial District, Yellowstone County, entered a verdict for defendant. Scott appeals. We affirm. The issues are: 1 . Did the trial court err in refusing to allow Scott to take the deposition of defense counsel? 2. Did the trial court err in excluding from evidence post- accident changes in defendant's warning labels? 3 . Did the trial court err in allowing the opinion testimony of expert witness Bruce Held? Scott was employed as a quality control inspector at Beall, Inc., of Billings, Montana. Beall manufactured tanks used for hauling liquid products. On January 28, 1981, Scott was working on top of a new tank in Beall's paint room, calibrating the tank for the liquid it would hold. At the same time, another worker, Eldridge, was spraying defendant's Imron polyurethane enamel paint onto the undercarriage of the tank. Scott claimed that inhaling the fumes from the Imron paint caused his totally disabling respiratory problems. He also claimed that defendant failed to provide adequate warning on the Imron paint cans, because the Imron label recommended the use of a vapor/particulate mask, which did not provide a fresh air supply. Defendant elicited testimony that Scott was not wearing any protective mask on the day he claims he was injured, and that Eldridge warned Scott that he should not be in the paint room while Eldridge was painting. It also presented evidence that Scott's respiratory problems are likely a result of his 40+ years of smoking. The jury was provided with a special verdict form. The first question was, "Was the Defendant s product defective and unrea- sonably dangerous because of an inadequate warning?" The jury answered, eliminating any further questions under the verdict form. The court entered judgment upon that verdict. I Did the trial court err in refusing to allow Scott to take the deposition of defense counsel? Eldridge, the painter, was deposed in July 1984. In his deposition, Eldridge stated that he had not previously spoken with either side's attorney. He also stated that he knew everyone in his area should have been wearing a protective mask while he was using Imron paint and that he warned Scott that he should not be there. Scott's counsel later discovered that defense counsel Cashmore had interviewed Eldridge two weeks prior to the deposi- tion. Because Eldridge could not be located at the time of trial, his deposition was to be read into evidence. In May 1988, several months prior to trial, Scott I s counsel issued a notice that they planned to take Cashmorels deposition. The subject of the deposition would be the pre-deposition interview with Eldridge. Defendant applied for and was granted a protective order quashing the subpoena duces tecum issued in connection with the planned deposition. Scott argues on appeal that the court's refusal to allow the deposition was error. While the lower court did not state its reasons for granting the protective order, counsel's arguments focus on the work product rule, Rule 26(b)(3), M.R.Civ.P. The defense argues that allowing Cashmore to be deposed would invade his mental impressions and work products, which are protected under the work product rule. Scott asserts that a deposition of Cashmore concerning his interview with Eldridge would fall within the exceptions to the work product rule or could be structured to protect against invasion of work product. Defendant contends that the court arranged ample alternatives to a deposition of Cashmore. These included advising the jury that the interview had taken place, which directly impeached Eldridgels deposition statement that he had not talked with either side's attorney. The court also offered, in spite of their hearsay character, to allow into evidence two post-deposition written statements of Eldridge. These statements acknowledged the interview with Cashmore and contradicted other aspects of the deposition testimony. Further, witness Dvorak apparently would have testified that Eldridge later recanted his deposition testimony that he knew of the dangers of using Imron paint without fresh air masks. Scott chose not to offer Dvorak's testimony or the post-deposition written statements of Eldridge into evidence. The court did advise the jury that Cashmore's pre-deposition interview with Eldridge had taken place. Rulings limiting discovery under Rule 26(c), M.R.Civ.P., are discretionary. Matter of Estate of Counts (1985), 217 Mont. 350, 355, 704 P.2d 1052, 1056. We conclude that in view of the alternate means of impeaching Eldridge offered to Scott in this case, the District Court did not abuse its discretion in refusing to allow Scott to take Cashmore's deposition. Did the trial court err in excluding from evidence post- accident changes in defendant's warning labels? Rule 407, M.R.Evid., provides: When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in con- nection with the event. This rule does not require the exclusion of evidence of subse- quent measures when offered for another pur- pose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. At the time of the incident, the label on Imron paint sug- gested, in some circumstances, the use of vapor/particulate masks not containing fresh air supplies. Scott contends that, for purposes of impeachment, he should have been allowed to introduce evidence that after January 1981 defendant changed the label to require the use of fresh air respirators when Imron is being used. Defendant's position is that the evidence regarding which mask was recommended is a red herring because Scott was wearing no mask whatsoever. We agree. ~iven that circumstance, we hold that the court did not err in excluding from evidence post-accident changes in the Imron paint labels. I11 Did the trial court err in allowing the opinion testimony of expert witness Bruce Held? Bruce Held, an industrial hygienist, testified for defendant. Scott argues that he should not have been allowed to testify because defendant failed to adequately answer Scott's discovery request for the substance of Held's expert opinion. Rule 26(b) (4) (A), M.R.Civ.P., governs: (A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to sub- division (b) (4) (C) of this rule, concerning fees and expenses as the court may deem appro- priate. Scott propounded interrogatories to defendant asking the names of experts who would testify at trial, the opinions of the experts, and the factual bases for the opinions. In answer to Scott's interrogatories, defendant providedthe following information about Held: Bruce J. Held, Livermore, CA, Industrial hygiene, Toxicology, Respirators, Respirator testing and precautionary labeling. Bruce J. Held--Effectiveness of the vapor- particulate respirator (TC-23C) and require- ments of proper respirator program required of employer. In the pretrial order, Scott asked the court not to allow Held to testify. The court denied that request. Held's testimony at trial was within the subject matter indicated in the answers to interrogatories. While the answers were not as complete as they should have been, Held was not a surprise witness. The above answers to interrogatories were made over three years prior to trial. Scott did not move to compel further answers. The time elapsed lessens the importance of these inadequate answers. We do not condone defendant's failure to provide full and complete answers to interrogatories. However, refusing to allow Held to testify would have been an extreme sanction, given that defendant's offense was incompleteness in its answers to interrogatories, not failure to answer. We hold that the lower court did not err in permitting Held to testify. We concur: | December 19, 1989 |
f800881c-ebec-4017-9d51-3bd91abf88cc | REINHARD v MISSOULA SHEET METAL | N/A | 89-316 | Montana | Montana Supreme Court | No. 89-316 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 JOHN L. REINHARD, Claimant and Appellant, -vs- MISSOULA SHEET METAL, Employer, and STATE COMPENSATION INSURANCE FUND, Defendant and Respondent. APPEAL FROM: The Workers' Compensation Court, The ~ono&ble Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Richard R. Buley; Tipp, Frizzell & Ruley, Missoula, Montana For Respondent : Oliver H. Goe; Browning, Kaleczyc, Berry & Hoven, Helena, Montana Submitted on Briefs: Nov. 2, 1 9 8 9 Decided: Decenber 22, 1989 a Filed: - Clerk Justice R. C. McDonough delivered the Opinion of the Court. Claimant, John L. Reinhard, appeals the May 31, 1989 judgment of the Workers' Compensation Court which denied him a conversion of his biweekly workers' compensation benefits to a lump sum payment. We affirm. The sole issue on appeal is: Whether the Workers' Compensation Court abused its discretion when it denied John Reinhard's request to convert his biweekly payments to a lump sum award. The claimant, Mr. Reinhard, is a 41 year old, married man with two dependent children. On March 14, 1985, he suffered an on the job injury while employed at Missoula Sheet Metal in Missoula, Montana. This injury rendered Mr. Reinhard permanently and totally disabled. He must spend nineteen hours a day flat on his back and he can only walk with the aid of two canes. In addition to his physical ailments, Mr. Reinhard also suffers from rather substantial psychological problems. Since the injury, he has suffered severe depression. This depression has at times become so intense, that Mr. Reinhard has become suicidal. Examining physicians believe that the cause of Mr. Reinhard's depression is multi-faceted. They maintain that his psychological condition has its roots in the injury itself, chronic pain, loss of job, marital difficulties and pre-injury psychological problems arising from a chaotic social history. Despite his health problems, Mr. Reinhard has done a remarkable job managing his finances. His assets, which are estimated at approximately $200,000, include I.R.A.'s, an investment portfolio, and several pieces of real property. Mr. Reinhard's monthly income is approximately $4,000 and his monthly livinq expenses usually equal about $1000-$1200. By his own admission, his workers' compensation benefits are not needed to meet the family budget or any other expenses. In an effort to ease his psychological and physical- problems, Mr. Reinhard presented a request to the Division of Workers' Compensation for a lump sum advance of his benefits. The advance, which is approximately $350,000, would be used for the purchase of an apartment complex and for the purchase of a one level home. The living area in Mr. Reinhard's present home is split by two sets of stairs and is heated primarily with wood. Due to his injuries, Mr. Reinhard cannot easily negotiate the stairs which run between the two levels in his home. He is, therefore, relegated to just half of the house much of the nineteen hours a day in which he must lie flat. Also, due to his injury, Mr. Reinhard can no longer split and saw the wood which is necessary to heat his house. He therefore desires to replace his home with one that suits his disabled condition. The remainder of the lump sum would be used to purchase an apartment complex. Mr. Reinhard maintains that this purchase would benefit him in a number of ways. First, the investment would give him some direction in life and would allow him to beneficially occupy his time by managing the finances and income realized from the apartments. This direction, he maintains, would restore lost self-esteem which has accompanied his job loss and loss of position as the family bread winner. Mr. Reinhard also asserts that his continual problems with the Workers' Compensation Division necessitate his separation from the "comp system." Apparently, the inadequacies and his perceived incompetence of the Division has been a never ending source of frustration to Mr. Reinhard. It has become a major source of his depression and anger. Finally, Mr. Reinhard maintains that this investment will allow him to increase his yearly income by almost $7,000.00. This increase, he argues, would serve to better meet his physical and psychological needs. The Workers' Compensation Court, following trial, denied Mr. Reinhard's request. It found that he had not overcome the presumption in favor of biweekly benefits, nor had he adequately established that a lump sum payment would be in his best interest. Following a denial of his request for a rehearing, Mr. Reinhard appealed to this Court. The decision to award or deny a lump sum settlement will not he interfered with on appeal unless there has been an abuse of discretion. The Workers' Compensation Court will be presumed correct and affirmed if supported by substantial evidence. It will be reversed only if the evidence clearly preponderates against its findings. Hock v. Lienco Cedar Products (1981), 634 P.2d 1174, 38 St.Rep. 1598. Mr. Reinhard maintains that the lower court abused its discretion by holding that there is a presumption in favor of biweekly payments. According to Reinhard, at the time the accident occurred, there was no such presumption stated in the workers' compensation statutes. Statutes which are in effect at the time of the accident control the outcome of any case brought before the Workers' Compensation Court. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730 P.2d 380. Therefore, Mr. Reinhard argues, and we agree, that the law, as it existed on the date of his injury will control the outcome of the case. There was no statutory presumption against lump sum payments on March 14, 1985, which was the date of Mr. Reinhard's accident. See $5 39-71-740 and 741, MCA (1983). However, through case law, it has always been recognized that biweekly payment of compensation is the favored means of dispensation of benefits. Lump sum conversion is the exception. Laukatis v. Sisters of Charity of Leavenworth, (1959), 135 Mont. 469, 342 P.2d 752. The rationale behind this conclusion is that workers' compensation benefits are a substitution of wages and therefore should be paid in the same manner as wages, on a regular biweekly basis. In light of this rationale, it has been held that settlements are only granted where there is outstanding indebtedness, pressing need or where the best interests of the claimant, his family and the general public will be served. Willoughby v. General- Accident Fire and Life (1980), 187 Mont. 253, 257, 609 P.2d 700, 702. The Workers' Compensation Court determined that a lump sum payment would not be in Mr. Reinhard's best interest. It based this determination on testimony from two doctors, Mr. Reinhard's accountant, his stockbroker and from testimony of Mr. Reinhard himself. Dr. Stratford, a psychiatrist who examined Mr. Reinhard, testified that a lump sum payment would not by itself alleviate Mr. Reinhard's problems with depression. Rather, according to Dr. Stratford's testimony, Mr. Reinhard's problems with the Workers' Compensation Division are not a cause of his mental health problems, but, instead, are the focus of his depression. He also expressed concern over Mr. Reinhard's ability to successfully manage large sums of money while he is in such a precarious mental state. Dr. Shea, Mr. Reinhard's treating clinical psychiatrist, testified that a lump sum would probably hasten his recovery from depression. However, he also stated that settlement of the case either way would probably decrease the claimant's depression and that continuation of biweekly benefits would not necessarily increase it. Both Dr. Shea and Dr. Stratford agreed that the most beneficial treatment for Mr. Reinhard is conti.nued treatment with anti-depressant medication and psychotherapy, and that a lump sum payment, by itself, would at the most have a very minimal affect upon Mr. Reinhard. The lower court also determined, based upon testimony from Mr. Reinhard's accountant, that the business proposal is fraught with potential risks. In particular the court found that the feasibility of the project was doubtful in light of the depressed real estate market in Missoula. It also found that Mr. Reinhard's health problems, would make it difficult for him to work with his tenants and withstand the stress which naturally accompanies apartment management. Finally, the court determined there was no "pressing need" which would entitle Mr. Reinhard to a lump sum conversion. The court pointed out that his monthly income of $4,000.00 exceeded his living expenses by nearly $3,000.00 a month. In addition, with a net worth of nearly $200,000.00, including his present home which is worth approximately $69,900.00, Mr. Reinhard has enough financial resources to purchase a new home. In short, the Workers' Compensation Court found that there was no "outstanding indebtedness or pressing need" which would necessitate a lump sum conversion. The lower court's findings of fact and conclusions of law are fifteen pages long, reasoned and thought out. Although its findings may be based upon conflicting evidence, this Court's function on review is confined to determining whether there is substantial evidence to support its findings. Kuenning v. Big Sky of Montana (1988), 750 P.2d 1091, 45 St.Rep. 383. We find that the Workers' Compensation Court's decision is supported by substantial evidence, is not an abuse of discretion and its judgment is affirmed. . W e Concur: Justices Justice John C. Sheehy, dissenting: The statute on lump-sum settlements as in existence at the time of the injury to this employee read as follows: 39-71-741. Compromise Settlements and Lump-Sum payments-Division Approval Required. The biweekly payments provided for in this chapter may be converted, in whole or in part, into a lump-sum payment. Such conversion can only be made upon the written application of the injured worker or the worker's beneficiary, with the concurrence of the insurer, and shall rest in the discretion of the division, both as to the amount of such lump-sum payment and the advisability of such conversion. The division is hereby vested with full power, authority and jurisdiction to allow and approve compromises of claims under this chapter. All settlements and compromises of compensation provided in this chapter are void without the approval of the division. Approval of the division must be in writing. The division shall directly notify every claimant of any division order approving or denying a claimant's settlement or compromise of a claim. A controversy between a claimant and an insurer regarding the conversion of biweekly payments into a lump-sum is considered a dispute for which the Workers' compensation Judge has jurisdiction to make a determination. Nothing in the foregoing statute precludes the lump-sum settlement requested here by this employee, and the strictures which the Workers' Compensation Court placed upon the proposed lump-sum settlement are not based on any stat-ute. They are not based on decided cases in this Co.urt either. In Willoughby v. Arthur G. McKee and Company (1980), 187 Mont. 253, 257, 609 P.2d 700, this Court said: Lump-sum settlements are only granted where there is "outstanding indebtedness," "pressing need," or where "the best interests or the claimant, his family and the general public will be served. ' The disjunctive "or" in the foregoing quotation shows that the Workers' Compensation Court need not have considered "pressing need," and the only question involved here is whether the proposal would serve the best interests of the claimant, his family and the general public. We have here a claimant of considerable business acumen. He manages a $200,000 estate well enough to produce a monthly income of $4,000. It is laughable that the business acumen of this claimant is disparaged by the State Compensation Insurance Fund, whose present cash flow problems are probably the reason for the refusal of this 1.ump-sum proposal, problems which in my judgment are the result of mismanagement and bungling through the past 15 years. It seems in this case that the public would be well served, as well as the claimant, by permitting him to take a commutation of his future payments in a lump-sum, so that the claimant could use his business sense to better himself and his community through prudent economic investment. He has demonstrated know-how, which is more than we can say of his opponents. < J Z ~ -8 , - + Justice f { / | December 22, 1989 |
be5d9713-1ac5-4a16-a3c4-c8de6b95cd6c | STATE EX REL ECCLESTON v DIST CO | N/A | 89-040 | Montana | Montana Supreme Court | No. 89-040 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, ex rel., ROBERT ECCLESTON, KEVIN SULLIVAN AND ELMER CARSONE, Relators, L 0 -vs- - z -{ m C ] C- MONTANA THIRD JUDICIAL DISTRICT COURT, -p c7 - - DEER LODGE COUNTY, and THE HONORABLE w --: < . - - I TED MIZNER, Presiding District Judge, _., -- 7 7 - $ r' Respondents. 3 . i-- rri v1 2 0 x 0 F ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Relator: C. Richard Anderson argued & John P. Davis; Poore, Roth & Robinson, Butte, Montana Timothy McKeon; McKeon & McKeon, Anaconda, Montana For Respondents: Hon. Marc Racicot, Attorney General, Helena, Montana Clay R. Smith, Solicitor, Helena Joseph C. Connors argued, Anaconda, Montana Bernard J. Everett argued; Knight, Dahood, McLean & Everett, Anaconda, Montana For Amicus Curiae: Bruce W. Moerer, Montana School Boards Association, Helena, Montana Submitted: September 25, 1989 Decided: November 22, 1 9 8 9 b Filed: Justice R. C. McDonough delivered the Opinion of the Court. This case is an original proceeding in this Court involving an application for a writ of supervisory control. The issues presented for our determination originated in Fitzpatrick v . School District No. 10, a negligence case currently before the Third Judicial District Court. Relators, defendants below, are employees of the original named defendant, School District No. 10. Relators seek relief via supervisory control from the District Court's order granting plaintiffs leave to belatedly amend their complaint to name relators as defendants in the action below. In the same order, the District Court granted summary judgment dismissing the original defendant, chairman of the board of trustees of the school district, from the action. In a subsequent order, the District Court granted defendant school district's motion to be dismissed as a party to the suit. Both dismissals were based on the immunity provisions of S 2-9-111, MCA. At plaintiff's request, we identified the following issues for determination upon supervisory control: 1) Whether this is a proper case for this Court's consideration upon a writ of supervisory control? 2 Whether the District Court erred in granting plaintiffs leave to amend their complaint pursuant to Rule 15(c) to name the school district employees as new parties after expiration of the statute of limitations? 3) Whether § 2-9-111 (2) and (3), MCA, grants immunity from tort liability to a school district and its employees for conduct by the latter admittedly within the course and scope of their employment and not involving the use of a motor vehicle, aircraft, or other means of transportation? After careful consideration of these issues and the facts of this case, we conclude this case is appropriate for determination upon the writ. Further, we conclude that the District Court did not abuse its discretion in allowing the amendment; however, the recent case law interpreting S 2-9-111, MCA, clearly renders the relators immune from suit. On March 4th, 1985 plaintiff Mary Fitzpatrick fell down the alley stairs leading down to the Memorial Gymnasium in Anaconda, Montana. The gym is owned by School District No. 10. On August 26, 1987 plaintiffs Mary and Frank Fitzpatrick filed a complaint against School District No. 10 and the District's chairman of the board of trustees Ty Tyvand. The complaint alleged that defendants were negligent in failing to properly light and remove ice and snow from the stairway. Defendants filed an answer on October 7, 1987. Pursuant to stipulation, defendants amended their Answer to plead the affirmative defense of immunity from plaintiffs' claims pursuant to S 2-9-111, MCA. Defendants filed their amended answer more than three (3) months before the running of the statute of limitations. On July 7, 1988, plaintiffs moved for leave to amend their complaint to name Robert Eccleston and Kevin Sullivan, the school janitors, and Elmer Carsone, the school principal, as defendants in the suit. The motion was filed four months after running of the statute of limitations. On July 29, 1988, the original defendants filed a motion for summary judgment based on their immunity defense. In September 1988 the District Court dismissed Chairperson Tyvands based on § 2-9-111, MCA , but not School District No. 10. In the same order, the court also granted plaintiffs leave to amend their complaint adding employee relators as defendants, concluding that the amendment related back to the lawsuit's filing date under Rule 15(c), M.R.Civ.P., and thus was not barred by the three year statute of limitations. The relators and school district immediately moved for dismissal of the amended complaint on immunity and statute of limitations grounds. On Decemher 19, 1988 the District Court granted the motion with respect to School District No. 10 but denied it as to relators. On January 25, 1989 relators filed the present application for writ of supervisory control. The sole issue raised in the application is whether the District Court erred in determining that the amendment related back to the original filing date. In opposing the application, plaintiffs suggested that the relation-back issue will eventually become moot because the District Court erred in dismissing the school district on immunity grounds and because recovery against the school district will bar the claims against relators under § 2-9-305(5), MCA. Plaintiffs requested "the opportunity to fully brief the immunity issues" to avoid "piecemeal appeals" and to place the Court "in a position of rendering a decision with the benefit of all relevant facts and argument." On May 9, 1989 this Court entered an order identifying the issues listed above for oral argument. I. Article VII, Section 2 of the Montana Constitution gives this Court "original jurisdiction to issue, hear, and determine writs. . . . " The same section also gives us "general supervisory control over all other courts" in the State. Art. VII, Sec. 2, Mont.Const. Recently, we summarized the standards for granting a writ of supervisory control. See State ex rel. Fitzgerald v. District Court - (1985), 217 Mont. 106, 114, 703 P.2d 148, 153-54. One of the functions of the writ is to control the course of litigation in lower courts, where those courts are proceeding within their jurisdiction but under mistake of law by doing a gross injustice, and there is no appeal or the remedy by appeal is inadequate. State ex. rel. Shores v. District Court (1903) , 27 Mont. 349, 71 P. 159; State ex. rel. Whiteside v. District Court (1900), 24 Mont. 539, 63 P. 395. There are no written regulations or laws respecting our power of supervisory control. Rather, we have proceeded on a case-by-case basis being careful not to substitute the power of supervisory control for an appeal provided by statute. State ex rel. Reid v. District Court (1953), 126 Mont. 489, 255 P.2d 693. However, if a relator will be deprived of a fundamental right, both justice and judicial economy req.uire us to assume jurisdiction and resolve the issue in favor of the relator. Thus, if the cause below is mired in procedural entanglements and appeal is not an adequate remedy, we will issue a writ of supervisory control. State ex rel. Levitt v. District Court (1977), 172 Mont. 12, 560 P.2d 517. In the case at bar, the lack of any issue of material fact clearly renders this case appropriate for disposition upon summary judgment . Rule 56 (c) , M. R. Civ. P. The problem confronted by the District Court in this case is whether the law, specifically 2-9-111, MCA, does in fact provide immunity to the individual employee relators, thereby entitling them to summary judgment. Determination of this question will directly bear on the propriety of the District Court's refusal to dismiss the relators and may also determine the propriety of the amendment naming relators as parties to the lawsuit below. Therefore, we conclude that a writ of supervisory control is appropriate in this case for the purpose of clarifying the law and in the interests of judicial economy. Defendants rely primarily on Kilkenny v. Arco ~arine, Inc. (9th Cir. 1986), 800 F.2d 853, in contending that the amendment adding them should not relate back under Rule 15(c), M.R.Civ.P. The Rule provides: Rule 15(c). Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occ,urrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. . . . Rule 15 (c) , M.R.Civ.P. See also Schiavone v. Fortune (1986) , -- 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18, 27. Kilkenny holds that the extent of the information the pleader obtains respecting another as a potential defendant, after filing of the original complaint and before the limitations period expires, is relevant to whether the potential defendant knew or should have known that they would be named but for a mistake in identity. Kilkenny, 800 F.2d at 857. The defendants point out that the Fitzpatricks had deposed and taken statements from the relators prior to expiration of the statute of limitations. Defendants argue further that plaintiffs had notice of their mistake in naming the proper parties when defendant school district amended its answer to assert the immunity defense. Relators contend that the extent of this information held by the plaintiffs caused them to believe that they were not named because of strategic reasons rather than as a result of mistaken identity. However, Kilkenny can be distinguished from the case at bar. The amended answer in Kilkenny not only alleged that the original named defendant was not a proper party to the suit; it also identified the parties who were the proper defendants to the suit. In this case defendants' amended answer merely notified plaintiffs of the possible impropriety of the school district as a defendant. The amended answer did not indicate that the relators alone might be or were in fact the proper parties to the suit. Furthermore, because the immunity issue presents a novel question under the facts of this case, plaintiffs did not know that the school district is immune from suit under S 2-9-111 (2) , MCA. In fact, they still contend that the district is not immune. Thus, the first time that the plaintiffs had an indication that the relator employees were the proper parties to the suit is when the District Court dismissed the school district and Chairperson Tyvands after the expiration of the statute of limitations. Thus, our determination should focus on the threshold question of whether the proposed defendants knew or should have known that but for a mistake in identity of the proper parties the suit would have been brought against them. In this regard the defendant employees are the personification of the school district. They were deposed and involved in the litigation from the outset and cannot claim that they did not have notice of the institution of the action. Considering the obvious link between the district employees and the school district itself, and in light of the arguably unsettled immunity question presented in this case, we agree with the District Court's conclusion that: there was no mistake as to the identity of the District employees who were involved in the circumstances that led to the filing of this lawsuit. However there was a mistake as to the - - identity of the proper parties to this lawsuit as -- contemplated by Section 15 (c) , P4.R.Civ.P. . . . (Emphasis by the District Court.) Order of December 15, 1988. The mistake in this case being related to the identity of the proper parties and the relators having ample notice of the action so as not to he prejudiced, we find no abuse of discretion by the District Court in allowing the amendment. We now come to the determinative issue in this case requiring issuance of the writ. The issue involves the scope of the immunity granted by B 2-9-111, MCA, to a school district and its employees for torts committed within the course and scope of employment and not involving the use of a motor vehicle, aircraft, or other means of transportation. 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 boards. (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. Plaintiffs argue that the past cases construing the statute and relied upon by defendants are distinguishable from the case at bar. See e.g., Limberhand v. Big Ditch - - Co.(1985), 218 Mont. 132, 706 P.2d 491; W.D. Construction Inc. v. Board of County Commissioner's of Gallatin County (1985), 218 Mont. 348, 707 P.2d 1111; Bieber v. Broadwater County (Mont. 1988), 759 P.2d 145, 45 St.Rep. 1218; Peterson v. Great Falls School District No. 1 and A (Mont. 1989), 773 P.2d 316, 46 St.Rep. 880. Plaintiffs contend that Barnes and W.D. Construction can be distinguished because those cases involved clearly legislative rather than administrative functions. This contention carries no weight. Our recent decisions in Bieber and Peterson, clearly disposed of this issue. While the statute is entitled "Immunity from suit for legislative acts and omissions", we held in Peterson and Bieber that the plain meaning of the statute's actual language is much broader in that "action by the legislative body need not be legislative in nature to afford immunity." Peterson, 773 P.2d at 318. Accordingly, we decline to give credence to the ~laintiffs'distinction between administrative and legislative acts "because the plain 1ang.uage of the statute makes no such distinction". Bieber, 759 P.2d at 147. -- We will not delve outside the plain meaning of the words used in a statute. W.D. Construction, 707 P.2d at 1113, Barnes v. Koepke (Mont. 1987), 736 P.2d 132, 134, 45 St.Rep. 810, 812. Plaintiffs also contends that § 2-9-111, MCA, does not grant immunity to the relators in this case. They argue that the statute requires involvement by a legisl-ative body, i.e. the school board, before immunity can arise. Plaintiffs concede that the school district is a governmental entity and the school board is a legislative body under subsection (1). However, plaintiffs argue that the school district, not the school board, owns the gymnasium and employs the custodians and the principal. Thus, plaintiffs argue the operative provision of subsection (3) has no application to the case at bar as no member, officer, or agent of any legislative body is being sued. We disagree. Clearly, the relators in this case are agents of the school board: (2) A servant - - is an agent employed by a master to perform service in his affairs whose physical - - - conduct in the performance of the service is controlled or is subject to the right to control by the master. (Emphasis added.) Restatement 2d of Agency, 52. Thus, an agent includes one who performs only manual labor as a servant. Restatement 2d of Agency, 51, comment (el . The board of trustees for each school district has the power to: (2) Employ and dismiss administrative personnel, clerks, secretaries, teacher aides, custodians, maintenance personnel, school bus drivers, food service personnel, nurses, and any other personnel deemed necessary to carry out the various services of the district. . . . (Emphasis added). - -- Section 20-3-324, MCA. A school "district" is defined as: the territory, regardless of county boundaries, organized under the provisions of this title to provide public educational services under the jurisdiction of the trustees prescribed by this -- title. . . . (Emphasis added). Section 20-6-101(1), MCA. Thus, the school board is the governing body--i.e., the legislative body--of the governmental entity, the school district. The janitors cannot be said to be agents of either the board or district to the exclusion of the other. Rather, they are agents of the district as manifested by their agency with the district's governing school board. It simply does not make sense to say that relators are agents of the district but not the board responsible for hiring them and governing the district and the district's employees. F,urthermore, in Bieber we construed the phrase in subsection (3) of 5 2-9-111, MCA, "with the introduction and consideration of legislation or action by the legislative body" to be disjunctive. Thus, subsection (3) grants immunity to members, officers, or agents of a legislative body for "the lawful discharge of an official duty associated with the introduction or consideration of legislation - or action - - - by the legislative body." Peterson, - 773 P.2d at 317-318. Here, the omission by relators arose from the lawful discharge of an official duty associated with alleged omissions by the legislative body. A failure to take legislative action, i.e., a legislative omission, will give rise to the immunity afforded by the statute. Section 2-9-lll(2) MCA. Limberhand, 706 P.2d at 498. Any alleged failure by the school district to provide sufficient funding for maintenance of the stairs and employment of additional custodians are omissions by its legislative body, the school board. The omissions of the relators occurred during the lawful discharge of duties associated with these omissions by the board. Thus, the relators are immune under subsection (3) of the statute. Plaintiffs also contend that subsection (2) of 5 2-9-111, MCA, does not grant immunity to the school district in this case. Once again, we disagree. Subsection (2) of the statute clearly affords immunity to a governmental entity "for an act or omission of its legislative body or a member, officer, or agent thereof." In the case at bar, the act complained of was an omission by agents of the school board--i.e., failure by the janitors to remove snow and failure by the principal to supervise the janitors. Under the plain language of subsection (2) the school district is clearly immune for an omission by an agent of the school board. The District Court did not err in granting summary judgment to the school district on its immunity defense. Finally, plaintiffs argue that the interpretation given the statute violates the rule that any reinstatement of governmental immunity must he strictly construed. Plaintiffs rely on 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." In - B.M., the plaintiffs sued the State for negligence in placing a six-year old child in a special education program for educable mentally retarded children. The State was granted summary judgment based on immunity under S 2-9-111, MCA. We reversed on the grounds that the legislature had not enacted legislation to limit the liability of school boards in the administration of special education programs. We held that in the absence of a clear statutory declaration grantinq immunity it is this Court's duty to permit rather than to deny an action for negligence. B.M., 649 P.2d at 427. - The plain meaning of the actual language used in S 2-9-111, MCA, was not discussed in our decision in -- B.M. v. State. We have decided several other immunity cases since our 1982 decision in B.M. In the process, we have arrived at the current construction of S 2-9-111, MCA, on a case-by-case basis. - B.M. 's rule of strict construction still holds true. However it is now clear, particularly after our decisions in Bieber and Peterson, that the plain language of the statute constitutes a clear statutory declaration granting immunity to the relators in this case. Earlier in this opinion we held that the District Court did not abuse its discretion in allowing the plaintiffs to amend their complaint because of the uncertainty of the law regarding immunity. We also held that a writ of supervisory control should iss.ue in this case in order for us to clarify the immunity question. We recognize that for us to first hold that the confusion regarding immunity requires supervisory control and then to hold that the statute clearly grants immunity to the relators may seem a bit contradictory. In this regard, we are not asserting in this opinion that the statute is unequivocally clear at first glance. Indeed, several interpretations of S 2-9-111, MCA, have been argued in the line of cases that have come before us since the statute's adoption. However, it is this line of cases, particularly our recent decisions in Bieber and Peterson that has given a specific and reasonable interpretation to the statute based on the plain meaning of the actual language used. Moreover, this interpretation of § 2-9-111, MCA, leads us to but one conclusion: the statute grants immunity to both the school district and its individual employees in this case. The writ is granted and the amendment naming the relators relates back to the original filing date. However, as discussed above, 5 2-9-111, MCA, grants immunity to both the school district and the relators in this case. The school district already being dismissed on summary judgment, we direct the District Court to dismiss the relators based on the immunity granted by § 2-9-111, MCA. The cause is remanded to the District Court for further We Concur: Justices Justice John C. Sheehy, dissenting: his Court, having in a line of cases needlessly and illogically enlarged governmental immunity for negligence, now marches overzealously to the ultimate nonsense: a janitor in charge of brooming off snow from the steps outside of a school gymnasium is engaged as an agent in legislative action. So say the majority. It will be small comfort to the plaintiff Mary Fitzpatrick that the majority are marching against the swell of history, to which the law must eventually bend. The extension of governmental immunity to mere government employees who wrongfully perform or omit to perform purely mechanical duties has no root in history. Legal doctrines often flourish long after their raison d'etre has perished. The doctrine of sovereign immunity rests on the fictional premise that the "King can do no wrong." Even though the plot to assassinate James I in 1605, the execution of Charles I in 1649, and the Colonists' reaction to George 111's stamp tax made rather clear the fictional character of the doctrine's underpinnings, British subjects found a gracious means of compelling the King to obey the law rather than simply repudiating the doctrine itself. They held his advisors and his agents responsible. - - - - (Emphasis added. ) will v. ~ichigan Dept. of State police (1989), U.S. , 109 S.Ct. 2304, 2320-2321, 105 L.Ed.2d 45, 68-69 (~ustice John Paul Stevens, dissenting). The majority in this case have carried governmental immunity to a far greater reach than was ever extended in the severest of monarchical history. They have not only excused the king; they have excused the king's men, his feudal lords and all their vassals. I particularly object to the contention of the majority that their interpretation of $ 2-9-111, MCA, in this and earlier cases is "clear." Their interpretation is not clear. It is so unclear that they are brought to the admission that they are not asserting in this Opinion "that the statute is unequivocally clear at first glance." Using themselves as authority, the majority hold that it is now clear "that the plain language of the statute constitutes a clear statutory declaration granting immunity to the relators in this case." (Slip opinion, page 12. ) They said so; ergo, it is. Let us see for ourselves whether the language is plain or the declaration is clear. Subsection (3) of 2-9-111, MCA, provides: ( 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. By rules of English grammar as I understand them, a member, officer or agent of a legislative body is immune if the discharge of his official duty was "associated -- with the introduction - or consideration of legislation or action by the legislative body." The majority, by their interpretation, eliminate several words from the subsection so that they read it to say that a member, officer or agent of a legislative body is immune if the official duty is "associated . . . with action by the legislative body." The majority interpretation violates grammatical and statutory rules-of construction. We are required not to insert what has been omitted or to omit what has been inserted, and when there are several provisions of particulars we are to give each such a construction as will give effect to all the provisions. Section 1-2-101, MCA , Moreover, in the construction of a statute, the intention of the legislature is to be pursued, if possible. Section 1-2-102, MCA. Statutes in this state are to be liberally construed with a view to effect their objects and to promote justice. section 1-2-103, MCA. The intent of the legislature can be gleaned from the heading it used in enacting the statute: "Immunity from suit for legislative acts and omissions." That heading is a part -- of the statute. The meaning of 5 2-9-111(3), MCA, is not plain and clear as the majority contends. Further militating against their position, as far as legislative intent is concerned, are the provisions of S 2-9-102, which state: Every qovernmental entity is subject to liability for ~ t s torts and those of its employees acting within the scope of their employment or duties whether arisinq out of a sovernmental or proprietary function except as specifically provided by the legislature under Art. 11, 5 18, of The Constitution of the State of Montana. (Emphasis added.) The majority, by their interpretation of 5 2-9-111, MCA, have abrogated the provisions of § 2-9-102, MCA, because now under the holdings of this Court, through its majority, every substratum of state government is immune from suit for the torts of its agents, officers and employees, whether those acts are legislative or administrative, and whether governmental or proprietary. The majority rely on their decision in Bieber v. Broadwater County (Mont. 1988), 759 P.2d 145. Bieber was a case decided on briefs, without oral argument, and by less than a full court. It involved the act of a county commissioner in discharging an employee. His act was ratified by the county commission. stretching ~ieber to cover a janitor who didn't scrape snow from a stairway is unsupportable. The majority also rely upon Peterson v. Great Falls School District No. 1 (Mont. 1989), 773 P.2d 316. Here again, we have an action by an employee for wrongful discharge brought against a school district. The discharge of the employee by an administrative assistant was ratified by the school board at its next regularly scheduled meeting. I dare say that no attempt was made by School District No. 10 to ratify the non-cleaning of its sidewalks by its employees. What is eminently clear from the foregoing is that S 2-9-111, MCA, is not itself clear. The majority have confounded it by omitting portions of the statute, by ignoring the legislative intent expressed in the heading of the statute, by abrogating $ 2-9-102, MCA, which imposes liability for employee torts, and by not requiring that governmental immunity be specifically provided as required in S 2-9-102, MCA. In so holding, this Court, by its own construction, has extended governmental immunity far beyond any immunity that ever existed in Montana prior to the 1972 Montana constitution and, now, obviously, in direct reversal of the intentions of the constitutional framers of 1972 who unequivocally abolished governmental immunity. 11. We have noted in the foregoing that S 2-9-102, MCA, imposes liability on governmental entities for the torts of its employees. The immunity provisions of S 2-9-111, MCA, do not speak of actions by employees but rather actions by agents. The question arises, is it legally correct to consider a janitorial employee to be an "agent" of the school district? The majority is in error in construing $ 2-9-lll(2) , MCA, to determine that a janitorial employee is an "agent" of the school district; and in construing $ 2-9-111 (3) , MCA, to determine that a janitorial employee is the "agent" of a legislative body, the school district. The term "agency" has no meaning at all when applied to a janitorial employment. The term "agency" means a fiduciary relationship by which a party confides to another the management of some business to be transacted in the former's name or on his account, and by which such other assumes to do the business and render an account of it. It has also been defined as the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. Thus, the term "agency," in its legal sense, always imports commercial or - - contractual dealings between two parties by and through the medium of another. (~mphasis added. ) 3 Am.Jur.2d 509, Agency, S 1. An employee rendering purely mechanical services is not an "agent" of the master, in the true sense of the word. Thus: The relationship most closely related to the master and servant relationship is, of course, that of principal and agent. Both relate to employment and express the idea of service, and both agents and servants are workers for another under expressed or implied agreement. Indeed, the law of agency is an outgrowth and expansion of the doctrine of master and servant, and it is of course true that the words "agent" and "servant" in a general sense both apply to persons in the service of another. A master is a species of principal and a servant a species of agent. As a result, the words "servant" and "agent" are often used interchangeably by the courts, and indeed, an agent employed to make - - contracts might also, with respect to some of his duties and activities, be a servant. On the other hand, the terms "agent" and "servant" are not wholly synonymous since an agent may be authorized to make contracts on behalf of the principal with third persons and to generally represent him in the business, while a mere servant has no such authority, but renders purely mechanical services as directed by his employer. The essential difference between the two is that an agent represents his principal in business dealings and is employed to establish contractual relations between the principal and third persons, while a servant is not. As a general rule, a servant is employed to perform certain acts in a way that is or may be specified, and he may not use his discretion as to the means to accomplish the end for which he is employed. This being so, the service performable by a servant for his employer may be inferior in degree to work done by an agent for his principal. (Emphasis added. ) 53 Arn.Jur.2d 84-85, Master and Servant, 5 3. The argument that a mere employee is not an agent in the sense of S 2-9-111, MCA, is buttressed when one examines 5 2-9-305, MCA. his statute provides indemnity for employees who are sued for actionable conduct in their service of the government. The indemnity is for full cost of settlements or judgments, as well as for costs and attorney fees. As applied to the relators in this case, if this Court properly held that they were not within the immunity umbrella, they would be protected completely from pecuniary loss for suits against them arising out of their employment. The use by the legislature of the term "agents" in S 2-9-111, MCA, and the use of "employees" in 5 2-9-305, MCA, shows that the legislature found a difference in their meanings as applied to the concept of immunity. I would construe the legislative intent to be that "employees" in S 2-9-305, MCA, included both employees and agents; but that "agents" in S 2-9-111, MCA, did not include merely mechanical employees holding purely perfunctory jobs not related to the formation or execution of policy in the field of jurisdiction entrusted to the governmental unit. It is a perversion of the theory of principal and agent to contend that the janitorial employees were "agents" of the trustees themselves individually. The janitorial employees were in the service of the district, and not in the service of the trustees individually. Thus, trustees under 5 20-3-324, MCA, outlining the power and duties of trustees for each school district, have the power and it is their duty to: (2) employ and dismiss administrative personnel, clerks, secretaries, teacher aides, custodians, maintenance personnel, school bus drivers, food - p e r s o n n e l , nurses, and any other personnel considered necessary to carry out the various services -- of the district . . . . (~mphasis added.) ~aving in mind then that a janitorial employee is not within the legal sense an "agent" of the school district, immunity does not accrue to the school district under 5 2-9-111, MCA, which grants immunity only as follows: (2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof. (Emphasis added. ) Because the janitor is not an agent of the school district, but rather its mere employee, immunity does not to the school district in this case. Now let us consider what is meant by "action by the legislative body." Section 2-9-111, MCA, grants immunity to the members of the school board under the following language: (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. From what we have said above, it is obvious that a janitorial employee is not an agent of a legislative body, but rather is an employee of the district, and as such, immunity does not attach to the members of the district by reason of acts of the janitorial employees. In my judgment, we do not have a question of immunity as far as the school district trustees are concerned, but rather whether they are simply not subject to liability because the acts of the janitorial employees were not imputable to the individual school district trustees, but rather to the district which employed them. We do not, when private corporate employees are negligent, impute that negligence personally to the president of the corporation; only to the entity of the corporation. However, since they were employed by the school district, the theory seized upon by some is that the work of the janitors is "an official duty" associated with "action by the legislative body." Section 2-9-111, MCA. That cannot be under the statutes. The only way that school trustees can "act" is to act collectively, and at a regular or properly called special meeting. section 20-3-301(2), MCA, provides: The trustees shall be composed of the number of trustee positions prescribed for a district by 20-3-341 and 20-3-351. When exercising the power and performiny the duties of trustees. the members shali act c~liectivel~, and only at arregular or a properly called special meeting. (Emphasis added.) Section 20-3-301, MCA, stating that members can only act collectively and at their regular meetings rnust be read in - p a r materia with S 2-9-111, MCA, which says that the individual members are immune for "action by the legislative body." The actions of a janitor in maintaining or failing to maintain school premises have no relation to the actions taken by the legislative body in its regular or special meetings and, since the trustees may only act collectively and not otherwise, S 2-9-111, MCA, cannot be read to extend immunity on the very wispy basis that a janitor cleaning off steps to a gym is involved in "action by the legislative body." That contention is simply ridiculous. Both of the statutes, S 2-9-111, MCA, and S 20-3-301, MCA, must also be read - in pari materia with S 20-3-332, MCA, which provides as follows: Personal immunity and liability of trustees. (1) . - When acting in thelr official capacity - - at a regular or special meeting of the board or a committee - - - - thereof, the trustees of each di2trict are individually immune from exemplary and punitive damages. (Emphasis added. ) The "action" of the board trustees can only occur at regular or special meetings and it is only at such meetings that they have an official capacity. Again this statute is a further indication that the legislative immunity granted in 5 2-9-111, MCA, to members and agents was never comprehended to grant immunity to school districts for the non-legislative wrongful acts or omissions of the janitorial employees. There is a sardonic element in this case. The real party in interest shouting "governmental immunity" is probably an insurer. It sold a policy to the school district, promising coverage for comprehensive liability. Because of this Court, the insurer was never at risk for any wrongful acts of the school district personnel outside of motor vehicles. Its premium is pure gravy. In more enlightened former days in Montana, we had statutes which required insurers of state and sub-state risks to waive the defense of immunity. (Former 5 40-4401, R.C.M. (1947); former S 33-23-101, MCA) . In order to provide a better business climate for insurers, the Montana legislature repealed this requirement in 1979 (Ch. 425, S 4, Laws of 1979; the repealer was contained in S.B. 380, introduced by Senators Hafferman, Towe and Turnage). The line of cases by which this Court has extended governmental immunity to cover any and all acts of the governmental entities (except for the state itself) and their various members, officers, agents and employees, is such a reversal of history and sound legal thought that it boggles the imagination. We should have begun, in this case, to pick up the pieces. There are problems in defining the duties of school board trustees as they are outlined in the statutes; and in defining the relation of mere mechanical personnel to the school boards as legislative bodies. We should restructure legislative immunity in this state so as not to comprehend and include merely administrative functions. That is how I would decide this case. Justice c(J ~ustice ~illiam E. Hunt, Sr., dissenting: I dissent. I concur generally with the foregoing dissent of justice Sheehy and in particular with what he has to say about the case of Bieber v. Broadwater County (Mont. 1 9 8 8 ) , 759 P.2d 145. As the author of that case, I can not believe it has been used as the seminal case to destroy immunity provided by the Montana Constitution, but if the effect leads to this conclusion, then I vote to overrule the case in its entirety. To extend the act of a County Commissioner performing in his capacity as a ~ommissioner/legislator whose act was ratified by the legislative body to which he belonged, to a snow-shoveling janitor's failure to protect the public by maintaining sidewalks in a safe condition is, as Justice Sheehy too mildly said, "unsupportable." I say it is ludicrous and unbelievable. | November 22, 1989 |
0303ebb0-8941-482d-ab39-61c5e878b7ac | HUNTER v ROSEBUD COUNTY | N/A | 89-129 | Montana | Montana Supreme Court | No. 89-129 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 HOLLAND HUNTER, HENRY F. HUNTER, FLORENCE HUNTER, DEBORAH HUNTER, ALISON HUNTER KINCADE, MARGARET S. REYNOLDS, TOM. H. REYNOLDS, and JAMES H. REYNOLDS, plaint iff s and Appellants, x u 0 03 -vs- Z eo -jn C3 ROSEBUD COUNTY, a local governmental 2 a n i C 3 3- (J> entity located in the State of Montana, . e 7 Cf' : . : 4 - et al., C-: - - - , r Defendants and Respondents. - - - - . - I * m 9 a T l rs _I ?L- I- - - * rri rri CO O 2 C 3 APPEAL FROM: District Court of the Sixteenth Judicial gistrfit, In and for the County of Rosebud, - i The Honorable Alfred B. Coate, Judge presidinq. COUNSEL OF RECORD: For Appellant: Joseph W. Sabol arg,ued, Bozeman, Montana For Respondent : W. H. Bellingham argued; Moulton, Bellingham, Longo & Mather, Billings, (True Oil Col, USA Petro. Corp., Carlson, Lair, Brown & Tesoro Petro. Corp.) Rodd A. Hamman argued; Calton, Hamrnan, Calton & Wolff, Billings, Montana (Enfield Energy) Thomas A. Ask argued; Ask & Pratt, Roundup, Montana (Kincheloe, Mysse, Nielsen, Hendrix, Jennaway) Robert J. Waller; Veeder, Broeder & Michelotti, Billings, Montana (Petro-Lewis Funds, Petro-Lewis Agency Corp., Petro-Lewis Corp.) William E. Berger; Wilkins & Berger, Lewistown, Montana (Ferrell, Rydholm) Robert L. Johnson, Lewistown, Montana (Johnson) McKinley Anderson, Bozeman, Montana (Orleman) F i l e d : Submitted: October 19, 1989 Degided: December 7, 1989 Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from an action instituted to quiet title to the minerals, mineral interest, and mineral estate previously severed from a parcel of real property located in Rosebud County Montana. Plaintiffs (hereinafter Hunters) appeal from an order granting summary judgment in favor of defendants, Boyd Kincheloe, True Oil Company, Petro-Lewis Funds Inc . , et a1 . (hereinafter Kincheloes) . We affirm. The issues on appeal are: 1. Whether there was a merger of the mineral estate and the remaining estate. 2. Whether the Hunters' claims are barred by virtue of the doctrine of laches. The facts of this case are complicated. On May 22, 1914, the United States issued a patent to the Northern Pacific Railway Company which included the land that is the subject of this cause of action. Northern Pacific owned the land until 1926. On December 17 of that year, it conveyed, by warranty deed, an undivided one-half interest to F.R. Bentley, and to Lena E. Hess and Dorothy A. Hess, an undivid- ed one-quarter interest each. This deed specificall-y excepted the mineral estate as follows: . . . excepting and reserving unto the grantor, its successors and assigns, forever, all minerals of any nature whatsoever, including coal, iron, natural gas and oil upon or in said lands, together with the use of such of the surface as may be necessary for the exploring for and mining or otherwise extracting and carrying away of the same, . . . Through conveyances the Bentley and Hess interests in the property was acquired by Harry and Hester Hunter on October 14, 1929. Because taxes for the year 1928 had not been paid, after tax deed proceedings the county treasurer issued to Rosebud County a tax deed to the property. The tax deed was issued on August 15, 1932. At that time Northern Pacific still owned the mineral estate. Therefore, the tax deed only purported a conveyance of real property less the mineral estate. In 1933, the Northern Pacific Railroad quitclaimed its mineral estate "to the owner or owners of the . . . land." Thereafter the plaintiffs succeeded to the interest of Harry and Hester Hunter. Rosebud County, on December 3, 1945, quitclaimed its interest in the real property to Art Kincheloe. This deed of conveyance reserved unto the county a six and one-quarter percent (6*%) royalty interest "of all oil, gas and minerals recovered and saved from the lands." On April 29, 1950, Art Kincheloe filed an action to quiet title to the property. Subsequently a judgment pursuant to the complaint was entered in favor of Kincheloe finding Kincheloe to be the owner in fee simple absolute of all the interest in the lands subject to the county's royalty reservation. Art Kincheloe and his successors have remained in possession and use of the property since the conveyance by Rosebud County in 1945. On January 2, 1978 drilling for oil and gas was commenced by lessees of Kincheloes, and since that time four oil and gas wells have been drilled. As of 1983, over eight million dollars in revenue had been realized from the wells. In 1982, the Hunters filed a lawsuit against Rosebud County, the Kincheloes, and several oil lessees, seeking title to the mineral estate which included the oil and gas in the property. The only defendant originally served with summons and complaint was Rosebud County who was served during July of 1983. A judgment. was filed on June 8, 1984 in favor of the Hunters and against Rosebud County as to the county's 6 : % royalty interest and such interest is not involved in the present controversy nor was it appealed. No further action was taken in the case until August of 1985. At that time, the remaining defendants were served. In 1988, the Hunters filed a motion for summary judgment, seeking judgment against the defendants. Subsequently, each of the defendants in this action filed a motion for summary judgment against the Hunters. The court found for the defendants and against the Hunters. This appeal followed. The trial court ruled that there was a merger of the remaining estate and the mineral estate when the Northern Pacific quit claimed its mineral interest to "the owner or owners of the land." Therefore, when the county conveyed the land to the Kincheloes, it conveyed the entire estate in the land including all interest in the mineral estate. The Hunters disaqree and maintain that once the mineral estate was severed from the remaining interest they could not merge into a unitary estate. According to the Hunters, mineral estates and the remaining estate are of equal dignity and estates of equal dignity can never merge. In order for a merger to occur there must be estates of greater and lesser dignity. Therefore, in order for Rosebud County to have conveyed the mineral estate to the Kincheloes, it would have been necessary to effect a separate conveyance of the mineral estate. Hunters maintain that the conveyance by the county without mentioning the mineral estate, by way of quitclaim, deed did not effectively transfer the mineral estate. In support of this argument, they rely upon a line of Texas cases. See Humphreys-Mexia Company v. Gammon (Texas 1923) , 254 S.W. 296; Joyner v. R.H. Dearinq and Sons (Texas 1937), 112 S.W. 2d 1109. We disagree with Hunters' argument. Their assertion that the mineral estate and the remaining estate are of equal dignity is not correct. The general rule is that the owner of the mineral estate enjoys the dominant estate and the surface owner of the remaining estate holds the subservient estate. This theory is based upon the realities that accompany mineral exploration and development. Obviously, in order to fully utilize a mineral estate, one usually must have access to the surface. - See Lacy, "Conflicting Surface Interests: Shotgun Diplomacy Revisited", 22 Rocky Mtn. Min. L. Inst., 731 (1976). See also, Western Energy Co. v. Genie Land Co. (1981), 195 Mont. 202, 635 P.2d 1297. When the Northern Pacific conveyed its previously excepted mineral estate to the owner or owners of the subservient remaining estate, and both estates came together in the same owner, the remaining estate was merged into the mineral estate and there is no reason for further existence as separate estates. Therefore an unrestricted grant by one who claims to be the owner of the remaining estate at the time of the Northern Pacific deed after the merger effected by such deed, conveys all estates in such real property. There is no need to specifically describe such individual estates. At this time Rosebud County claimed to be the owner and had as a minimum, color of title to the land and was the record title owner. It follows that the subsequent convey- ance from the county to the Kincheloes transferred the county's entire estate, including the mineral estate except for the royalty reservation previously noted. It was not necessary for the county to make separate and distinct transfers of the two estates. It has long been recognized that a conveyance of property without reference to the mineral estate carries with it all of the grantor's interest in the mineral estate. Voyta v. Clonts (1958), 134 Mont. 156, 328 P.2d 655. Based upon this deed, the Kincheloes received at a minimum color of title to the surface and the minerals. The District Court held that the Hunters were barred under the doctrine of laches from asserting any claim to the land or otherwise contesting the validity of the tax deed, which the Hunters maintain was void. It is argued by the Hunters that they were not required to take any positive steps to protect their interest in the mineral estate until active production began. Once production did begin they actively and promptly moved to protect their right, by filing this action within the five year period of limitation provided by S 70-19-401, MCA. Having met this obligation, they maintain that it cannot now be said that the doctrine of laches applies. This argument, however, is not valid in light of our holding that a merger occurred between the surface and the mineral estates. Because there was a merger, and the two interests coincided in the Kincheloes, the doctrine of laches, if it applies, will apply to all of the interest in the land including the mineral estate. We must examine the doctrine of laches and apply its tenents to this case in order to determine whether it will bar the Hunters' claims. We begin our discussion by reviewing the pertinent elements of laches. There is no statutory defense of laches in Montana, it is a creature of equity. Cremer v. Cremer Rodeo Land and I;ivestock Company (1979), 181 Mont. 87, 592 P.2d 485. In Montana, there is no absolute rule as to what constitutes laches. In each case, it must be determined according to its own particular circumstances. It is not a mere matter of elapsed time, but rather, is principally a question of the inequity of permitt-ing a claim to be enforced. Matter of Estate of Wallace (1980), 186 Mont. 18, 606 P.2d 136. In two recent cases, this Court has had the opportunity to examine the doctrine of laches and apply it to circum- stances similar to the case at bar. See Richardson v. Richland County (1985), 219 Mont. 48, 711 P.2d 777; Anderson v. Richland County (1985), 219 Mont. 60, 711 P.2d 784. In both Richardson and Anderson, this Court itemized significant factors which it considered in determining the issue of laches. We will apply these factors to this case. 1) The length of time which the present owners have used and occupied the land. In 1945 Art Kincheloe, the respondents' predecessor in interest, received a quitclaim deed from Rosebud County, conveying the real property involved in this case. Since that time, the Kincheloes have occupied and used the land. They have paid all real property taxes assessed aqainst the property for almost fifty years. 2) The length of time during which the plaintiffs and their predecessors abandoned the property and have not cla.imed any right to the physical possession of the land and have not paid any taxes assessed against that land. In 1932, the Hunters' predecessor in interest and Hunters lost record title to the property due to their failure to pay real property taxes on the land in 1927 and 1928, and since that time neither they nor their successors have attempted to redeem the property by payment of the back taxes. It is clear, therefore, they have had no contact with the land for approximately fifty years. 3) Whether the property interest claimed has become extremely valuable. The subject lands have greatly increased in value since the Kincheloes obtained title. Four oil and gas wells have been discovered yielding revenues of over eight million dollars. 4) Whether or not the plaintiffs first learned of their claim after the discovery of oil. In response to Requests for Admissions propounded by True Oil Company, the Hunters admitted that they first learned of their possible claims after oil was discovered. 5) Whether reimbursement of royalties will result in undue hardship upon the defendants. In this case, the Kincheloes and the oil companies would be responsible for the reimbursement of many thousands of dollars in revenues. In light of the resources put into the drilling and upkeep of the wells over a twelve year period, a reimbursement would work undue and unfair hardship upon the defendants. 6) Whether or not there are principal parties to the tax deed proceedings who could furnish first hand knowledge of the facts surrounding the proceedings. At least two of the principal parties to the tax deed proceedings are now deceased. Art Kincheloe, the defendants' predecessor in interest is dead, as is the chairman of the Board of County Commission- ers who executed the 1945 deed. In view of the time which has elapsed, it appears unlikely that anyone who was involved with the tax deed proceedings or the delinquencies of the tax payments are still alive. 7) Whether the plaintiffs have demonstrated any reason for the unexplained delay in claiming their asserted rights between the time of the tax deed, quit claim of minerals estate by Northern Pacific, and the filinq of the complaint. In this case, no testimony of any kind has been introduced either orally or in documentary form to account for such delay. During oral argument, the attorney for the Hunters maintained that they did not do anything to protect their interest between the time of the tax deed until the filing of the complaint because they did not have to act until actual extraction began. However, we note that during this time period of approximately fifty years the Hunters made no effort to remain in contact with the property. As a result of this neglect, they failed to respond to a quiet title action brought by the Kincheloes in 1950, despite the fact that they were named as defendants and were served by publication. This action resulted in a decree quieting title in the name of the Kincheloes in fee simple absolute, which necessarily carries with it all interests in the minerals. It is presumed that a person stays in contact with his property. The fact that the Hunters did not respond to the quiet title action and did not remain in contact with the land for approximately fifty years leads to the conclusion that any claim they may have had comes within the doctrine of laches. 8) Whether the plaintiffs sought to redeem the property and assert their title at any time. Neither the plaintiffs nor their predecessors in interest have paid any of the real property taxes levied against the property since 1927. None of the foregoing parties have ever sought to redeem the property from the tax sale. This is especially pertinent in view of our holding there was a merger of title. They have not acted in any way which would assert that they were the "owners" at the time the Northern Pacific executed its quit claim deed in 1933, except this belated quiet title action. It is clear that all of the significant factors which this Court considered in the Richardson and Anderson cases have been answered in favor of the Kincheloes and against the Hunters. Hunters attempt to distinguish the instant case from Richardson and Andersoq, by pointing out that this case - does not involve roya.lty interests held by a county. Therefore, unlike those two cases, a ruling in favor of the Hunters will not deprive the county of revenue nor overburden the taxpayer by forcing reimbursement of the royalties. We note, however, that a decision in favor of the Hunters would. create a significant hardship upon the Kincheloes and the leaseholders by not only eliminating their interests in the mineral and leasehold estates and all its ramifications and loss of investment, but by also requiring payment of thousands of dollars in royalties. The doctrine of laches was created to avoid such inequitable results. We therefore hold that the Hunters are barred by laches from contesting the validity of the tax deed. Moreover, because we have also held that a merger occurred between the remaining estate and mineral estate, it follows that the Hunters are similarly barred from contesting the Kincheloes title to the mineral estate. In view of our holding that the doctrine of laches applies to the Hunters it is not necessary to discuss issues relating to adverse possession and res judicata. The District Court in sranting judgment for the defendants is affirmed. sitting for us tide John C. Sheehy . | December 7, 1989 |
dbb2ebfa-ce78-4a63-a66f-465036774072 | MARRIAGE OF NOVAKOVICH | N/A | 89-250 | Montana | Montana Supreme Court | No. 89-250 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF JUDY K. NOVAKOVICH, Petitioner and Appellant, and RANDY NOVAKOVICH, I 3 3 Respondent and Respondent. , . , . 3 - .- . a P' I , 0 r 7 ' . 0 2 C J 3 -1 APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Carbon, The Hoporable Robert Holmstrom, Judge presidinq. COUNSEL OF RECORD: For Appellant: Linda I.,. Harris; Harris & Ventrell, Billings, Montana For Respondent: A. M. Kendal-1, Red Lodge, Montana Submitted on Briefs: Nov. 21, 1989 Decided: December 14, 1989 Filed: Justice R. C. McDonough delivered the Opinion of the Court. The wife Judy K. Novakovich appeals the decree of dissolution of the Thirteenth Judicial District Court, Yellowstone County, distributing the marital estate of the wife and her husband, Randy Novakovich. We affirm. Wife raises a sole issue on appeal: Did the District Court abuse its discretion in the distribution of the marital estate because it discounted the value of the husband's interest in a partnership known as The Bridger-Byron Cable TV Company? The parties were married on July 23, 1977, in Thermopolis, Wyoming. They have two minor children. In the spring of 1981 the husband entered into a partnership with his brother to build and maintain a cable television system for Bridger, Montana and Byron, Wyoming. Husband and his brother are equal partners in the television system and husband's principal occupation is to maintain the television system. The wife filed a petition for dissolution in February 1988, and the matter was tried on October 17, 1988. Prior to the trial, the parties stipulated the resolution of the child. custody and support issues. On December 6, 1988, the District Court filed its findings of fact and conclusions of law. The Court entered the Decree of Dissolution on March 1, 1989. At the hearing, husband's expert, a certified public accountant with considerable experience in valuing small businesses, testified that the value of The Bridger-Byron Cable TV Company based on its proven earnings history was approximately $50,700.00. The expert also applied a 35% discount to the husband's interest in the Company on the grounds that the husband's interest in the Company was not a controlling interest. Wife's expert, who had bought and sold several small cable TV businesses, testified that the market val.ue of the business was $198,000.00. The District Court adopted the value of the wife's expert--$198,000.00--but applied the 35% discount rate of husband's expert to the husband's 50% interest. This established a value of $65,000.00 as husband's interest in the partnership. This amount was then included in the marital estate and distributed accordingly. On appeal, the wife contends that application of the 35% discount to the husband's interest in the business amo.unts to an ab.use of the District Court's discretion in evaluating the marital estate. "In valuing the assets in a marital dissolution case, it must be noted that the District Court has broad discretion to determine net worth." In re the Marriage of Johnston (1986), 223 Mont. 383, 387-388, 726 P.2d 322, 325. The test for reviewing such discretion is: Did the District Court, in the exercise of its discretion act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason in view of all the circumstances? Buxbaum v. Ruxbaum f19841, 214 Mont. 1, 7, 692 P.2d 411, 414. Even though as a partner the husband could force the dissolution of the partnership and the liquidation of its assets, the District Court found that the husband's interest in the partnership is not as valuable as a controlling interest. Because of this lack of control, the court found that the 35% discount rate was not unreasonable. We agree. We have recognized that discounting a spo,use's interest in a business for purposes of inclusion in the marital estate is applicable to partnership interests as well as shares of stock in a corporation. See In re the - Marriage of Cole (1988), 763 P.2d 39, 45 St.Rep. 1965. A partner's interest in the partnership is his share of the profits and surplus and the same is personal property. Section 35-10-503, MCA. A partner's rights in specific partnership property is that of a co-owner with the other partners holding as tenants in partnership. Section 35-10-502 (1) , MCA. An individual partner' s rights in such property is generally not assignable. Section 35-10-502 (2) (b) , MCA. Thus even a partner with a 50% interest is unable to assign any control of the partnership: A conveyance by a partner of his interest in the partnership does not of itself dissolve the partnership or . . . entitle the assignee . . . to interfere in the management or administration of the partnership business or affairs. . . . - It merely entitles the assignee - to receive in accordance with -- hiscontract the profits to which the assigning partner would otherwise - be ertitled. Section 35-10-504(1), MCA. (Emphasis added.) Thus, while a partner may have management rights in the partnership, generally that partner cannot transfer such management rights. This inability of a partner to transfer management rights, regardless of the size of the partner's interest, decreases the merchantability of even a large partnership interest. The inalienability of these management rights would make discounting appropriate in some cases, as an interest would be worth less in the hands of an assignee than in the hands of a partner. Husband and his brother would have to dissolve the partnership for husband to realize his full share of the value of the partnership. Once dissolved and the assets liquidated, the business would be worth considerably less to the husband and the husband would be unemployed. The District Court did not abuse its discretion in discounting the husband's interest prior to including the partnership interest in the marital estate. AFFIRMED. We Concur: ief Justice | December 14, 1989 |
e47726dc-3e8b-454b-b6c7-7901eac4c555 | ST MED OXYGEN SUPPLY v AM MED | N/A | 89-236 | Montana | Montana Supreme Court | No. 89-236 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE MEDICAL OXYGEN AND SUPPLY, INC., a Montana corporation, Plaintiff and Appellant, AMERICAN MEDICAT, OXYGEN CO., a Montana corporation, J.C. LYNDES, GARY GOMEZ, and RONALD WRIGHT, Defendants and Respondents. 9 APPEAL FROM: District Court of the Eighth Judicial Distrlct In and for the County of Cascade The Honorable John M. McCarvel, Judqe presidinq. COUNSEL OF RECORD: For Appellant: P. Mars Scott, Mulroney, Delaney and Scott Missoula, Montana For Respondent : Michael G. Moses, Moses L a w Firm, Billings, Montana. Philip P. McGimpsey, Billings, Montana Submitted on Briefs: October 13, 1989 Decided: November 30, 1989 Filed. : Justice Diane G. Barz delivered the Opinion of the Court. Plaintiff, State Medical Oxygen and Supply, Inc. (State Med.), appeals the January 19, 1989 decision of the District Court of the Eighth Judicial ~istrict, Cascade County, finding that plaintiff's nondisclosure agreement violated S 28-2-703, MCA, and granting summary judgment in favor of defendants--~merican Medical Oxygen Co. (~merican Med.), J.C. Lyndes, Gary Gomez and Ronald Wright. We affirm. The issues raised on appeal are: 1. Whether plaintiff's "Agreement of Employee not to Disclose Trade Secrets or Customer Lists of State Medical Supply, Inc." violates S 28-2-703, MCA, as being a contract that restrains the exercise of a lawful profession, trade or business of any kind; and 2. Whether the District Court erred by granting defendants' motion for summary judgment. Plaintiff, State Med., is a Montana corporation engaged in the business of supplying oxygen and allied health care to patients in their homes and in hospitals. Upon State Med.'s formation in the early part of 1984, the directors of State Med. had its employees sign an agreement entitled, "Agreement of Employee not to Disclose Trade Secrets or Customer Lists of State Medical Supply, Inc." This Agreement provides that: The undersigned, an employee of State Medical Supply, Lnc., in consideration of his employment, hereby agrees not, at any time or in any manner, either directly or indirectly, to divulge, disclose or communicate t o any person, firm, or corporation, in any manner whatsoever, any information concerning any matters affecting or relating to the business of State Medical Supply, Inc.'s trade secrets and/or customer lists. Including without limitinq the above, the employee agrees not to divulge any of State Medical Supply, Inc.'s customers, the prices it obtains or has obtained from the sale of, or at which it sells or has sold, its products, or any other information concerning the business of State Medical Supply, Inc., its manner of operation, its plans, processes, or other data without regard to whether all of the foregoing matters will be deemed confidential, material, or important, the parties hereby stipulating that as between them, the same are important, material and confidential and gravely affect the effective and successive conduct of the business of State Medical Supply, Inc., and State Medical Supply, Inc. 's good will, and that any breach of the terms of this agreement shall be termed and considered a material breach. This agreement shall remain in full force and effect during the undersigned employment and contin-uing for all time thereafter . A violation of this agreement will entitle State Medical Supply, Inc., to seek damages and/or injunctive relief or any other remedy at law against the undersigned and the undersigned agrees to pay State Medical Supply, Inc. 's attorney's fees in prosecuting any breach of this agreement. Several, if not all, of the employees of State Med. signed this Agreement. Three State Med. employees--Link, Fatz and Tope--became unhappy with their jobs at State Med. and began to seek employment elsewhere. On August 9, 1985, these employees quit their jobs at State Med. and immediately began working for American Med., a Montana corporation also engaged in the business of supplying oxygen and allied health care to patients in their homes and in hospitals. When Link left State Med.'s employ, he memorized his customer route and offered his customers an opportunity to switch from State Med. to American Med. Most of Link's regular customers made the switch. On March 1, 1988, this Court decided State Medical Oxygen & Supply, Inc. v. American Medical Oxygen Co. (Mont. 1988), 750 P.2d 1085, 45 St.Rep. 349, which addressed issues initially raised by State Med. This Court affirmed in part, reversed in part and remanded for further proceedings, but did not address the issue of the nondisclosure agreement because the District Court had not yet ruled on it. State - - Medical Oxygen Supply, Inc., 750 P.2d at 1089, 45 St.Rep. at 355. On October 18, 1988, the parties stipulated to the dismissal with prejudice of defendant Link from this action. On November 30, 1988, the remaining defendants--American Med., Lyndes, Gomez and Wright--renewed their motion for summary judgment, asserting again that the nondisclosure agreement was void pursuant to 5 28-2-703, MCA. On January 19, 1989, the District Court granted defendants' motion for summary judgment, and stated that the nondisclosure agreement between State Med. and its employees not to divulge trade secrets or customer lists violated S 28-2-703, MCA, and therefore the court found it against public policy and unenforceable as a matter of law. The District Court certified this January 19, 1989 order as a final judgment under Rule 54 (b) , M. R.Civ.P. State Med. appeals. The first issue that will be addressed by this Court is whether plaintiff's "Agreement of Employee not to Disclose Trade Secrets or Customer Lists of State Medical Supply, Inc." violates 5 28-2-703, MCA. Section 28-2-703, MCA, codifies Montana's public policy regarding contracts that restrains the exercise of a lawful profession, trade or business of any kind. This statute provides that " [alny contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided for by 28-2-704 or 28-2-705, is to that extent void." The two exceptions allow parties to agree that upon either the sale of goodwill of a business or the dissolution of a partnership, one or more of the parties will refrain from carrying on a similar business within a narrow designated area. Sections 28-2-704 and -705, MCA . Prior to Dobbins, DeGuire & Tucker v. Rutherford, MacDonald & Olson (1985), 218 Mont. 392, 708 P.2d 577, this Court recognized a difference between covenants incident to an employment contract and those regarding the trade of a business or property. J.T. Miller Co. v. Made1 (1978), 176 Mont. 49, 52-53, 575 P.2d 1321, 1323. When presented with a covenant not to compete that involved trade, this Court applied a three part test by which to discern reasonable covenants from unreasonable restraints. IJnder this test, a covenant not to compete is reasonable if it is (1) limited in operation either as to time or place; (2) based upon some good consideration; and (3) affords reasonable protection for and not impose an unreasonable burden upon the employer, the employee, or the public. OINeill v. Ferraro (1979), 182 Mont. 214, 218-19, 596 P.2d 197, 199. In Dobbins, this Court determined that this test should also be applied to restrictive covenants that are found within employment contracts. Dobbins, 218 Mont. at 396-97, 708 P.2d at 580. In the present case, State Med. has the burden of showing that its agreement does not violate 5 28-2-703, MCA. First American Ins. Agency 17. Gould (1983), 203 Mont. 217, 223, 661 P.2d 451, 454. State Med. did not assert nor prove that the sale of goodwill of a business or the dissolution of a partnership occurred. Therefore, neither of the statutory exceptions--§§ 28-2-704 or -705, MCA--applies. State Med.'s agreement also does not pass the test of reasonableness. As stated in Dobbins and OINeill, three essential things are required for an agreement to be considered reasonable. State Med.'s agreement, however, did not limit the restrictions as to either time or place and therefore did not meet the first essential criterion. We therefore do not find a need to proceed any further to determine whether the covenant meets the remaining two criteria. Although State Med. cites Dobbins, it does not argue that its agreement meets the three criteria. Instead, State Med. merely argues that the District Court erred because it did not make findings of fact or conclusions of law. However, Rule 52 (a), M.R.Civ.P. and previous decisions do not require a district court to set forth findings of fact or conclusions of law when ruling on a summary judgment motion. Lewis v. State Dept. of Revenue (1984), 207 Mont. 361, 375, 675 P.2d 107, 114; Downs v. Smyk (1979), 185 Mont. 16, 19, 604 P.2d 307, 309. State Med. also argues that the District Court confuses its contract, which they assert is a contract not to disclose trade secrets and/or customer lists with a contract that restrains the exercise of a lawful profession. State Med. then apparently attempts to persuade this Court that its agreement is not an employment contract and therefore it is not in violation of S 28-2-703, MCA. We disagree. Section 28-2-703, MCA, states that any contracts that restrain anyone from exercising a lawful profession, trade, or business is void. The statute does not limit the prohibition to employment contracts. In Dobbins, this Court erased any previously recognized differences between the treatment of trade and employment contracts which contain restrictive covenants. Therefore, State Med.'s attempts at distinguishing its agreement as something other than an employment contract is not relevant to the issue presented on appeal. In light of the above, the District Court did not err in finding that State Med.'s agreement violated § 28-2-703, MCA, and thus finding the agreement void as against public policy and unenforceable as a matter of law. The second issue raised on appeal is whether the District Court erred by granting defendants' motion for summary judgment. The party seeking summary judgment is entitled to judgment only when no qenuine issue exist as to any material facts and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The party moving for summary judgment has the initial burden of establishing that a genuine issue of material fact does not exist. Once this is established, the burden shifts to the party opposing the motion to demonstrate otherwise. Rumph 17. Dale Edwards, Inc. (1979), 183 Mont. 359, 365-66, 600 P.2d 163, 167. In the present case, the District Court ruled that State Med.'s agreement was in violation of § 28-2-703, MCA. The record demonstrates that defendants established that no genuine issue of material facts existed. The agreement on its face violates the statute and the law regarding restrictive covenants. The burden then shifted to State Med. State Med. attempted to rebut this evidence by bringing in extraneous information regarding tortious interference, which is the underlying basis for their amended complaint. The facts surrounding tortious interference are irrelevant to the sole issue on appeal of whether the nondisclosure agreement was in violation of 5 28-2-703, MCA. State Med. also argues that affidavits submitted by their employees puts into question whether or not their agreement was an employment contract. As we stated previously, - any contracts, not just employment contracts, are in violation of g 28-2-703, MCA, if they restrain anyone from exercising a lawful profession, trade or business. In addition, the same standard of reasonableness applies to a restrictive covenant regardless of whether it is found within a trade contract or an employment contract. Therefore, evidence regarding whether the agreement was an employment contract is irrelevant to the question of whether it violated 5 28-2-703, MCA. The District Court therefore did not err in grantinq defendants' motion for summary judgment. A£ f irmed. We concur: | November 28, 1989 |
cd683a4a-e096-4f92-97b9-e6e5429777e5 | FARMERS STATE BANK v MOBILE HOMES | N/A | 14340 | Montana | Montana Supreme Court | No. 1 4 3 4 0 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 7 9 FARMERS STATE BANK, a M o n t a n a C o r p o r a t i o n , V i c t o r , M o n t a n a , P l a i n t i f f and A p p e l l a n t , MOBILE HOMES UNLIMITED, E. R. VALLANCE, BARBARA VALLANCE and DON GARROD, D e f e n d a n t s and R e s p o n d e n t s . A p p e a l f r o m : D i s t r i c t C o u r t of t h e Fourth Judicial D i s t r i c t , H o n o r a b l e E . G a r d n e r B r o w n l e e , Judge presiding. C o u n s e l of R e c o r d : For A p p e l l a n t : Jack W. S t a r k argued, V i c t o r , M o n t a n a For R e s p o n d e n t s : B o o n e , K a r l b e r g and H a d d o n , M i s s o u l a , M o n t a n a S a m E. H a d d o n argued, M i s s o u l a , M o n t a n a C u r t i s C. C o o k argued, H a m i l t o n , M o n t a n a Submitted: February 1 3 , 1 9 7 9 ~ e c i d e d : A?R 2 0 1 9 7 9 F i l e d : A?K 2 0 1979 - -- Mr. Chief Justice Frank I . Haswell delivered the Opinion of the Court. Farmers State Bank appeals from findings of fact, con- clusions of law and judgment entered by the District Court of Ravalli County, holding that because the bank had acted in a manner not authorized by the Uniform Commercial Code (U.C.C.) in repossing certain property and dealing with certain notes, it was precluded from recovering a deficiency judgment on the notes from obligor Mobile Homes Unlimited or guarantors E . R . Vallance, Barbara Vallance, and Don Garrod. Respondents E. R . Vallance and Don Garrod were the oper- ators of a trailer sales facility, Mobile Homes Unlimited. Each owned a half interest in the enterprise. The business had a "floor plan" financing arrangement with appellant Farmers State Bank whereby the bank would loan money for the purchase of trailers and respondents would execute notes to the bank with the trailers as security, with the idea that respondents would be able to re- sell the trailers, pay off the notes, and still realize a profit for the business. In 1975, Garrod arranged to sell his half interest in Mobile Homes Unlimited to Vallance. At that time, five trailers were obligated to the bank under the floor plan arrangement, each secured by a separate note. As a result of the sale of Garrod's interest to Vallance, it was necessary to refinance the Mobile Homes Unlimited units that were floor planned by the bank. The five notes for the five units involved were consolidated into a single note for $50,609. The note named Mobile Homes Unlimited as maker and was executed by E . R . Vallance, President, and Barbara Vallance, Secretary- Treasurer. On the reverse side the note was signed individually by E . R . Vallance, Barbara Vallance, and Don Garrod as guarantors. At the same time this note was executed (April 7, 1975), a separate note for $9,287.04, covering other obligations of Mobile Homes Unlimited to the bank, was also executed in like manner with the Vallances and Garrod again signing in their individual capacities as guarantors. The larger note was secured by the five trailers, and a U . C . C . financing statement listing them was properly filed. The smaller note was unsecured. On June 11, 1976, a complaint was filed in the District Court, Ravalli County, alleging that the two notes were in de- fault and seeking recovery from respondents of a balance due of $26,665.55 on the larger note and $8,287.04 on the smaller note. The complaint noted that two mobile homes remaining under the security agreement (the other three having already been sold by Mobile Homes Unlimited) had been repossessed by the bank and would be sold. They subsequently were sold and the proceeds applied to the balance due, reducing the amount in controversy. Separate answers were filed by Garrod, Mobile Homes Un- limited, and the Vallances. Garrod alleged, among other things, that any sums owing had been paid. Mobile Homes Unlimited alleged that plaintiff had derived more than sufficient funds to pay off the smaller note from the sale of the two trailers it took into possession under the security agreement, and that the larger note would have been paid off already if payments which Mobile Homes previously made had been applied in accordance with an agreement which had been reached during the negotiations leading to the execution of the notes, which agreement the bank had allegedly ignored. The answer of the Vallances also alleged that the notes would have been paid off already if the payments had been prop- erly applied, and contended further that they were discharged of any obligation because the bank allegedly failed to give them proper notice under the U.C.C. regarding sale of the repossessed trailers. A later amended answer and counterclaim was filed by Mobile Homes Unlimited adding the allegation that the bank had unlawfully seized certain items in which it had no security interest when it repossessed the trailers. The counterclaim sought $10,000 damages for the items allegedly seized unlawfully and $10,000 punitive damages. Trial was held before Judge E . Gardner Brownlee on December 17, 1976, August 27, 1977, and October 28, 1977. The fragmentation was the result of recesses imposed by Judge Brown- lee because the evidence was being presented in such a confused manner that he was unable to follow the arguments and he there- fore required the parties to sort out their contentions and sub- mit them in intelligible written form. The evidence adduced at trial indicated that for certain checks paid to the bank by Mobile Homes Unlimited which had nota- tions on them in regard to the manner in which they were to be applied to reduce the obligations, the bank disregarded the nota- tions and distributed the funds to suit its own purposes, contrary to both the notations on the checks and to the manner of dis- tribution that had been previously agreed upon in the negotiations leading up to the execution of the notes. The evidence in regard to the repossession and sale of the collateral was that an officer of the bank, accompanied by respondent Garrod, had gone to the Mobile Homes Unlimited lot; that the two trailers still covered by the security agreement together with a third trailer not covered by any agreement but which had been received as a trade-in on the sale of one of the other secured trailers were taken; that Don Garrod took and sold eight furnaces not covered by any security agreement and turned the proceeds over to the bank; and that in the trailers seized by the bank were certain items of furniture which defendants alleged were not covered by the security agreement. There was conflicting evidence as to whether all respondents had been given notice as required under the U . C . C . before the sale of the re- possessed trailers. It was established that both notes involved had been extended six months, the extension being signed "Mobile Homes Unlimited X E. R. Valiance." No notice was given to Don Garrod that the extension was being made. The last entry on the reverse of the larger note is under "Advances Given" and is in the sum of $500, increasing the bal- ance due from $3,605.55 to $4,105.55. The bank's testimony was that this was not really an "advance" but rather a return to a buyer of one of the repossessed trailers because the trailer had been sold to him as a 1974 model whereas it was actually a 1973. No notice of this "advance" was given to any of the defendants. Subsequent to trial, on February 6, 1978, findings of fact, conclusions of law and judgment were entered. The District Court found that the bank had taken possession of a trailer not a part of any security agreement (even though the trailer was a trade-in on one which was covered by a security agreement); that the bank took possession of some furniture and furnaces not listed on any security agreement; that the bank "in effect took over the operation of the business and made disposition of property in the manner not completely authorized by the U.C.C. or the Security Agreement"; that from the evidence submitted it was impossible for the court to determine what amount would be owed the bank if it had proceeded properly; and that any deficiency "could just as well be the result of improper conduct on the part of the plain- tiff bank as it could be the result of defendants1 actions." The court also found that the Vallances had filed a counterclaim against the bank (erroneous--the only counterclaim was filed by Mobile Homes Unlimited) but were not entitled to any judgment thereon. Finally, the court found that none of the guarantors were obligated for any deficiency on the notes. No specific finding was made whether defendant Mobile Homes Unlimited, the maker, was or was not so obligated. The single conclusion of law and the judgment reached from these findings were worded almost identically: "None of the parties to this action are entitled to any judgment against any of the other parties." From those findings, conclusions, and judgment the bank has brought this appeal. Broadly stated, the only issue involved in this appeal is whether the trial court's findings and conclusions are supported by the evidence. Numerous specific questions under- lie this general issue, including several matters raised by Garrod and the Vallances in reliance on the principle that a guarantor is exonerated if a creditor alters the original ob- ligation of the principal. See section 30-208, R.C.M. 1947, now section 28-11-211(1) MCA. These matters, however, do not appear to have been central to the trial court's decision. Rather, the underlying basis of the trial court's judgment is that plain- tiff is barred from recovering any deficiency remaining unpaid on the notes because it failed to act in a commercially reason- able manner in regard to the repossession and sale of the col- lateral. Under the U.C.C., section 87A-9-504(3), R.C.M. 1947, now section 30-9-504(3) MCA, a secured party's right to dispose of collateral after default is subject to the requirement that "every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable." While the District Court's findings do not specifically state that appellant failed to act in a commercially reasonable manner, that is the net effect of the finding that the bank "made disposition of property in the manner not completely authorized by the Uniform Commercial Code or the Security Agreement." Therefore, we frame the issue as follows: Whether the trial court erred in finding that Farmers State Bank acted in a manner not authorized by the U . C . C . in handling the repossession and sale of collateral and is thereby barred from recovering any deficiency judgment from either the maker or the guarantors of the notes secured by that collateral. Under the U.C.C., the courts have generally taken the view that the burden of proving the commercial reasonableness of the disposition of collateral is on the secured party. Annot. 59 ALR3d 369. It is also generally held that a secured cred- itor's failure to give the notice required under U.C.C. 59-504(3) (in Montana, section 87A-9-504(3), R . C . M . 1947, now section 30-9-504(3) MCA) prior to disposition of collateral precludes or limits the creditor's right to recover a deficiency judgment. Annot. 59 ALR3d 401. Rule 52, M.R.Civ.P., which requires that in all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially, also provides in pertinent part : "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." In attempting to apply the foregoing principles to this case, we have reviewed again and again all the pleadings, exhibits and testimony comprising the record. Our endeavor leaves us in complete sympathy with the consternation of the trial court as attested to in its finding that ". . . from the evidence submitted . . . it is impossible to determine what, if any, amount would be due to the plaintiff if the plaintiff had proceeded in a manner authorized by the U.C.C. and its Security Agreement." As we previously mentioned, the trial court judge imposed two recesses in the trial of this matter because the parties' presentation was so disorganized. Illustrative of the confusion that characterized this proceeding is the contradictory evidence on whether notice of the sale of the repossessed collateral was given. Plaintiff's prime witness, a bank officer, testified that "to the best of his knowledge" Mobile Homes Unlimited was not given notice before the trailers were sold. Respondents rely heavily on this testimony to argue that the bank acted in a commercially unreasonable manner and is thereby barred from recovering a deficiency judgment. At a later date in the trial, however, both Don Garrod and E . R . Vallance appear to testify on cross-examination that they were sent a letter of notice of the impending sale as required by the U . C . C . We say they "appear" to have so testified, because the exhibit they refer to (the letter) was mislabeled when it was put into evidence. Plaintiff's counsel never does explain the testimony of his own witness that no such notice was sent to Mobile Homes Unlimited. Conflicts in the evidence are not confined to the issue of notice. There was evidence that the bank repossessed a trailer that had been taken as a trade-in on one of the secured units, and on that ground the bank objects to the finding that it took into possession a trailer home "that was not a part of any sec- urity agreement." The bank argues that the taking of this trade- in trailer was merely a seizure of its own property because the trade-in was "proceeds" of the collateral under section 87A-9- 306, R . C . M . 1947, now section 30-9-306 MCA. In reviewing the ex- hibits, however, we note that the security agreement filed by the bank left blank the item providing that "Proceeds of colla- teral are also covered." The bank has done nothing to show that it comes within section 87A-9-306, R.C.M. 1947, now section 30-9- 306 MCA. We also note that there was evidence that the bank did not give Mobile Homes Unlimited full credit for the amount agreed upon as the value of the trade-in. There is likewise conflicting evidence on the matter of whether the bank wrongfully seized some furnaces in which it had no even arguable security interest. The bank contends that Don Garrod, not it, seized the furnaces. It appears from testimony ignored by the bank, however, that it directed Garrod to take the furnaces and sell them, and if he had not then the bank would have. Further, the signature of a bank officer appears on the inventory list of the furnaces drawn up at the time they were seized. Appellant complains in its brief that the trial court "does not feel the need to point out the specific sections of the Uniform Commercial Code which the Bank failed to observe". We have indicated in a recent opinion that such an objection raises no reversible error: " . . . findings of fact and conclusions of law will support a judgment, though they are very general, where they in most respects follow the allegation of the pleadings. Findings should be limited to the ultimate facts and if they ascertain ultimate facts, and sufficiently conform to the pleadings and the evidence to support the judgment, they will be regarded as sufficient, though not as full and complete as might be desired." Holloway v . University of Montana (1978), Mont . I 582 P.2d 1265, 1268, 35 St.Rep. 1228, 1 2 3 2 , t i n g Pearson v . Pearson (Utah 1977), 561 P.2d 1080. If a trial court's findings are sustained by competent, substantial, although conflicting evidence, they will not be disturbed on appeal. Holloway, supra. The evidence will be re- viewed in the light most favorable to the prevailing party, and the credibility of witnesses and weight accorded their testimony is for the District Court's determination in nonjury trials. Arrowhead, Inc. v. Safeway Stores, Inc. (1978), Mont . I 587 P.2d 411, 35 St.Rep. 1830. On the record before us, we cannot conclude that the Dis- trict Court's findings are "clearly erroneous". Rule 52, M.R. Civ.P. As to appellants' contention that patent error was com- mitted in the finding that the Vallances had filed a counterclaim, whereas the only counterclaim was filed by Mobile Homes Unlimited, such error was not prejudicial to appellant and affords no grounds for reversal in light of the finding that "Defendants are not entitled to any judgment . . . upon their counterclaim." Given the state of the record established by appellant, the conflicts in the evidence, the general rule that the secured party bears the burden of demonstrating commercial reasonableness upon dis- position of collateral, and the presumptions in favor of the correctness of the District Courtis findings, the judgment ap- pealed from is affirmed. Chief Justice Justices C / ' | April 19, 1979 |
c5e331fe-51e8-4c1c-aec2-2f3bb0cdf573 | JOYNER v ONSTAD | N/A | 89-088 | Montana | Montana Supreme Court | No. 89-088 IN THE SUPREME COURT OF THE STATE OF MONTANA JACK JOYNER, Plaintiff and Appellant, -vs- JOHN ONSTAD, and GALLATIN COUNTY, a political subdivision of the State of Montana, Defendants and Respondents. APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Thomas Olson, Judge presiding. COUNSEL OF RECORD: For Appellant: Jack Joyner, pro se, Belgrade, Montana For Respondent: A. Michael Salvagni, County Attorney; Marty Lambert, Deputy County Atty., Bozeman, Montana I - Submitted on Briefs: Oct. 25, 1 9 8 9 LO 1 : : C3 3 >r. C, Decided: December 21, 1989 CJ OJ i.: *--( 1 1 ' 1 . - Filedk: , , . " U_ i i LLt -J - - ." & . 1; CfJ " < f d . < : W 3 z a w,Q Z c3 4 2 % Justice Diane G. Rarz delivered the Opinion of the Court. Plaintiff, Jack Joyner, appeals the decision of the District Court of the Eighteenth Judicial District, Gallatin County, granting defendants' motion for summary judgment. We affirm. Gallatin County hired Joyner on November 12, 1984 to work as a jailer in the Gallatin County Detention Center. On May 10, 1985, Joyner broke regulations by entering the cell of a female prisoner without being accompanied by another employee. A fight ensued between Joyner and the female prisoner. As a result of this incident, Gallatin County Sheriff John Onstad suspended Joyner's employment, pending an investigation of the incident. After completing the investigation, Sheriff Onstad, by written notice dated May 20, 1985, terminated Joyner's employment because he improperly entered a prisoner's cell and because of his abusive behavior. Joyner appealed his dismissal to the State Department of Labor and Industry on January 31, 1986. After a telephone hearinq, the appeals division for the department sustained Joyner's dismissal as proper by written order dated March 17, 1986. The Gallatin County Board of County Commissioners subsequently voted unanimously to uphold Joyner's termination. On February 27, 1987, Joyner filed a complaint in the District Court of the Eighteenth Judicial District, Gallatin County. In Count 11, Joyner alleged that Sheriff Onstad and Gallatin County wrongfully discharged him and that they had breached the implied duty of good faith and fair dealing. Joyner then requested compensatory, punitive and exemplary damages, costs of the suit, and for such other and further relief as "may be met in the premises." The court set a jury trial for December 19, 1988. On November 23, 1988, Sheriff Onstad and Gallatin County filed a motion for summary judgment along with a supporting brief. On November 30, 1988, this matter came before the District Court for hearing on pre-trial motions. Joyner requested an additional week--until December 6, 1988--to reply to the summary judgment motion. On December 6, 1988, Joyner failed to file a written response before the hearing. The court, however, did hear Sheriff Onstad's and Gallatin County's arguments in support of the motion for summary judqment. Joyner claimed that his response would be typed December 6, 1988 and submitted to the court. The court allowed Joyner to file a written response and ordered that the matter would be taken under advisement at 5:00 p.m. on December 6, 1988. Joyner never filed a response. On December 12, 1988, the District Court granted Sheriff Onstad's and Gallatin County's motion for summary judgment for the reason that Joyner failed to file an opposing brief. Judgment was entered against Joyner on December 20, 1988. Joyner appeals. The sole issue raised on appeal is whether the District Court erred in granting Sheriff Onstad's and Gallatin County's motion for summary judgment. Summary judqment is appropriate when no genuine issue exists as to any material facts and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. The burden first rests with the moving party, who may rely upon pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, to establish that no genuine issue exists as to any material facts. Rule 56(c), M.R.Civ.P. The burden then shifts to the party opposing the motion. Bills v. Hannah, Inc. (Mont. 1988), 749 P.2d 1076, 1079, 45 St.Rep. 179, 182. The rule specifically provides that the adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not SO respond, summary judgment, if appropriate, shall be entered against him. Rule 56 (e) , M.R.Civ.P. In the present case, Sheriff Onstad and Gallatin County relied upon § 2-9-111, MCA, and Bieber v. Broadwater County (Mont. 1988), 759 P.2d 145, 45 St.Rep. 1218, to argue to the District Court, both orally and in writing, that they had immunity from Joyner's suit and that their motion for summary judgment should be granted. Joyner, on the other hand, did not deny nor rebut defendants' arguments. Joyner also did not set forth any facts showing that a genuine issue existed for trial. The District Court had before it the pleadings, the decision of the Montana Department of Labor and Industry, and portions of the interrogatories. The court also held a hearing in which Joyner failed to argue, either orally or in writing, that Sheriff Onstad's and Gallatin County's motion for summary judgment should be denied. The District Court did not err in granting Sheriff Onstad's and Gallatin County's motion for summary judgment in light of Rule 56 (e) , M.R.Civ.P. As stated before, this rule provides that summary judgment, if appropriate, shall be entered for the movant if the opposing party does not respond and set forth specific facts showing that a genuine issue exists as to a material fact. Merely because the District Court did not state specifically that "there is no genuine issue as to any material fact" does not warrant a reversal of the District Court's decision. Furthermore, Joyner did not rebut nor deny Sheriff Onstad's and Gallatin County's motion for summary judgment nor did he set forth facts showing that there is a genuine issue of material fact for trial. The record supports the District Court's determination that no genuine issue exists as to any material fact. Affirmed. | December 21, 1989 |
1a3a6cb6-9f27-47d4-bc44-f795fd4c71ba | STATE v BUCKINGHAM | N/A | 89-315 | Montana | Montana Supreme Court | No. 8 9 - 3 1 5 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- HAL J. BUCKINGHAM, 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 T h i r t e e n t h J u d i c i a l D$$@.ics _- I n and f o r t h e C o u n t y of Y e l l o w s t o n e , CJ o ; : T h e H o n o r a b l e D i a n e G . B a r z , Judge presiding61 -4 ;3 -4 COUNSEL OF RECORD: For A p p e l l a n t : B r a d J. A r n d o r f e r , B i l l i n g s , 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 Paul D. Johnson, A s s t . A t t y . G e n e r a l , H e l e n a H a r o l d H a n s e r , C o u n t y A t t o r n e y ; C u r t i s B e v o l d e n , D e p u t y C o u n t y A t t y . , B i l l i n g s , M o n t a n a S u b m i t t e d on B r i e f s : O c t . 1 3 , 1 9 8 9 D e c i d e d : D e c e m b e r 1 4 , 1 9 8 9 F i l e d : Justice Fred J. Fleber delivered the Opinion of the Court. Defendant, Hal J. Buckingham, was charged in the Dis- trict Court of the Thirteenth Judicial District, Yellowstone County, with felony assault purs~xant to 5 45-5-202 (2) (b) , MCA, for firing a shotqun at a car driven by Jay Popp. The jury found defendant guilty as charged. He was sentenced to five years imprisonment in the Montana State Prison and fined $500.00. The prison sentence was suspended. Defendant appeals. We affirm. The issues before us on appeal are: 1. Was the State's motion for leave to file an informa- tion supported by probable cause? 2. Was the defendant denied his right to a speedy trial? 3. Did the District Court err in denying defendant's motion in limine? 4. Was the jury's verdict supported by substantial evidence? On the evening of February 29, 1988, Billings police officer Irvan Floth investigated a report of a firearm dis- charge at defendant's home. He examined a black, 12-gauge, Winchester Defender shotgun, with a pistol-style grip, an extended magazine and a serial number of L2037954. Floth testified that this particular type of gun was a defensive weapon capable of firing up to eight rounds without reload- ing. Defendant testified that he was "playing with the gun" when it accidentally fired, damaging a window. Because it was an accidental discharge, no citation was issued. Later that same evening, about 10:30 p.m., while driving to his house, the victim, Jay Popp, noticed a vehicle parked in his driveway with its lights shining on his house. As Popp approached, the other car suddenly pulled out and sped o f f . Popp pursued t h e c a r i n a high-speed chase. Suddenly t h e v e h i c l e Popp was chasing turned 90 degrees i n t h e roadway and stopped. A s Popp approached, someone from t h e o t h e r c a r shot a t him. A piece of g l a s s from t h e windshield h i t him i n t h e neck. The shooting continued and i n h i s f e a r , Popp hid on t h e f l o o r of h i s c a r , making it d i f f i c u l t f o r Popp t o g e t a d e t a i l e d d e s c r i p t i o n of t h e c a r o r h i s a s s a i l a n t . He t e s t i f i e d t h a t he saw t h a t t h e gun was "a l a r g e gun," "a shotgun" and t h a t t h e c a r "looked l i k e some kind of a Rabbit, o r small c a r l i k e t h a t , " and a " d i r t y " "reddish c o l o r . " H e a l s o t e s t i f i e d t h a t h i s a s s a i l a n t was a male. Popp was able t o escape t h e scene by d r i v i n g h i s c a r while s i t t i n g on t h e f l o o r . He drove back toward h i s home u n t i l t h e c a r s t a l l e d a s a r e s u l t of damage done i n t h e shooting. H e made h i s way home and then reported t h e i n c i d e n t t o t h e police. Upon examination, t h e s h e r i f f ' s department determined t h a t t h e r e was extensive damage t o t h e l e f t f r o n t and f r o n t end of Popp's v e h i c l e caused by shotgun p e l l e t s . Backtrack- i n g by fol~lowing a t r a c k of r a d i a t o r f l u i d , t h e deputy was a b l e t o v e r i f y Popp's s t o r y of what had happened. There were shotgun s h e l l s and a s k i d mark on t h e road where t h e a s s a i l - a n t ' s c a r had come t o a sudden s t o p , and g l a s s and r a d i a t o r f l u i d where Popp's c a r was shot. A few days l a t e r , t h e s h e r i f f ' s o f f i c e responded t o a c a l l t o pick up a shotgun which had been found i n a d i t c h along t h e road i n t h e a r e a of t h e shooting. The shotgun bore t h e s e r i a l number L2037954, and was t h e same gun involved i n t h e a c c i d e n t a l discharge involving defendant. The gun was t r a c e d t o t h e s t o r e t h a t s o l d it. The s t o r e ' s books revealed it had been sold t o defendant. The Montana S t a t e Crime Lab then analyzed t h e s h e l l s found a t t h e scene of t h e shooting and e s t a b l i s h e d t h a t t h e s h e l l s could only have been f i r e d from defendant's shotgun. The i n v e s t i g a t i o n disclosed t h a t defendant owned an orange Volkswagen Rabbit. I n March, about a week a f t e r t h e shooting i n c i d e n t , t h a t c a r had gone over t h e edge of t h e c l i f f s near B i l l i n g s . A n information was f i l e d a g a i n s t defendant on A p r i l 29, 1988, charging him with felony a s s a u l t pursuant t o S 45-5-202(2) ( b ) , MCA. O n May 2 5 , 1988, defendant f i l e d a Motion t o D i s m i s s a l l e g i n g t h a t t h e information f a i l e d t o give probable cause t o charge defendant with t h e crime of felony a s s a u l t . The D i s t r i c t Court determined t h a t probable cause d i d e x i s t and denied t h e motion. Defendant was ordered t o appear i n c o u r t on October 6 , 1988. Due t o h i s f a i l u r e t o appear, a p l e a of not g u i l t y was entered by t h e c o u r t on h i s behalf. T r i a l d a t e was then s e t f o r December 5 , 1988. On November 23, 1988, defendant moved t o dismiss f o r lack of speedy t r i a l due t o t h e length of time between a r r e s t and t h e d a t e s e t f o r t h e e n t r y of a p l e a . A f t e r defendant personally appeared with h i s a t t o r n e y on November 29, 1988, and entered a p l e a of not g u i l t y , h i s motion was denied. A t r i a l was held a s scheduled and t h e jury found defen- dant g u i l t y a s charged. H e then made motions t o dismiss, motion f o r new t r i a l o r modification of v e r d i c t t o not g u i l t y . Again, t h e D i s t r i c t Court denied h i s motions, con- cluding t h a t t h e r e was s u b s t a n t i a l evidence t o support t h e j u r y ' s v e r d i c t . I Was t h e S t a t e ' s motion f o r leave t o f i l e an information supported by probable cause? Defendant contends t h a t because t h i s case was based on c i r c u m s t a n t i a l evidence, 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 not holding a preliminary hearing, and t h e r e were not s u f f i c i e n t f a c t s t o j u s t i f y f i l i n g t h e information. H e maintains that he was not identified, his vehicle was not identified, and "only the fact that it was his gun used in the commission of the crime" connected him to the offense. He asserts that a preliminary hearing would have shown an unwarranted prosecution. Defendant filed a motion to dismiss on the basis that there was not probable cause to support the information. Relying on 5 46-11-201, MCA, the State maintains that the information was proper and there was no abuse of discretion. The county attorney may apply directly to the district court for permission to file an informa- tion against a named defendant. The application must be by affidavit supported by such evidence as the judge may require. ' If it appears that there is probable cause to believe that an offense has been committed by the defendant, the judge shall grant leave to file the information, otherwise the appli- cation shall be denied. Section 46-11-201(1), MCA. See State v. Bradford (1984), 210 Mont. 130, 139, 683 P.2d 924, 928, 929. We agree. The State need not demonstrate a prima facie case in the information but need only show probable cause to believe an offense has been committed. In Bradford, 683 P.2d at 929, we stated: Similarly, evidence to establish probable cause need not be as complete s the evidence necessary to establish guilt. (Citation omitted. ) [TI he deter- mination whether a motion to file an information is supported by probable cause is left to the sound discretion of the trial court. Thus, the scope of review is one of detecting abuse in the exercise of that discretion. Defendant was charged with felony assault pursuant to S 45-5-202 (2) (b) , MCA. A person commits that offense if he purposely ox knowingly causes reasonable apprehension of serious bodily injury in another by use of a weapon. The facts set forth in the affidavit showed that the defendant accidentally discharged his shotgun in his home the night of the incident for which he was charged; the police were called to investigate and the serial number of his gun was reported; an hour and a half later, Popp was shot at by a male person from another car, causing considerable damage to Popp's car; Popp described the perpetrator's car as a dirty reddish-color, possibly a Rabbit and defendant's car fit that description; the shotgun shells collected at the scene were determined by experts to have been fired from defendant's gun; and defendant's gun was discovered in a ditch near where the shooting took place. We affirm the District Court's holding that the State's motion for leave to file an informa- tion was supported by probable cause. I1 Was the defendant denied his right to a speedy trial? Defendant contends that he was denied his right to a speedy trial, pointing out that 220 days elapsed from the date of his arrest to trial. He urges that a delay of 220 days gives rise to a rebuttable presumption of prejudice. He maintains that the reason for the delay was due to an over- sight by the State in failing to set an arraignment date. Finally he urges that he was prejudiced by the delay due to the "faded" memories of the witnesses and the victim at the time of trial. The State concedes that there was an oversight on its part regarding the setting of a date for arraignment. It maintains that there were 58 days chargeable to the defendant which must be deducted from the total delay. Thus, it is the State's position that only 162 of the 220 days are chargeable to the State, which does not constitute a sufficient length of time to raise a presumption of prejudice to the defendant. It also contends that even if the 162-day delay is presump- tively prejudicial, consideration of the reason for the delay and whether there was actual prejudice would excuse the delay. The reason for the delay was considered and explained at length by the District Court. Both the Federal and State Constitutions guarantee defendant a right to a speedy trial. In determining the question of prejudice pursuant to Mont. Const., Art. 11, Sec. 24, this Court analyzes and weighs four factors. State v. Wombolt (1988), 753 P.2d 330, 45 St.Rep. 714. The four factors are: 1. length of delay; 2. reason for the delay; 3. whether defendant asserted the right; and 4. whether defendant was prejudiced. If the length of delay was not presumptively prejudicial, the other factors need not be examined. However, no single factor is determinative. See State v. Palmer (1986), 223 Mont. 25, 723 P.2d 956. As defendant asserts, there was a delay of 220 days in this case from the time of arrest to the time of trial. The length of this delay is enough to be presumptively prejudicial. State v. Waters (1987), 228 Mont. 490, 743 P.2d 617 (277 days); Palmer, 723 P.2d 956 (256 days); State v. Chavez (1984), 213 Mont. 434, 691 P.2d 1365 (214 days). The second factor of the Wombolt test is the reason for delay. The burden is on the State to show there was a rea- sonable excuse for delay in bringing defendant to trial. State v. Cutner (1984), 214 Mont. 189, 692 P.2d 466. The District Court found that the reason for the delay was of significant importance in this case and stated: Through an oversight, the Defendant did not enter a plea in the case at bar. A delay of 154 days occurred between the time of Defendant's arrest and the State's filing of a motion to compel entry of plea . . . . The reason for the delay between arrest and date set for the entry of a plea (October 6, 1988), was an oversight by the State. The State and this Court assumed Defendant had entered a plea at the time the information was filed or shortly thereaf- ter. According to the Montana Supreme Court in State v. Waters, . . . "The right to a speedy trial is designed to prevent oppressive tactics by the State." The 154 day delay, in the case at bar, was due to an oversight by the State. There is no evidence that the State engaged in bad faith or oppressive tactics, and the Defendant does not contend as much in his brief supporting his motion to dismiss for lack of speedy trial. We agree with the District Court that there is a lack of any evidence of oppressive tactics by the State in this case. The third factor to consider is whether the defendant asserted his right to a speedy trial. This was done when defendant filed his motion to dismiss before the trial date. See Wombolt (1988), 753 P.2d 330. The fourth factor to consider is whether defendant was prejudiced by the delay. The District Court concluded that the defendant was not prejudiced by the delay and that al- though the delay between defendant's arrest and the State's motion to compel entry of plea was attributable to the State, defendant caused further delay himself by failing to appear and enter a plea. In Palmer, this Court identified the interests of a defendant which may be prejudiced by a delay. The interests are: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the ac- cused; and (3) to limit the possibility that the defense wSll he impaired. Barker, 407 U.S. at 532. Palmer, 7 2 3 P.2d a t 959. Oppressive p r e t r i a l i n c a r c e r a t i o n was not a f a c t o r i n t h i s case. Furthermore, t h e record i s devoid of any evidence t h a t defendant suffered from anxiety and does not support defendant's argument t h a t h i s defense was impaired. W e a f f i r m t h e D i s t r i c t Court's conclusion t h a t defendant was not denied h i s r i g h t t o a speedy t r i a l . Did t h e D i s t r i c t Court e r r i n denying defendant's motion i n limine? Defendant contends t h e D i s t r i c t Court e r r e d by denying h i s motion i n limine t o exclude photographs of defendant's c a r o r any testimony regarding t h e c a r because Popp could not c l e a r l y i d e n t i f y o r d e s c r i b e t h e c a r used i n t h e crime. Defendant urges t h a t Popp's own testimony proves t h a t he was u n c e r t a i n about what type of c a r was used i n t h e crime o r what it looked l i k e . Popp t e s t i f i e d t h a t t h e c a r was " d i r t y . And it was kind of reddish color. I c o u l d n ' t t e l l , although, it was s o very dark." Defendant p o i n t s o u t t h a t Popp admit- t e d seeing a Plymouth Horizon t h a t he thought might be t h e v e h i c l e involved and c a l l e d t h e p o l i c e about it. The S t a t e maintains t h a t t h e evidence was r e l e v a n t pursuant t o Rule 4 0 2 , M.R.Evid. I t contends t h a t t h e photos t o g e t h e r with Popp's testimony c l e a r l y tended t o place defen- dant i n t h e a s s a i l a n t ' s v e h i c l e a t t h e time of t h e shooting, and was t h e r e f o r e r e l e v a n t . W e agree. Rule 4 0 1 , M.R.Evid., d e f i n e s r e l e v a n t evidence as: evidence having any tendency t o make t h e existence of any f a c t t h a t i s of consequence t o t h e determi- nation of t h e a c t i o n more probable o r l e s s probable than it would be without t h e evidence. Relevant evidence may include evidence bearing upon t h e c r e d i b i l i t y of a witness o r hearsay d e c l a r a n t . In Derenberger v. Lutey (19831, 207 Mont. 1, 9, 674 P.2d 485, 489, we stated the test is: ". . . whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered. The standard used to measure this acceptable proba- tive value is 'any tendency to make the existence of any fact . . . more probable or less probable than it would be without the evidence.' This standard rejects more stringent ones which call for evidence to make the fact or proposition for which it is offered more probable than any other. It is meant to allow wide admissibility of circumstantial evidence limited only by Rule 403 or other special relevancy rules in Article IV." (Citations omitted. ) Popp described the car as he remembered it and the photo- graphs supported his testimony. It is for the trier of fact to decide whether it is the same car or not. We hold the District Court properly denied defendant's motion in limine. Was the jury's verdict supported by substantial evidence? Defendant filed a motion for a new trial or a directed verdict pursuant to 5 46-16-702, MCA. The District Court denied this motion. Defendant contends that the evidence was wholly circumstantial and implies that to be enough to leave a "reasonable doubt" in the minds of the jury. He therefore maintains that he should have been acquitted. The standard of review on issues of substantial evidence is that the conviction cannot be overturned if evidence, when viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find essential elements of the crime beyond a reasonable doubt. State v. Tome (19871, 228 Mont. 398, 742 P.2d 479. The decision is within the sound discretion of the trial court and will not be overturned absent a clear abuse of discretion. State V. Howie (1987), 228 Mont. 497, 744 P.2d 156. Circumstantial evidence alone is sufficient to obtain a conviction. It must only be of such a "quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt," and all the facts and circumstances must be considered collec- tively. State v. Weaver (1981), 195 Mont. 481, 637 P.2d 23. We hold that the evidence would allow a rational trier of fact to find the defendant guilty of felony assault beyond a reasonable doubt. Affirmed. & P - @ + . Justices | December 14, 1989 |
b20fb916-99e5-4b32-ada0-e746e35e07ed | SHEEHY v FERDA | N/A | 88-489 | Montana | Montana Supreme Court | No. 88-489 IN THE SUPREME COURT OF THE STATE OF MONTANA 1988 THOMAS SHEEHY, Petitioner and Appellant, -vs- JENNY LEE FERDA, Clerk & Recorder, Chouteau County, Montana, Respondent and Respondent. APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Chouteau, The Honorable Henry I,oble, Judge presiding. COUNSEL OF RECORD: For Appellant: Douglas J. Wold argued, Polson, Montana For Respondent: Tracy Axelberg argued; ~ardine, Stephenson, Blewett & Weaver, Great Falls, Montana For Amicus Curiae: I- Donald A Ranstrom, President, Montana County Attorneys cn c- - Assoc., Chinook, Montana U2 - , ,--I ( 2 Filed: ' & C -: , , a - . . - . I I . , ..- . - . . Submitted: October 14, 1988 Decided: December 2, 1988 Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. The author of this Opinion is not related to Thomas Sheehy, the County Attorney of Chouteau County, by blood or marriage and no personal acquaintanceship exists. If a blood or marriage relationship between the author and Thomas Sheehy existed, this author would be precluded from any participation in the cause by reason of our rule and statute on disqualification, adopted on September 13, 1988 (see, Advance Sheet, Vol. 42, 759 P.2d No. 3, S 3-1-803(2), MCA, as follows) : Any justice . . . must not sit or act in any action or proceeding: (2) When he is related to either party or any attorney or member of a firm of attorneys for a party by consanguinity or affinity within the fourth degree, computed according to the rules of law. Therefore, the author is not disqualified in this case. Thomas J. Sheehy is the duly elected, qualified and acting county attorney of Chouteau County, Montana. He filed an action in the District Court, Twelfth Judicial District, Chouteau County, for a writ of prohibition, injunction or declaratory relief to stop the submission to the electors at the November 8 general election the question of his recall from office. Sheehy's petition was denied on September 27, 1988, by the District Court. He appealed to this Court, and after oral. argument in the cause, we entered an Order on October 14, 1988, restraining and enjoining the respondent Jenny Lee Ferda, as County Clerk and Recorder of Chouteau County, Montana, and as the Election Administrator of that county, her agents, employees, appointees, and all persons acting by or through her from submitting the proposed recall of Thomas Sheehy to the electors of Chouteau County at the general election to be held on November 8, 1988, to the extent that the same had not then been submitted; and from counting the results of any vote on said recall; and from canvassing or entering upon any records of county or state any purported results of said recall election. The order was issued for reasons of expediency, and this Opinion is intended to supplement and support the issuance of that Order. It should be understood that Jenny Lee Ferda is the nominal defendant in this case by virtue of her being the incumbent Chouteau County Clerk and Recorder and Election Administrator. She has no official interest in the outcome of this action, except as to the impact it may have upon her duties of office. The petition to recall Sheehy from his office as county attorney is based upon alleged incompetence in office. The principal issue is whether the allegations of fact upon which the claim of incompetence is based are patently and demonstrably false. Petitioner contends that the allegations of fact are false, and that he is entitled to a writ of prohibition against the recall election. We proceed to examine the issues of fact set forth in the recall petition to determine their patent truth or falsity. Depending upon whether the allegations are patently true or false, we can then proceed to determine the form that relief in the cause should take, if any. The Montana Recall Act was adopted as an initiative measure by the electors at the general election on November 2, 1976. Parts of the Act were amended by the legislature in 1979. Insofar as pertinent to this case, the grounds for recall are set forth in 5 2-16-603, MCA. It provides: (1) Every person holding a public office of the state or any of its political subdivisions, either by election or appointment, is subject to recall from such office. (3) Physical or mental lack of fitness, incompetence, violation of his oath of office, official misconduct, or conviction of a felony offense enumerated in Title 45 is the only basis for recall. No person may be recalled for performing a mandatory duty of the office he holds or for not performing any act that, if performed, would subject him to prosecution for official misconduct. It is the law that when a petition for recall of an elected public officer is circulated, the petition form must be accompanied by a written statement containing the reasons for the desired recall as stated in the petition. In addition, the truth of purported facts contained in the statement must be sworn to by at least one of the petitioners before a person authorized to administer oaths. Section 2-16-617 (4) , MCA. In this case, the petition was accompanied by an affidavit of W. F. Gertson, M.D., Chouteau County Health Officer (it is not clear whether Dr. Gertson signed the petition as county health officer, or used the term to describe himself as the signator). The affidavit of Dr. Gertson on which the petition is based, recited: To the Honorable Jenny Lee Ferda, County Election Administrator of Chouteau County. I believe Thomas Sheehy, Chouteau County Attorney, should be recalled because of: Incompetence in the prosecution of the Richard Kurth family case. Growing marijuana is a major crime and it is common judicial practice to punish by arrest, jail, bail if posted, and recommendation of a fine or prison or both. Plea Bargaining for the purpose of no prison term for some, short terms for others, no fines for anyone, and altered court dates that kept the public from attending is not in the best interest of justice. This type of prosecution will only encourage more drug traffic, and other crimes in Chouteau County. If the grower gets approximately 1/3 of the $5,000,000. street value, and it takes 58 days to mature a crop of marijuana; it would earn $1,650,000. a crop; if grown since documented in 1986, it means $18,777,000.00. No money for fines?? This prosecution from the beginning was unfair to our county, state, and federal law enforcement people. For this magnitude of a crime we needed federal attorneys to prosecute the case. The County Attorney received an oral and written request for such. I swear that the reasons for this recall contained in this petition are to the best of my knowledge true. /s/ W. F. Gertson, M.D. Chouteau County Health Officer Subscribed and sworn before me a Notary Public for the State of Montana Dated this 6th day of May, 1988 (SEAL) /s/ Debra McSweeney Notary Public The stated grounds for the recall petition are incompetence. Under 2-16-617, MCA, the petition form had to be accompanied by a written statement containing the reasons for t.he desired recall. The affidavit supporting the petition is defective. Dr. Gertson swears not to facts within his knowledge, but to the "best" of his knowledge. An affidavit is a written declaration, under oath, made without notice to the adverse party. Section 26-1-1001, MCA. While courts will uphold affidavits based upon the "best of the affiants knowledge," or upon information and belief in proper circumstances, here the intent of the legislature is clear: "the truth of purported facts contained in the [recall] statement must be sworn to by at least one of the petitioners" for recall. The allegations must be sworn to from the knowledge of the affiant and not from a lesser basis so that the electors, in voting on the recall petition can rely on the truth of the grounds set forth, as in this case, for the claimed incompetence. In People v. Lennox (1978), 405 N.Y.S.2d 581, it was held that the test of a statement of facts under oath as to its sufficiency is whether it has been drawn in such a manner that it might be the basis of a charge of perjury if any material allegation contained therein is false, as the affiant is held to strict accountability for the truth and accuracy of the contents of his affidavit. As long ago as 1923, Montana adopted a similar test holding that "one of the rules in testing the sufficiency of an affidavit to a mechanic's lien is whether perjury is assignable upon it." Gregg v. Sigurdson, et al. (1923), 67 Mont. 272, 277, 215 P. 662, 663. In the light of the direction of the legislature that the "truth of the purported facts" should be sworn to by one of the petitioners an affidavit based only on the "best" of the affiant's knowledge is deficient. The importance of a proper affidavit in this case is magnified by the patently false statements of fact or misconceptions contained in the affidavit on which the petition for recall is based. An added danger in this case is that since Dr. Gertson signed the affidavit as the county health officer, the uninitiated elector might give credence to the statements on the assumption that a county officer knew whereof he spoke. The Gertson affidavit recites that ". . . it is common judicial practice to punish by arrest, jail, bail if posted, and recommendation of a fine or prison or both." First, Sheehy, as a prosecutor, has no judicial function to perform. Secondly, it is not common judicial practice to punish a person arrested for crime by jail or providing bail. The purposes of commitment to jail or admission to bail do not presume the guilt or innocence of the charged defendant. To punish by means of bail or commitment to jail before a defendant' s conviction would deprive him of his presumption of innocence and the right to confront witnesses before his conviction. There is no such "common judicial practice" and the statement is patently false. The statement that "Plea Bargaining . . . is - not in the best interest of justice" completely belies the fact that plea bargaining is a recognized part of federal and state criminal procedure. One may disagree with the concept of plea bargaining. Many judges and prosecutors do not agree with plea bargaining. It is, however, recognized as a tool that makes possible a quicker administration of burgeoning criminal cases. As far as we are aware, every judge in the state system in this state makes it clear that he or she is not bound by any plea bargain proposed to him or her in the disposition of criminal causes. Rule 410 of the Federal Rules of Evidence expressly recognizes that plea bargains are ongoing, and therefore no plea, offer to plea, plea discussions or related statements are admissible in any civil or criminal proceedings under the Federal Rules where the statements are made in the course of plea discussions between an attorney and the prosecuting officer which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. The evident intent of Rule 410 is to protect the plea bargain process. Rule 410 of the Montana Rules of Evidence differs from the federal provision but the result is the same: evidence of a plea of guilty, later withdrawn, or statements made in connection with any offer to plead guilty to the crime charged or any other crime is not admissible in any civil or criminal action or proceeding against the party who made the plea or offer. What these rules of evidence tell us is that plea bargaining is a fact of life and that to encourage plea bargaining, statements made in connection therewith are not admissible in any civil or criminal action. Whatever arguments may exist for or against plea bargains, Thomas Sheehy did not invent the process and his right to hold office should not depend upon the existence or the propriety of plea bargaining. Here, the plea bargain for which Sheehy contended and got acceptance, both from the Attorney General's office and from the federal authorities, was more harsh than the sentences and fines imposed by the district judge in disposing of the defendants, whose cases became the subject of the recall petition. Three county attorneys testified that Sheehy ' s plea bargain was good prosecut-orial practice. The further statement in the petition that this type of prosecution will only encourage more drug traffic and other crimes in Chouteau County is purely conclusionary and is not a statement of fact which could be within the knowledge of Dr. Gertson. Again the implication that Sheehy juggled court appearance dates to frustrate public appearances is false. The statements in the affidavit about the gross receipts of the marijuana are terribly exaggerated. The Attorney General's investigation concluded that the defendant's gross receipts were approximately $400,000 and not the amounts set forth in the recall petition. Again, Dr. Gertson's position as county health officer would tend to mislead the uninitiated elector as to the exactitude of the fiqures set out in the recall petition. The allegation that the prosecution of the defendants from the beginning was unfair to the county, state and federal government and that federal attorneys were needed to prosecute the case again is incorrect. The United States Attorney testified that he was elated with the prosecution of this case and "could not have done better himself ." Sheehy had no power to call in federal attorneys to prosecute this case since the charges were not made in the federal courts. We determine that the allegations in the recall petition are patently false, misleading, and based on misconception. Sheehy's competence or incompetence cannot be measured by those statements of purported fact. As a matter of law, the recall petition is insufficient. The Montana Recall Act requires that the charge of incompetence, when it is used for recall, be based on the "truth of purported facts contained in the statement" sworn to by a petitioner. This recall petition falls far short of that legal requirement. We are fully agreed on this Court that the right of recall of a public officer is an important part of the rights of citizenship in Montana. In a proper case, we would protect that right of recall, and leave it to the voters to determine whether the officerholder should continue in office. The officeholder, however, is entitled to at least a level playing field; if he is to be removed from office, his removal must be based on true statements which demonstrate his incompetence, or any other grounds for which recall may be sought. We held in Steadman v. Halland (1982), 197 Mont. 45, 54, 641 P.2d 448, 453 that specificity of the alleged facts is an important part of a recall petition. There we said in part: Therefore, we hold that it is not enough for a recall petition to allege one of the grounds for recall as set forth in section 2-16-603 (3) , MCA. The recall petition must also include a clear statement of the alleged acts constituting the grounds for recall. The disputed petition in the case at bar contained no such statement. Consequently, it was defective in form and was properly rejected. The respondent has argued, and the District Court agreed, that the question of Sheehy's recall was political, rather than legal, and that the truth of the allegations was a matter for the electors of Chouteau County to decide. The statutes do not contemplate that the electors will decide the truth of charges made against a public officer in a recall petition. The Recall Act requires truth in the beginning of the process. Whether the allegations are legally sufficient is a matter of law for a district court to decide. This Court said in Foster v. Kovich (1983), 207 Mont. 139, 150, 673 P.2d 1239, 1246: Some state constitutions or statutes provide very broad recall and vest in the electorate the power to determine whether the acts alleged in the petition are grounds for recall. In Montana, however, the legislature has limited the grounds for recall and has given the District Court the power to determine the legal sufficiency of the allegations in the recall petition. The legal sufficiency of the allegations is not left to the electorate. Therefore, a petition may never reach the electorate because it fails to specify acts legally sufficient to constitute grounds for recall under section 2-16-603(3) of the Recall Act. For the reasons foregoing, we issued our Order of October 14, 1988, removing the recall petition from the electorate, and directing the County Clerk and Recorder not to count any results with respect to the recall and not to canvass or enter upon any records of county or state any purported results of said recall election. We did so by means of an injunction. The petitioner on appeal has argued for a writ of prohibition but we determined that under the applicable statute, injunction was the only proper relief. Our decision to issue an injunction came from the language of S 2-16-615 ( 2 ) , MCA. That statute provides that if the election officer refuses to file or to accept any petition for recall which is otherwise proper, an elector may apply to the District Court for a writ of mandamus. On the other hand, if a determination is made that any accepted and filed petition is not sufficient "the court may enjoin certification, printing, or recall election." The statute is clear. When, as here, the recall petition is deficient, the remedy is by injunction. For the reasons foregoing, we held on October 14, 1988, and now repeat that the decision of the District Court denying relief to petitioner Thomas Sheehy is reversed; and the language of our order restraining and enjoining any further proceedings by the County Clerk and Recorder as to the said recall petition affecting Thomas Sheehy is hereby confirmed and continued. Let remittitur issue forthwith. G e k Justice We Concur: # E Justices | December 2, 1989 |
acd157a8-ced4-4691-87a4-6db7a39b9248 | FEDERAL LAND BANK OF SPOKANE v REI | N/A | 89-320 | Montana | Montana Supreme Court | No. 89-320 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 THE FEDERAL LAND BANK OF SPOKANE, Plaintiff and Respondent, -vs- DON and MARY LOU REILLY, Defendants and Appellants. APPEAL FROM: District Court of the Fourth ~udicial ~istrict, In and for the County of ~avalli, The Honorable Douglas ark in, Judge presiding. COUNSEL OF RECORD: For Appellant: Don Reilly and Mary Lou ~eilly, pro se, ~amilton, Montana For Respondent: W. Arthur Graham; Graham & Reep, is sou la, Montana Submitted on Briefs: Sept. 27, 1989 Decided: December 1, 1989 Justice John C. Sheehy delivered the opinion of the Court. Federal Land Bank of Spokane (FLB) filed suit against Don Reilly and Mary Lou Reilly in District Court of the Fourth Judicial District, Ravalli County, for unlawful detainer and for possession of real property purchased by FLB at a nonjudicial foreclosure sale. The court adjudged Don and Mary Lou ~eilly guilty of unlawful detainer, dismissed their counterclaims, and ordered them to surrender possession of the premises. Reillys appeal from that judgment. We dismiss the appeal because the issues stated by the Reillys on appeal relate to matters handled and decided by the Federal bankruptcy court. The state district court had no part in deciding those issues. The issues raised by Reillys are: 1. Whether Federal bankruptcy law prohibited sale of the real property. 2. Whether Federal bankruptcy law removed the trustee of the deed of trust, thus rendering him powerless to proceed with the sale. 3. Whether the trial court erred in ruling the sale could proceed. On February 18, 1977, Reillys executed a promissory note, secured by deed of trust, to Federal Land Bank of Spokane for the purchase of a ten acre parcel in ~avalli County, Montana. The loan was in the amount of $48,000, with annual installments of $4,466.04 due on February 1 of each year until the year 2007. Reillys defaulted on their obligation by failing to make the February 1, 1985 and the February 1, 1986 annual installments. In addition, Reillys were also in default for failing to pay taxes on the property amounting to $1,938.40. On January 2, 1986, Reillys filed a Chapter 11 bankruptcy petition with the United States Bankruptcy Court for the District of Montana. On ~ p r i l 2, 1986, FLB filed a motion for relief from the automatic stay of bankruptcy. The court granted relief on August 8, 1986, thereby allowing FLB to foreclose on the deed of trust. On March 13, 1987, Farm Credit Bank of Spokane (successor by merger to the FLB), purchased the property at a nonjudicial trustee's sale. Reillys filed an action and sought a preliminary injunction in the Bankruptcy Court in February of 1987, alleging that the deed of trust on the property was void, due to an error in the legal description. The Bankruptcy Court dismissed the complaint on October 13, 1987, ruling that the parties intended to transfer a valid security interest in the property, and that the error was not fatal to its validity. Reillys appealed to the U.S. Bankruptcy Appellate Panel. The appeal was referred to the U. S. District Court of Montana, Judge atf field presiding. The appeal was dismissed with prejudice on ~ p r i l 27, 1988, and the stay pending appeal lifted. On May 4, 1989, Reillys were served with a notice of termination of tenancy at will and notice to quit. Reillys continued in their occupation of the premises. On June 9, 1988, on the motion of creditors, the Chapter 11 case was converted to a Chapter 7 case, despite objection by Reillys. On June 10, 1988, Reillys were served by FLB with a notice of unlawful detainer and notice to quit. ~eillys continued to maintain possession of the premises. Accordingly, FLB filed a complaint with the District Court of Ravalli County on July 8, 1988, alleging wrongful detainer and seeking possession of the property. FLB moved for summary judgment. Reillys moved for dismissal and filed a counterclaim, alleging fraud, bad faith, breach of fiduciary duty, tortious interference with contract, and material misrepresentation. The District Court, Judge Harkin presiding, stated in its memorandum and order of March 3, 1989, that Reillys' assertions that the foreclosure sale was improper was not substantiated by facts. As to the counterclaim, the court determined that it had no jurisdiction to determine the merits of the counterclaim, as the Reillys no longer had standing as Chapter 7 debtors. The ~eillys appealed to this Court. The ~eillys raise issues which are based solely on bankruptcy law. The issues raised were previously decided by the united States ~istrict Court or are ones which should be decided by the federal courts. Under 28 U.S.C. 5 1334, the united States District Court (including the U.S. Bankruptcy Court) has original and exclusive jurisdiction of matters arising under ~ i t l e 11 of the united States Code. In addition, Reillys are collaterally estopped from raising the issues on appeal, as the parties, subject matter, issues, and capacities of the parties are the same throughout the bankruptcy and the ~istrict Court proceedings in this matter. Stapleton v. ~ i r s t security Bank (1983), 207 Mont. 248, 258, 675 P.2d 83, 88. Questions regarding the automatic stay and FLB's right to foreclosure have been decided by the Bankruptcy Court and on appeal to the united States Appellate Courts for the Ninth Circuit. Collateral estoppel was designed to prevent just this type of prolonged and repetitive litigation. ~ccordingly, the appeal is dismissed. The Bank has asked for damages under Rule 32, M.R.App.P. We determine no useful purpose would now be served in awarding damages in view of this dismissal. Costs to the ank. t 7 L r b ~ , Justice I We Concur: i | December 2, 1989 |
2b8b83a9-2b7d-4d14-ae17-6bea0851dc0e | MARRIAGE OF LYMAN | N/A | 89-356 | Montana | Montana Supreme Court | NO. 89-356 IN THE STJPREME COURT OF THE STATE OF MONTANA 1 9 8 9 IN RE THE MARRIAGE OF SHEILA G. LYMAN, Petitioner and Respondent, and CH.ARLES E. LYMAN, Respondent 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: M. Dean Jellison, Kalispell, Montana For Respondent: Gary R. Christiansen; Warden, Christiansen, Johnson & Berg, Kalispell, Montana Submitted on Briefs: Oct. 25, 1 9 8 9 Decided: December 20, 1989 Justice Diane G. Barz delivered the Opinion of the Court. Charles Lyman appeals from a judgment by the District Court of the Eleventh Judicial District, Flathead County, awarding Sheila Lyman attorney's fees and costs. We reverse. Sheila filed for dissolution on August 10, 1983, in Cause No. DR-83-346. After a non-jury trial on December 18, 1984, the District Court entered a decree of dissolution on January 3, 1985. The terms of the parties' separation and property settlement agreement, incorporated into the decree by reference, required Charles to make certain monthly and periodic payments to Sheila. In its July 23, 1985 order finding Charles in contempt for his failure to make these mandatory payments, the District Court ruled that Sheila was "entitled to recover her reasonable attorney's fees and costs, to be determined at a subsequent hearinq for that purpose. " One of the marital assets was the Bushwacker Restaurant in Port Angeles, Washington. The parties owned a one hundred percent interest in the restaurant business and a seventy percent interest in the real estate on which the restaurant is located. Marian Burlce, Charles' mother, owned the remaining thirty percent interest in the real estate. This asset became part of Mrs. Burke's estate upon her death. Charles was co-executor of his mother's estate along with his brother. Sheila received the parties' interest in the Rushwacker Restaurant and the underlying real estate pursuant to the separation and property settlement agreement. During the process of negotiating her purchase of Mrs. Burke's thirty percent interest in the real estate, Sheila executed the following handwritten release of any claim for attorney's fees from Charles resulting from the District Court's order of July 23, 1985: August 13, 1986 To Whom it may concern, I, Sheila Lyman, release Charles Lyman from all obligations to pay any outstanding attorney's fees that I have with Don ZaBar or his firm for representation of me in the Lyman dissolution of marriage. Is/ Sheila Lyman In a separate action, Cause No. DR-87-189(B), Sheila petitioned for modification of the decree of dissolution based both on a change in circumstances and Charles' failure to fully disclose the assets of the marital estate. Sheila sought recovery of attorney's fees incurred in pursuing the modification and those awarded to her in Cause No. DR-83-346, the prior and separate contempt action. The District Court heard testimony and argument regarding the propriety of entering a judgment for attorney's fees awarded in the contempt action. However, its findings of fact and conclusions of law contained no ruling on that issue. Sheila then moved the District Court for an order in Cause No. DR-83-346, determining the attorney's fees and costs contemplated and Ordered by the Court to be paid as part of the Findings of Fact, Conclusions of Law and Order issued by the Court on July 23, 1985, . . . [and] [flor interest on said sums at the rate of 10% per annum from and after July 23, 1985. The court found Sheila's claim was not barred by res judicata and that "[tlhere being no consideration the purported 'release' is not enforceable." Charles appeals from the judgment of the District Court. RES JUDICATA Charles argues that the District Court, by not ruling on an issue before it, implicitly denied recovery to the moving party on that basis. Thus, Sheila's claim was barred by - res judicata. Sheila, on the other hand, contends that the District Court refused to rule on this issue. While the record does not clearly reflect the District Court's rationale, it is clear that the District Court did not enter a judgment regarding the prior awarded attorney's fees in Cause No. DR-87-189 (B) . "Only final judgments and orders intended to be final in nature are res judicata. " Lien v. Murphy Corp. (1982) , 201 Mont. 488, 493, 656 P.2d 804, 806; Peterson v. Montana Rank of Bozeman, N.A. (1984), 212 Mont. 37, 45, 687 P.2d 673, 677. Furthermore, when the District Court in the modification proceeding did not enter a judgment regarding the attorney's fees awarded in Cause No. DR-83-346, such judgment did not render the issue res judicata. Washington Pub. Power Supply Sys. v. Pittsburgh-Des Moines Corp. (9th Cir. 1989), 876 F.2d 690, 699; Matter of Estate of Kopely (Ariz. 1988), 767 P . 2 6 1 1181, 1183; Vertecs Corp. v. Reichhold Chems., Inc. (Alaska 1983), 671 P.2d 1273, 1276. The District Court properly ruled that res judicata did not bar Sheila's claim. CONSIDERATION Sheila argues that "Wife and the Estate had reached agreement on [Wife's] . . . purchase of the Estate's interest [in the real estate] well over a year before the closing of the transaction . . . [and that] [tlhere were no qualifications." Sheila contends she offered the estate $40,000 cash or $50,000 terms for its thirty percent interest in the real property. Acceptance of her offer, Sheila asserts, is contained within the following portion of a letter from the co-executors' attorneys dated April 25, 1385: Please be advised that the executors will accept the sum of $40,000 in cash for the 30% interest of Marian OS Burke in this real estate provided that the purchaser causes Mrs. Burke's estate to be released from any liability under the aforesaid mortgage and further provided that the purchaser take subject to the lease of the Rushwacker Restaurant. This letter clearly contains additional terms in the requirement that the purchaser release the estate from any liability pursuant to the underlying mortgage. There is no indication that Sheila accepted these additional terms or that the parties entered into a written contract at this time. For that reason, the letter cannot be considered an acceptance but must be construed as a rejection of Sheila's offer and a counter offer. Carriger v. Ballenger (Mont. 1981), 628 P.2d 1106, 1109, 38 St.Rep. 864, 867. Thus, the following letter of June 17, 1986, from Charleshttorney to Sheila was a new offer: [Charles] has informed me that once he has received confirmation from Ann Blickensderfer that she has received a cashier's check in the amount of $40,000, plus a cashier's check in the amount of $4,400.00 representing 11% interest to June 1, 1986, plus a per diem of $12.06 from June 1, 1986 plus your share of the closing costs which is in the amount of $13.00. You will also be responsible for the second half property taxes in the sum of $2,040.50 which amount will not have to be paid at closing. [Charles] will also require a written statement by you that you will release him from all obligation to pay any outstanding attorney's fees you have with Don LaBar or his firm for representation of you in the Lyman dissolution and any of its aftermath. Sheila testified that she believed the sale of the estate's interest in the real property would not have gone through had she not executed the release. Sheila appears to have fulfilled the other requirements set forth in the June 17 letter. These terms were not mentioned in the April 25, 1985, letter. If, as Sheila contends, a contract was formed on April 25, the terms contained in the June 17 letter would be modifications of the original contract and would also require additional consideration. Naylor v. Hall (1982), 201 Mont. 59, 66, 651 P.2d 1010, 1014; 28-2-504, MCA. However, no contract was formed on April 25, therefore the June 17 letter constituted a separate offer for which there was adequate consideration. We therefore conclude Sheila released Charles from his obligation to pay her attorney's fees. The District Court erred in ruling otherwise. We reverse. r We concur: , * / | December 20, 1989 |
1a7e26d4-7b75-4056-a53c-93f38a459015 | STATE v PAMBRUN | N/A | 84-564 | Montana | Montana Supreme Court | N o . 84-564 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- MICHAEL PAMBRUN, D e f e n d a n t and A p p e l l a n t . C S APPEAL FROM: ~ i s t r i c t C o u r t of t h e Fourth ~ u d i c i a l ~ i s & i c t , o I n and For the C o u n t y of is sou la, Z a m 5 T h e H o n o r a b l e J a c k L. G r e e n , Judge ~ r e s i d i q o 6 - cq 2 P -.re f < * : 5- (-. -: m -,. - . z D 0 72 - 3 COUNSEL OF RECORD: m " I - ' For A p p e l l a n t : r m s t - ' W i l l i a m B o g g s , M i s s o u l a , M o n t a n a 0 7 ; 0 Wendy H o l t o n , H e l e n a , M o n t a n a 0 G C, 3 F o r R e s p o n d e n t : 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 R o b e r t L. D e s c h a m p s 111, C o u n t y A t t o r n e y , is sou la M o n t a n a F i l e d : s u b m i t t e d : O c t o b e r 2 0 , 1 9 8 9 Decided: N o v e m b e r 2 8 , 1 9 8 9 ~ustice William E. Hunt, Sr. delivered the Opinion of the Court. A jury empaneled in the District Court of the Fourth Judicial District, Missoula County, found Michael Pambrun, defendant, guilty under 5 45-5-401, MCA, of the offense of robbery. The ~istrict Court sentenced defendant to the Montana State Prison for a term of 40 years with credit for time served. Defendant was designated a dangerous offender for the purpose of parole eligibility and a persistent felony offender. Defendant appeals. We affirm. The following issues are raised on appeal: 1. Whether the ~istrict Court erred in denying defendant's motion to suppress testimony of his parole officer concerning statements defendant made to his parole officer while he was incarcerated. 2. Whether sufficient evidence supported defendant's robbery conviction. 3. Whether the District Court's delay in answering a written question from the jury during deliberations concerning the possibility of a hung jury prejudiced defendant's right to a fair trial and, thus, constituted error. On November 16, 1983, Eugene Medsker got into a game of stud poker, in which defendant was one of the participants, at the Oxford Bar and Cafe in iss sou la, Montana. The game lasted from approximately 6:00 p.m. to approximately 9:00 p.m. Medsker bought $30.00 in chips and proceeded to collect more in winnings. Defendant bought chips in $20.00 increments throughout the evening but, as lady luck was not in his favor, he lost them all. When t h e game broke up, Medsker cashed i n h i s chips f o r $100.50 a t t h e c a s h i e r window. A s he was receiving h i s money, he noticed defendant standing a few f e e t away. H e then put t h e cash i n h i s w a l l e t which, when added t o t h e money already i n h i s w a l l e t , t o t a l e d approximately $141.00. H e then went t o t h e restroom. While i n t h e restroom, he n e i t h e r saw anyone nor heard anyone e n t e r . Medsker turned around and was twice s t r u c k i n t h e f a c e and knocked t o t h e f l o o r . The only r e c o l l e c t i o n he had of h i s a s s a i l a n t before he l o s t consciousness was t h a t t h e a s s a i l a n t was wearing blue jeans. S h o r t l y a f t e r 9:00 p.m., Ida Mae Dagen, a card d e a l e r a t t h e Oxford, observed defendant coming from t h e back a r e a of t h e bar where t h e restrooms w e r e located. He proceeded t o t h e end of t h e b a r where he wiped h i s hands on a b a r rag, fixed t h e knot on t h e sweater t h a t was draped over h i s shoulder, picked up two cans t h a t were s i t t i n g on t h e b a r , moved down t h e bar where he spoke with t h e bartender, s e t t h e cans down, and walked o u t t h e f r o n t door. Dagen d i d not observe anything unique o r unusual about t h e defendant a t t h a t t i m e except t h a t t h e b a r r a g he wiped h i s hands on was d i r t y . S h o r t l y t h e r e a f t e r , Medsker regained consciousness and obtained a s s i s t a n c e from those i n t h e Oxford. Medsker had l a c e r a t i o n s and b r u i s e s on h i s f a c e , neck, and r i b s and h i s nose was broken. H i s w a l l e t containing $141.00 was missing. A t approximately 9:15 p.m., O f f i c e r Robert Charles of t h e Missoula Police Department a r r i v e d a t t h e Oxford t o i n v e s t i g a t e t h e i n c i d e n t . The o f f i c e r interviewed Medsker, Oxford employees, and Oxford patrons. From t h e interviews, he suspected defendant and began a search of downtown b a r s f o r him. O f f i c e r Charles, who knew defendant l i k e d t o play poker, located defendant a t t h e T r a i l s West Bar where defendant was once again engaged i n a l o s i n g poker game. The o f f i c e r observed t h a t defendant's s h i r t was s p o t t e d with blood, t h e knuckles on h i s r i g h t hand were skinned and bloody and he was wearing blue jeans. Defendant v o l u n t a r i l y accompanied t h e o f f i c e r t o t h e p o l i c e s t a t i o n , where he was a r r e s t e d and read h i s Miranda warning. A t t h e time of h i s a r r e s t , defendant had $70.80 on h i s person. The next day, defendant made h i s i n i t i a l appearance and was again advised of h i s r i g h t s . A t t h a t time, he requested appointed counsel. A f t e r h i s i n i t i a l appearance, defendant telephoned h i s p a r o l e o f f i c e r and requested t h a t h i s p a r o l e o f f i c e r v i s i t him i n j a i l . The p a r o l e o f f i c e r d i d v i s i t defendant i n j a i l , where defendant relayed t h e events of t h e previous evening t o him including t h e f a c t t h a t defendant knew an o l d man he had been playing poker with had been a s s a u l t e d a t t h e Oxford. The p a r o l e o f f i c e r reported defendant's statements t o t h e p o l i c e . O n December 2 0 , 1983, defendant was charged by information with t h e offense of robbery i n v i o l a t i o n of $ 3 45-5-401, MCA. O n February 2 4 , 1984, defendant f i l e d a motion t o suppress statements made t o h i s parole o f f i c e r during h i s i n c a r c e r a t i o n . A hearing on t h e motion was conducted on February 29, 1984, and t h e motion was subsequently denied. O n March 8, 1984, a jury found defendant g u i l t y of t h e offense of robbery. O n ~ p r i l 30, 1984, defendant was sentenced t o f o r t y years i n t h e Montana S t a t e prison. He was designated a dangerous offender and a p e r s i s t e n t felony of fender. The f i r s t i s s u e r a i s e d on appeal i s whether t h e ~ i s t r i c t Court e r r e d i n denying defendant's motion t o suppress t h e testimony of his parole officer concerning statements made to him while defendant was incarcerated. Specifically, his parole officer testified that defendant told him that defendant had knowledge that an "old man he had been playing poker with had been assaulted." The parole officer also testified that defendant relayed his activities of the night in question to the parole officer and denied committing the assault. Defendant argued that the statements should have been suppressed since his parole officer did not advise him of his rights under ~rizona v. Miranda (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, prior to speaking with the defendant. He claimed that because he had asserted his right to counsel at his initial appearance and that because the parole officer was an agent of the state, that statements made to his parole officer in absence of counsel should not have been admitted at trial absent a Miranda warning. Defendant's motion to suppress statements was denied by order of the court. The ~istrict Court specifically noted that the prosecution proved by a preponderance of the evidence that defendant's statements and admissions to his parole officer were voluntary and, as such, came under the purview of S 46-13-301(4), MCA, which requires such proof. Thus, a Miranda warning was not required. We agree. As the court noted in its minutes and notice of ruling, it based its order on three grounds. F'irst, defendant was given his Miranda warning twice within 24 hours preceding his conversation with his parole officer--once on November 16, 1983, at approximately 11:OO p.m., when he was arrested, and again on November 17, 1983, at approximately 3:00 p.m., when he made his initial appearance. Second, defendant initiated the contact with his parole officer when he telephoned him from jail and requested a meeting. Third, the District Court noted that defendant's statements were not the result of an interrogation but were conveyed freely and voluntarily. Further, under State v. Higareda (Mont. 1989), 777 P.2d 302, 46 St.Rep. 1146, we adopted the rationale set forth in State v. Terrovona (1986), 105 Wash.2d 632, 716 P.2d 295, which stated that a probation officer may testify where the probative value of the probation officer's testimony outweighed the prejudicial effect and where the testimony is relevant. In the present case, defendant's parole officer testified as to the series of events that led to defendants arrest as well as statements made to him by defendant. The defendant conveyed the statements to his parole officer freely and voluntarily after he had been twice advised of his Miranda rights. As we stated in ~igareda, 777 P.2d at 305: While some prejudicial effect is inherent in this type of testimony, we cannot say that it outweighed the probative value. Such is the case here. The statements are relevant as an admission that he had knowledge of the assault at the Oxford. The District Court did not err in admitting the parole officer's testimony concerning defendant's statements. The next issue raised on appeal is whether sufficient evidence supported defendant's robbery conviction. Defendant argues that the evidence was insufficient to sustain the conviction as the evidence was based on conjecture, suspicion and possibility. We disagree. In State v. Hammer (Mont. 1988), 759 P.2d 979, 986, 45 St.Rep. 1326, 1333, we stated that the standard of review in such a case is: [Wlhether the evidence, when viewed in a light most favorable to the State, is sufficient for a rational trier of fact to have found the essential elements of the crime beyond a reasonable doubt. (Citation omitted. ) Here, evidence was presented in the form of testimony and exhibits. Testimony included witnesses who saw that defendant was a participant in a poker game at the Oxford in which Medsker was also a player; that defendant gambled and drank for three hours until he went broke; that Medsker cashed out $100.50 worth of chips (which totaled approximately $141.00 when added to the money in his wallet); that Medsker went to the restroom where he was struck in the face, knocked to the floor, and robbed of his wallet by an unknown assailant wearing blue jeans; that defendant was seen in the restroom area about the same time Medsker was robbed; that defendant then returned to the bar, wiped off his hands and exited the front door; and that defendant was wearing blue jeans. Officer Robert Charles testified that he interviewed the patrons and employees of the bar and, based upon their statements, suspected defendant as the perpetrator. Officer Charles, who knew that defendant liked to play poker, found him playing poker at the Trails West Bar where defendant had $70.80 in cash and chips and had just lost about $60.00. He testified that when he found defendant, his knuckles on his right hand were skinned and bloody and that he noticed several spots of blood on defendant's shirt. Several pieces of physical evidence were introduced including the bloodstained clothing of both the defendant and Medsker. Human blood stains were found on defendant's jeans and shirt. However, the bloodstains on his jeans were too small for analysis and the bloodstains on his shirt neither matched the defendant's nor Medsker's blood type. Human bloodstains were also found on the bar towel that defendant used to wipe his hands before he left the bar. The bloodstains were similar to the type found on defendant's shirt. It was stipulated that bloodstains found on Medsker's shirt were his. In State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341, we upheld a conviction based on similar facts and circumstances. In that case, the homicide victim was robbed after cashing in $400.00 in chips he won in a poker game in which the defendant participated. The defendant cashed in $30.00 in chips. Shortly thereafter, when defendant was arrested, he had $319.02 in cash on his person and it was established he had spent $100 earlier that day. ~loodstains were found on several items belonging to defendant (the opinion did not state that the bloodstains matched any particular person's blood type). Also, a bootprint similar in size and configuration to defendant's boot was found in the area of the body. In the present case, as in Armstrong, evidence presented was circumstantial in nature. In Armstrong, 616 P.2d at 346, we stated: [~Iircumstantial evidence is not always inferior in quality. The determination as to the sufficiency of circumstantial evidence to make a case for the jury and to sustain a conviction is one to be made upon all the facts and circumstances which are to be taken into consideration collectively. State v. DeTonancour (1941), 112 Mont. 94, 98, 112 P.2d 1065, 1067. circumstantial evidence is sufficient to sustain a conviction where it is of such "quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt . . . " State v. Weaver (1981), 195 Mont. 481, 495, 637 P.2d 23, 31. The evidence presented in this case, although circumstantial in nature, was sufficient to sustain a verdict of guilty. The last issue raised on appeal is whether the ~istrict Court's delay in answering a written question from the jury during deliberations concerning the possibility of a hung jury prejudiced defendant's right to a fair trial and, thus, constituted error. Here, the jury retired for deliberations at 11 :52 a.m. At 5:32 p.m., a note from the jury was delivered to the court by the bailiff asking if a hung jury was possible in the case. As evidenced by the minutes and note of ruling, all counsel were immediately summoned by the court and the sheriff brought the defendant into chambers at approximately 6:20 p.m. The following note was prepared by the court and approved by the defendant and all counsel: A hung jury is possible in any case, but you would have to deliberate much longer before we could determine that there is a hung jury in this case. A hung jury is possible only if there is no possibility of reaching a unanimous verdict. The minutes indicate that the note was taken to the jury by the bailiff but not delivered because the jury informed the bailiff that it had reached a verdict. The jury returned to court at 6:33 p.m. where it announced a verdict of guilty for the charge of robbery. Defendant contends that the delay in the court's response, in effect, coerced a guilty verdict and prejudiced the defendant's right to a fair trail. Defendant argues that because the jury did not receive a prompt answer to its written query that it "must have supposed . . . that its question would be ignored." Defendant's contentions are speculative to say the least. Section 46-16-503(2), MCA, provides: After the jury has retired for deliberation, if there is any disagreement among the jurors as to t h e testimony o r i f t h e j u r o r s d e s i r e t o be informed on any p o i n t of law a r i s i n g i n t h e cause, they must r e q u i r e t h e o f f i c e r t o conduct them i n t o c o u r t . When t h e j u r o r s a r e brought i n t o c o u r t , t h e information requested may be given i n t h e d i s c r e t i o n of t h e c o u r t . I f such information i s given, it must be given i n t h e presence of t h e county a t t o r n e y and t h e defendant and h i s counsel. while t h e jury was not brought i n t o c o u r t , t h e note d r a f t e d wa.s prepared by t h e c o u r t and approved by defendant and a l l counsel. Defendant d i d not o b j e c t t o t h e manner i n which t h e information was t o be relayed nor d i d defendant request f u r t h e r inquiry concerning t h e t i m e it took t o d r a f t and convey t h e note. The jury had already reached a v e r d i c t by t h e time a r e p l y was d r a f t e d . Th/ere was no e r r o r . Affirmed. W e Concur: J u s t i c e | November 28, 1989 |
169a8347-c0c6-4d06-b768-8a3b432ba437 | EBI ORION GROUP v STATE COMPENSATI | N/A | 89-202 | Montana | Montana Supreme Court | No. 89-202 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 EBL/ORION GROUP, petitioner and Appellant, -vs- STATE COMPENSATION INSURANCE FUND, Defendant and Respondent. IN RE: CLAUDE L. ATHEY, Intervenor and Claimant. APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Charles E. Mc~eil and Bradley J. Luck; Garlington, Lohn & Robinson, iss sou la, Montana For Respondent: Jerome S. Knutson; Murray, Kaufman, Vidal, Gordon & Ogle, Kalispell, Montana Joseph F. Daley: Daley, Seaman & Vannoy, Kalispell, Montana Submitted on Briefs: August 10, 1989 ~ ~ ~ i d ~ d : November 29, 1989 ~ustice John C. Sheehy delivered the Opinion of the Court. We reverse the summary judgment granted by the Workers' Compensation Court holding in effect that no genuine issue of material fact was presented as to the right of EBI-Orion Group for indemnification from the State Compensation Insurance Fund. We determine that there are substantial issues of material fact which must be decided by the Workers' compensation Court, and so remand the cause for further proceedings in accordance with this opinion. The issue in this case is whether EBI-Orion (EBI) may be entitled to indemnification from the State Compensation Insurance Fund relating to a compromise settlement between EBI and an injured employee, which compromise was approved by the ~ivision of Workers' Compensation. Claude Athey was an employee of Harp Line construction in Kalispell, Montana. On September 19, 1985, when EBI was the Workers' Compensation carrier for Harp, Claude Athey slipped and fell while carrying nuts and bolts and sustained a back injury in the course of his employment. However Athey did not file a claim for benefits relating to this date until the State Fund received such a claim from Athey on September 16, 1986. On receipt of the claim, the State Fund began payment of temporary total benefits to Athey. In the course of investigation, the State Fund made a determination that Athey's accident had actually occurred on September 19, 1985. The State Fund therefore terminated payments because the State Fund coverage of Harp Line Construction did not commence until October 1, 1985. The date determined by the State Fund as the date of the accident preceded the coverage date for State Fund. EBI, as the carrier whose coverage was in effect on September 19, 1985, first denied liability for late notice to the employer, but later accepted liability and began making benefit payments to Athey. In the period following September 19, 1985, Athey had continued his employment v r i t h Harp ~ i n e Construction. The winter months were slow and he was called only occasionally to work. He returned to steady employment in May of 1986 for Harp Line Construction. In the course of the summer of 1986, Athey's employment duties included lifting of heavy objects. On August or September of 1986, while State Fund was the compensation carrier for Harp, he was engaged in stacking iron or heavy tires when the condition of his back increased to the point where he could no longer work. He informed his employer, and from the record here, Athey has not worked since. ~uring the period that the State Fund was making payment of benefits to Athey, one of its field investigators filed a report respecting Athey's case with the following language in his report: It should be noted however that just prior to his leaving on September 8, 1986, the claimant however was involved in fairly strenuous activity in stacking these tires and apparently this is also when he started to complain more about his condition and told Mr. Harp that he could not continue. It was after Athey's back reached the condition that he could no longer work that he filed his first claim for benefits with the State Compensation Insurance Fund. On ~ p r i l 2, 1987, when EBI accepted liability for the September 19, 1985 claim, it did so by letter, including a reservation of rights to recover any amount paid in the event that further investigation revealed that a second injury occurred while the State Fund was on the risk. In May 16, 1988, counsel for EBI wrote to the State Fund that EBI had agreed to a compromise settlement of Athey1s claim for Workers1 Compensation benefits, but that the settlement included a reservation by EBI as to its right to pursue the issue of a second injury against the State Fund. The letter requested the State Fund to contribute 50 percent toward the settlement which was by the State Fund denied. On June 27, 1988, Athey filed a petition for compromise by settlement with EBI for the sum of $52,000. Included in the petition was the language: The insurer reserves all rights to pursue indemnification for all of amounts paid to claimant from the State Compensation Insurance Fund for any second injury which may have occurred during the summer of 1986. On August 1, 1988, the ~ivision of Workers' Compensation approved the compromise settlement in an order which included language that the insurer reserved all rights to pursue indemnification against the State Fund for any second injury which may have occurred during the summer of 1986. Following the approval of settlement, EBI undertook to obtain medical records and depositions from a team of doctors. On September 2, 1988, it forwarded to the State Fund copies of the depositions of Dr. ~icker and Dr. Coolidge. In its September 2 letter, EBI claimed that the evidence showed that Athey had reached medical stability and maximum healing from the injury of September 19, 1985 and that he received a second injury by aggravation of the underlying condition while the State Fund was on the risk in September of 1986. In the letter, EBI demanded complete indemnification for the compromise paid, and other expenses. The State Fund denied the demand. EBI filed a petition before the Workers' Compensation Court for a determination as to its right of indemnification. The hearing examiner, in his proposed order, held that there was no genuine issue of material fact, that the reservation of rights by EBI in its final compromise settlement petition was not binding upon the State Fund, that the only claim filed by Claude Athey was a full and final compromise settlement of an accident which occurred on September 19, 1985 and that the compromise settlement was voluntarily paid by EBI. The Workers' compensation Court adopted the proposal of the hearings examiner and on February 22, 1989, granted the motion of State Fund for summary judgment and dismissed EBI's petitior,. From that order of summary judgment, EBI appeals. EBI contends on appeal that the Workers' Compensation Court erred when it determined that EBI's reservation of indemnity rights in its compromise settlement had no effect on the State Fund; that the evidence established genuine issues of material fact precluding summary judgment, and that it is entitled to have those issues determined by the Workers' Compensation Court. The State Fund contends that EBI cannot shift its liability for the settlement to the State Fund, that any recovery for a 1986 injury is barred by the failure of EBI to comply with the claim and notice requirements of 5 39-71-601, -603, MCA, that EBI lacked standing to bring a workers' compensation claim, and that the Workers' compensation Court properly granted summary judgment. In Belton v. Carlson Transport (1983), 202 Mont. 384, 392, 658 P.2d 405, 409-410, this Court said: We hold that the burden of proof is properly placed on an insurance company which is on the risk at the time of the accident in which a compensable injury is claimed. This holding assures that claimant will always know which insurer he can rely on to pay the benefits. It is the duty of the insurance company on risk to pay the benefits until it proves, or until another insurance company agrees, that it should pay the benefits. If it is later determined that the insurance company on risk at the time of the accident should not pay the benefits, this insurance company, of course, has a right to seek indemnity from the insurance company responsible for the benefits already paid out to the claimant. This Court held to the Belton rule in Stangler v. Anderson Meyers ~rilling Company (Mont. 1987), 746 P.2d 99, 101, saying: In Belton v. Carlson Transport (1983), 202 Mont. 384, 658 ~ r 2 d 405, this Court adopted the idea of "maximum healins" and "successive injuries" in 2 order to more fairly assess which employer is responsible for an employee's on-the-job injury. Maximum healing means that following a compensable injury a claimant has reached a point constitutinq the end of the healing period. - It does not mean the person is free of symptoms such as pain or objective signs. Belton, 658 P.2d at 408. The rule of Belton controls a situation where an employee has been injured more than once and different employers' insurance carrier are at risk for the separate injuries. If the first injury has not reached maximum healing, the insurer at risk at the time of the first injury will be responsible for the second injury as well. If the claimant is medically stable or has reached maximum healing, the insurer at risk at the time of the second injury is responsible for Workers' Compensation benfits. Under the medical testimony and other evidence of this case, a genuine issue of material fact exists as to whether Athey had attained maximum healing from the incident of September 19, 1985, prior to the time in 1986 when he found that his back condition prevented him from further working. (In Belton, we used the terms "maximum healing," "maximum recovery," and "medically stable condition" interchangeably. Belton, 658 P.2d at 409.) In Stangler, this Court also said: . . . we now uphold the Belton rule that once a claimant has reached the maximum healing or a medically stable condition the insurer at risk at the time of the original injury is no longer responsible for any subsequent injuries or conditions. Stangler, 746 P.2d at 103. Nonetheless, State Fund contends that because EBI made a compromise settlement with Athey without the participation of State Fund, that State Fund is no longer liable for any second injury. Moreover, State Fund contends that the compromise settlement referred only to a September 19, 1985 injury, and not to any subsequent injury and therefore does not relate to any claim of Athey's for a second injury. The right of indemnity is that where one is compelled to pay money which, in justice, another ought to pay, the former may receive from the latter the sums so paid. ~aisler v. Burlington Northern R. Co. (19851, 219 Mont. 254, 258, 717 P.2d 535, 537; DeShaw v. Johnson (1970), 155 Mont. 355, 259, 472 P.2d 298, 301. The right to indemnity does not accrue until the payment is made. St. Paul Fire and ~arine Insurance Company v. Thompson (19691, 152 Mont. 396, 403, 451 P.2d 98, 102. The party claiming indemnity need only prove potential liability at the time of making the payment, and that the payment was reasonable. Iowa Mfg. Co. v. Joy Mfg. Co. (1983), 206 Mont. 26, 34, 669 P.2d 1057, 1061. Here, the reasonableness of the compromise settlement was approved by the Workers' compensation ~ivision. Thus, it is not a defense that because the State Fund did not participate or approve the compromise settlement, that the State Fund is exonerated from its indemnity obligations. Here, EBI had potential liability, effectuated a reasonable settlement, and if in fact there was a second injury, a right of indemnity exists in favor of EBI. State Fund also contends that EBI has no standing to bring an indemnity claim. It points to S . 39-71-601(1), MCA, which reads as follows: In case of personal injury or death, all claims shall be forever barred unless presented in writing to the employer, the insurer, or the division, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him in his behalf. State Fund contends that the indemnity claim is not brought by the claimant or by someone legally authorized to act for him in his behalf, and further contends that the petition for compromise settlement was not executed until June of 1988 and not approved until August of 1988 and that therefore the one year statute of limitations applies. The contention is weightless. EBI is not bringing a claim on behalf of the claimant, but rather on its own behalf, contending that it has an indemnity right for a payment which State Fund should have made. section 39-71-601(1), MCA, does not apply in this case. Finally, State Fund contends that there is no genuine issue of material fact in this case and that a second injury cannot be found from the testimony of the doctors through deposition or by the affidavits presented. Our examination of those documents and testimonies indicates that there is such a genuine issue which must be resolved by a trier of fact, in this case, the Workers' Compensation Court. The summary judgment of the Workers' Compensation Court of this case is reversed and the cause remanded. The Workers' Compensation Court is instructed to determine whether Claude Athey had reached the condition of maximum healing following his injury of September 19, 1985, prior to his second injury, and whether in fact a second injury occurred. A resolution of those fact issues will determine whether EBI is entitled to indemnity. , - --, i Justice t We Concur: | November 29, 1989 |
76815760-47cf-402e-883e-8ac609fc982f | QUINN v BUILDERS TRANSPORT INC | N/A | 89-377 | Montana | Montana Supreme Court | No. 89-377 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 JAMES A. QUINN, JR*, Claimant and Respondent, -VS- BUILDERS TRANSPORT, INC., Employer, and EBI/ORION GROUP, INC., Defendant and Appellant. APPEAL FROM: The Workers' compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Kelly M. Wills; ~arlington, Lohn & ~obinson, iss sou la, Montana For Respondent : K.urt M. Jackson; Hoyt & Blewett, Great Falls, Montana Filed: submitted on ~riefs: Nov. 2, 1 9 8 9 Decided: December 8, 1 9 8 9 D Justice ~illiam E. Hunt, Sr., delivered the Opinion of the Court. Builders Transport and EBI/Orion Group, defendants and appellants, appeal from the findings of fact and conclusions of law and judgment of the Workers' Compensation Court which found James Quinn, Jr., claimant and respondent, permanently partially disabled and entitled to 500 weeks of benefits at $143 per week with a lump sum advancement. We affirm. The following iss-ues are raised on appeal: 1. Whether the Workers' compensation Co.urt based its finding that claimant was incapable of maintaining fulltime employment on substantial credible evidence. 2. Whether the Workers' compensation Co-urt properly calculated claimants' post-injury earning capacity. On January 5, 1985, Quinn sustained a herniated disc in his lower back while attempting to shift the load on his truck. At the time of the accident, he was working in the course and scope of his employment as a truck driver for Builders Transport. Q.uinn reached a medically stable condition in February of 1985. Two months after his accident, Quinn returned to Builders Transport to work as a truck dispatcher. Quinn worked as a dispatcher for 15 months but was terminated on ~ p r i l 18, 1986, due to chronic back pain. ~ u i n n attended a pain clinics in Missoula, Montana, and Portland, Oregon. The Portland pain center released a discharge summary on September 25, 1987, which stated that Quinn would be unable to return to his former employment as a truck driver. Defendants paid Quinn temporary total disability benefits and certain medical benefits until February 19, 1988. It then informed him that his benefits would be reduced to permanent partial disability benefits at $143 per week. On October 19, 1988, a trial was conducted before the Workers' compensation hearing examiner in Great Falls. The hearing examiner found that Quinn's pre-injury earning capacity was $8.53 per hour for 45 hours per week, that his post-injury earning capacity was $6.55 per hour for a maximum of 20 hours per week, and that he was incapable of fulltime employment. ~ u i n n was also found to be permanently partially disabled under S 39-71-703, MCA. On ~ p r i l 11, 1989, the Worlcers' compensation judge entered an order adopting the hearings examiner's findings of fact and conclusions of law and entered judgment for 500 weeks of permanent partial disability benefits at $143 per week. The court ordered that Quinn receive a $15,553 lump sum advance on his compensation benefits and that defendants be entitled to an appropriate reduction. ~ u i n n was also awarded reasonable costs and attorney fees pursuant to S 39-71-612, MCA. On ~ p r i l 28, 1989, defendants filed a motion with the court to amend judgment or for an order granting a new trial based on erroneous findings. On June 13, 1989, the court ordered that the motion be denied and found that the findings and conclusions were not clearly erroneous as would be required to grant the motion. From the order defendants appeal. The first issue defendants raise on appeal is whether the Workers' compensation Court based its finding that ~ u i n n was incapable of fulltime employment on substantial credible evidence. Defendants correctly note that decisions of the Workers' Compensation Court must be based on substantial credible evidence. Snyder v. San ~rancisco Feed and Grain (Mont. 1987), 748 P.2d 924, 929, 44 St.Rep. 2216, 2224. This Court's function, upon review of the Workers' Compensation Court, is to determine whether such evidence exists to support the court's findings of fact and concl~usions of law. Hartman v. Staley Continental (Mont. 1989), 768 P.2d 1380, 1384, 46 St.Rep. 248, 253. However, this Court does not determine whether there is sufficient evidence to support contrary findings. Davis v. Jones (1985), 216 Mont. 300, 303, 701 P.2d 351, 353. See Jones v. St. Regis Paper Company (1981), 196 Mont. 138, 639 P.2d 1140; and Little v. Structural Systems (1980), 188 Mont. 482, 614 P.2d 516. Here, the court found that ~ u i n n reached medical stability in Febr.uary of 1985 at which time he returned to work for Builders Transport as a truck dispatcher. He worked as a dispatcher for 15 months but was terminated d.ue to complications associated with chronic back pain. The medical evidence supports the concl.usion that Quinn suffered a herniated disc in his lower back which resulted in chronic pain. Quinn was initially treated for the injury by an orthopedic surgeon who concluded that ~ u i n n did not require surgery. He was then evaluated by the iss so-ula pain clinic and also attended a pain center in Portland, Oregon. At the Portland center, he was diagnosed as suffering from chronic low back pain. Subsequently, ~ u i n n was treated by a general practitioner in Spokane, washington, who prescribed a pain medication for his back. The court considered Quinn's physical impairment as well as the factors set forth in Beck v. Flathead County (Mont. 1988), 749 P.2d 527, 45 St.Rep. 215, which included age, occupational skills, education, previous health, remainina number of productive years and degree of physical or mental impairment. In its findings, the court specifically noted that ~ u i n n was 46 years old at the time of the trial; that his employment history for the past 22 years had been primarily in the trucking business, including 15 months as a truck dispatcher; that he had a high school education; and that upon his release from the Portland pain center, he was diagnosed as suffering from chronic low back pain. The court also noted that Quinn attempted to return to fulltime employment as a dispatcher but was unable to do so because of chronic back pain. The Workers' Compensation Court found, that, upon review of the evidence, Quinn's earning capacity was reduced to that of a part-time truck dispatcher as a result of his injury. Based on the foregoing, the Workers' Compensation Court's finding that Quinn was incapable of fulltime employment was based on substantial credible evidence. Defendants also raise the issue of whether the Workers' Compensation Court properly calculated Quinn's post-injury earning capacity. On October 19, 1988, a trial was conducted by the Workers' Compensation hearing examiner who found that Quinn's pre-injury earning capacity was $8.53 per hour for 45 hours per week and that his post-injury earning capacity was $6.55 per hour for a maximum of 20 hours per week. Based on his loss of earning capacity, Quinn was awarded $143 per week for 500 weeks pursuant to 5 39-71-703, MCA. Defendants argue that the court ignored evidence that Quinn's earning capacity ranged from $6.25 to $11.45 per hour as a dispatcher and from $7.50 to $9.36 as a clerical worker and, thus, inflated the sum due Quinn. We disagree. Loss of earning capacity has been defined as, "a loss of ability to earn in the open labor market." Beck, 749 P.2d at 529. See also Hurley v. ~upuis (Mont. 1988), 759 P.2d 996, 45 St.Rep. 1457. Here, Quinn testified that in 1984, the last full year of his employment, he earned $14,378.27 for nine months of work. Based on a 45 hour work week, Quinn averaged $8.53 per hour. The figures were substantiated by Quinn's 1984 W-2 form and the testimony of a vocational expert. When working as a truck dispatcher, Quinn averaged $6.55 per hour. Nonetheless, the difference between pre-injury and post-injury wages are but one factor to consider when determining earning capacity. As discussed earlier, the factors of age, occupational skills, education, previous health, remaining number of productive years, and degree of physical or mental impairment must be considered. Beck, 749 P.2d at 529. The Workers' Compensation Court considered those factors and emphasized the fact that although Quinn was actively seeking employment, he was unsuccessful because of his physical limitations due to chronic back pain. The court properly calculated Quinn's post-injury earning capacity. Affirmed. | December 8, 1989 |
1a404255-bdfe-45c5-bf99-dc5d8bef4476 | MATTER OF THE WAGE CLAIM OF HOLBECK | N/A | 89-231 | Montana | Montana Supreme Court | NO. 89-231 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN THE MATTER OF THE WAGE CLAIM OF FREDERICK C. HOLBECK, Claimant and Respondent, -vs- STEVI-WEST, INC., Respondent and Appellant. APPEAL FROM: ~istrict Court of the Fourth ~udicial ~istrict, In and for the County of ~avalli, The Honorable Jack L. Green, Judge presiding. COUNSEL OF RECORD: For Appellant: Noel K. ~arrivee, Missoula, Montana For Respondent : Melanie Symons, Dept. of Labor & Industry, Helena, Montana Filed: Submitted on ~riefs: Aug. 31, 1989 Decided: December 1, 1989 * 'Clerk ' .."* Justice William E. Hunt, Sr. , delivered the Opinion of the Court. The Department of Labor and Industry (DOLI) issued an order directing appellant, Stevi-West, Inc., to pay overtime wages of $3,288 and a statutory penalty of $3,288 to its former employee, Frederick C. Holbeck. The ~istrict Court of the Fourth Judicial ~istrict, ~avalli County, affirmed the DOLI order. Stevi-West appeals. We affirm. Stevi-West presents three questions for our consideration: 1. Was ~rederick Holheck an executive employee within the meaning of S 39-3-406(1) (j), MCA, and, therefore, exempt from overtime compensation? 2. Did Frederick Holbeck provide sufficient and accurate substantiation of his overtime hours? 3. Did the District Court err in failing to allow Stevi-West to present additional evidence? In October, 1985, Stevi-West, Inc., owned primarily by Tom and Karen Bauer, opened an eight-lane bowling center, lounge and snack bar in Stevensville. A few months prior to the opening, the Bauers hired Dave Sears to manage the center. In August, 1985, Sears hired the claimant, ~rederick Holbeck, under an oral employment agreement. Holbeck's primary duties included attending the customer service counter, working on the automatic pinsetting machines and maintaining the bowling alleys. He also performed janitorial chores, drilled balls, organized leagues, promoted the alleys, instructed bowlers and closed the center after work hours. ~tevi-west initially paid Holbeck $1,300 per month. In June, 1986, after the manager, Sears, was laid off, Holbeck's wages increased to $1,600 per month. In October, 1986, his wages again increased, this time to $1,900 per month. On December 31, 1986, Holbeck resigned from his position for personal reasons. On February 19, 1987, Holbeck filed a claim with the DOLI to collect overtime wages from stevi-west. After a hearing, the DOLI hearings officer entered findings of fact, conclusions of law and an order requiring stevi-west to pay Holbeck $3,288 as overtime wages due and owing and $3,288 as a statutory penalty. Stevi-West petitioned for judicial review. ~ollowing briefing of the issues, the ~istrict Court affirmed the DOLI order. Stevi-West appealed to this Court. The standard of review of an agency decision is delineated at S 2-4-704, MCA, as follows: (2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because: (a) the administrative findings, inferences, conclusions, or decisions are: (v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; (vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. Thus, judicial review of factual matters is limited. The reviewing court will not overturn an agency's findings of fa.ct unless they are clearly erroneous. Facts supported by substantial credible evidence are not clearly erroneous. City of Billings v. Billings iref fighters Local No. 521 (1982), 200 Mont. 421, 430-31, 651 P.2d 627, 632. Judicial review of legal issues is somewhat broader. The reviewing court will reverse an agency's legal conclusions if they are characterized by an abuse of discretion. ~illings Firefighters, 200 Mont. at 431, 651 P.2d at 632. The first question raised on appeal is whether Holbeck was an executive employee within the meaning of S 39-3-406 (1) ( 7 ) , MCA, and, therefore, exempt from overtime compensation. Generally, an employee is entitled to overtime compensation for any hours worked in excess of 40 per week. Section 39-3-405(1), MCA. Among the employees excluded from this general rule are those employed in a bona fide executive capacity. section 39-3-406 (1) ( j ) , MCA. A bona fide executive is defined in 5 24.16.201, ARM, which provides: (1) The term "employee employed in a bona fide executive * * * capacity" in section 39-3-406 (1) ( j ) MCA of the Montana ~inimum Wage and Overtime compensation Act shall mean any employee: (a) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; - and (b) Who customarily and regularly directs the work of two or more other employees therein; and (c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; - and (d) Who customarily and regularly exercises discretionary powers; and (e) Who does not devote more than 20 percent or in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in subsections (a) through (d) of this section. (Emphasis added.) Before an individual will be deemed an executive employee exempt from overtime compensation, the employer must prove each of the elements of the above regulation. Rosebud County v. Roan (Mont. 1981), 627 P.2d 1222, 1228, 38 St.Rep. 639, 646. In this case, ~tevi-west has failed to meet its burden. Substantial credible evidence supports the DOLI hearings officer's finding that Holbeck did not act in a managerial capacity. Although Holbeck was hired to assist the manager, Sears, the evidence demonstrates that his primary responsibilities related to customer service and maintenance of the bowling lanes and equipment. After Sears was laid off, Holbeck's responsibilities remained the same. The owners themselves, rather than Holbeck, filled the managerial void left by Sears' departure. Few factors indicate that Holbeck held a managerial position. He was not given the authority to make major business decisions. He did not schedule employees or set pay rates. He did not handle money except to collect it from customers at the customer service counter and to put it in safekeeping on the nights he closed the center. He was not responsible for any business recordkeeping. Apart from arranging for the exchange of free bowling for help from high school students, he did not hire or fire employees. He had little input regarding hiring, firing or promoting employees. Clearly, the record demonstrates that Stevi-West failed to prove elements (a) , (b) , (c) and (el of S 24.16.201, ARM. Consequently, Stevi-West failed to show that Holbeck was exempt from overtime compensation. The District Court did not err in affirming the DOLI order. The second issue is whether Holbeck provided sufficient and accurate substantiation of his overtime hours. The employer is required to record the hours worked by its employees. Garsjo v. Department of Labor and Industry (1977), 172 Mont. 182, 188-89, 562 P.2d 473, 476. If the employer fails to record the employee's hours, the employee's records may be used to determine the amount of time worked. The employee's records, however, need not be precise. The employee may substantiate his claim by proving "that he has in fact performed work for which he was improperly compensated and [producing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. " ~arsjo, 172 Mont. at 189, 562 P. 2d at 476 (quoting Anderson v. Mt. Clemens Pottery Co. (1946), 328 U.S. 680, 687, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515, 1523.) In the present case, ~tevi-west did not track the hours worked by Holbeck. Holbeck began recording his hours in October, 1986. To substantiate his claim prior to that time, he submitted exhibits reconstructing the approximate number of hours worked. The exhibits were based on weekly schedules, seasonal duties and common practice. Both Holbeck and the former manager, Sears, testified in support of the exhibits. Under the circumstances, substantial credible evidence supported the finding that Holbeck should be compensated for the hours reconstructed in the exhibits. ~tevi-west also claims that Holbeck should not be compensated for overtime hours because he spent much of his time bowling while on duty. Testimony offered at the hearing indicated that much of the time Holbeck spent bowling was work related. Furthermore, Tom Bauer testified that he knew Holbeck bowled while working. As long as Bauer permitted Holbeck to bowl while on duty, Holbeck must be properly paid, even if the pay includes overtime compensation. The last issue is whether the ~istrict Court erred in failing to allow stevi-west to present additional evidence. After it petitioned for judicial review, ~tevi-west filed a motion to present additional evidence. Although the District Court granted the motion, the order was buried in the court record. The order was not served on stevi-West or noted on the court docket. Nor was the matter set for hearing. Nonetheless, we do not remand for further proceedings. The statute governing receipt of additional evidence provides : If, before the date set for hearing, application is made to the court for leave to present additional evidence and -- it is shown to the satisfaction of the . . - - -- court that the addltlonal evidence is material and - -- that there were good reasons for faizre to present - it in the proceedins before the agency, the court - - - may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court. (Emphasis added. ) section 2-4-703, MCA. The evidence sought to be introduced by ~tevi-west consisted of testimony of three individuals employed by the bowling center concerning the number of employees supervised by Holbeck. Even if the testimony were persuasive, it would not be material to the action because it t~ould affect only one of the six required elements of S 24.16.201, ARM. The result would not differ. Holbeck's classification would not change to that of an exempt executive employee. He would still be eligible for overtime compensation. Stevi-West also sought to introduce the testimony of Karen Bauer, one of the owners of the bowling center, who was not present at the administrative hearing. Although Karen's testimony regarding Holbeck ' s alleged managerial responsibilities and the number of hours he worked would be material to the outcome of this case, Stevi-West did not present good cause for its failure to introduce this evidence at the original hearing as is required by S 2-4-703, MCA. In his affidavit supporting the motion to present additional evidence, Stevi-West's attorney stated only that Karen was unavailable to attend the hearing. While such a conclusory assertion may be sufficient to show good cause for the failure of a disinterested witness to attend an agency hearing, it is insufficient when the witness is one of the owners of the entity that requested the hearinq in the first place. Stevi-West does not allege, nor does the record show, that it was given insufficient notice of the time and date of hearing. In fact, the administrative record demonstrates that the notice of the ~ p r i l 20, 1988 hearing was mailed on March 14, 1988. Under the circumstances, we cannot say that Stevi-West has shown good cause for its failure to present Karen's testimony during the administrative hearing. ~ f f irmed. | December 1, 1989 |
1b776b1c-48f4-4f7d-af5a-5783d1623ef9 | BECK v FLATHEAD COUNTY | N/A | 89-235 | Montana | Montana Supreme Court | No. 89-235 IN THE SUPREME COURT OF THE STATE OF MONTANA JOSEPHINE M. BECK, Claimant and Respondent, -vs- FLATHEAD COUNTY, d/b/a FLATHEAD COUNTY NURSING HOME, Employer, and STATE COMPENSATION INSURANCE FUND, Defendants and Appellants. APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Todd A. Hammer, Warden, Christiansen, Johnson & Berg Kalispell, Montana For Respondent: Terry N. Trieweiler, Trieweiler Law ~ i r m , whitefish, Montana Submitted on Briefs: September 27, 1989 Decided: December 1, 1989 Filed: DEC Pa 1989 Justice Diane G. Barz delivered the Opinion of the Court. Defendants, Flathead County and the State Compensation Insurance Fund, appeal the decisions of the Workers' Compensation Court of the State of Montana, to forego a trial regarding whether claimant, Beck, had shown substantial credible evidence of a reduced earning capacity; to adopt the Findings of Fact and Conclusions of Law dated February 27, 1989; and to forego an evidentiary hearing regarding costs and attorney fees. We affirm. Defendants raise the following four issues on appeal: 1. Whether the Workers' Compensation Court erred by not making any additional findings or conclusions regarding claimant's pre-injury and post-injury earning capacity. 2. Whether the parties' stipulation regarding claimant's permanent partial disability benefit rate was binding for subsequent proceedings. 3. Whether a court should consider claimant's subsequent injury when considering her future earning capacity. 4. Whether the Workers' Compensation Court erred by not holding an evidentiary hearing regarding costs and attorney fees. Claimant, Josephine M. Beck, sustained a work-related, cervical injury on April 11, 1984 while working as a nurse's aide at the Flathead County Nursing Home. On March 14, 1986, claimant filed a Petition for Hearing in the Workers' Compensation Court of the State of Montana. A pretrial order was signed on May 14, 1986 by a hearing examiner, stating, as an uncontested fact, that "[c]laimant's partial disability benefit rate is $126.61. . ." After a May 21, 1986 hearinq in front of a hearing examiner, the Workers' Compensation Court adopted the hearing examiner's proposed Findings of Fact, Conclusions of Law and Judgment. The court then entered a judgment stating that claimant was not entitled to permanent partial disability benefits under § 39-71-703, MCA. Claimant appealed this ruling to the Montana Supreme Court, arguing that the Workers' Compensation Court erred by determining that $ 39-71-703, MCA, requires a claimant to prove an actual wage loss to collect permanent partial disability benefits. This Court reversed the Workers' Compensation Court in Beck v. Flathead County (Mont. 1988) , 749 P.2d 527, 530, 45 St.Rep. 215, 219, stating that " [tlhe correct test for loss of earning capacity is whether the injury has caused a loss of ability to earn on the open market.'' Beck, 749 P.2d at 529, 45 St.Rep. at 217. This Court then remanded the case to the Workers' Compensation Court with the directive to "determine whether claimant Beck [had] shown substantial credible evidence of a reduced earning capacity." Beck, 749 P.2d at 530, 45 St.Rep. at 219. The Workers' Compensation Court initially issued an order scheduling a retrial. Claimant, however, filed a written objection, by letter, arguing that in Beck this Court remanded for the sole purpose of considering the previous Findings of Fact in light of the correct rule of law and not to issue new Findings of Fact. Claimant pointed out that neither party appealed from the original Findings of Fact and therefore argued that a new trial was neither necessary nor proper. Defendants, however, argued that it had a right to present additional evidence, in particular, evidence of an injury claimant sustained subsequent to the April 11, 1984 injury. On April 15, 1988, the Workers' Compensation Court determined that in light of this Court's decision in Beck, a new trial was not needed. The Workers' Compensation Court then entered an order on February 27, 1989 adopting the hearinq examiner's Proposed Findings of Fact and Conclusions of Law, and entered an amended Judgment which stated that claimant had sustained a permanent partial disability and, under the correct rule of law, was entitled to disability benefits as agreed upon in the May 14, 1986 Pre-Trial Order. On April 13, 1989, the court entered its Order awarding attorney fees and costs based upon the contingent fee agreement that existed between claimant and her attorney. On May 1, 1989, defendants filed its Notice of Appeal to the Montana Supreme Court. The first issue raised on appeal is whether the Workers' Compensation Court erred by not making any additional findings or conclusions regarding claimant's pre-injury and post-injury earning capacity. In Beck, we directed the Workers' Compensation Court to "determine whether claimant Beck [had] shown substantial credible evidence of a reduced earning capacity." Beck, 749 P.2d at 530, 45 St.Rep. at 219. In Conclusion of Law No. 2, dated February 27, 1989, the Workers' Compensation Court concluded that claimant is permanently partially disabled as a result of her April 11, 1984 industrial accident. Under 5 39-71-116 (12), MCA, (1985), permanent partial disability is defined as: [a] condition resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capability less than total that exists after the injured worker is as far restored as the permanent character of the injuries will permit. . . (Emphasis added. ) As this Court held in Beck, the correct test for loss of earning capacity is whether the injury has caused "a loss of ability to earn on the open market." Beck, 749 P.2d at 529, 45 St.Rep. at 217. On review, this Court's role is limited to whether substantial evidence supports the Workers' Compensation Court's findings and conclusions. Walker v. H.F. Johnson, Inc. (1978), 180 Mont. 405, 410, 591 P.2d 181, 184. The hearing examiner found that, based upon a vocational expert's testimony, if claimant "had to leave her present position to take a lighter duty job, she would have a diminished earning capacity." This Court has previously held that this sort of testimony is sufficient to establish loss of earning capacity. Hafer v. Anaconda Aluminum, Co. (19821, 198 Mont. 105, 11.1, 643 P.2d 1192, 1195-96; Walker, 180 Mont. at 411, 591 P.2d at 184. However, claimant's own testimony and the testimonies of the examining physicians and vocational experts further support this finding. The court then entered an amended conclusion of law stating that claimant [rleached maximum healing on May 8, 1986. Returning to her employment as a nurse's aide at Flathead County Nursing Home, she experienced myofascial pain, shoulder pain, and numbness in her hand, all of which are aggravated by her work. Claimant's physicians have recom- mended certain work restrictions which are inconsistent with her current employment and once she leaves her current employment, she will be restricted in her ability to compete in her normal market. Defendants nonetheless attempt to argue that this Court "implicitly" directed the Workers' Compensation Court to conduct an evidentiary hearing so that the Workers' Compensation Court could make additional findings and conclusions regarding claimant's pre-injury and post-injury earning capacity and so that they could have their "day in court." We disaqree. In Beck, we held that the Workers' Compensation Court had to determine the threshold question of whether claimant had shown substantial evidence of a reduced earning capacity. The Workers' Compensation Court determined, based upon the record, that claimant would have a diminished earning capacity as a result of her accident. The court does not need to conduct an additional evidentiary hearing because of defendants' personal desire to have more specific and tailored findings, conclusions and comparisons. In addition, defendants have already had their day in court and thus have had a full and fair opportunity to introduce all evidence of claimant's pre-injury and post-injury earning capacity. An additional evidentiary hearing is neither necessary nor proper. First Bank-Billings v. Clark (Mont. 1989) , 771 P. 2d 84, 92, 46 St.Rep. 291, 300; Harrington v. Montgomery Druq Co. (1941), 111 Mont. 564, 567-68, 111 P.2d 808, 810. Upon review of the record, we hold that substantial credible evidence supports the court's finding and conclusion regarding the question of whether claimant had shown substantial credible evidence of a reduced earning capacity. The question remained, however, what disability benefit rate the claimant should receive. Defendants therefore raise the issue of whether the parties' stipulation regardinq claimant's permanent partial disability benefit rate was binding for subsequent proceedings. The doctrine of res judicata bars this Court from addressing this issue. This doctrine applies when a litigant has had the opportunity to litigate an issue but has not availed himself of the opportunity. The policy behind the doctrine of res judicata is to prevent piecemeal litigation and to accord finality as to all issues raised or which fairly could have been raised. O'Neal, Booth and blilkes v. Andrews ( 1 9 8 6 1 , 2 1 9 Mont. 496, 499, 712 P.?d 1327, 1379; In - re Estate of Pegg (1984), 209 Mont. 71, 78-79, 680 P.2d 316, - 320; Wellman v. Wellman (1982), 198 Mont. 42, 45-46, 643 P.2d 573, 575-76. As already noted, claimant appealed the initial decision of the Workers' Compensation Court in 1987. In that appeal, claimant argued that under 5 39-71-703, MCA, she wa.s entitled to permanent partial disability benefits upon proof that she suffered a reduced earning capacity. Claimant also argued that substantial evidence did not support the Workers' Compensation Court's finding that she did not sustain permanent partial disability pursuant to S 39-71-703, MCA. In this second argument, claimant sets forth her testimony, and the testimonies of her physicians, her rehabilitation expert, and two vocational experts to illustrate that substantial evidence did not support the Workers' Compensation Court's finding that she did not sustain permanent partial disability. In addition, claimant argued in her brief that the defendants had stipulated to her permanent partial disability rate at $126.61 per week and that this stipulation was binding on the court. Defendants did not once rebut or mention this matter in their reply brief. Defendants failed to take the opportunity to litigate this matter in Beck, and cannot now expect to be allowed to bring up the issue now. Litigation regarding a matter must come to an end at some point. Defendants' acquiescence on this matter in the first appeal bars them from ra-ising it on this appeal. The Beck decision, like other judgments, are "binding and conclusive between all the parties to the suit and their privies and successors in interest, as to all matters adjudicated therein and as to all issues which could have been properly raised irrespective of whether the particular matter was in fact litigated." Orlando v. Prewett (Mont. 1989), 771 P.2d 111, 113, 46 St.Rep. 520, 523 (quoting Kramer v. Deer Lodge Farms Co. (1944), 116 Mont. 152, 156, 151 P.2d 483, 484). We therefore hold that the doctrine of res judicata applies in this case and therefore bars defendants from asserting and arguing that the parties' stipulation regarding claimant's permanent partial disability benefit rate is not binding. The next issue raised on appeal is whether a court should consider claimant's subsequent injury when considering her future earning capacity. In light of the determination that claimant had shown substantial credible evidence of a reduced earning capacity and also in light of the parties' stipulation regarding claimant's permanent partial disability benefit rate, this issue is now moot. Furthermore, the effect, if any, two separate injuries would have upon a claimant's disability benefit rate would more appropriately be addressed at a hearing regarding the most recent injury. This Co.urt therefore does not need to address on this appeal whether a court should consider a claimant ' s subsequent in j.ury when considering her future earning capacity. The last issue raised on appeal is whether the Workers' Compensation Court erred by not holding an evidentiary hearing regarding costs and attorney fees. On April 13, 1989, the Workers' Compensation Court issued an order setting attorney fees and costs. In this order, the court granted claimant's costs in the amount of $2,727.86 and her attorney fees in the amount of $20,004.38, which were based upon the contingent fee agreement. Defendants first note that they requested an evidentiary hearing regarding claimant's attorney fees and costs. Defendants then argue that the Workers' Compensation Court committed reversible error when it did not hold an evidentiary hearing on these matters. Defendants rely upon Honey v. Stoltze Land & Lumber Co. (Mont. 1989), 769 P.2d 42, 46 St.Rep. 202, to argue that an evidentiary hearing must always be held when addressing attorney fees and costs--even in cases when an evidentiary hearinq is not requested. We disagree. In Honey, the claimant had a contingent fee agreement with his attorney. After successfully representing the claimant, the attorney claimed a much larger attorney fee than was due him in light of the contingent fee agreement. Under the contingent fee agreement, claimant's attorney was entitled to $2,208.79. Claimant's attorney submitted time records and an affidavit to support his claimed attorney fee of $9,443.50, but he then did not request an evidentiary hearing. The Workers' Compensation Court nonetheless awarded attorney fees based on the contingent fee agreement. Honey, 769 P.2d at 43, 46 St.Rep. at 203-04. This Court then held that the facts in Honey demonstrated a need for an evidentiary hearing. --- Honey, 769 P.2d at 44, 46 St.Rep. at 205-06. The facts in Honey, however, are not analogous to the facts in the present case. In the present case, defendants acknowledged that the contingent fee agreement controlled the award of attorney fees. Defendants' arguments at the lower court, however, centered around whether the contingent fee rate should be 33% or 40%, and what constituted a valid pretrial settlement offer so as to determine the amount the percentage was to be based upon. Both of these issues are legal issues that do not require an evidentiary hearing. Resides awarding claimant attorney fees based on the contingent fee agreement, the Workers' Compensation Court also granted claimant's costs in the amount of $119.11 for travel expenses, $50.00 for a medical conference, and $139.00 i n p r i n t i n g c o s t s , t o t a l l i n g $308.11. Defendants a s s e r t t h a t t h e s e c o s t s a r e n o t recoverable. Defendants f u r t h e r a s s e r t t h a t t h i s Court r e q u i r e d t h e Workers' Compensation Court t o conduct an e v i d e n t i a r y h e a r i n g whenever it a d d r e s s e s a t t o r n e y f e e s and c o s t s . On t h e c o n t r a r y , t h i s Court i n Wight v. Hughes Livestock Co. (1983), 204 Mont. 98, 664 P.2d 303, s t a t e d t h a t " [ i ] n t h e r a r e c a s e where an e v i d e n t i a r y h e a r i n g i s necessary, t h e Workers' Compensation judge s h a l l extend o p p o r t u n i t y f o r h e a r i n g . . ." Wight, 204 Mont. a t 116, 664 P. 2d a t 313. The f a c t s o f t h i s c a s e do n o t warrant such a h e a r i n g . W e t h e r e f o r e hold t h a t t h e Workers' Compensation Court d i d n o t abuse i t s d i s c r e t i o n i n determining t h a t an e v i d e n t i a r y h e a r i n g was n o t necessary i n t h i s case. Affirmed. I W e concur: A | December 1, 1989 |
bfba6103-108f-43e6-b5aa-ffe38c38059f | MARRIAGE OF GEBHARDT | N/A | 89-100 | Montana | Montana Supreme Court | No. 89-100 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF: SHARON DARLENE GEBHARDT, Petitioner and Respondent, and LeROY GEBHARDT , Respondent and Appellant. APPEAL FROM: District Court of the Fourth Judicial District In and for the County of Missoula The Honorable James G. Wheelis, Judge presiding. COUNSEL OF RECORD: For Appellant: Richard A. Reep, Graham & Reep, Missoula, Montana For Respondent: Jon E. El..lingson, Ellingson & Moe, Missoula, Montana Filed: Submitted on Briefs: September 21, 1989 Decided: December 5, 1989 Justice Diane G. Barz delivered the Opinion of the Court. LeRoy Gebhardt (LeRoy) appeals from a Decree of Dissolution entered in the District Court of the Fourth Judicial District, Missoula County, Montana, the Honorable James B. Wheelis presiding. We affirm in part, reverse in part and remand. LeRoy and Sharon Gebhardt (Sharon) were married on October 7, 1967, in Seattle, Washington. LeRoy completed his Ph.d in Mechanical Civil Engineerinq shortly before the marriage of the parties. Sharon's education consisted of two years of college and a two-year x-ray technology course. Immediately after the marriage, the parties moved to California where LeRoy worked first for TRW and later for Agbabian & Associates. At the time of separation, Sharon had worked outside the home as an x-ray technician for a total of twelve days. Six children were born to LeRoy and Sharon: Connie in 1968, Chris in 1970, Theresa in 1971, Beth in 1975, JoAnna in 1977, and Jennifer in 1981. Both Connie and Chris were emancipated at the time of trial. In 1978, the parties moved from California to a farm in Ronan, Montana. The purpose of the move was to enhance the family life and provide more interaction between LeRoy and the children. The parties' primary source of income from 1978 until the present was a California trailer park purchased as an investment in 1969. LeRoy did the original investigation of the property and has overseen its management almost exclusively. In 1974, LeRoy established an irrevocable trust for the benefit of his children. The primary source of the trust corpus was an inheritance from LeRoy's mother, althouqh LeRoy contributed certain other inheritances and income, and LeRov's brother, Guy, made contributions as well. Guy Gebhardt is the trustee for the benefit of the children. The trust expires when the youngest child reaches twenty-five. In 1984, Sharon and the children moved to Missoula so that the children, each of whom had experienced some degree of academic difficulty, could attend school there. The parties then purchased a home on Mount Avenue in Missoula. On July 16, 1986, Sharon filed for dissolution. The assets owned by the parties at that time included: the farm and related assets in Ronan, the Mount home, the California trailer park, a Franklin Fund account and personal property. The farm, the trailer park and the home were all encumbered by outstanding debt. By stipulation dated September 4, 1986, the parties agreed to an equal division of both the Franklin Fund account and the proceeds of the sale of the farm assets as well as to a division of the trailer park income. The only assets not disposed of by this agreement were the Mount home and the parties1 personal property. Both parties acquired certain assets between the time of filing and dissolution. In particular, IleRoy purchased a home encumbered by a mortgage. On May 2, 1988, LeRoy and Sharon entered into an Agreement for Partial Settlement of Marital Estate. Pursuant to that agreement, LeRoy executed a promissory note in favor of Sharon as partial consideration for her share of the Ronan farm and its remaining assets. LeRoy also agreed to indemnify Sharon for any liability on the underlying contract for deed. Sharon testified as to eight incidents of LeRoyls abuse of either her or the children. Sharon s and LeRoy ' s testimony conflicted as to who instigated separate confrontations involving LeRoy and Sharon and LeRoy and Chris. Both parties agreed that corporal punishment was an acceptable form of discipline. LeRoy's specifications of error fall into three categories: 1. The District Court abused its discretion by its wholesale adoption of Sharon's Findings of Fact and Conclusions of Law in light of the lack of substantial, credible supporting evidence. 2. The District Court failed to consider statutory factors. 3. The District Court exceeded its jurisdiction in ordering the parties to prevail upon the assets of the LeRoy Gebhardt Trust for payment of the children's medical and dental expenses. The findings of the District Court are presumed correct. In re the Marriage of Johnson (1987), 225 Mont. 404, 405-06, 732 P.2d 1345, 1346. We will- not reverse the District Court's ruling absent an abuse of discretion. In re the Marriage of Johns (Mont. 1989), 776 P.2d 839, 840, 46 St.Rep. 1249, 1251; In re the Marriage of Stephenson (Mont. 1989), 772 P.2d 846, 848, 46 St.Rep. 700, 702. Although we have consistently encouraged district courts to employ conscientious judgment and active participation in preparing findings, adoption verbatim of one party's proposed findings is not error - - per se. In re the Marriage of Watson (19871, 227 Mont. 383, 387-88, 739 P.2d 951, 954; In re the Marriage of Sessions (Mont. 1988), 753 P.2d 1306, 1307, 45 St.Rep. 744, 746. Reversible error exists only where substantial credible supporting evidence is lacking. In re the Marriage of Stewart (Mont. 1988), 757 P.2d 765, ?67, 45 St.Rep. 850, 852. Neither is the District Court required to make specific findings related to each statutory factor set forth in either SS 40-4-202 or 40-4-204, MCA. In re the Marriage of Reid (1987), 226 Mont. 116, 120, 733 P.2d 1302, 1304. However, the findings must clearly reflect consideration of these factors. In re the Marriage of Syljuberget (Mont. 1988), 763 P.2d 323, 326, 45 St.Rep. 1825, 1828. LeRoy asserts that the District Court made incredible findings and failed to consider statutory factors in its division of marital property, establishment of child support and visitation. We will address each area separately. Marital Property LeRoy first contends that the District Court failed to consider certain of his obligations in apportioning the marital estate and thus effected an inequitable division. The debts at issue are as follows: Note to Sharon Gebhardt (Ranch) $17,404.26 Contract for Deed to MacGillivary (Ranch) 65,191.49 Home Loan 42,165.00 Personal Loan -- Guy Gebhardt 16,000.00 Ranch Taxes & Water Assessment 4,241.81 1988 Income Tax -- Estimate 3,054.00 TOTAL $148,056.56 This case is analogous to In re the Marriage of Wagner (1984), 208 Mont. 369, 679 P.2d 753. Husband and wife in Wagner divided their marital assets and embarked upon divergent financial paths. Wagner, 679 P.2d at 755. Wife aggressively pursued development of her ranch assets whi1.e husband proceeded to divest himself of certain property and to encumber substantially all that remained. Wagner, 679 P.2d -- at 755. We held in Wagner that: To include in the valuation of the marital estate any accumulation of financial wealth or, conversely, the increase in financial liabilities of either spouse subsequent to the termination of the "marital relationship" may effectuate an injustice and frustrate the intended purpose of division of marital property. Wagner, 679 P.2d at 757-58. LeRoyls first three listed liabilities were incurred subsequent to the filing of the petition and the parties' "financial" separation. The terms of the parties' Agreement for Partial Settlement of Marital Estate required LeRoy to execute a promissory note payable to Sharon as consideration for her interest in the ranch. LeRoyls separately incurred obligation represented by the note is thus not a marital debt. Similarly, pursuant to the same Agreement, LeRoy agreed to indemnify Sharon both for any amount she becomes obligated to pay pursuant to the MacGillivary contract for deed and for any liability related to ranch taxes and irrigation fees. LeRoy assumed liability for all three debts as part of his resolution to hold the farm property and render it profitable. Sharon should not be penalized for LeRoyls investment decisions once their paths diverged in regard to financial matters. These debts are therefore not marital obligations subject to division. By his own testimony, LeRoy purchased a home on North Avenue with proceeds from the sale of the farm assets after the parties stipulated to equally distribute the farm sale proceeds. The record is unclear as to the origin of the debt to Guy Gebhardt and the 1988 Estimated Taxes. We remand for further proceedings regarding the nature and timing of these obligations and disposition consistent with our determina- tions above. Secondly, LeRoy asserts as error the District Court's award of all the equity in the Mount home and the personal property to Sharon despite its equal division of other, more significant assets. Section 40-4-202, MCA, mandates an equitable apportionment of marital property. Equitable does not necessarily mean equal. In re the Marriage of Fitzmorris (Mont. 1987), 745 P.2d 353, 354, 44 St.Rep. 1809, 1811. We will not reverse the district court absent an abuse of discretion. In re the Marriage of Stewart (Mont. 1988), 757 P.2d 765, 767, 45 St.Rep. 850, 852. We do not find an abuse of discretion in the District Court's award of the Mount home and its contents in light of Sharon's custody of the four minor children. We affirm. Thirdly, LeRoy specifies as error the District Court's order which he claims divests both parties of substantially all control over the California trailer park. The District Court found that "[nleither party should manaqe the trailer park except as a short term interim manager between hired managers." We find the District Court's order lacked sufficient, credible supporting evidence. Substantial credible evidence will persuade a reasonable person and should be of such a character that reasonable persons would not disagree as to its meaning. Kukuchka v. Ziemet (1985), 219 Mont. 155, 157-58, 710 P.2d 1361, 1363. We are not convinced that LeRoy's past management of the trailer park warrants his complete exclusion from the same in the future. Under LeRoy's supervision, this investment increased in value from $120,000 to $700,000 over a nineteen year period. The Gebhardt family has relied on this asset for its support since 1978. No evidence supports the District Court's conclusion that LeRoy should not continue to oversee the management of the trailer court. The lower court's order that the parties relinquish hands-on control of this singularly important asset is clearly an abuse of discretion. We remand for additional proceedings and redetermination of management of the trailer park during the period the parties hold the same as co-tenants. Child Support LeRoy claims the District Court improperly imputed excessive income to him and minimal income to Sharon in establishing the child support obligations of both parties. Furthermore, he asserts the District Court failed to consider statutory factors in its award of child support. The District Court imputed income to LeRoy of $40,000 per year based solely on LeRoy's testimony that he supposed his salary would have doubled had he remained in California and the speculation of LeRoy's former co-worker that LeRoy could probably find a job in the aerospace industry. Additionally, the lower court found Sharon capable of earning barely over $3,000 per year. We stated upon adopting the Uniform Child Support Guidelines that District Courts may properly impute income to under-employed or unemployed parents. Uniform District Court Rule on Child Support Guidelines (Mont. 1987), 44 St.Rep. 828. However, In cases where the obligor parent is not working or is not working at full earning capacity, the reasons for such a limitation on earnings should be examined. If the reason is a matter of choice, the local job market should be reviewed to determine what a person with the obligor parent's trade skills and capabilities could earn. Those typical earnings can then be imputed to the obligor parent for use in this guide. This approach is most useful when the obligor parent has a relatively stable and recent work history. The approach can also be used when the obligor parent has minimal skills and no work history by ascribing earnings based on a minimum wage for a full work week. Uniform District Court Rule on Child Support Guidelines, 44 District Courts are obliged to consider the employment opportunities available in the local job market for unemployed or under-employed parents. The record does not reflect the District Court's consideration of local employment opportunities in imputing income to either of the parties. Sharon's income was established at approximately $3,000 per year with only her previous year's earnings as support for that finding. The court imputed $40,000 of income to LeRoy based only on his conjecture that had he remained in California, his salary might have doubled. Obviously, LeRoy did not remain in California. The findings of the trial court "[mlust realistically reflect what the parents are capable of earning using their actual earnings as a guideline. " In re the Marriage of Mitchell (Mont. 1987) , 746 P.2d 598, 602, 44 St.Rep. 1936, 1941, (quoting In re the Marriage of Carlson (1981), 214 Mont. 209, 216, 693 P.2d 496, 500). Neither LeRoy's nor Sharon's earning capacity was realistically reflected in the District Court's findings due to the lack of sufficient supporting evidence. Adequate consideration of statutory factors is absent in the District Court's findings as well. We find no indication that the lower court considered the needs of the children, their lifestyle prior to dissolution or LeRoy's financial resources. In re the Marriage of Anderson (Mont. 1988), 748 P.2d 469, 471, 45 St.Rep. 40, 43. We remand for a calculation of both parties' child support obligation based on a reasonable imputation of income and in light of the statutory considerations set forth above. LeRoy also specifies as error the District Court's award of retroactive child support. The District Court may, once the issue of child support is properly before it, award retroactive child support. In re the Marriage of Shirilla !1987), 225 Mont. 106, 110, 732 P.2d 397, 399; In re the Marriage of DiPa-squale (1986), 220 Mont. 497, 499, 716 P.2d 223, 225. Because the District Court abused its discretion in its imputation of income to both parties, the award of retroactive child support based on that calculation is error. Sharon did not seek modification of the parties' stipulation during the pendency of this action and only raised the issue of retroactive child support upon filing her Proposed Findings of Fact and Conclusions of Law. There was no testimony to support such an award. In light of the above, we remand for redetermination of the propriety of retroactive child support based on both parties' actual and reasonably imputed income. Visitation LeRoy contends the District Court erred by imposing limitations on his visitation with his two youngest child-ren. We agree. Section 40-4-217, MCA (1987), states that "a parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health." While portions of Sharon's proposed findings, adopted verbatim by the District Court, were self-serving beyond the point of advocacy, nowhere is there reflected a potential for serious endangerment. "Error occurs only when the proposed findings are relied upon to the exclusion of proper consideration of the facts and the failure to exercise independent judgment." In re the Marriage of Jacobsen (Mont. 1987), 743 P.2d 1025, 1029, 44 St.Rep. 1678, 1683. The District Court ordered: Summer visitation of six weeks on the condition that [LeRoy] employs a responsible, live-in adult to provide assistance with care for the children during this period. This adult must be sufficiently independent of [LeRoy] and sufficiently committed to the children to be able to intervene on behalf of the children to interrupt any physical abuse directed at them by [LeRoy] . If [LeRoy] is unwilling to hire such an adult, then he shall have visitation with JoAnna and Jennifer during the summer consisting of two one week periods separated by at least a three week period. Given the age of the children and [LeRoy ' s] responsibilities on the farm, [LeRoy] shall have the obligation to obtain child care assistance during these visitations. What the court failed to set forth was any indication of LeRoy's ability to meet this potentially onerous financial burden which appears to foreclose any summer visitation. The District Court did not employ its independent judgment and abused its discretion by making findings not based on substantial, credible evidence. In re the Marriage of J.A.M. & D.A.M. (Mont. 1988), 750 P.2d 1097, 1099, 45 St.Rep. 437, 440. F 7 e reverse and remand for further determination of a reasonable visitation schedule. LeRoy Gebhardt Trust The District Court, in Conclusion of Law No. 11, ordered the parties to prevail upon the trustee of the LeRoy Gebhardt Trust for payment of "medical insurance and expenses for the children including dental and ocular expenses and any extraordinary expenses . . ." The LeRoy Gebhardt Trust is an irrevocable trust created for the benefit of the children of LeRoy and Sharon Gebhardt. During the trust term, the trustee may "distribute to or for the benefit of Trustor's [LeRoylsl children . . . such amount or amounts of income or principal as Trustee in his sole discretion deems to be necessary for the health, education and maintenance of the beneficiaries." LeRoy's clear intention was to create an irrevocable trust for the benefit of his children. Thus, the LeRoy Gebhardt Trust is not marital property and the District Court erred in attempting to dispose of it as such. In re the Marriage of Malquist (Mont. 1988), 763 P.2d 1116, 1119, 45 St.Rep. 2020, 2023-24. We reverse the order of the District Court and remand for further proceedings regarding the parties' responsibility for the medical and dental insurance needs of their children consistent with this opinion. Affirmed i-n part, reversed in part and remanded. We concur: 4 ~ . f 7 C 'ef Justice | December 5, 1989 |
58898273-c8a4-481e-b41f-93e5559c3570 | MARRIAGE OF JENSEN v JENSEN | N/A | 14544 | Montana | Montana Supreme Court | No. 14544 I N THE S U P R E M E COUHT O F THE STATE O F M N W i 1979 INRETHEImRRmaOF NEAL G. JENSEN, Petitioner and Respondent, -VS- EMELIA B. JENSEN, Respondent and Appellant. Appeal f m : D i s t r i c t Court of the Eighth Judicial D i s t r i c t , Honorable R. D. W k i l l i p s , Judge presiding. Counsel of Record: For Appellant: Alexander, Kuenning, Miller and Ugrin, Great Falls, mntana For Respondent: Dzivi, Conklin, Johnson & Nybo, Great Falls, mntana Submitted on briefs: April 25, 1979 Decided: JuL 1 1 1979 JUL 1; 1972 Filed : Mr. Justice John C. Sheehy delivered the Opinion of the Court. This is an appeal by Emelia B. Jensen from the District Court, Eighth Judicial District, Cascade County, Montana, from a judgment of marriage dissolution awarding custody of a minor child to the father. We affirm. Petitioner, Neal G. Jensen ("Neal") and Emelia B. Jensen ("Millie") were married on June 18, 1975, in Cascade County, Montana. At the time of the dissolution, Neal was 26 years of age and Millie was 22 years of age. One child was born of the marriage, Camila Jo Jensen, approximately 3 years of age at the time of the decree of dissolution. The decree of dissolution found the marriage to be irretrievably broken, divided the parties marital properties between them, provided that the husband pay one-half of the counsel fees incurred by Millie in the dissolution proceedings, and awarded custody of the minor child to Neal, with Millie to have custody at least one month during the summer, on some holidays, and other reasonable rights of visitation as the parties between themselves might work out. Millie appeals only from that portion of the decree awarding the custody to the father. Millie's appeal raises three principal issues: (1) The evidence does not overcome the presumption that Millie was entitled to have the custody of the minor child. ( 2 ) The witnesses testifying in favor of Neal were inherently incredible. (3) The trial court abused its discretion in finding, with respect to the custody of the minor child, that (a) there was a close and dependent relationship between the child and Neal; (b) that the father would be better able to -2- provide for the child; (c) that the mother resented the child, and her intrusion into her social and educational life; (d) that the father was more mature, and with the paternal grandparents, could supply a more stable environment and home for the child; (e) that Millie was about to enter medical school, and therefore could not give the child the kind of stable environment the child needed. The trial court determined, based upon the factors set out in issue three above, that the child's best interests would be served if her custody were awarded to the father where she had a better chance of living in a stable home environment. In essence, all of the issues raised by Millie attacked the sufficiency of the evidence to support the trial court's finding, relating to the best interests of the child. In that circumstance, Millie has the heavy oar on appeal. She must show there is a clear abuse of discretion by the trial court, overcome the presumption that the judgment of the District Court is correct, demonstrate that there is a clear preponderance against the findings, and we must view the evidence in the record in favor of the prevailing parties. In Re the ~arriage of Brown (1978), Mont . , 587 P.2d 361, 35 St.Rep. 1733, 1738; Weber v. Weber (1978), Mont . , 576 P.2d 1102, 35 St.Rep. 309; Brooks v. Brooks (1976), 171 Mont. 132, 556 P.2d 901; Gilmore v. Gilmore (1975), 166 Mont. 47, 50, 530 P.2d 480; In Re Adoption of Biery (1974), 164 Mont. 353, 522 P.2d 1377; Merritt v. Merritt (1974), 165 Mont. 172, 177, 526 P.2d 1375; Rule 52(a), M0nt.R.Civ.P. The presumption that the mother is entitled to the custody of a child of tender years is no longer statutory, but still exists, though not a conclusive presumption. In Re Marriage of Tweeten (19771, Mont. , 563 P.2d 1141, 34 St.Rep. 337. Millie contends that because the trial court found that each of the parties were fit persons to have the custody of the child, therefore the presumption obtains, and she is entitled to custody of Camila. Millie does not contend that she is entitled to the custody of the child as a matter of law, but rather that the presumption is a factor when both parties are fit parents, that must be overcome. She also contends that unless the presumption is overcome, the trier of fact must find in accordance with the presumption under Rule 301, Mont.R.Evid. We held In Re Marriage of Isler (19771, Mont . , 566 P.2d 55, 34 St.Rep. 545, that once the presumption has been overcome, the Court may then apply the best interest requirements of the statute, section 40-4-212 MCA, as between the father and the mother. Because the District Court made no express finding that the presumption had been overcome in this case, Millie contends that an award in accordance with the presumption should have been made. The true rule is that the Court is required to determine custody in accordance with the best interests of the child, under the statutory directive of section 40-4-212 MCA. The presumption exists, but it is not controlling or conclusive (Tweeten, supra) and is overcome when the trial court makes a determination under the relevant factors set out in section 40-4-212 MCA that the best interests of the child would be served by awarding the custody to the father. A specific finding that the presumption has been overcome is not necessary where it otherwise appears from the record and in the findings that the court makes its decision upon the relevant factors set forth in the statute, and that those factors are made in the best interest of the child. See Brown, 587 P.2d at 366, where we said: ". . . Our review of the District Court's findings, bearing in mind the great deference we give to the District Courts in this area, convinces this Court the District Court considered the presumption to have been overcome and found the [sic] Benjamin to be the better person for custody . . ." We determine that the findings of the District Court under the test of the best interest of the child overcame the presumption attending the mother of a child of tender years. On the next issue, Millie attacks the credibility of six of Neal's witnesses, including the husband, on the grounds that their evidence is inherently improbable. Millie contends that because those witnesses were inherently incredible, the findings of the Court are not based on sufficient evidence. Timrnerman v. Gabriel (1970), 155 Mont. 294, 470 P.2d 528; Ericksen v. Ericksen (1968), 152 Mont. The evidence attached is not so inherently improbable or contradictive as to require disbelief. Without prolonging this opinion by a recitation of the elements of the evidence, the witnesses generally testified that the mother did not play with her child, the mother was lax in doing the household laundry, and the child exhibited feelings of fear of the mother. Millie claims the witnesses, particularly Neal, exaggerated isolated events as though they were a usual course of behavior. Our review of these elements of the testimony does not reveal that they should be entirely cast aside, nor that because thereof, the remaining testimony of these witnesses should be disregarded. The credibility of witnesses received in a nonjury trial is for the trial judge to determine, and his determination will not be set aside, absent a clear abuse of discretion. Rule 52(a), M0nt.R.Civ.P. The third and final issue relates to the contention of Millie that the District Court abused its discretion in finding the factors upon which it based its award of custody to Neal. The relevant factors to be considered by the Court, as set forth in section 40-4-212 MCA, appear to be satisfied. The child was too young to express her wish as to which parent should have custody; each of the parents were desirous of custody. There was no argument about the mental and physical health of either Millie or Neal. Therefore, the remaining factors under the section included the interaction and interrelationshipof a child with his parent or parents, and other persons who might significantly affect the child's best interests, and the child's adjustment to his home and community. With respect to those factors, the District Court found that the child had a close and more dependent relationship with her father than with her mother. That conclusions are supported by the facts that the mother was frequently gone for long periods from the home and that the father, a practicing lawyer, had taken the time to devote a good deal of attention to his daughter. The court found that the father was presently better able to provide for the child's emotional, physical and material needs than the mother. The evidence supports this conclusion because the father could provide a stable home and the child appeared to be doing well in the father's environment. The court further found that the mother appeared to have some resentment toward the child because she had intruded upon her youth. Her actions, as testified to at the trial, provided substantial basis for this conclusion. There is no doubt that her plans include a medical education for herself and the District Court finding that this would remove her or materially affect her ability to provide a stable home environment for the child was a position well take. In all, the court found that the child, by being awarded to the father, would have superior mental and moral care or supervision, which should allow her to become well-adjusted to her home and community. The totality of the evidence indicates the correctness of the District Court decision. -6- Therefore, Millie having failed to establish any basis upon which the District Court's award of custody of the child to Neal should be overturned, the decision of the District Court is affirmed. Justice u We Concur: ~ K r e f Justice /" A I Justices | July 11, 1979 |
7aeef0f0-873c-4d60-8b42-6845a5a812f9 | BAKER v BAILEY | N/A | 89-260 | Montana | Montana Supreme Court | No. 89-260 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 GRANT BAKER and ELMA L. BAKER Plaintiffs and Appellants -vs- ARTHUR L. BAILEY and EDNA L. BAILEY, Defendants and Respondents. 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: Rex Palmer, Missoula, Montana For Respondent: David B. Cotner; Boone, Karlberg & Haddon, iss sou la, Montana h & ! ? 2 Submitted on Briefs: October 25, 1 9 8 9 a A * : Q "Y 5 Decided: December 1, 1989 2 ; - ; 2 ; 4 I 1.1 _ - . F & e p :-.- - - ; z @ 3 Q . c - b,y * s o Clerk Justice R. C. McDonough delivered the Opinion of the Court. Grant and Norma Raker (Bakers) appeal from a judgment of the District Court of the Fourth Judicial District, Missoula County. The District Court, sitting without a jury, found the Bakers liable for breach of the covenant of good faith and fair dealing and further found their claims for damages arising out of breach of contract should not be fully grant- ed. We reverse in part and affirm in part. The issues on appeal are: 1. Whether the District Court erred when it found the Bakers in breach of contract and the implied covenant of qood faith and fair dealing. 2. Whether the District Court erred when it found that the Rakers are limited to the recovery of less than one-half the sums claimed under the contract. 3. Whether the District Court abused its discretion when it found that both parties should be responsible for their own attorney fees. In June of 19?6, Arthur and Elma Bailey moved a mobile home onto property owned by their daughter and son-in-law. With their permission, the Raileys hooked onto the water line which serviced their daughter's home and installed a pipeline which would provide water for their trailer. Approximately six years later, in the spring of 1982, the Bailey's daughter and son-in-law made the decision to sell their residence and the surrounding property. Because they were concerned about taking care of their parents, however, they transferred one acre of the property to the Baileys. This one acre surrounded the mobile home. The remaining property, consisting of forty-five acres, was sold to the Rakers. In order to insure that the Bailey's continued to have access to water, a Water Well Use Agreement was prepared. Mrs. Baker was concerned about future ownership of the one-acre plot. In particular, she was worried that "a bunch of hippies" would move in next to her and consequently she wanted some control over the type of person who may, in the future, buy the Bailey's land. In order to address this concern, the well agreement specifically provided that the right to use water would only extend to the Bailevs. In the event the Baileys conveyed the property, the Bakers were under no obligation to provide the new owners with water. Despite the plain language used in the agreement, the Baileys believed that although not specifically set forth, the Bakers would transfer the right to use the water well to a subsequent "reasonable purchaser" of the Bailey property. The language of the agreement, according to testimony of both the Baileys and the Bakers, was included for the purpose of addressing Mrs. Baker's concern over potentially undesirable neighbors. This purpose was not, however, articulated within the contract. In addition to the water well use agreement, the Bakers, at the time of purchase, asked for and received a right of first refusal in the event the Baileys received an offer to purchase their property. If an offer was received, the Baileys were to notify the Bakers of the offer in writing. The Bakers would then have the opportunity to exercise their "right of first refusal" within fifteen days of the offer. Following sale of the land, the Bakers and Baileys lived next to one another and in fact became friends. The Baileys, however, decided to move to Butte, Montana, in the spring of 1984. On June 30, 1984, they executed a standard form list- ing contract with a local realty company. Under the terms of the listing, the Baileys represented that the property would he sold with "shared well water." Based upon the realtor's valuation of the property with water, it was listed for $47,500.00. Shortly after the decision was made to sell the proper- ty, the water system developed several problems. As a result of these problems pressure in the line was reduced and the Baileys were unable to obtain sufficient water to meet their needs. As a result, they found it necessary to bring water to their residence in plastic jugs. The Bakers were not as significantly affected by the problems. The Bakers always had sufficient water. In fact, during the entire period the Baileys were deprived of water, the Bakers had enough water to irrigate their lawn. Despite the fact this use adversely affected the Baileys' water supply, the Bakers refused to reduce their consumption. This problem persisted until August when the water system was finally repaired. After the problems with the water well surfaced, the Bakers informed the Baileys that they would not share the water supply with any new purchaser. Consequently, the property would have to be sold without access to water from the well. The Baileys searched for alternative sources of water, but unfortunately none was available. They approached the Bakers and offered to purchase joint use of the well. This offer was refused. Recognizing that they would not be able to provide water for the property, the Baileys realized that the property was virtually without value. They, therefore, agreed to sell it for $8,000.00, which was the fair market value of the trailer and other improvements on the land. After the Baileys made the decision to accept the $8,000.00 offer, they gave the Bakers notice of its terms in compliance with the right of first refusal provisions in the contract. On August 20, 1984, the Bakers exercised their option and purchased the property for $8,000.00. The trans- action was closed on September 10, 1984. At that time, the Bakers acquired the Baileys' one-acre parcel which, if sup- plied with water, allegedly could be marketed for $40,000.00 - $47,500.00. The Bakers then filed a lawsuit to recover for the value of a refrigerator and certain unpaid expenses which they felt were owed by the Baileys. The Baileys, on the other hand, counterclaimed and sought damages for breach of the Water Well Use Agreement. The District Court found the Bakers in breach of contract and in breach of the implied covenant of good faith and fair dealing. It also found the Baileys liable for less than one-half of the electrical expenses of the well. Following this judgment, the Bakers appealed the lower court's findings in regard to their liability for breach of contract and the Baileys' limited liability for expenses incurred on the water well. The facts of this case present a classic parol evidence problem. The parol evidence rule, briefly stated, requires that in the absence of fraud, duress, or mutual mistake, all extrinsic evidence must be excluded if the parties have reduced their agreement to an integrated writing. Under this rule, all prior and contemporaneous negotiations or understandings of the contract are merged, once that contract is reduced to writing. Williston on Contracts, Third Edition S 631. As this case illustrates, application of the rule can work to create harsh results. However, the policies behind the rule compel its consistent, uniform application. Commer- cial stability requires that parties to a contract may rely upon its express terms without worrying that the law will allow the other party to change the terms of the agreement at a later date. The Baileys maintain that all of the parties to the Water Well Use Agreement, shared a common understanding that the Bakers would continue to share the well water with subse- quent purchasers provided that the purchasers were acceptable to the Bakers. This contention may be true; however it is not found within the terms of the contract. The Water Well Use Agreement is very explicit concerning the rights and obligations of the parties. Its terms pro- vide: "it being specifically understood that this Agreement is solely for the benefit of [the Baileys] and shall terminate in the event [the Baileys] no longer occupy [the land] ." It further provides that "it is the intent of the parties to fully set forth their understanding concerning the utilization of the domestic water supplies for the respective tracts . . . " There are no terms within the contract which state that the Bakers will provide water to subsequent "reasonable" purchasers. Therefore, the fact there may have been further oral understandings between the parties is not admissible. The language of the Water Well Use Agreement is clear. Where the lanquage of a written contract is clear and unambiguous, there is nothing for the court to construe. Rather, the duty of the court is simply to apply the language as written to the facts of the case and decide the case accordingly. The lower court's reliance upon evidence of the parties' oral negotiations was therefore in error, and there was no breach of contract. In order to prove that a party acted unreasonably in violation of the implied covenant of good faith and fair dealing, one must show as an element there was a breach of t h e e x p r e s s terms o f t h e c o n t r a c t . Nordlund v. School D i s - t r i c t (1987), 4 4 St.Rep. 1183, 738 P.2d 1299. W e have concluded t h a t t h e Bakers d i d n o t breach t h e terms of t h e Water Well Use Agreement and accordingly, t h e r e was no v i o l a t i o n o f t h e covenant o f good f a i t h and f a i r d e a l i n g even i f a l l o t h e r elements of t h e v i o l a t i o n were met. I1 A t t r i a l , t h e Bakers, l i k e t h e B a i l e y s , sought damages f o r breach o f t h e Water Well Use Agreement. They maintained t h a t t h e B a i l e y s f a i l e d t o pay one-half of t h e e l e c t r i c a l and maintenance expenses o f t h e w e l l . The B a i l e y s , on t h e o t h e r hand, argued t h a t t h e y only owed t h e Bakers f o r e l e c t r i c a l expenses i n c u r r e d during t h e months of September through May of 1984. The Water W e l l Use Agreement s p e c i f i c a l l y provided t h a t t h e two p a r t i e s would e q u a l l y s h a r e a l l o f t h e e l e c t r i c a l b i l l s and maintenance expenses i n c u r r e d through t h e i r j o i n t use o f t h e pump. The sum o f t h e e l e c t r i c a l expenses a t t r i b - u t a b l e f o r t h e y e a r preceding t h e s a l e o f t h e p r o p e r t y js $218.03. The t o t a l c o s t o f r e p a i r s on t h e pump e q u a l l e d $1,572.85. Bakers maintain t h a t pursuant t o t h e terms o f t h e c o n t r a c t t h e B a i l e y s a r e r e s p o n s i b l e f o r one h a l f of t h e s e expenses, o r $895.42. The B a i l e y s maintain t h a t t h e y a r e o n l y l i a b l e f o r t h e e l e c t r i c a l expenses i n c u r r e d through t h e o p e r a t i o n of t h e pump f o r t h e months of September 1983 through May o f 1984. During t h e months o f June, J u l y and August, 1984, t h e water system was n o t i n working o r d e r and consequently t h e B a i l e y s were deprived o f water. The Baileys maintain, and t h e lower c o u r t agreed, t h a t t h i s d e p r i v a t i o n was a p a r t i a l f a i l u r e of c o n s i d e r a t i o n and t h a t a s a r e s u l t t h e B a i l e y s would he excused from t h e i r duty t o pay t h e i r s h a r e of t h e e l e c t r i c a l expenses due under the contract for the months of June, July and August. The lower court also held that the Baileys did not owe the Bakers any money for the expenses incurred through the repair of the water line. The repair expense was incurred after the Bakers were notified of their right to exercise their option to purchase the property. Four days after completion of the work, the Bakers exercised the right and purchased the property. The District Court therefore found that all benefit derived from the repairs was realized by the Bakers, and, accordingly, the Baileys had no responsibility to pay a portion of the repair expense. The District Court found the Baileys were only liable for expenses incurred by the Bakers for electricity which operated the pump during the months of September through May. The amount owed by the Baileys equaled $60.00. However, the court also found, and the Bakers admit, that the Bakers owed the Baileys $225.00 for propane which was left on the proper- ty after it was sold. Therefore, the amount owed by the Bakers to the Baileys, was offset by the $60.00 owed on the Water Well Use Agreement. Accordingly, the Bakers owed the Baileys $165.00 and the Baileys owed nothing under the contract. We find the District Court's findings on this issue were reasonable and were not an abuse of discretion. They were supported by the evidence and, thus, on this issue the lower court is affirmed. Let the judgment be entered accordingly for $165.00. 111 As a final issue, the Bakers assert that the lower court erred by not awardinq them attorney fees. In Montana the general rule is that attorney fees are awarded only where a statute or contract provides for their recovery. Northwestern National Bank of Great Falls v. Weaver-Maxwell, Inc. ( 1 9 8 6 ) , 43 St.Rep. 1995, 7 2 9 P.2d 1 2 5 8 . The Water Well Use Agreement provided that ". . . in the event of litigation . . . reasonable attorney fees may be - awarded . . ." (Emphasis added.) The lower court determined that the term "may" allowed it to award attorney fees in its discretion. Since both parties were successful in the law- suit, it declined to award fees to either party. The District Court correctly construed the terms of the agreement. The contract by its terms left the award of fees to the discretion of the court. The fact that the Bakers were partially unsuccessful in their claims against the Baileys does not support an award of attorney fees. The judgment of the lower court is therefore reversed and remanded for proceedings consistent with this opinion. We Concur: 1 | December 1, 1989 |
503e6469-3682-4b8e-9fd2-5d051d0c96a5 | KRUEGER v GENERAL MOTORS CORPORATI | N/A | 89-024 | Montana | Montana Supreme Court | No. 89-024 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ------- - ANDREW KRUEGER and SUZANNE KRUEGER, Plaintiffs and Respondents, GENERAL MOTORS CORPORATION, a Delaware Corporation, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District Court, In and for the County of Cascade, The Honorable Thomas M. McKittrick, Judge Presiding. COUNSEL OF RECORD: For Appellant: Curtis G. Thompson; Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana Richard A. Bowman, Argued, Kent B. Hanson and Kim M. Schmid; Bowman & Brooke, Minneapolis, Minnesota For Respondent: I - 3ennis Patrick Conner, Argued, Great Falls, Montana 0 *grik B. Thueson, Helena, Montana N rz :A1 L*l -"J : z t " LJJ - - - - - - - - - - - - - - - n n- *- '- L t J - A ' 3 Submitted: October 16, 1989 - a 2 , m L 4 ; ; < Decided : 0" a w;-Q I 2 U 3 0 . I Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from a jury verdict and judgment of the Eighth ~udicial District, Cascade County, awarding gener- al and special compensatory damages in a products liability case. Defendant General Motors Corporation [GM] appeals an award of the District Court of the ~ighth Judicial District, Cascade County awarding the plaintiff Andrew Krueger (Krueger) damages in the sum of $1,293,430.00. The District Court found that GM's failure to warn regarding a defectively designed full-time four wheel drive transfer case was the proximate cause of plaintiff's injuries. We affirm. GM raises the following issues and specifications of error on appeal: 1) Did the District Court err in excluding evidence of videotaped tests conducted by the defendant's expert witness regarding the response of various types of transfer cases under conditions similar to the accident in question? 2) Did the District Court err in admitting evidence of other incidents involving the sudden rolling of vehicles equipped with the New Process Model 2 0 3 transfer case? 3 ) Did the District Court err in excluding evidence of plaintiff's prior drug convictions and alleged habitual drug use on the issue of plaintiff's life expectancy? 4) Did the District Court err in instructing the jury regarding the affirmative defense of assumption of the risk in products liability litigation? 5 Is there substantial evidence in the record to support the District Court's finding that GM's failure to warn was a proximate cause of Andrew Krueger's injuries? 6) Did the District Court err in admitting into evi- dence hearsay testimony and allowing plaintiff's arguments alleged by defendant to be based on hearsay statements? 7) Did the District Court err in overruling defendants objections to plaintiff's closing arguments requesting the jury to "send a message" to GM when punitive damages were not. an issue in the case? On February 17, 1983 Krueger experienced problems with the universal joint on the front drive shaft of a 1976 General Motors Chevrolet full-time four wheel drive pickup that he had borrowed from a friend, He drove the pickup t.o the Pit Stop, an auto repair shop in Great Falls owned by a friend, where he planned to remove the shaft and leave it for repairs. Krueger parked the truck on the sloping driveway outside the Pit Stop (approximately S f 0 ) and with the vehicle engaged in park proceeded to remove the front drive shaft. When Krueger disconnected the shaft the pickup began to roll down the slope of the driveway. The back of Krueger's head got caught in the front differential and was pulled forward on to his chest as the truck rolled over him. The accident broke Krueger's neck and severely damaged his spinal cord, rendering Krueger a quadriplegic. Prior to 1973, all GM four wheel drive vehicles were equipped with conventional transfer cases; with such transfer cases the rear drive shaft remains locked when the vehicle is in "park." This is necessary because with a conventional transfer case disengaged and the wheel hubs unlocked, as they normally would be on dry pavement, the vehicle is essentially a two wheel drive vehicle and would roll unless the rear drive shaft was locked. The pickup involved in this accident was equipped with a New Process Model 203 full-time four wheel drive transfer case, used in GM models with automatic transmissions from the years 1973 to 1979. On these vehicles, the "park" gear locks the power output shaft leading from the engine to the transfer case, to which the front and rear drive shafts are then connected. Because of cornering problems where the outer wheel must rotate faster than the wheels on the inside of the corner, a differential is needed to compensate for these two different rotation speeds. A differential makes this compensation by applying the engine's driving force through the path of least resistance. In a full-time four wheel drive vehicle, a third inter-axial differential, located in the transfer case, is needed to compensate for the difference in cornering speeds between the front and rear wheels. When either of the drive shafts is disconnected on a full-time four wheel drive, this inter-axial differential applies the locking force of the "park" gear through the path of least resistance to the drive shaft that is no longer connected, this allows all the vehicle's wheels, including those on the still connected axle and drive shaft, to roll freely. Thus, a vehicle equipped with a New Process Model 203 transfer case and engaged in "park" will begin to roll when a single drive shaft is removed or a single wheel is jacked off the ground. The only way to prevent this motion is to first engage the vehicle in "park" and then in four wheel drive "lock." Engaging "lock" on a full-time four wheel drive is similar to engaging the transfer case and locking the hubs on a conventional four wheel drive. It locks all wheels so they will turn at the same speed regardless of cornering distances, eliminatinq the function of the differential, and thus no one portion of the drive train can become a path of least resistance. As one can see, there is a great difference in the effect of putting a full-time versus a conventional four wheel drive pickup in park when the front drive shaft is disconnected. In the conventional models, "park" locked the rear drive shaft and that is all that had to be done. Rut in a vehicle equipped with the New Process Model 203 one had to place the transmission in "park" and also engage the transfer case in "lock," locking all four wheels and insuring that the vehicle was completely immobilized. During his service in the military, Krueger gained considerable experience and knowledge regarding the operation and repair of conventional four wheel drive vehicles. Krueger had also been employed as a drive line specialist for Glacier Motors in Cut Bank, Montana. During that time he built and repaired approximately 500 drive lines. Krueger's knowledge or lack thereof of the dangers in removing the front drive shaft on a full-time four wheel drive equipped with the New Process Model 203 and whether GM provided a reasonably safe transfer case design and/or a warning suffi- cient to avoid strict products liability were focal issues at trial. During trial, plaintiff advocated an alternative trans- fer case design, the Borg Warner Quadra Trac (used in Jeeps at the time), asserting that it would have prevented the accident. The Quadra Trac employs a limited-slip friction clutch in the transfer case to retain the traction that would be lost when all the power is transferred via the differential to the wheel experiencing the least resistance. The friction clutch requires an individual wheel or axle to experience a threshold amount of torque for the clutch to slip and allow the differential to work freely. Until the threshold level of torque is reached, such as when the inside wheel experiences resistance when cornering, both wheels will revolve at the same speed. Thus, when a single wheel is the only one powered, such as when one wheel spins out on ice or snow, the friction clutch provides a limited traction recovery to the other wheel until the spinning wheel regains its traction. A vehicle equipped with the New Process 203, on the other hand, would be unable to generate any traction and remain immobile. Friction clutches wear out quickly and are rarely maintained at the torque specifications level present when manufactured. Krueger argued that a properly maintained Borg Warner Quadra Trac transfer case would have prevented the accident because the friction clutch in the transfer case differential would have engaged the park gear to the rear drive shaft once the vehicle began to roll. Plaintiff contended that this would have either held the vehicle on the slope or, if the clutch was worn, slowed its rolling enough to provide Krueger enough time to get clear of the vehicle. GM argued that even a Borg Warner Quadra Trac transfer case at specifications would not have held the vehicle on the accident slope. I. We now address the first issue raised by GM: Did the District Court err in excluding evidence of videotaped tests conducted by the defendant's expert witness regarding the response of various types of transfer cases under conditions similar to the accident in question? In its brief, GM argues that copies of the videotapes were given to the plaintiff prior to trial, and thus do not raise a discovery compliance issue. At the deposition of defendant's expert, Richard Keefer, approximately two weeks prior to trial, GM assured Krueger's attorney, Mr. Dennis Conner, that any such videotapes would be disclosed prior to trial: Q (BY MR. CONNER) Well, what pending assignments do you have? A Pending assignments? Q Right. A I don't believe I have any specific pending assignments. . . . if refinements to the preliminary work we've done on evaluating various kinds of vehicles, full-time and/or part time and. t h e rollaway s i t u a t i o n , a r e r e q u e s t e d , why, I expect w e ' l l do it. And i f i t ' s requested t h a t t h e y a r e r e p o r t e d i n some way, why, we c e r t a i n l y have t h e c a p a b i l i t y t o do t h a t . MR. CONNER: W e l l , i f h e ' s going t o do any f u r t h e r work p r i o r t o t h e time o f t r i a l , I ' d l i k e such documents o r r e c o r d s t h a t a r e generated which a r e d i s c o v e r a b l e t o he c e r t a i n l y produced p r i o r t o t r i a l , a s w e l l a s having t h e o p p o r t u n i t y t o f u r t h e r depose him--- MR. HANSON: W e l l , i f y o u ' r e agreeing, then--- MR. CONNER: ---on t h a t s u b j e c t . MR. HANSON: ---when you have your w i t n e s s e s do a l l t h e work t h e y h a v e n ' t y e t done t h a t y o u ' r e going t o reproduce them f o r d e p o s i t i o n s , f i n e . Tamny h a d n ' t done jack s q u a t when he g o t under o a t h . And we're n o t going t o agree t o any kind of c o n d i t i o n s on o u r people, redeposing them, t h a t i s n ' t going t o apply t o you, c e r t a i n l y . W e w i l l c e r t a i n l y show you whatever e x h i b i t s -- -- a r e generated, and w e w i l l inform you of anything - - - y o u ' r e e n t i t l e d -- t o know about t h e b a s i s o r grounds f o r h i s opinions. Whether I ' m going t o b r i n g M r . - - - Keefer back and have you depose him a g a i n , I highly doubt it, j u s t a s I h i g h l y doubt t h a t y o u ' r e going t o g i v e me a meaningful o p p o r t u n i t y t o l e a r n what Tamny's done s i n c e t h e time of h i s d e p o s i t i o n . Keefer Depositon, pp. 123-125. ( ~ m p h a s i s added.) M r . ~ e e f e r was deposed on J u l y 12, 1988. P r i o r t o t h e d e p o s i t i o n he conducted t e s t s o f v a r i o u s f o u r wheel d r i v e v e h i c l e s t o determine i f they would r o l l on a s l o p e e q u a l t o t h e a c c i d e n t s l o p e when t h e d r i v e l i n e was removed. During t h e s e t e s t s he determined t h a t a 1977 J e e p equipped w i t h a Rorg Warner Quadra Trac t r a n s f e r c a s e would n o t r o l l on t h e test s l o p e . Keefer Deposition, p. 139. On J u l y 2 1 and 22 he conducted f u r t h e r tests, r e c o r d i n g them on videotape. GM a l l e g e s t h a t t h i s new evidence would demonstrate t h a t v i r t u a l l y any vehi- c l e , including a J e e p with Quadra Trac, would respond a s t h e a c c i d e n t v e h i c l e d i d under t h e circumstances. The t r i a l began on J u l y 25, 1988, t h r e e days a f t e r t h e f i n a l t e s t i n g . The existence and content of the videotapes was not disclosed to plaintiff until mid-trial, after the plaintiff had rested on August 3, 1988. In this regard, the facts of this case are similar to those in Workman v. McIntyre (1980), 190 Mont. 5, 617 P.2d 1281, where we held that admission of an undisclosed film exhibit was an abuse of discretion. The film was not made available to the plaintiff after assurances by the State that it would be. We held that: These tactics are contrary to the letter and spirit of all pretrial discovery which is to prevent surprise, to simplify the issues, and to permit counsel to prepare their case for trial on the basis of the pretrial order. Workman, 617 P.2d at 1285. It is clear from the record in this case that GM assured the plaintiff that any further exhibits generated by their expert would be disclosed prior to trial and that GM failed to do so. The District Court did not abuse its discretion in excluding the videotape evidence. GM's expert was also precluded from testifying regarding the tests conducted in the excluded videotapes, and regarding current model full-time four wheel drive designs. The trial judge ruled that: Well that's part of the experiment and that's subsequent to the close of discovery. And its also a possibility of interjecting subsequent designs. So our court is clear on that that those are not permissible. Transcript, August 8, 1988, p. 1996. We agree. In a strict liability action under a design defect theory, the question is whether the design specifica- tions were partly or totally defective. Rix v. General Motors Corp (1986), 222 Mont. 318, 330, 723 P.2d 195, 202. Design specifications are "judged not by the condition of the product, but the state of scientific and technological knowledge available to the designer ----- at the time the product was placed on the market." Kuiper v. Goodyear Tire & Rubber - -- Co. (1983), 207 Mont. 37, 62, 673 P.2d 1208, 1221. (Emphasis added.) In - Rix, we set forth the following elements for instructional purposes in an alternative design products liability case: . . . (3) In determining whether an alternative design should have been used, the jury should balance so many of the following factors as it finds to - be pertinent ---- at the time of manufacture: ( a ) The reasonable probability that the product as originally designed would cause serious harm to the claimant. (b) Consideration of the reasonable probabil- ity of harm from the use of the original product as compared to the reasonable probability of harm from the use of the product with the alternative design. (c) The technological feasibility of an alternative design that would have prevented claim- ant's harm. Rix, 723 P.2d at 201. (Emphasis added.) Thus, the only test - evidence admissible in this case would be test evidence concerning other designs available at the time the New Pro- cess 203 transfer case was placed on the market, such as the Borg Warner Quadra Trac, or conventional transfer cases. The record indicates that all the evidence excluded by the Dis- trict Court was either associated with the inadmissible videotape tests, or involved subsequent designs used in the a.utomobile industry, particularly the designs used in current model full-time four wheel drive passenger vehicles. We reiterate the rule as we did in Rix: . . . a design is defective if at the time of - - - - manufacture an alternative designed product would have been safer than the original designed product and was both technologically feasible and a marketable reality. Again -- - the - time frame under scrutiny is the time of manufacture and not any - - - . - - -- other time. Rix, 723 P.2d at 202. (Emphasis added.) The District Court - did not abuse its discretion in excluding evidence concerning the late test results and evidence of d.esigns not pertinent to the time of manufacture. 11. Regarding the second issue raised by GM, the test of admissibility for evidence of other accidents in a products liability case is "whether the circumstances surrounding the product involved in other accidents were substantially the same or similar to the accident at issue." Kuiper, 673 P.2d at 1219. The accidents need not he identical to be admissible. Runkle v. Burlington IJorthern (1980) , 188 Mont. 286, 292, 613 P.2d 982, 986. Here, the other accidents all involved the New Process Model 203 transfer case and its inherent design characteris- tics which cause it to roll when a single wheel is jacked up or a single drive shaft removed. Although one incident involved a Chrysler vehicle, that vehicle was equipped with the same 203 transfer case used by GM. Also, the incident involving removal of the rear drive shaft demonstrates the same roll-away characteristics at issue in this case that distinguish the New Process 203 from a conventional transfer case or one equipped with a limited slip differential. The admission of evidence of other accidents in products liability litigation is entrusted to the discretion of the trial judge. Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. I., 9, 713 P.2d 527, 532. We do not see any abuse of discretion in this case. As its third issue GM argues that the District Court erred in excluding evidence of Krueger's alleged habitual drug use on the issues of plaintiff's life expectancy and assumption of the risk. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleadinq the jury. Rule 403, M.R.Evid. Here, the evidence is speculative at best, and, if it bears any relevance at all to this case, the evidence is of such a highly prejudicial nature in comparison to its probative value that its admission could constitute error. Under Rule 403, the determination of admissibility is within the discretion of the trial judge and will not be disturbed unless there is manifest abuse of discretion. Zeke's Distributinq Co. v. Brown-Forman Corp. (Mont. 1989) , 779 P.2d 908, 911, 46 St.Rep. 1678, 1681; Dahlin v. Holmquist (1988), 766 P.2d 239, 241, 45 St.Rep. 2127, 2129-2130. The exclusion of the drug evidence in this case was a sound exercise of discretion hy the trial judge. IV. Pertaining to issue IV, at trial, the District Court gave the following instruction, i 1 1 addition to the pattern instruction (Instruction No. 23) , on the affirmative d-efense of assumption of the risk: The Defendant has the burden of proving that Andy Krueger assumed the risk of his injuries. To establish this defense, General Motors must prove: (1) That Andy Krueger actually knew before he was 1 scon- injured that the vehicle would roll if he dl nected the front driveline; (2) That knowing this, Krueger voluntarily exposed himself to the danger, and. (3) That Krueger unreasonably exposed himself to that danger. If the Defendant fails to prove all three of the above, then Andy Krueger did not assume the risk of his injuries. Instruction No. 20. GM argues that the instruction errone- ously requires that Krueger knew the truck would roll on him and render him a quadriplegic before he attempted to discon- nect the front driveline, the absurd equivalent of requiring that he have a death wish. With regard to the affirmative defense of assumption of the risk in products liability, Montana has adopted the position of the Restatement of Torts 2d, 9 402A, Comment (n): Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the prod- uct, or to guard against the possibility of its existence. On the other hand the form of contribu- tory negligence which consists in voluntarily and unreasonably proceeding to encounter a known dan- ger, and commonly passes under the name of assump- tion of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured hy it, he is barred from recovery. Brown v. North Am. Mfg. Co. (1977), 176 Mont. 98, 110, 576 P.2d 711, 719. Assumption of the risk is now apportioned in a manner similar to fault under a comparative negligence scheme. Zahrte v. Sturm, Ruger & Co., Inc. (19831, 203 Mont. 90, 94, 661 P.2d 17, 19. The standard applied in evaluating the defense is a subjective one rather than the objective standard of the reasonahle man test: "The standard t o be applied i s a s u b j e c t i v e one, of what t h e p a r t i c u l a r p l a i n t i f f sees, knows, understands and appreciates. I n t h i s it d i f f e r s from t h e o b j e c t i v e standard which i s applied t o contributory negligence. . . . I f by reason of age I o r lack of information, experience, i n t e l l i g e n c e , o r judgment, t h e p l a i n t i f f does not understand t h e r i s k involved i n a known s i t u a t i o n , he w i l l not be taken t o assume t h e r i s k , although it may be found t h a t h i s conduct i s contributory negligence because it does not conform t o t h e community standard of t h e reasonable man." Brown, 576 P.2d a t 719, quoting Restatement of T o r t s 2d, $ 496D, Comment ( c ) . I n order f o r GM t o a s s e r t t h e defense, Krueger m u s t have had s u b j e c t i v e o r a c t u a l knowledge t h a t t h e t r u c k would r o l l . This does not r e q u i r e t h a t he have knowledge of t h e s e v e r i t y of t h e i n j u r i e s he would s u f f e r . GM admitted t h a t Krueger would have never attempted t o complete t h e r e p a i r s i n t h e manner he chose i f he knew t h a t t h e v e h i c l e would begin t o r o l l when he disconnected t h e d r i v e s h a f t . GM a s s e r t s t h a t I n s t r u c t i o n 20 i s tantamount t o an a b o l i t i o n of t h e defense of assumption of t h e r i s k i n prod- u c t s l i a b i l i t y . W e disagree. The i n s t r u c t i o n merely r e - quired t h a t t h e p l a i n t i f f have a c t u a l knowledge of t h e danger and then s p e c i f i c a l l y s t a t e d what a c t u a l knowledge of t h e danger e n t a i l s under t h e f a c t s of t h i s case. I t was obvious t o t h e jury under t h e s e f a c t s t h a t Krueger lacked such knowl- edge. I n o t h e r cases it may be equally obvious t h a t a plain- t i f f has s u b j e c t i v e knowledge of t h e a c t u a l danger posed by a d e f e c t . I n such cases, a jury could then evaluate t h e e x t e n t t o which t h a t p l a i n t i f f assumed t h e r i s k of h i s i n j u r i e s . I t i s r e v e r s i b l e e r r o r t o r e f u s e t o i n s t r u c t on an important p a r t of a p a r t y ' s theory o f t h e case. Further- more, a p a r t y has a r i g h t t o have jury i n s t r u c t i o n s which are adaptable to his theory of the case. Tacke, 713 P. 2d at 534. Although we believe that Montana Pattern Instruction 7.05, taken directly from Zahrte, would have been a sufficient, comprehendable and accurate statement of the law in this case, we find no error on the part of the trial judge in giving Instruction No. 20 as a complementary instruction under the facts of this case. v. We now turn to the issue of sufficiency of the evidence, (Issue V) , to support the District Court's denial of GM's motions for directed verdict and new trial. When reviewing a jury verdict, this Court's function is to determine if there is substantial credible evidence in the record supporting the jury ' s verdict. Gunning v. General Motors Corp. (Mont. 1989), 779 P.2d 64, 66, 46 St.Rep. 1546, 1548, Weinberg v. Farmers State Bank of Worden (1988), 752 P.2d 719, 721-722, 45 St.Rep. 391, 392. Where there is substantial evidence to support the jury's verdict the District Court's refusal to grant a new trial will not be disturbed. Brothers v. Town of Virginia City (1976), 171 Mont. 352, 358, 558 P.2d 464, 467. When reviewing a denial of a motion for directed verdict, we concede as true all of plaintiff's evidence and give the plaintiff the benefit of all legitimate inferences. If the record at that point should contain substantial evidence sustaining the jury finding then the trial court's action in denying the motion for directed verdict and submitting the cause to the jury, and the jury verdict itself, must be sustained. Brothers, 558 P.2d at 467. In the case at bar there is substantial credible evi- dence supporting the jury's verdict and the District Court's denial of GM's motions for directed verdict and new trial. This evidence supports the finding that GM's failure to warn concerning the inherent design characteristics of the New Process Model 203 transfer case---characteristics causing vehicles equipped with it to roll under circumstances that vehicles equipped with conventional transfer cases would not---was the proximate cause of Krueger's injuries. Krueger's testimony and the testimony of the other accident victims tended to prove the same thing: the accident victims all believed that a vehicle equipped with the New Process Model 203 transfer case would behave like a conventional four wheel drive when a driveline was removed or a wheel jacked up; they all testified that had they known otherwise they would never have attempted the repairs in the manner they did. Furthermore, evidence was presented regarding the Borg Warner Quadra Trac transfer case that enabled the jury to balance the transfer case design chosen by GM against the feasibility and marketability of alternative designs. A manufacturer may be required to provide a warning in relation to its product if it is to avoid a determination that the product is unreasonably dangerous. Restatement of Torts 2d $ 402A, Comment (j) at 353 (1965). The product is automatically defective if it is unreasonably dangerous, and a warning is required but not given. Rost v. C. F. & I. Steel Corp. (1980), 189 Mont. 485, 488, 616 P.2d 383, 385. It is the manufacturer's duty to warn inadequately informed users about the risk of danger involved with the use of a product. Streich v. Hilton-Davis (1984), 214 Mont. 44, 54, 692 P.2d 440, 445. The only alleged warning given by GM is contained in a sticker that was located on the driver's sunvisor in the accident vehicle and all vehicles equipped with the New Process 203 transfer case. Plaintiff's Exhibit 199. This sticker merely consists of operating instructions for full- time four wheel drive in the unlocked and locked positions of the transfer case, it does not warn of any of the dangers or differences from conventional transfer cases when repairs are attempted with the transfer case and interaxial differential unlocked. GM contends that because of Krueger's training in motor vehicle repair and the precautions associated with it, (such as using the parking brake, wheel chocks, and generally avoiding repairs on a slope), it is clear that any warning given "would have fallen on deaf ears." Rost, 616 P.2d at 386-387. In this regard, GM argues that the jury was entitled to hear evidence regarding plaintiff's propensity toward carelessness in the face of information available to him, including evidence of plaintiff's alleged use of dangerous drugs. We have already discussed the admissibility of the alleged drug evidence and do not believe the subject merits further discussion. Furthermore, the "deaf ears" situation in Rost is distinguishable from the case at bar. In Rost, a warning by the manufacturer of elevator cables was excused because the owner of the premises where the plaintiff was injured had a duty to maintain and inspect the elevator and would have failed to do so regardless of a warning of the obvious fact that worn elevator cables pose a serious dan-- ger. In fact, the store owner in Rost had been involved in a prior accident in the same elevator when the cables broke. Here, there is no superseding cause excusing GM's failure to warn. Thus, the jury was entitled to find that GM's failure to warn was the proximate cause of Krueger's injuries. VI. We now come to issue VI concerning the admission of hearsay statements and arguments based on such statements. GM obiects to the admission of the hearsay testimony of an alleged GM master technician as given by Krueger's expert Simon Tamny. Mr. Tamny testified regarding a conversation that he had with the technician about a similar accident the technician had involving a 203 transfer case. An expert may base an opinion on facts or data perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible into evidence. Rule 703, M.R.Evid. -- See e.g. Azure v. City of Billings (1979), 1 8 2 Mont. 234, 255, 596 P.2d 460, 472, State v. Deshner (19711, 158 Mont. 188, 193-194, 489 P.2d 1290, 1293-1294. At trial, plaintiff qualified Mr. Tamny as an expert in transfer case design. Field investigations of user experience is an appropriate method for such an expert to form opinions as to whether a particular transfer case design is an effective design or is dangerous. Mr Tamny synthesized the technician's accident with other incidents involving the New Process 203 in arriving at his opinion that the transfer case was defective and a warning should have been provided. - See Azure, 596 P.2d at 472. The District Court did not abuse its discretion in allowing plaintiff's expert to testify concerning one of the bases upon which he formed his opinion. GM's expert Paul Johnson testified that the torque specifications of the limited slip differential in the alter- native design transfer case advocated by Krueger were not sufficient to hold the vehicle in place on the accident slope. During cross examination of the witness, Krueger's counsel referred to a hypothetical phone call where a Borg Warner employee had confirmed that the specifications were indeed the ones given in the testimony of Krueger's expert, and thus would have immobilized the accident vehicle or at least sufficiently slowed its rolling to allow the plaintiff to get clear of the vehicle. Krueger's counsel challenged GM's expert to call Borg Warner during a recess and confirm the torque specifications of the alternative transfer case design. The District Court sustained GM's initial objection to this questioning, then allowed Krueger's counsel to inquire after the recess whether Mr. Johnson had made the phone call. At closing argument, Krueger's counsel commented on Mr. Johnson's failure to accept counsel's challenge to call Rorg Warner regarding the specifications. The situation here is similar to that in Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187, 38 St.Rep. 1492, where we held that the plaintiff was not prejudiced by several instances of alleged misconduct by defense counsel, the most serious being that defense counsel made improper comments upon and references to excluded evidence, which indicated to the jury that the plaintiff was concealing evidence. Improper argument requires a reversal of a verdict only when prejudice has resulted which prevents a fair trial. Gunnels, 633 P.2d at 1194; Nelson v. Hartman (1982), 199 Mont. 295, 301, 648 P.2d 1176, 1179. Any prejudice suffered by the defendant here was minimal, and certainlv did not rise to such level as to deprive GM of a fair trial. VII. Finally, GM contends that the District Court erred in overruling GM's objections to Krueger's closing argument requesting the jury to "send a message to GM" when punitive damages were not an issue. We decline in this case to determine whether the "send a message" argument is proper or prejudicial in products lia- bility litigation where punitive damages are not an issue. As we stated earlier, improper argument requires reversal of a verdict only when prejudice has resulted that prevents a fair trial. Gunnels, supra, 633 P.2d at 11.94; Nelson, supra, ----- - - - 648 P.2d at 1179. Considering the severity and permanent nature of plaintiff's injuries, and the daily attendant care he will require for the remainder of his life, we see the amount of the the jury's verdict as compensation for the plaintiff's injuries and not merely a reflection of alleged inflammatory remarks made during the plaintiff's closing arguments. We conclude that there was no abuse of discretion by the District Court in denying General Motor's motions for direct- ed verdict and new trial. AFFIRMED. We Concur: A | December 18, 1989 |
651018c9-c38f-4d19-a1ea-b1cb150394de | HAUGEN v NELSON | N/A | 89-124 | Montana | Montana Supreme Court | No. 89-124 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 JAMES HAUGEN, Plaintiff and Respondent, -vs- ... RICHARD W. NELSON and JOAN A. NELSON, husband and wife, Defendants and Appellants. APPEAL FROM: ~istrict Court of the Seventh Judicial district.^% In and for the County of Richland c v' The Honorable H. R. Obert, Judge presiding. 3 COUNSEL OF RECORD: For Appellant: ~hillip N. Carter, Koch & Carter, ~idney, Montana For Respondent: Peter 0 . Maltese, Sidney, Montana Filed: - - - - Submitted on Briefs: August 24, 1989 Decided: November 21, 1989 Justice John C. Sheehy delivered the Opinion of the Court. On July 28, 1988, the defendants filed a motion for attorney fees in the District Court, Seventh ~udicial District, Richland County. The District Court denied defendants' motion for attorney fees. The defendants appealed the District Court order. We affirm. The sole issue on appeal is: Did the District Court err in refusing to award to defendants their reasonable attorney fees incurred in defending the plaintiff's claim made against them. The plaintiff, James Haugen (Haugen), initiated this suit in District Court to obtain a money judgment based on a promissory note against the defendants Richard W. and Joan A. Nelson (the Nelsons). Defendants in their answer claimed a set-off against Haugen and asserted a counterclaim contending they were entitled to reimbursement for certain partnership debts and expenses. Both parties asserted claims for attorney fees in their pleadings. The parties' claims for attorney fees were based on the following paragraph in the promissory note: . . . In case suit or action is instituted to collect this note, or any portion thereof, we promise to pay such additional sums that the court may adjudge reasonable as attorney fees in suit or action. On May 19, 1988, the trial was commenced in District Court. Following the trial, the Nelsons' attorney made his motion for dismissal of Haugen's case under Rule 41(b), M.R.civ.P. On June 1, 1988, the District Court entered its findings of fact, conclusions of law and order in this action. The order dismissed Haugen's complaint and the counterclaim of the Nelsons. The District Court made no mention of the Nelsons claim for attorney fees incurred in connection with Haugen's claim. The Clerk of the District Court mailed notice of entry of judgment to counsel for both parties on June 2, 1988. Subsequently, Haugen submitted a motion for a new trial or amendment of the order. The District Court denied this motion on July 6, 1988. Before the denial, however, the Nelsons' attorney, on June 14, 1988, mailed his notice of entry of judgment, with attached copy of the ~istrict Court's June 1, 1988 order to Haugen's attorney. On July 28, 1988, nearly six weeks after mailing notice of entry of judgment, the Nelsons filed their motion for attorney fees. On August 4, 1988, before the motion for attorney fees could be heard, Haugen filed his notice of appeal. Haugen failed to follow through on his appeal, and on December 12, 1988, Haugen filed his own motion to dismiss his notice of appeal. ina ally, on January 3, 1989, the ~istrict Court heard the Nelsons' motion for attorney fees. The ~istrict Court denied the Nelsons' motions stating the following reason: The defendants' motion for attorneys fees, filed on July 28, 1988 is denied for the reasons that it was not filed within 10 days after service of the notice of entry of judgment which was June 14, 1988. his was required by rule 59(g), M.R.Civ.P. Further, the Court had every intention of dismissing ALL CLAIMS OF ALL PARTIES in its order of June 1, 1988; this in the interest of justice. Did the District Court err in refusing to award to defendants their reasonable attorney fees incurred in defending against the plaintiff's claim made against them? The general rule regarding the award of attorney fees provides that attorney fees are awardable only where a statute or contract provides for the recovery. Northwestern Nat. Bank v. Weaver-Maxwell (1986), 224 Mont. 33, 44, 729 p.2d 1258, 1264; Sliters v. Lee (19821, 197 M0n-t. 182, 183-184, 641 P.2d 475, 476. The parties' promissory note agreement provided for reasonable attorney fees in actions for its enforcement. Section 28-3-704, MCA, makes the right to attorney fees reciprocal. The defendants argue, § 28-3-704, MCA, and this Court's holdings in Northwestern Nat. Bank and liters dictate that -- the ~istrict Court award them attorney fees as the prevailing party. However, the District Court denied the defendants' attorney fees for the reason that the defendants failed to comply with Rule 59(g), M.R.civ.P., as follows: A motion to alter or amend the judgment shall be served no later than 10 days after the service of notice of entry of the judgment and may be combined with a motion for a new trial herein provided.. . . Rule 54 (a), M.R.Civ.P. defines judqment as "the final determination of the rights of the parties in an action or proceeding and as used in these rules includes a decree and any order from which an appeal lies . . ." In its order dated June 1, 1989, the District Court dismissed Haugen's complaint and the Nelsons counterclaim. The District Court did not award attorney fees to either party. The Nelsons argue that the District Court's order of June 1, 1989 is interlocutory because it does not expressly award or deny attorney fees. We find no merit with this assertion. Under Rule 54 (a) , M. R.civ.P., the court's order was a final determination of the rights of the parties, and thus a judgment. Even the Nelsons themselves deemed the District Court's order a final judgment by virtue of the fact that their attorney filed notice of entry of judgment on June 14, 1988 with the District Court. The word "judgment" is blazed across the caption of the instrument filed by the Nelsons. The Nelsons1 efforts for relief from judgment came in the form of a motion for attorney fees which they filed 45 days after service of notice of entry of judgment. This Court in In re Marriage of McDonald (1979), 183 Mont. 312, 599 P.2d 356, 358, held Rule 59(g), M.R.civ.P. applies to motions for attorney fees. In denying the petitioners request for attorney fees, this Court in McDonald stated the following: Rule 59 (g) , M0nt.R.Civ.P. provides: "A motion to alter or amend the judgment shall be served no later than 10 days after the service of the notice of the entry of judgment . . . " This rule applies to petitions for costs and attorney fees filed af ter entry of judgment. (Citations omitted. ) Proper application of the rules clearly prohibit granting of the request for relief to the mother in this case. Notice of entry of the ~istrict Court order required both parties to bear their own costs and attorney fees which was served on the father on December 30, 1977. Having failed to file the petition for costs and attorney fees within ten days of service, the District Court was without jurisdiction to give the mother the requested relief. Since the Nelsons failed to file the motion 10 days after the service of the notice of the entry of judgment, their motion was untimely and the District Court was without jurisdiction to grant attorney fees. Next, the Nelsons argue that they have been deprived of due process. The Nelsons contend that they were given no opportunity to present evidence as to attorney fees at the time of the hearing. The Nelsons and their attorney had ample opportunity to present evidence at the hearing regarding attorney fees. The Nelsons were given the opportunity to testify to attorney fees, but chose not to partake in the trial which led to the June 1, 1988 order of the District Court. The Nelsons failed to attend the trial. We find no deprivation of defendants' due process in this case. Furthermore, after reviewing the record, we find attorney fees are not appropriate due to the excessive dilatory tactics of both parties. Haugen's attorney filed his complaint on June 8, 1982, and served defendant on July 27, 1982. Then Haugen's attorney simply slept on his claim. in ally, after receiving two notices from the Clerk of the ~istrict Court, Haugen, on January 9, 1987, filed a motion for scheduling. The District Court set the trial for October 20, 1987, but the trial was further delayed by Haugen's attorney's repeated continuances until May 19, 1988. ~ustice should be administered economically, efficiently, and expeditiously. Baruch v. ~iblin (Fla. 1935), 164 So. 831, 833. A seven year delay, due solely to attorneys, is a far cry from the proper administration of justice. The Nelsons also played a role in prolonging the administration of justice in this case. The Nelsons, like Haugen, failed to pursue any action in this case until 1987. When the case finally came to trial on May 19, 1988, the Nelsons failed to attend the trial or offer any testimony on their behalf. The record here is one of both attorneys bickering among themselves at every level of this action. The evidence in the record supports the District Court's denial of any motion for attorney fees. The Nelsons' motion for attorney fees constituted a motion to amend a judgment. The defendants failed to file a timely motion under Rule 59 (g) , M.R.civ.P. and therefore the ~istrict Court properly denied their motion for attorney fees. Furthermore, we find attorney fees are not appropriate in view of the excessive dilatory tactics by both parties. We affirm the ~istrict Court's holfiin$ --_ .- , J & 1 ,a Justlce We Concur: A < , ? fl* hief 9 % Justlce | November 21, 1989 |
f46be59e-5a2b-4dff-b783-0a1ac24295e8 | BELUE v GEBHARDT | N/A | 89-391 | Montana | Montana Supreme Court | No. 89-391 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 CLARENCE T. BEI,UE and DIAN R. BELUE, . . Plaintiffs and Respondents, -vs- DANIEL J. GEBHARDT, BONNIE R. GEBHARDT, RICHARD A. DORN, FRED J. CALL, SR., and LARRY DORN, Defendants and Appellants. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Big Horn, The Honorable William J. Speare, Judge presiding. COUNSEL OF RECORD: For Appellant: Douglas Y. Freeman, (~orn), ~ardin, Montana James E . Torske, (Call, Sr.), Hardin, Montana For Respondent: Clarence T. Belue, pro se, Hardin, Montana Submitted on Briefs: Nov. 2, 1989 Decided: December 20, 1989 Filed : Justice Fred J. Weber delivered the Opinion of the Court. This appeal arises from an order by the District Court, Thirteenth Judicial District, Big Horn County, Montana. The District Court granted summary judgment in favor of plain- tiffs. Defendants appeal. We affirm. The sole issue presented for review is whether the default clause of a contract for deed limits sellers to the remedy of termination of the contract. On September 24, 1981, Mr. and Mrs. Belue sold an office building in Hardin, Montana, to Dr. and Mrs. Gebhardt, on a contract for deed. The Gebhardts moved from Hardin in 1983 and sold their interest in the contract to Richard Dorn and Fred Call, Sr. Mr. Dorn was a realtor. He rented the build- ing until 1988, when he determined he could no longer make payments on the contract. Mr. Dorn assigned his interest in the contract to his cousin, Larry Dorn, who made one payment and then defaulted. The last payment the Belues received was in April 1988. On August 1, 1988, and again on August 26, 1988, they sent a notice of default to the Gebhardts and to Mr. Richard Dorn, Mr. Fred Call, and Mr. Larry Dorn. When the default was not cured, the Belues brought suit for the balance due under the contract. The District Court granted summary judgment in favor of plaintiffs, and defendants appeal. Summary judgment is only appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Kronen v. Richter (1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317. On appeal our standard of review is to determine whether the record reveals genuine issues of mate- rial fact, which would preclude the District Court from granting summary judgment. Defendants' primary contention is that the default clause in the contract limits the plaintiffs' remedy to termination of the contract. They contend the District Court erred in granting plaintiffs a judgment on the balance due. The default clause states in pertinent part: 11. DEFAULT Should any default of the purchasers hereunder remain incurred for more than twenty (20) days after written notice thereof to purchasers, then sellers may, at sellers' option, upon 5 days addi- tional written notice to purchasers, declare the entire outstanding balance hereof with accrued interest thereon immediately due and payable, and upon non payment thereof, sellers may as an alter- native to any other remedy terminate this agreement without further notice. In the event of such termination, purchasers agree on demand: (a) To surrender possession of said property and improvements thereon, immediately and peaceable: (b) To execute such instruments as the seller may require to evidence of record termination of this agreement and of purchasers' interest in such property and improvements, and sellers shall be entitled to retain all payments made hereunder as liquidated damages for the breach of this agreement and as a reasonable rental for the use of the property. The District Court concluded that according to the language of the contract and this Court's holding in Glacier Campground v. Wild Rivers, Inc. (1978), 184 Mont. 543, 597 P.2d 689, plaintiffs were not limited to termination of the contract as their sole remedy. We agree. In accordance with the default provision, the sellers gave the initial 20-day written notice and in addition gave the 5-day additional written notice ,under which the sellers declared the entire outstanding balance with interest immediately due and pay- alnle. There is no dispute that the balance was properly d e c l a r e d immediately due and payable. The c l a u s e f u r t h e r provides t h a t upon nonpayment of t h a t balance t h e " s e l l e r s may a s an a l t e r n a t i v e t o any o t h e r remedy t e r m i n a t e t h i s agreement without f u r t h e r n o t i c e . " (Emphasis added. ) The r i g h t t o t e r m i n a t e i s c l e a r l y a choice given t o t h e s e l l e r s . There i s no i n d i c a t i o n t h a t t e r m i n a t i o n i s t h e o n l y remedy. Termination i s s p e c i f i c a l l y s t a t e d t o be an a l t e r n a t i v e t o any o t h e r remedy. The p a r t i e s a r e hound by t h e p l a i n meaning o f t h e words o f t h e c o n t r a c t where t h e r e i s no ambiguity. Quinn v. Briggs (1977), 172 Mont. 468, 475-76, 565 P.2d 297, 301. I n G l a c i e r Campground t h i s Court had occasion t o consid- e r t h e i s s u e o f whether t h e p l a i n t i f f was l i m i t e d t o a cer- t a i n remedy. W e s t a t e d : I n t h e absence o f a c o n t r a c t u a l p r o v i s i o n e x p r e s s l y l i m i t i n g t h e remedy o r remedies a v a i l - a b l e , a p a r t y may pursue any remedy which law o r e q u i t y a f f o r d s , a s w e l l a s t h e remedy o r remedies s p e c i f i e d i n t h e c o n t r a c t . G l a c i e r Campground, 597 P.2d a t 696. W e conclude t h a t t h e language o f t h e c o n t r a c t allows t h e p l a i n t i f f s an e l e c t i o n of remedies. I n t h e p r e s e n t c a s e , p l a i n t i f f s e l e c t e d t o sue on t h e balance due. A s an a l t e r n a t i v e argument, defendants contend t h a t t h e n o t i c e s o f d e f a u l t l e d them t o b e l i e v e t h a t t h e p l a i n t i f f s intended t o merely t e r m i n a t e t h e c o n t r a c t . They contend t h a t t h e n o t i c e s should have been s p e c i f i c a s t o t h e remedy which would b e pursued. No a u t h o r i t y i s c i t e d f o r t h i s proposi- t i o n . The language o f t h e d e f a u l t n o t i c e s follows t h e lan- guage o f t h e c o n t r a c t f o r deed, i n t h a t it s t a t e s t h a t u n l e s s d e f a u l t i s cured, p l a i n t i f f s may e i t h e r d e c l a r e payable t h e e n t i r e balance o f p r i n c i p a l and i n t e r e s t , o r i n t h e a l t e r n a - t i v e , t e r m i n a t e t h e c o n t r a c t . Accordingly, we conclude t h a t d e f e n d a n t s ' c o n t e n t i o n i n regard t o t h e d e f a u l t n o t i c e s i s meritless. W e conclude t h a t defendants f a i l e d t o r a i s e any genuine i s s u e s o f m a t e r i a l f a c t , and t h e c o u r t was c o r r e c t i n i t s g r a n t o f summary judgment i n f a v o r o f p l a i n t i f f s . W e a f f i r m t h e D i s t r i c t C o u r t ' s g r a n t o f summary judgment. Affirmed. | December 20, 1989 |
4ffecf85-926e-44d2-9e29-c7b61674360c | HUFFINE v BOYLAN | N/A | 89-416 | Montana | Montana Supreme Court | No. 89-416 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ELDON HUFFINE, HD COMPANY, Plaintiff and Appellant, -vs- MIKE BOYLAN, MIKE BOYLAN EXCAVATING, INC., GARTH SIME, SIME CONSTRUCTION, INC., VALLEY BANK OF BELGRADE, and DOES I through XI Defendants and Respondents. APPEAL FROM: ~istrict Court of the ~ighteenth ~udicial ~istrict, In and for the County of alla at in, The Honorable Joseph Gary, Judge presiding. COUNSEL OF RECORD: For Appellant: Eldon Huffine, pro se, Bozeman, Montana For Respondent: ~ichard J. Andriolo; Berg Law ~ i r m , Bozeman, Montana Submitted on briefs: Oct. 20, 1989 Decided: November 6, 1989 Filed: Justice William E. Hunt, Sr., delivered the Opinion of the Court. Eldon Huffine, pro se plaintiff and appellant, appeals from an order of the District Court of the Eighteenth Judicial District, alla at in County, dismissing his cause of action pursuant to Rule 37 (b) (2) (C) , M.R.Civ.P. We affirm. The sole issue raised on appeal is whether the District Court properly granted respondents' motion to dismiss pursuant to Rule 37(b)(2)(C), M.R.civ.P., based on appellant's failure to comply with the court's order imposing discovery sanctions under Rule 37(d), M.R.Civ.P. On March 22, 1989, a ~otice of Deposition was mailed to Huffine, which set his deposition for March 29, 1989, at 1:30 p.m. Also, on that date, defendant personally served Huffine a subpoena duces tecum, which also notified him of the time and place. Huffine did not attend the deposition. The District Court entered an order pursuant to Rule 37(d), M.R.Civ.P., on April 17, 1989, imposing discovery sanctions in the amount of $828.50 against Huffine for failure to attend his deposition. Huffine appealed the order to this Court and on June 1, 1989, we dismissed on the grounds that such orders are not appealable. Huffine has never complied with the District Court order to pay discovery sanctions. On June 19, 1989, a hearing was held in which defendants moved for the dismissal of Huffine's cause of action based on Huffine's failure to comply with the District Court's order. The motion was granted by order of the court on June 19, 1989. From the order, Huffine appeals. Huffine contends that he was not given proper notice of the time and place for the taking of his deposition so he did not attend. Consequently, he claims that he need not pay sanctions imposed and that dismissal based upon nonpayment was improper. We disagree. ~uffine's contention is unsupported by the evidence as he did not submit the transcript of the June 19, 1989, hearing for review on appeal. In Yetter v. Kennedy (1977), 175 Mont. 1, 7, 571 P.2d 1152, 1156, we stated: [Tlhe burden of showing error by reference to matters of record is upon the appellant. Unless the record that he brings before the court of appeals affirmatively shows the occurrence of the matters upon which he relies for relief, he may not urge those matters on appeal. (Citation omitted. ) Hence, ~uffine's failure to transmit the transcript of the June 19, 1989, hearing violates Rules 9 and 10, M.R.App.P. The record, then, is the only evidence of which this Court can rely in making a determination on the issue at bar. The record reflects that ~uffine was indeed served notice of his deposition both personally and by mail and, hence, the sanctions imposed were proper. ~mposition of sanctions for failure to comply with the rules of discovery are regarded with favor. Owen v. F.A. Buttrey Co. (Mont. 1981), 627 P.2d 1233, 1236, 38 St.Rep. 714, 716. See also Hanzel v. Marler (Mont. 19891, 774 P.2d 426, 427, 46 St.Rep. 1020, 1022. Rule 37, M.R.civ.P., sanctions are imposed in order to deter unresponsive parties. See Dassori v. Roy Stanley Chevrolet Co. (19861, 224 Mont. 178, 179-180, 728 P.2d 430, 431. In Landauer v. Kehrwald (1987), 225 Mont. 322, 325, 732 P.2d 839, 841, we stated: A party displaying an attitude of unresponsiveness to the judicial process warrants the imposition of sanctions including dismissal. While this Court accommodates pro se litigants when possible, Huffine is no stranger to litigation. He has been involved in thirteen ~istrict Court cases and has attempted several appeals. Because Huffine was properly served with notice of his deposition in accordance with the Rules of Civil Procedure, and because he deliberately and intentionally failed to appear at the time and place set for the taking of his deposition, the District Court properly sanctioned him by dismissing his cause of action under Rule 37(b) (2) (C) , M.R.civ.P. Further, we conclude that this appeal is taken without substantial or reasonable grounds and, consequently, we impose additional damages in the amount of $300 pursuant to Rule 32, M.R.App.P., to be paid to the respondent. See Searight v. Cimino (Mont. 1989), 777 P.2d 335, 46 St.Rep. 1217. Affirmed. | November 6, 1989 |
d512c511-0622-4bdf-a43e-81ddd30a5715 | COMPHEALTH v HIGHLAND VIEW OUTPATI | N/A | 89-150 | Montana | Montana Supreme Court | No. 89-150 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 COMPHEALTH, INC., Plaintiff and Appellant, -VS- HIGHLAND VIEW OUTPATIENT SURGICAL CENTER, a Montana corporation, Defendant and Respondent. APPEAL FROM: ~istrict Court of the Second Judicial ~istrict, In and for the County of Silver Bow, The Honorable Arnold Olsen, Judge presiding. COUNSEL OF RECORD: For Appellant: Larry Jent, Bozeman, Montana For Respondent: Leonard J. Haxby, Butte, Montana r- Filed: m Submitted on ~riefs: Aug. 10, 1989 Decided: December 22, 1989 Justice William E. Hunt, Sr., delivered the Opinion of the Court. plaintiff and appellant, Comphealth, Inc., brought this breach of contract action against defendant, Highland vie67 Outpatient Surgical Center. Following a bench trial, the District Court of the Second Judicial District, Silver Bow County, found in favor of the defendant. From this judgment, plaintiff appeals. We affirm. The following issue is dispositive of the appeal: Did defendant breach the contract between the parties by giving oral notice of its intent to cancel when the agreement required 30 days written notice of termination? Defendant, a Montana corporation, is a freestanding outpatient surgical center located in Butte. In late June, 1984, it entered into a contract with plaintiff, a Utah corporation, in which plaintiff agreed to provide a locum tenens (substitute) physician acceptable to defendant at a rate of $2,950 per week for a period from July 30, 1984 to August 27, 1984. The contract included a cancellation clause, which granted defendant the right to terminate the agreement by giving 30 days written notice. The clause provided that failure to give the required notice would result in liquidated damages. At the time the parties entered into the contract, defendant was in the process of constructing the surgical center building. Defendant anticipated that the center would open on July 30, 1984. Thus, the parties agreed that the contract would commence on that date. However, on July 10, 1984, defendant notified plaintiff that the center's opening would be delayed due to a plumbers' strike in the Butte area. plaintiff consented to postpone the commencement of the contract. A new contractual period was never agreed upon by the parties. On the day after it learned of the plumbers' strike, plaintiff mailed to defendant the curricula vitae of two anesthesiologists. One, Dr. Tilby, was available for the anticipated term of the contract. The other, Dr. Plon, was unavailable for the initial contractual period. Plaintiff submitted Dr. Plon's statistics, however, in the event the assignment extended longer than anticipated or in case Dr. Plon would fit defendant's needs better than Dr. Tilby. The parties dispute whether defendant ever accepted Dr. Tilby. plaintiff's agent, Sharon Thompson, testified that Dr. St. John, the president of defendant corporation, had indicated that Dr. ~ i l b y would be acceptable and that plaintiff should plan to send him to work when the center was completed. Dr. Tilby also testified that plaintiff had informed him that he was to fill the temporary position. Dr. St. John, on the other hand, testified that he had never accepted Dr. ~ i l b y because ~ilby's file did not satisfactorily explain why his hospital privileges had been temporarily suspended in 1981. The ~istrict Court found that defendant had never accepted the physician. In late July or early August, 1984, Dr. St. John notified plaintiff by telephone that the defendant would no longer need plaintiff 's services because it had hired a permanent anesthesiologist. Defendant did not follow up this phone conversation with written notice of cancellation. On November 28, 1984, plaintiff filed this action, alleging that defendant had breached the contract by failing to give adequate notice of cancellation and failing to pay liquidated damages as provided in the contract. On December 1, 1988, trial was held before the ~istrict Court, sitting without a jury. The court heard the testimony of Dr. St. John and accepted the depositions of Ms. Thompson and Dr. Tilby. On December 29, 1988, the ~istrict Court issued findings fact and conclusions law. The court found that defendant had not breached the contract but had terminated the agreement in an appropriate and timely fashion. The court further found that plaintiff had not suffered any damages. Plaintiff appealed to this Court. On appeal, plaintiff raises several issues, including whether the ~istrict Court applied the correct law in determining the enforceability of liquidated damages, whether the District Court correctly determined the nature of the contract, and whether defendant had actually accepted the physician offered by plaintiff. We need not answer these questions, however, because our conclusion that the defendant adequately complied with the cancellation provisions in the contract effectively disposes of the appeal. Plaintiff argues that defendant's method of cancelling the contract was both untimely and procedurally improper and, therefore, triggered the agreement's liquidated damages clause. We do not agree. Substantial credible evidence supports the District Court ' s finding that defendant gave adeq.uate, timely notice of cancellation. The District Court found: 6. [Tlhere was a thirty-day cancellation of the contract and based upon the testimony of Dr. Tilby and Dr. St. John, the Plaintiff was advised in late July or the first week in August, that Defendant was no longer in need of the services of the Plaintiff, that since they had not found a suitable physician, that the Defendant had found a physician of its own and had no further need for the services of the Plaintiff. Since the surgery center did not open until September 14, 1984, the notice was given more than thirty days in advance of any need for a physician. Although this notice was not in writing, the overwhelming testimony reveals that no further search was made by the plaintiff after that date. The contract was in fact cancelled in late July or the first week of August, 1984, in substantial compliance with the agreement. In addition, we note that, due to the uncertainty created by the plumbers' strike, the intitial contractual period had been postponed and a new commencement date for the performance of the contract had not been agreed upon by the parties. Under the particular facts of this case, where at the time of cancellation a specific performance period had not been agreed upon by the parties and where notice was actually given more than 30 days prior to any possible performance date, defendant gave timely notice of termination of the contract. Furthermore, even though defendant gave oral rather than written notice of cancellation, the notice was procedurally adequate. plaintiff does not now contest, nor has it ever contested, that it did not receive oral notice of cancellation. Plaintiff accepted the notice and took no further action in reliance upon the contract. In fact, shortly after defendant's telephone call, plaintiff notified Dr. Tilby that he would not be filling the anesthesiologist position. The present case can be distinguished from our earlier decision, Tomsheck v. Doran (1953), 126 Mont. 598, 256 P.2d 538, where we stated that exact compliance with contractual terms regarding notice of cancellation is an essential prerequisite to cancellation. Unlike the present case, the plaintiff in Tomsheck did not substantially comply with the terms of the cancellation provision. Although the Tomsheck contract required a one-year notice of cancellation, the plaintiff instituted a suit for rescission of the contract. only one day after he delivered the termination notice to defendant. Moreover, in Tomsheck substantial prejudice to the non-cancelling defendant in the form of forfeiture of land would have resulted had we failed to hold plaintiff strictly to the terms of the contract. In the present case, defendant substantially complied with the terms governing notice of cancellation. Therefore, the District Court did not err in finding that defendant did not breach the contract and in refusing to award liquidated damages. ~f firmed. b7e concur: 4 ,/4 . c 4 - 7 Chlef Justice | December 22, 1989 |
7890d26d-3f33-41fe-93ea-16e5fe54976b | STATE v MCCOLLEY | N/A | 89-181 | Montana | Montana Supreme Court | No. 8 9 - 1 8 1 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 STATE OF MONTANA, Plaintiff and Respondent, -VS- KURT McCOLLEY, Defendant an Appellant. APPEAL FROM: District Court of the Thirteenth Judicial D k s In and for the County of Yellowstone, z o x The Honorable Russell Fillner, Judge presidpg. COUNSEL OF RECORD: For Appellant: Arthur J. Thompson, Billings, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Elizabeth S. Baker, Asst. Atty. General, Helena Harold Hanser, County Attorney; Teresa M. OIConnor, Deputy County Attorney, Billings, Montana Filed: Submitted on Briefs: Sept. 7, 1 9 8 9 Decided : October 24, 1 9 8 9 j Clerk Justice Fred J. Weber delivered the Opinion of the Court. Defendant, Kurt McColley, was charged with one count of felony criminal sale of dangerous drugs in the District Court for the Thirteenth Judicial District, Yellowstone County. The jury found defendant guilty as charged. He was sentenced to 20 years in the Montana State Prison, with 10 years sus- pended. Defendant appeals. We affirm. The sole issue on appeal is whether the conviction may stand when only one of the two sales charged as one offense has been proved by sufficient evidence? Tim Martin, an undercover detective of the Yellowstone County Sheriff's Office, made arrangements with Matt Andre to purchase one-half gram of cocaine on April 1, 1988. Andre and Martin went to the residence of defendant in Billings, Montana. Andre entered the house alone, came out, and in- formed Martin that he had spoken with "Kurt," who said he would supply the cocaine. Martin and Andre then left defen- dant's home. Later that same day, Martin returned to Andre's house and picked up a bindle containing one-half gram of cocaine. Several weeks later, Martin arranged with Andre to purchase more cocaine. On April 28, the two men again went to the home of defendant. Surveillance of defendant's resi- dence was conducted by other officers. Martin himself never entered defendant's residence, but during the course of the day Andre was observed entering defendant's house several times. Finally, later that afternoon, Andre returned to his own residence and gave Martin a bindle of cocaine. The bindle was examined for fingerprints. Five fingerprints belonging to defendant were identified. Martin testified, t h a t upon h i s a r r e s t , Andre s a i d t h a t he obtained t h e cocaine from defendant. A t t r i a l , Andre denied t h a t t h e cocaine from e i t h e r purchase came from defendant. A t t h e c l o s e of t h e S t a t e ' s case, defendant moved f o r d i r e c t e d v e r d i c t on t h e ground t h a t t h e r e was i n s u f f i c i e n t evidence connecting t h e defendant t o t h e A p r i l 1st s a l e . Defendant argued t h a t s i n c e Andre was an accomplice i n t h e drug t r a n s a c t i o n , a s a matter of law, defendant could not be convicted s o l e l y upon t h e evidence gained from t h e p o l i c e . The motion was denied. Defendant t e s t i f i e d t h a t although Andre d i d v i s i t him a t h i s home on A p r i l 28, he d i d not sell any cocaine t o Andre on t h a t d a t e o r a t any o t h e r time. The S t a t e c a l l e d no o t h e r witnesses, and defendant was found g u i l t y of t h e charged offense. He subsequently f i l e d a Motion f o r Judgment Not- withstanding t h e Verdict (Judgment N. O.V. ) o r f o r N e w T r i a l pursuant t o 5 46-16-702, MCA, based on t h e same grounds a s t h e Motion f o r Directed Verdict. The motion was denied. Defendant maintains t h a t s i n c e he was charged with one offense of criminal s a l e of dangerous drugs, committed on two s e p a r a t e occasions, t h e S t a t e must prove h i s connection with both s a l e s . He contends t h a t t h e r e i s not s u f f i c i e n t evi- dence t o support h i s conviction due t o t h e S t a t e ' s f a i l u r e t o prove h i s connection with t h e cocaine s a l e o f A p r i l 1, 1988. Defendant argues t h a t because Andre only named him on a r r e s t b u t denied h i s involvement a t t r i a l , t h e evidence i s i n s u f f i c i e n t . He claims t h a t t h e r e i s no evidence t o corrob- o r a t e Andre's statements upon a r r e s t t h a t he received t h e cocaine from defendant. Furthermore, he contends t h a t Andre was an accomplice t o t h e t r a n s a c t i o n , and under S 46-16-213, MCA, a conviction based on t h e testimony of an accomplice cannot stand u n l e s s corroborated. Defendant r e l i e s on t h e case of S t a t e v. Warren (Mont. 1981), 628 P.2d 292, 38 St.Rep 773, in which this Court concluded that testimony of an accomplice must be supported by corroborating evidence or acquittal is the only remedy. The State contends it is immaterial to defendant's conviction whether or not there was sufficient evidence to prove defendant was involved in both sales, citing the stead- fast rule that "superfluity in an Information does not viti- ate." State v. Board (1959), 135 Mont. 139, 143, 337 P.2d 924, 927. They argue that the conviction must stand because the April 28th sale is supported by substantial evidence. The State relies on United States v. Bruno (5th Cir. 1987), 809 F.2d 1097, in which the Court held that "the government need not prove all the charges contained in the indictment, but only a sufficient number of charges in each count so as to make out a violation of the statute relied upon." We agree and expressly adopt this holding. We hold it is unnecessary to prove independently defen- dant's involvement in both sales when proof of either sale is sufficient to satisfy a prima facie case. Every charge in the information need not be proved to convict defendant of the offense for which he is charged. Corroboration of the April 1st sale is unnecessary when the April 28th sale was proven by sufficient independent evidence. We conclude the District Court was correct in denying defendant's Motions for Directed Verdict and his Motion for Judgment N.O.V. or a New Trial. Affirmed. We concur: | October 24, 1989 |
16bfe57d-6395-42ce-823a-e0ac039b4232 | JEROME v PARDIS | N/A | 89-323 | Montana | Montana Supreme Court | No. 89-323 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ARDIS JEROME, Plaintiff and Appellant, -vs- WILLIAM H. PARDIS, D.C., and PARDIS CHIROPRACTIC CLINIC, P.C., Defendants and Respondents. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Thomas McKittrick, Judge presiding. COUNSEL OF RECORD: For Appellant: Joseph C. Engel, 111, Great Falls, Montana For Respondent: J. David Slovak and Neil E. Ugrin; Ugrin, Alexander, Zadick & Slovak, Great Falls, Montana Submitted on Briefs: Oct. 25, 1989 D e . c i d e d : December 6, 1989 Filed: Clerk Justice R. C. McDonough delivered the Opinion of the Court. This appeal involves the imposition of sanctions under Rule 37, M.R.Civ.P. for abuses of discovery. Plaintiff Ardis Jerome appeals the order of the Eighth Judicial District Court, Cascade County, granting defendants' , William H. Pardis and Pardis Chiropractic Clinics, P.C., motion to dismiss Jerome's cause of action with prejudice. We affirm. Appellant Jerome raises a sole issue on appeal: Did the District Court abuse its discretion by dismissing Jerome's lawsuit on the grounds that she violated Rule 37, M.R.Civ.P.? Jerome's complaint alleges that during treatment in early June of 1984, Dr. Pardis negligently caused a herniation of a disk at the L4/L5 level of her spine. After filing of the complaint, Pardis served Jerome with several interrogatories and requests for production. The interrogatories requested Jerome to identify all persons who had treated her back condition and to supply information regarding previous or subsequent injuries, illness or problems involving her lower back. The requests required production of all Jerome's medical records. Jerome was served with the request for production on July 20, 1987. On December 8, 1987 Jerome produced medical records from various health care providers, including records from Dr. Mark T. Stoebe, D.C., the treating chiropractor who examined Jerome immediately after the visits with Pardis that allegedly caused her injury. Dr. Stoebe's records included a letter dated October 8, 1986 to Jerome's counsel, in response to questions By Jerome's counsel regarding diagnosis of Jerome's condition and whether Pardis' treatment was appropriate. This letter produced by Jerome from Stoebe's records stated: The following is a response to your letter dated September 22, 1986. I cannot state with certainty that Dr. Pardis treatment did in effect cause the low back condition that Ardis Jerome came to me complaining of, in that I did not see the patient prior to her adjustment on 6-7-84, although the condition that I examined on 6-8-84 was certainly an acute left lateral grade I1 disc protrusion of the L4 intervertebral disc. It is my experience that conditions of this type have some kind of traumatic history and I see no indication of previous trauma in Dr. Pardis notes. Also I note an absence of any orthopedic, neurological, or x-ray findings. Furthermore, the patient indicated on 6-8-84 that she had no previous history of sharp low back pain prior to her visit on 6-7-84. If you have any further questions. . . . At the September 1, 1988 deposition of Dr. Stoebe, Pardis learned that the letter produced by Jerome's counsel was an apparent rewrite of Dr. Stoebe's original letter of October 8, 1986. The longer version omitted the second to the last sentence and also included additional language after the first sentence, damaging to plaintiff's case: . . . First of all a spondylolisthesis implies a congenital malformation of the pars inter articularis. The term applies to an anterior or forward slipping of the the body of the lower lumbar vertebrae relative to the pedicles. Research as of the last six months has pointed to a possible traumatic cause of this condition, although it is still speculative at this point. The reason for this theory is that a spondylolisthesis has never been found in any patient under 5 years of age. It appears as though the adjustments employed by - Dr. Pardis on6-7-84 were correct and indicated for - his findings, ( t t m t i n u e s n r x sentence as quoted above. ) At his deposition Stoebe testified that both letters were in his file and that the entire file was supplied to Jerome's counsel. Jerome's counsel claims that the original letter was probably discarded, and did not need to be produced anyway because it supported and confirmed plaintiff's theory of liability and thus was not relevant to defendant's case. Jerome also produced only two pages of a handwritten three page history prepared by Jerome when she first visited Dr. Stoebe. The omitted page indicates in Jerome's own writing that she hurt her back mo~ring and lifting tables about two weeks prior to visiting Stoebe and before she visited Pardis, and that she had back trouble for the last 25 years. Additionally, after assurances by Jerome's counsel that full and complete responses to the production requests and interrogatories had been supplied, Jerome failed to identify a number of her past health care providers and subsequent depositions indicated that only a fraction of the medical records were supplied. Jerome also indicated in answering the interrogatories that she had never filed an insurance claim regarding her back problems. A subsequent deposition later revealed that a claim was in fact made in 1979. On October 6, 1988, Pardis filed his motion for sanctions, alleging that Jerome and her counsel had committed blatant discovery abuses in violation of Rule 37, M.R.Civ.P. In its order of February 10, 1989, the District Court found that the discovery tactics pursued by the plaintiff had caused substantial prejudice to defendants that could not be corrected without defendants incurring considerable expense, particularly in re-deposing physicians who had relied on incomplete medical records. Because of the totality of the circumstances regarding the alleged abuses and the severity of the prejudice suffered by defendants the District Court dismissed Jerome's claim with prej,udice, resulting in this appeal. This Court has followed the rationale of the United States Supreme Court's holding in National Hockey League v. Metropolitan Hockey Clubs, Inc. (1976), 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747, in adopting a strict policy of non-leniency toward discovery abusers and of allowing sanctions for deterrence purposes. Owen v. F.A. Buttrey Co. (1981), - Mont . - , 627 P.2d 1233, 38 St.Rep. 714. The authority used by the District Court to dismiss Jerome's case is found at Rule 37 (d) , M.R.Civ.P., which is identical to its federal counterpart, and provides: Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b) (6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B) , and (C) of subdivision (b) (2)of this rule. . . . Rule 37(d), M.R.Civ.P. The actions authorized by Rule 37 (b) (2) (A) - (C) include dismissal. Rule 37 (b) (2) (C) . Rule 37(b) provides for sanctions for failure to comply with a court order compelling discovery. State ex. rel. Burlington Northern v. District Court (1989) , 779 P. 2d 885, 893, 46 St.Rep. 1625, 1634. Rule 37 (d) authorizes the imposition of sanctions for 3 specific failures--1) failure to attend at one's own deposition, 2) failure to serve answer's to interrogatories, or 3) failure to serve a written response to a request for production--without first requiring that the non-responding party be ordered to comply. No second chance is contemplated. Thus, there is an important distinction between Rule 37 (b) and Rule 37 (d) : under section (b) sanctions are not available without a previous court order; under section (d) no order is necessary, however, sanctions are only authorized for the three enumerated failures. Burlington Northern, 779 P.2d at 893. We have acknowledged this distinction in several former cases. See - First Bank Billings (N.A.) v. Heidema (1986), 219 Mont. 373, 711 P.2d 1384; Dassori v. Roy Stanley Chevrolet Co. (1986), 224 Mont. 178, 728 P.2d 430; Thibodeau v. Uglum (1982), 201 Mont. 260, 653 P.2d 855. Pardis contends that a prior motion to compel was not necessary in this case because the sanction of dismissal was imposed on the grounds of the abuses enumerated in Rule 37(d), rather than the more usual situation of a partial failure to comply. However, an immediate sanction imposed under Rule 37(d) generally contemplates a complete failure or outright refusal to cooperate. - See Crowley, William F. , Montana Pleading and Practice Forms, p. 175, 183, (1983). In the case at bar, the abuses complained of do not constitute an outright refusal to comply with discovery rules. Rather, Jerome has simultaneously complied with Pardis' discovery requests on a partial level while actively withholding relevant information and documents in an attempt to conceal her medical history. Pardis apparently did not move for an order compelling discovery because it was not clear the information was being withheld until depositions were taken and the prejudice and taint of the abuses already complete. In its order dismissing Jerome's case, the District Court relied on G.K. Properties v. Redevelopment Agency (9th Cir. 1978), 577 F . 2 6 1 645, where the Ninth Circuit Court of Appeals held: Where it is determined that counsel or a party has acted willfully or in bad faith in failing to - - - comply with the rules of discovery or with court - - orders enforcing the r u l ; or in flagrant disregard of those rules or order?, it is within the discretion of the trial court to dismiss the action or to render judgement by default against the party responsible for non-compliance. Fed.R.Civ.P. 37 (b) . (Emphasis added.) 577 F.2d at 647. The trial judge based his decision on Rule 37(d), however, the Ninth Circuit' decision in G.K. - - Properties is actually based on subdivision (b) of the Rule. As we noted earlier, this case does not involve one of the three complete failures to comply with discovery enumerated in Rule 37 (d) . Furthermore, we decline to adopt the "bad faith" rationale of G.K. Properties as authority for imposing sanctions under Rule 37(b) without a prior court order in this case. Rather, we affirm the ruling of the District Court on the basis of Rule 26(g), M.R.civ.P. In cases where a trial judge sits without a jury and no testimony is taken, the scope of review on appeal is much broader, and this Court is free to make its own examination of the entire case and to make a determination in accordance with its findings. Shimsky v. Valley Credit Union (1984), 208 Mont. 186, 189-190, 676 P.2d 1308, 1310. We will also uphold the result reached below if correct, regardless of the reasons given for the conclusion. Shimsky, supra, Steadman v. Halland (1982), 197 Mont. 45, 52, 641 P.2d 448, 452. The result reached by the District Court is correct on the basis of Rule 26(g), M.R.Civ.P. The Rule wa.s enacted in 1984 a l m s with the amendments to its parallel, Rule 11, M.R.Civ.P, which governs abuses in pleadings and motion practice. Rule 26 (9) provides: Rule 26 (g) Signing of discovery requests, responses, and objections. Every request for discovery or response or objection thereto made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name. . . . The signature of an attorney or party constitutes a certification that he has read the request, response, or objection, and that to the best of his knowledge, information, and belief formed after a reasonable inquiry it is (1) consistent with these rules a n d warranted by - - existinq law or a qood faith arsument for the extension, modificat~on, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary dely or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or - - P expensive, given the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. . . . If a certification is made in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the who made the certification, the party on whose behalf the request, response, or objection is made, or both, an appropriate sanction. . . . (~mphasis added. Rule 26 (g) M.R.Civ.P. By signing responses to the discovery requested by Pardis, Jerome and her counsel certified that the responses were (1) consistent with the rules of discovery, (2) not interposed for for any improper purpose, and (3) not unreasonable or unduly burdensome. The certification fails on all three counts. The responses attempted to mislead Pardis by concealing information material to his defense. The responses would create an unreasonable burden and increased expense to Pardis in re-deposing witnesses whose prior testimony was given without the benefit of the improperly withheld information. Finally, withholding of this information by the plaintiff is clearly not consistent with the rules and spirit of discovery. Dismissal with prejudice is an appropriate sanction in this case. The District Court did not abuse its discretion. AFFIRMED . | December 6, 1989 |
d49a561d-8c4b-4c2b-84dc-edf063d330a6 | MELROE v DOYLE | N/A | 89-289 | Montana | Montana Supreme Court | No. 89-289 IN THE SUPREME COURT OF THE STATE OF MONTANA I a 0 w z CD 1 9 8 9 Z 2" C3 %IJ G > C") 7 c,-)z 4 - C --I r a m CLIFFORD MELROE, al- -u t ; r m c) 3 x I - "; P plaintiff and Respondent, -VS- z 7 C W 6 P 4 TERESA M. DOYLE, CONNIE J. GRIFFIN, STEVEN E. SCHEITLIN, SUSAN M. SCHEITLIN, DANIEL J. SCHEITLIN, EDWARD E. SCHEITLIN, JR., MICHAEL J. SCHEITLIN, and VAEDA G. SCHEITLIN, Defendants and Appellants. APPEAL FROM: ~istrict Court of the Second ~udicial ~istrict, In and for the County of Silver BOW, The Honorable Mark ~ullivan, Judge presiding. COUNSEL OF RECORD: For Appellant: John H. ~ardine; ~ardine & Grauman, Whitehall, Montana For Respondent : ~illiam M. Kebe, Jr. & Carol L. McGary; Johnson, Skakles & Kebe, Butte, Montana Submitted on Briefs: Aug. 17, 1 9 8 9 ~ecided: November 7, 1989 Filed: Justice William E. Hunt, Sr., delivered the opinion of the Court. The defendants appeal from an order of the District Court of the Second Judicial District, Silver Bow County, denying their motion for change of venue. We affirm. The sole issue raised on appeal is whether the District Court erred in denying defendants1 motion to move the place of trial from the county in which four of the eight defendants resided to the county in which the contract relied upon in the complaint was to be performed. Plaintiff, Clifford Melroe, brought this action for breach of contract and unjust enrichment in Silver Bow County, the residence of four of the eight defendants. The defendants moved for change of venue, claiming that Madison County was the proper place for trial as it was the county in which the contract was to be performed. The District Court denied the motion. The defendants appealed. The statute governing change of venue for contract actions provides in pertinent part: (1) The proper place of trial for actions upon contracts is either: (a) the county in which the defendants, or any of them, reside at the commencement of the action; - or (b) the county in which the contract was to be performed. (~mphasis added.) Section 25-2-121, MCA. The statute reiterates the longstanding rule that, in contract actions, the plaintiff may elect to bring suit in either the county of the defendant1 s residence or the county of contract performance. Either county is the proper place for trial.. When a suit may properly be commenced in more than one county and t h e p l a i n t i f f f i l e s i n one o f t h e p e r m i s s i b l e c o u n t i e s , t h e defendant may n o t change t h e venue o f t h e a c t i o n t o a d i f f e r e n t county, even i f t h e t h e county p r e f e r r e d by t h e defendant i s a l s o a proper p l a c e f o r t r i a l . S e c t i o n 25-2-115, MCA. See a l s o P e t e r s e n v . Tucker (1987), 228 Mont. 393, 396, 742 P.2d 483, 484-85. I n t h e p r e s e n t c a s e , t h e p l a i n t i f f could have p r o p e r l y f i l e d s u i t i n e i t h e r S i l v e r Bow County o r p ad is on County. The p l a i n t i f f e l e c t e d t o commence t h e a c t i o n i n S i l v e r Bow County. Such e l e c t i o n was proper. The ~ i s t r i c t Court d i d n o t err i n denying t h e defendants' motion f o r change of venue. Affirmed. | November 7, 1989 |
525310ef-f8fd-49cb-b055-ef5ce036d3a5 | MARRIAGE OF GARNER | N/A | 89-177 | Montana | Montana Supreme Court | No. 89-177 IN THE SUPREME COURT OF THE STATE OF MONTANA IN RE THE MARRIAGE OF KERRIAN T. GARNER, Petitioner and Respondent, and MARGARET S . GARNER, Respondent and Appellant. 3 -4 APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell Fillner, Judge presiding. COUNSEL OF RECORD: For Appellant: Camille T. Ventrell; Harris & Ventrell, ~illings, Montana For Respondent: Mark Parker; Parker Law Firm, Billings, Montana Filed: Submitted on Briefs: Aug. 17, 1989 Decided: October 25, 1989 1 Clerk Justice R. C. McDonough delivered the Opinion of the Court. The parties' marriage was dissolved by decree dated February 1, 1989, in the District Court for the Thirteenth Judicial District, Yellowstone County. Wife appeals various aspects of the decree and the findings of fact and conclusions of law contained therein. We affirm. The issues in this case are: 1. Whether the District Court abused its discretion in failing to award interest on property settlement payments? 2. Whether the District Court erred in finding that appellant was not entitled to maintenance? 3. Whether the District Court erred in failing to award attorney's fees? Margaret S . Garner (Margaret) and Kerrian T. Garner (Kerrian) married on March 18, 1966 in Pueblo, Colorado. Two children were born during the marriage. Both children had reached the age of majority before this action was filed. During the course of the marriage, Kerrian was continuously employed outside the home. Margaret was a homemaker, raised the children and assisted Kerrian in his various employments. She also attended Eastern Montana College and obtained a degree in psychology. In 1978, Kerrian and Margaret opened up a business which eventually became Kerrian's, Inc., a retail shoe store. During the first year of operation, Kerrian and Margaret were the only employees for the business. In 1980, the family business was incorporated. Kerrian was issued 51% of the outstanding shares and Margaret was issued 49% of the outstanding shares. For seven years, until 1985, they were both active participants in the business, involving themselves in the daily managerial activities. In 1985, Margaret moved to San Francisco, California to attend law school at Hastings School of Law. During her absence, Kerrian continued to operate the business. While at law school, she relied upon Kerrian for financial support. At the time of trial she was on academic suspension due to a low grade point average. It was her intention to return to school and complete the requirements necessary for her degree which were estimated to take approximately one year. Kerrian filed the petition for dissolution in December of 1987. The issues at trial were distribution of the marital estate, maintenance for Margaret and attorney's fees for Margaret. The District Court addressed the distribution of the marital estate in two parts: first, the assets and liabilities of the parties, excluding the family business; and second, the family business. In part one the District Court found that the net distribution to each party should be on a 50-50 basis. In part two, the District Court found that the value of Kerrian's, Inc. should be divided on the basis of stock ownership, a 51-49 percentage basis. Because animosity between the parties made it impossible for Kerrian and Margaret to continue in a business relationship, the court ordered Kerrian to buy Margaret's interest in the business and to pay her a total of $97,785.00. The court valued Margaret's share of the corporation at $85,970.50. In order to equalize the property distribution, the court further ordered Kerrian to pay $11,814.50. Thus, the total amount owed Margaret equaled $97,785.00. Kerrian was to pay her $3,000 per month until the debt was paid. This plan did not provide any provision for interest. The court also found that Margaret was not entitled to maintenance and further ordered both parties to pay their own attorney's fees and costs in the action. This appeal followed. Margaret argues that the trial court abused its discretion in the distribution of the marital estate by failing to award interest on the property settlement payments. According to the lower court's judgment, Kerrian must make monthly payments of $3,000.00, without interest, for 32.59 months until Margaret's cash award of $97,785.00 is fully paid. Margaret contends that this method of payment has the effect of devaluing her equity in the marital estate, and thus is an abuse of discretion on the part of the trial court. We disagree. At the outset, we note that it is the stated objective of this Court to "pay a great amount of deference to the judgment of the District Court regarding property divisions." In re Marriage of Burleigh (1982), 200 Mont. 1, 8, 650 P.2d 753, 756. The standard of review of a lower court's judgment is whether the district court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Rolfe (1985), 216 Mont. 39, 45, 699 P.2d 79, 83. The division of the marital property in a dissolution action is governed by the provisions of S 40-4-202, MCA. This statute dictates that a court take the needs and characteristics of the parties into account. The statute does not, however, mandate that the marital property be divided equally. Equity, not equality, guides a court's discretion in dividing the marital estate. In re Marriage of Fitzmorris (1987), 745 P.2d 353, 354, 44 St.Rep. 1809, 1811. Margaret argues that the method of payment, dictated by the court below, has the effect of devaluing her share of the marital estate. It is her contention that the cash award is necessarily devalued because it is paid over time. In order to accurately divide the estate, according to the stated goal of a 51-49 percentage, she should be awarded interest payments. This argument, however, ignores the fact that the allowance of interest is within the discretion of the District Court. In re Marriage of Jacobson (1979), 183 Mont. 517, 600 P.2d 1183; In re Marriage of Wessel (1986), 220 Mont. 326, 715 P.2d 45. A review of the facts does not support Margaret's contentions that the District Court abused its discretion. Personal property, acquired during the marriage, was split on a 50-50 basis. Kerrian's, Inc., was split according to stock ownership, or on a 51-49 percentage basis. In making this apportionment, the District Court made extensive findings with regard to the parties' needs and potentialities. It found that because of her employment skills, acquired through experience gained as assistant manager of the family business, and her education, including future graduation from a prominent law school, Margaret has an excellent opportunity for future acquisition of capital assets and income. We do not disagree with these findings. A Juris Doctorate degree is a valuable income producing asset. Margaret testified that the top graduates from Hastings earn on the average of $40,000 to $65,000 a year. In contrast, Kerrian has only one year of college. He has worked in the family business for all of his adult life while Margaret received a college education at Eastern Montana College and two years of law school at Hastings. In light of these facts we hold that the trial court's property division was not an abuse of discretion. I1 Margaret next argues that the District Court erred by refusing to award her maintenance. Again, we disagree. An award of maintenance is appropriate if the spouse seeking maintenance "lacks sufficient property to provide for [her] reasonable needs; and is unable to support [herself] through appropriate employment. . .I1 Section 40-4-203, MCA. Margaret maintains that the court failed to take these principles into account when it refused to award her any maintenance. At trial, she requested maintenance until she completed her law school degree and gained admission to the bar. It was her contention that after distribution of the marital estate, she lacked "sufficient property" to provide for her reasonable needs. She further argued that she is unable to obtain appropriate employment until she is qualified to practice law. Margaret was awarded the following property, at her request: a cabin at Flathead Lake, the liabilities against which exceed the value; the cash value of a life insurance policy; an IRA; her interest in a retirement/profit sharing plan; personal property; and the cash award of $97,785.00. She maintains that none of this property is income producing. Therefore, it cannot provide for her "reasonable needs." According to the record, the cabin at Flathead Lake is subject to two separate mortgages of $84,769.00 and $22,315.00 each. The monthly payments on these liabilities total approximately $1500.00. These payments, it is argued, render the cabin an income-consuming piece of property, which will force Margaret to consume her property settlement payments to meet her financial needs. Therefore, the award of the cabin is not "sufficient property" as that term is used in 5 40-4-203 (1) (a), MCA. We agree that the cabin is not income producing property. However, we also take note that Margaret insisted upon receiving the cabin during the entire dissolution proceeding. Kerrian wanted to sell the cabin to reduce the drain on the family cash. Our review of the court file reveals that Kerrian asked the court for an order allowing him to sell the property so that neither party would be faced with meeting the cabin's payments. Margaret resisted this motion. Therefore, in light of these facts, we hold that the trial court did not abuse its discretion in failing to order maintenance payments which are not necessitated by Margaret's "reasonable" needs but rather through her voluntary decision to choose a piece of property which consumed income. Margaret also contends that she is entitled to maintenance because she cannot support herself through appropriate employment until she completes her law degree and gains admission to the bar. During the divorce proceeding, Margaret testified that prior to the filing of this action, she required approximately $3,000.00 a month to live on. Her expenses included $800.00 for apartment rent, and $110.00 to park her car. During separation and preceding the termination of the marriage, Kerrian paid Margaret $1500.00 a month maintenance. In the final judgment, however, the trial court did not award any maintenance. The court based its decision, in part, on its determination that Kerrian was unable to pay any maintenance after meeting his own needs. Evidence at trial established that his disposable income averaged approximately $2,350.00 a month. We agree with the trial court that Kerrian would not be capable of providing Margaret with $3,750.00 a month maintenance. The lower court also found that, contrary to Margaret's contentions, she is capable of supporting herself through appropriate employment. Margaret argued t h a t because of h e r low grades and h e r d i s q u a l i f i e d s t a t u s ( i . e . academic suspension), she is incapable of supporting h e r s e l f . However, t h e record c l e a r l y shows and she t e s t i f i e d t h a t she could work a s a law c l e r k f o r $10.00 an hour. Additionally, it was revealed, t h a t a t one p o i n t she received $800.00 a week while c l e r k i n g f o r a San Francisco law firm. This Court f i n d s , t h e r e f o r e , t h a t t h e D i s t r i c t Court d i d not abuse i t s d i s c r e t i o n i n refusing t o award Margaret alimony. A s s t a t e d e a r l i e r , she received roughly f i f t y percent of t h e m a r i t a l property a f t e r d i s t r i b u t i o n . A s p a r t of t h i s property d i s t r i b u t i o n , t h e c o u r t ordered Kerrian t o pay Margaret $3,000.00 a month f o r a period of over two and a h a l f years. This income, r e a l i z e d from t h e property settlement, together with t h e e x c e l l e n t employment o p p o r t u n i t i e s a v a i l a b l e t o her a s a r e s u l t of her attendance a t a law school, i s adequate t o supply h e r "reasonable needs. " I11 F i n a l l y , Margaret maintains t h a t t h e c o u r t e r r e d i n f a i l i n g t o award h e r a t t o r n e y ' s f e e s and c o s t s pursuant t o t h e provisions of § 40-4-110, MCA. W e f i n d t h a t t h e c o u r t ' s determination i n t h i s matter was reasonable and within i t s d i s c r e t i o n . W e affirm. J u s t i c e - J u s t i c e s 8 Justice John C. Sheehy, concurring and dissenting: I concur with all of the majority opinion, except that part which denies the wife interest on the deferred payments to be made by the husband to her. There is an internal conflict in the order of the District Court and in the majority opinion on the subject of interest. The District Court found, and the majority agree, that the value of Kerrian's, Inc., should be divided between husband and wife in the ratio of 51-49. Then the District Court provided that the husband should pay wife the 49% amounting to $97,785 over a period of time (calculated at 32.59 months) at the rate of 3,000 per month without interest. Thus the husband will have the use of the wife's funds over a 2 $ year period interest-free. I do not think the District Court, nor any member of the majority would see anything but injustice in such an arrangement if anyone of them were forced to the small end of the same deal. The value of the wife's award has been decreased by at least $7,500 under the District Court's order, and to me that is substantial enough to require fixing. I would reverse and remand for that single purpose. f l | October 25, 1989 |
92b5aca4-38f1-4eaa-978c-43565b59f4b7 | HARTFORD v YOUNG | N/A | 89-051 | Montana | Montana Supreme Court | NO. 89-51 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 LLOYD E. HARTFORD, Appellant, -vs- FLORENCE YOUNG, Claimant and Respondent, BILLINGS PUBLIC SCHOOL DISTRICT, #2, Employer, EBI/ORION GROUP, Insurer. APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Vernon E. Woodward argued; Woodward Law Office, Billings, Montana For Respondent: Mike McCarter argued; Hughes, Kellner, ~ullivan & Alke, Helena, Montana Filed: submitted: September 25, 1989 ~ecided : November 14, 1989 Chief Justice J. A. Turnage delivered the Opinion of the Court. Attorney Lloyd E. Hartford appeals the Workers1 Compensation Court's affirmation of an order by the Division of Workers1 Compensation directing the appellant to forfeit all attorney fees related to his representation of claimant Florence Young. We affirm. ISSUES 1 . Are section 24.29.3801, ARM (1985), and the administrative hearings held thereunder invalid because they are inconsistent with section 39-3-613, MCA, and the rule of Wight v. Hughes Livestock Co. (1983), 204 Mont. 98, 664 P.2d 303? 2. Did attorney Hartford's actions violate either section 39- 3-613, MCA, or section 24.29.3801, ARM (1985), and thereby justify total forfeiture of attorney fees? FACTS Florence Young submitted a claim for workers1 compensation following an injury incurred during her employment as a housekeeper at Meadowlark Elementary School in Billings, Montana. In November of 1985, insurer EBI/Orion Group paid the claimant a lump sum advance of $2,500 and in December of 1985, paid a further advance of $1,000. In February of 1986, Mrs. Young retained Lloyd E. Hartford agreeing to pay the attorney, (a) For cases that have not gone to a hearing before the Workers1 Compensation Court, twenty-five percent (25%) of the amount of compensation payments the Client received due to the efforts of the attorney . . . . The agreement also stated, 3. That as of the date of this Agreement, the Client has received benefits as follows: A r n t . unknown and that no attorney's fees will be charged on the aforesaid amount. The administrator of the Division of Workers1 Compensation approved the agreement in compliance with section 24.29.3801, ARM (1985). On April 24, 1986, with Hartford's assistance, Mrs. Young received an advance of $12,466.65 which included $2,493.33 for attorney fees. The following April, the insurer notified Mrs. Young that she had received $4,312.05 in overpayments because she was receiving Social Security benefits which the insurer was entitled to offset. Thereafter, Hartford negotiated a full and final compromise settlement which provided that, ' I t h e Claimant agrees to accept the sum of $58,275.00 . . . plus insurer's waiver of recovery of $20,278.70 overpayment and advance, for a total settlement of $78,553.70 . . . . I' Hartford calculated his attorney fees at $19,638.43, twenty- five percent of the final settlement, and submitted his claim to the Insurance Compliance Bureau. The claims examiner advised Hartford that it was inappropriate to charge for Mrs. Young's overpayments and advances, and ordered the insurer to retain the attorney fees until the matter was settled. During the subsequent contested case on the attorney fees, Hartford argued that the overpayment and advances were debts which the insurer agreed to waive only because of his negotiation efforts. The hearing examiner rejected this contention and awarded $14,568.75 in attorney fees, twenty-five percent of the $58,275.00 in "new moneyw obtained in the final settlement. The hearing examiner deducted $1,000 from the attorney fees after determining that Hartford violated section 39-71-613, MCA, and section 24.29.3801, ARM (1985). The hearing examiner found that Hartford charged the claimant fees based on benefits he had not obtained--specifically, the $1,000 and $2,500 advances, and the $4,312.05 overpayment. The examiner also found that Hartford charged the claimant twice on the $12,466.65 lump sum advance. Hartford appealed this decision to the administrator of the Division of Workers1 Compensation. The administrator agreed with the examinerls findings and conclusions with the exception of the $1,000 forfeiture. The administrator held that Hartford had blatantly overcharged his client and made an example of him by requiring forfeiture of all fees. Hartford then requested judicial review by the Workers' Compensation Court. The court agreed with the administrator's decision noting that forfeiture of fees is mandatory under section 39-71-613, MCA. Hartford now appeals the Workers1 Compensation Court's decision. VALIDITY OF THE REGULATION AND HEARINGS The appellant argues that the workers1 compensation regulation governing attorney fees is invalid because it is inconsistent with the statute under which it was promulgated and the factors set out by this Court in Wight v. Hughes Livestock Co. (1983), 204 Mont. 98, 114, 664 P.2d 303, 312. Consideration of this issue is precluded by the appellant's failure to raise it at the trial court level. Both parties fully briefed and argued this case before the lower court, but the record shows no indication that the appellant attacked the validity of the regulation. As a general rule, this Court will not review issues not raised before the Workers' Compensation Court. Martinez v. Montana Power Co. (Mont. 1989) , - P.2d , , 46 St.Rep. 1684, 1687. FORFEITURE OF FEES We note at the outset that this Court is guided by the purpose of the workers' compensation statutes. That purpose is protection of the interests of the injured worker. North American Van Lines v. Evans Transfer and Storage (Mont. 1988), 766 P.2d 220, 223, 45 St.Rep. 1848, 1852. The Montana workers' compensation statute on attorney fees provides : If an attorney violates a provision of this section, a rule adopted under this section, or an order fixing an attorney's fee under this section, he shall forfeit the right to any fee which he may have collected or been entitled to collect. 5 39-71-613 (3), MCA. The workers1 compensation regulation in effect when this case arose provided that an attorney may not charge: (a) for cases that have not gone to a hearing before the workers1 compensation judge, a fee above twenty-five percent (25%) of the amount of compensation payments the claimant receives due to the efforts of the attorney. 5 24.29.3801, ARM (1985). Appellant Hartford argues that the Workers1 Compensation Court erred in relying on the current version of the regulation, section 24.29.3802, ARM (1987), instead of the version which controlled at the time the dispute arose, section 24.29.3801, ARM (1985). The appellant is correct, but the error is harmless. For the purposes of this case, the regulations are essentially identical in wording and meaning. Prior to reaching the Supreme Court, appellant Hartford argued that he did not violate the attorney fees regulation by charging Mrs. Young for the advances and overpayment. He asserted that they were debts which the insurer waived due to his negotiating efforts. We agree that in workers1 compensation cases, an attorney may bill for debts waived through the attorney's efforts. A waiver of debt is a benefit to the claimant obtained by the attorney and is fully compensable within the limitations of the attorney fees regulation. The regulation limits compensation in at least two aspects. First, an attorney may not charge more than twenty-five percent of the compensation "the claimant receives. 5 24.29.3801, ARM (1985). The regulation looks first to the claimant's recovery in capping attorney fees. Undoubtedly, an attorney may become involved in several distinguishable efforts in securing a single recovery for the client. In such cases, agency approval of increased fees may be appropriate. See 5 24.29.3801(4), ARM (1985). However, absent such approval, the attorney may not bill more than twenty-five percent on each amount received by the client. Second, the recovery must be "due to the efforts of the attorney." 5 24.29.3801, ARM (1985). Whether the attorney's efforts brought about the waiver, as opposed to a voluntary waiver by the insurer, is a question of fact to be determined by the hearing examiner. See 5 5 2-4-621(2), 2-4-623, MCA. Appellant Hartford also argues that he made a mistake in calculating his fees and is being excessively punished for pursuing a good faith claim. We agree that a simple mistake in calculation should not result in total forfeiture of attorney fees. However, we do not agree that his is a good faith claim. Hartford consistently and vehemently argued that he was entitled to additional attorney fees for Mrs. Young's advances and overpayments because they were debts the insurer waived through Hartford's negotiating efforts. He made this argument in a series of letters to Judge Reardon of the Workers' Compensation Court after Mrs. Young complained to the judge about Hartford's excessive fees. He maintained the same inflexible position before the hearing examiner, the administrator, and the Workers' compensation Court. Now before this Court, Hartford admits for the first time that he was not entitled to those fees, and asserts that he was merely mistaken in his calculations. If Hartford's former argument is incorrect at this appellate level, he should have known that it was incorrect at the agency level. We cannot credit Hartford with good faith in pursuing attorney fees under a theory which even he admits is without legal merit. We agree with the Workers1 Compensation Court that Hartford violated the regulation in at least two instances. First, Mrs. Young received the two advances totaling $3,500 prior to retaining Hartford. Those advances were settlements of future benefits owing to Mrs. Young and not debts she was required to repay. Charging for those benefits violates the regulation because, as appellant now admits, the claimant received those advances due to her own efforts and not Hartford's. Furthermore, the parties1 agreement stated that the attorney would not charge for amounts previously received. To now label these advances debts waived through the attorney's efforts is at least a violation of their agreement. Second, Mrs. Young received a $12,466.65 advance through Hartford's efforts, but he was paid $2,493.33 for those efforts. To now call this advance a waived debt would allow the attorney to charge a twenty-five percent fee in addition to the twenty percent fee already received. We hold that attorney Hartford's attempts to overcharge the claimant are in violation of the attorney fees regulation and the purposes of the workers1 compensation statutes. Total forfeiture of fees is required by section 39-71-613(3), MCA. As the Workers' Compensation Court noted, this is a harsh result considering that Mrs. Young received more than $58,000 through Hartford's efforts. However, the statute is clear and it is mandatory. Affirmed. 'Chief 'Justice We concur: Justices Hon. Frank I . ' I asw well , Retired Chief Justice, sitting in place of Justice R. C. McDonough Justice John C. Sheehy, dissenting: This is indeed a harsh result. The biblical avouchment that the laborer is worthy of his hire applies even to lawyers. I don't understand the majority opinion. It affirms that waiver of a debt owed by the worker to another, where the waiver is gained through the attorney's effort, is a benefit to the claimant for which the attorney should receive compensation. Then the majority assert that his compensation is limited to moneys "the claimant receives." The majority derive that clause from a regulation adopted by the Department. However the regulation itself is a departure from the language of the statute on which the regulation must depend. Section 39-71-613(2) provides the Department may regulate attorneys fees, but in so regulating, says the statute, the Department shall consider: "(a) the benefits the claimant gained due to the efforts of the attorney." According to my dictionary (Webster's New Collegiate Dictionary (1981)) "receive" means "to come into possession of"; on the other hand, "gain" refers to "resources or advantage acquired or increased"; or again, "to cause to be obtained or given." Here, Mrs. Young did not receive money when the debts were forgiven; she gained an advantage in not having to pay the debts. In Board of Barbers v. ~ i g Sky College , Etc. (1981), Mont . , 626 P.2d 1269, 1271, an administrative rule - - that required a year's apprenticeship in "a commercial babershop" prior to examination, when the statute required a year's apprenticeship served "under the immediate personal supervision of a licensed barber" was held invalid. In State ex rel. Swart v. Casne (1977), 172 Mont. 302, 308-309, 564 P.2d 983, 986, this Court struck down a rule of the Department of Health that defined "Occasional sale" in conflict with the statute on the same subject. Those cases should lead us here to say that the regulation, B 24.29.3801 (ARM (1985)) is an invalid restriction on the right of an attorney to be paid for his work under B 39-71-613(2), MCA. Hartford, of course, is not entitled to attorney fees for the two advances totaling $3,000.00, nor for the advance of $12,466.65 for which he was paid. He was mistaken as to those items, but against those items must be weighed the threat, now actuality, that he should get no fees for his - successful representation of his client. The positions of the Department and Hartford hardened, and vengeance set in. He gained for his client, according to my calculations, $63,087.05, for which he was entitled to $15,771.76 in attorney fees. A loss of that amount is a very severe jolt to an attorney whose livelihood depends on success, and losers are loss items. Hartford is being punished for daring to stand up to the Department and to insist on his rights. I can't think of a criminal case in our state where a fine exceeding $15,000.00 was ever assessed. Hartford is being treated worse than a criminal. I would order payment to Hartford of his rightfully earned attorney fees. | November 14, 1989 |
e1109819-99e9-430e-a19c-2c4a6824eeac | WACKER v PARK RURAL ELECTRIC CO-OP | N/A | 89-013 | Montana | Montana Supreme Court | NO. 8 9 - 0 1 3 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 JERRY WACKER, p l a i n t i f f and A p p e l l a n t , ( . -VS- 'Z CD 0 Z CP PARK RURAL ELECTRIC CO-OPERATIVE, I N C . , 0 -(n 4 L- D e f e n d a n t and R e s p o n d e n t . -uv, 0 ' Q k * 2 C - , "L7 rr: m u - =s 0 rno 3 z r rn vl Cp XJ 00;" vr APPEAL FROM: ~ i s t r i c t C o u r t of t h e S i x t h J u d i c i a l D i s t r i g , I n and for t h e C o u n t y of P a r k , 4 T h e H o n o r a b l e B y r o n R o b b , Judge presiding. COUNSEL OF RECORD: For A p p e l l a n t : K a r l R n u c h e l , L i v i n g s t o n , M o n t a n a For R e s p o n d e n t : A r n o l d H u p p e r t , Jr.; H u p p e r t & ~ w i n d l e h u r s t , L i v i n g s t o n , M o n t a n a F i l e d : s u b m i t t e d on ~ r i e f s : A u g . 1 7 , 1 9 8 9 D e c i d e d : O c t o b e r 31, 1 9 8 9 a u ' C l e r k Chief Justice J. A . Turnage delivered the opinion of the Court. Prior to jury trial in this personal injury case, the District Court for the Sixth Judicial District, Park County, granted the defendant's motion in limine preventing the plaintiff's chiroprac- tor from testifying as to the plaintiff's impairment rating. The plaintiff appeals that decision. We affirm. The appellant raises the single issue of whether the District Court erred in not allowing a licensed chiropractor to give his opinion of the plaintiff's degree of impairment based on the American Medical ~ssociation's Guides to Evaluation of Permanent Impairment. Appellant Wacker was injured when a shock from the respon- dent's 7.2 kilo-volt electrical power line knocked Wacker from the crest of a ranch outbuilding on which he was laying tin roofing. His injuries included a concussion, a compression fracture of the lumbar vertebra, and electrical burns on his upper right arm and the hamstring area of his right leg. Following initial treatment, physical therapy and skin graft surgery, Dr. Thiry, a licensed chiropractor, continued to treat Wacker for back problems. Dr. Thiry reported that, based on the American Medical Association's Guides to Evaluation of Permanent Impairment, the back injury left Wacker with a thirty percent permanent impairment. The respondent moved in limine to prevent Dr. Thiry from testifying as to Wacker s impairment rating, and the District Court granted the motion. During trial, Wacker testified several times that he was capable of doing twenty-five percent less work following his injury. Dr. Thiry testified in detail as to Wacker's range of motion limitations without offering his opinion as to Wacker's overall percentage of impairment. The respondent offered expert testimony that Wacker would probably recover fully. The jury apportioned fifty percent of the negligence to each party and determined total damages at $14,759.92. The authority to grant a motion in limine rests within the sound discretion of the trial court and its conclusion will not be reversed unless the court has manifestly abused that discretion. Feller v. Fox (Mont. 1989), 772 P.2d 842, 844, 46 St.Rep. 694, 696. The appellant presents a close question for review. On the one hand, Montana, like most jurisdictions, has adopted a generous policy toward the use of expert witnesses. The testimony and opinions of qualified experts are admissible whenever they will assist the jury in understanding evidence which is beyond the jury's common experience. Rule 702, M.R.Evid.; State v. Campbell (1965), 146 Mont. 251, 258, 405 P.2d 978, 983. Whether the witness is an expert is a question of admissibility within the discretion of the trial court, but the degree of the expert's qualifications goes to the weight of the evidence and is a question for the jury. State v . Martin (1987), 226 Mont. 463, 466, 736 P.2d 477, 479. On the other hand, this Court recently held that in workers' compensation cases the legislature intended to restrict opinions on impairment ratings to licensed medical physicians. Weis v. Division of Workers1 Compensation (Mont. 1988), 755 P.2d 1385, 1386, 45 St.Rep. 1004, 1006. The question before us today is whether in civil cases opinions of impairment ratings should be similarly restricted. We believe that, for the present purposes, the difference between workers' compensation cases and civil cases is a distinc- tion without a difference. Public policy suggests that in both contexts only qualified physicians should be allowed to render opinions on impairment ratings based upon the American Medical Association's Guides to Evaluation of Permanent Impairment. The American Medical Association formulated the Guides for the use of licensed medical physicians. Restricting their use to licensed medical physicians would insure reliable, authoritative opinions on which juries could depend in making their determinations. This is not to say that chiropractors should not testify as to their patientst injuries, or that they should never use percentages in describing their patientst injuries. The jury can decide how much weight to give such testimony. Chiropractors should not, however, add unwarranted weight to their opinions by adopting the trappings of licensed medical physicians. In the present case, the respondent moved the District Court to "prohibit . . . any and all statements about or allusions to the timpairmentt rating of [the] Plaintiff, as derived by Dr. David A. Thiry . . . .It After receiving briefs and oral arguments on the issue, the court granted the respondent I s motion. Dr. Thiry was properly barred from giving his opinion as to Wackerts impairment rating. He could have given his opinion--as Wacker himself did-- that the appellant could perform twenty-five percent less work after the injury. We hold that the District Court did not abuse its discretion. Aff irmed . We concur: Justices Justice John C. Sheehy, dissenting: The majority opinion is a far too stringent limitation on the competence of a chiropractor to testify within the area of his expertise. Moreover, the majority opinion is aberrent from the weight of authority on the subject. In weis v. ~ivision of Workers' compensation (1988), - Mont . , 755 P.2d 1385, this Court inferred that because §§ 39-71-701, -702, and -703, MCA, required in workers' compensation cases that disability be supported a "preponderance of the medical evidence," the use of the term "medical" meant that only licensed physicians could testify in workers' compensation cases as to impairment ratings. From that inference, the majority now infer that the prohibition extends to civil cases as well as ~vrorkers' compensation cases. Thus we have a house of cards built on an inference upon an inference, which should not stand. Chiropractors practice in Montana under licensing statutes which define "chiropractic" as a system of specific adjustment or manipulation of the articulations and tissues of the body, particularly of the spinal column, and "includes the use of recognized diagnostic treatment methods as taught in chiropractic colleges but does not include surgery or the prescription or use of drugs." section 37-12-101, MCA. Determining the rate of impairment is a form of diagnosis. Further, under our statutes, "licensed chiropractors may diagnose, palpate and treat the human body by the application of manipulative, manual, mechanical, and dietetic methods, including chiropractic physiotherapy, the use of supportive appliances, analytical instruments, and diagnostic x-ray" following guidelines from state and federal regulatory agencies. section 37-12-104(2), MCA. It is a general rule in this country that a chiropractor may testify concerning matters within the scope of his profession. 52 ALR2d 1380, 1384; Chalupa v. Ind. Workers' Comrn. (Ariz. 1973), 509 P.2d 610; Taylor v. Maxwell an. 1966), 419 P.2d 822. In Line v. Nourine (1974), 298 inn. 269, 215 N.W.2d 52, it was held that a chiropractor was competent to express expert opinion based on reasonable chiropractic certainty regarding probable effects, permanence and future medical requirements of plaintiff ' s back injury, where proper foundation was laid and the matter was within the scope of his profession and the practice of chiropractic. In this case, the majority, in holding that a chiropractor may not testify as to the rate of impairment based on AMA charts goes too far. Once a proper foundation is laid, a chiropractor should be held competent to testify in civil cases (excluding workers' compensation cases) within the realm of his knowledge and training as licensed by the state. Chalupa, supra. It perverts justice to let a verdict stand where the jury was foreclosed from hearing testimony about plaintiff's impairment from the licensed health provider who principally treated the plaintiff. I would reverse and grant a new trial where the witness would be permitted to testify within the area of his expertise, upon proper foundation laid. Mr. Justice William E. Hunt, Sr.. I concur in the dissent of Justice Sheehy. | October 30, 1989 |
75a09496-4d34-4292-af43-457823931185 | LIVINGSTON v TREASURE COUNTY | N/A | 89-121 | Montana | Montana Supreme Court | NO. 8 9 - 1 2 1 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 VIOLET LIVINGSTON, Plaintiff and Appellant, TREASURE COUNTY, a political subdivision of the State of Montana, Defendant and Respondent. APPEAL FROM: District Court of the Thirteenth Judicial g s t r ~ q t , In and for the County of Yellowstone, --I The Honorable ~ i a n e G. Barz, Judge presiding. COUNSEL OF RECORD: For Appellant: John J. Cavan; Cavan, Smith, Grubbs & Cavan, ~illings, Montana For Respondent: Calvin J. Stacey; Keefer, Roybal, Hanson, Stacey & Walen, ~illings, Montana Lee Kerr, Treasure County Attorney, Hysham, Montana Filed: Submitted on Briefs: July 7, 1 9 8 9 Decided: November 6, 1989 Clerk ~ustice William E. Hunt, Sr., delivered the Opinion of the Court. plaintiff Violet ~ivingston appeals from a judgment of the District Court of the Thirteenth Judicial District, Yellowstone County, dismissing her complaint against defendant Treasure County. We reverse and remand. The sole issue raised on appeal is whether the District Court erred in dismissing the complaint because the return of service was not filed with the clerk of court within three years after the commencement of the action. On November 27, 1985, plaintiff filed a complaint against defendant, alleging personal injuries due to the negligence of defendant's employees. Summons was issued on the same day. Three years later, on November 27, 1988, plaintiff delivered the summons and complaint to the sheriff, who served defendant on that day. plaintiff filed the summons and return with the District Court on December 20, 1988. On December 14, 1988, defendant filed a motion to dismiss. The District Court granted the motion, concluding that under Rule 41 (e), M.R.civ.P., the action could not be prosecuted because the summons and return were not filed with the clerk of court within three years after commencement of the action. plaintiff appealed to this Court. At issue in this case is Rule 41(e), M.R.civ.P., which provides in pertinent part: No action heretofore or hereafter commenced shall be further prosecuted as to any defendant who has not appeared in the action or been served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, -- and all actions heretofore or hereafter commenced shall be dismissed 4241 the court in which the same shall ha= been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been -- served and return made and filed with the clerk of -- -- the court within 3 years after the commencement of r sald action, or unless appearance has been by t G defendant or defendants therein within said 3 years. (Emphasis added. ) The literal language of the rule requires an action's dismissal if the plaintiff fails to serve the defendant and file the return within three years of the commencement of the lawsuit. We do not believe, however, that such a harsh result is warranted in a case such as this, where plaintiff has served defendant on the last permissible day but has failed to file the return with the clerk of court until approximately one month after three years have elapsed. The purpose of Rule 41(e), M.R.civ.P., is to ensure that actions are timely prosecuted. See State ex rel. Equity Supply Co. v. ~istrict Court (1972), 159 Mont. 34, 494 P.2d 911. Indispensable to the timely prosecution of an action is the service of the summons and complaint. Service of the summons is the means by which the district court acquires personal jurisdiction over the defendant. linto on v. ~iller (1951), 124 Mont. 463, 478, 226 P.2d 487, 495; Haggerty v. Sherburne Mercantile Co. (1947), 120 Mont. 386, 392, 186 P.2d 884, 889. Service is also essential to due process as it notifies the defendant of the pendency of an action against him thereby giving him the opportunity to defend himself or his property. Clinton, 124 Mont. at 478, 226 P.2d at 495; Haggerty, 120 Mont. at 396-97, 186 P.2d at 891. ~iling the return, on the other hand, is simply a ministerial act. The return itself is merely evidence of service of the summons and complaint. linto on, 124 Mont. at 479, 226 P.2d at 495. It is filed with the court only to document on the record the fact that service has been completed. In this case, the plaintiff's failure to file the return neither hindered nor delayed prosecution of the action. Nor did it affect the validity of service. We note that other rules governing proof of service provide that "[flailure to make proof of service does not affect the validity of the service. " Rules 4D (8) (e) and 5(f), M.R.civ.P. In ~ i g spring v. Blackfeet Tribe (1978), 175 Mont. 258, 573 P.2d 655, we discussed the failure to file the return within 10 days after service as mandated by Rule 5(f), M.R.civ.P. We stated that failure to file the return within the time limits of that rule may be excused only upon a showing of good cause. ~ i g spring, 175 Mont. at 263, 573 P.2d at 658. The facts in the present case demonstrate that good cause has been shown. The rules of civil procedure are to be construed in a manner that secures the just, speedy and inexpensive determination of lawsuits on their merits. Larango v. Lovely (1981), 196 Mont. 43, 47, 637 P.2d 517, 519. Summary dismissal of this lawsuit for failure to file the return is not appropriate. We conclude that it is appropriate here to excuse the failure to file the return. The provision of Rule 41 (e) , M.R.civ.P., is a departure from the federal rule on the same subject in requiring the return of service to be filed with the clerk of the court within the three-year period. See Rule 41, F.R.Civ.P. since our objective in adopting rules of procedure is uniformity of procedural practice in Montana in state and federal practice as far as possible, this provision of our rule will be referred to the Commission on Rules of Procedure for amendment in conformity with this opinion. Reversed and remanded to the ~istrict Court for further proceedings consistent with this opinion. We Concur: c h i e f Justice q Justice R. C. McDonough dissents: The language of the rule clearly and unequivocally requires the dismissal of lawsuits when the return of service fails to be "filed with the Clerk of Court within three years after the commencement of said action." Such words should be given their plain and ordinary meaning. Section 1-2-106, MCA, Rierson v. State (1980), 188 Mont. 522, 614 P.2d 1020. The purpose of the rule is to allow district judges by examining the court file to dismiss actions in which proof of service has not been entered without further red tape. Dockets are cleared without delay. The appellant has not stated or alleged any excuse or reason to invoke the equity of a court for her failure to file the return in the time frame required. In fact the situation is just the opposite. The summons was issued on the day of the filing of the action. The defendant, Treasure County, was always available for over one thousand days for service of process. Our Federal Constitution was debated and approved by the Convention, and debated and ratified by the States in less time when communication and transportation was done by horse and buggy. Yet in this case no service was made until the last day and it was incumbent on the appellant to have proof of service filed. The majority opinion fosters delay which is the opposite of just, speedy and inexpensive determination of lawsuits. I would affirm the District Court. @ E % R & Justice | November 6, 1989 |
09dd41d0-a553-4ae5-a9a1-395d507f023f | JOHNSON v MONTANA DEPT OF LABOR | N/A | 89-281 | Montana | Montana Supreme Court | No. 89-281 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 JOE JOHNSON, Petitioner and Appellant, -vs- MONTANA DEPARTMENT OF LABOR & INDUSTRY, Respondent and Respondent. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Thomas McKittrick, Judge presiding. COUNSEL OF RECORD: For Appellant: Larsen & Neill; Kenneth R. Neill, Great Falls, Montana For Respondent: Claren Neal, Dept. of Labor & Industry, Helena, Montana k- r - Submitted on Briefs: Oct. 25, 1989 0 . - L > r3 :F ) Decided: December 19, 1989 T - f ( - - > w L 1 ' 1 1 a Filed: f ~ = c 3 ' - , 0 c ; - LLI d - k 2 L J C3 0 - 7 - u c = , LLI 2 ' Justice John Conway Harrison delivered the Opinion of the Court. Joe Johnson, a Great Falls homeowner, appeals the decision of the District Court confirming a holding by the Board of Labor Appeals. The decision upheld a finding that a carpenter who had worked on the remodeling of Johnson's home was his employee and Johnson therefore owed unemployment insurance tax on the employee's wages. We reverse. Only one issue is presented: Did the District Court err when it found that there was substantial evidence to support the decision of the Board of Labor Appeals that Mike Voeller, the worker in question, was an employee and not an independent contractor u~der the AB test of § 39-51-201 (14), MCA? Joseph V. Johnson, the petitioner and appellant, is a food broker in Great Falls, Montana. When Johnson and his wife, Mary, bought a new home they contacted their former neighbor, a building contractor, to see if he would be interested in remodeling the new house. The neiqhbor declined the job, but indicated his son, Mike Voeller, might be able to do the carpentry work. Johnson then contacted Mike Voeller who, along with a Mr. Pontdt, agreed to do the remodeling job. At the time they engaged Voeller and Pontdt to remodel, the Johnsons were not sure exactly what they wanted done to their new home or how much they could afford. They did know they wanted the kitchen enlarged and remodeled and a bedroom, bathroom, porch and deck added. After reviewing the project and discussing finances, the parties agreed that the work would be done on an hourly basis rather than by bid, with Voeller and Pontdt each receiving $7 per hour and the Johnsons paying for materials. Voeller and Pontdt each had their own contracting businesses. Although he had not formally incorporated, Voeller called himself Mike Voeller, Inc. Voeller had his own tools and a small shop in his home. Both before and after the Johnson job Voeller performed independent contracting jobs as a carpenter, doing remodeling, roofing, siding and cabinet making. For several months immediately preceding the Johnson job, Voeller worked for wages as a carpenter for a firm known variously as B-A-C, M-S-C, and Hallmark. During the three years Voeller did carpentry work, the only time he ever worked for wages was his stint with B-A-C. After Voeller completed the B-A-C and Johnson jobs, he applied for unemployment benefits thinking he was entitled to unemployment benefits from his work at B-A-C. However, Voeller did not believe his work for Johnson entitled him to unemployment benefits. The direction Voeller and Pontdt received from Johnson was minimal. Johnson would discuss options with the carpenters, and Voeller and Pondtd would tell Johnson whether they could or could not carry out his idea. Voeller and Pontdt would arrange for and hire other building professionals such as the electrician, perfa-taper and plumber, all of whom were also paid on an hourly basis. As the work progressed Johnson would, as customary, approve the final construction plans and select the finish materials to be used. When Voeller applied for unemployment the Department of Labor and Industry determined Voeller to be Johnson's employee, based on questionnaires completed by the two men. The Department found, therefore, that Johnson owed the Department for past unpaid unemployment contributions during the period Voeller worked for Johnson. A redetermination hearing before an Appeal's Referee confirmed Voeller's status as an employee. Johnson then appealed the determination to the Board of Labor Appeals. Following a telephone hearing, the Board of Labor Appeals hearing officer affirmed the Department's conclusion, finding Voeller an employee under 55 39-51-203 (4) and 39-51-201 (14), MCA . On judicial review the District Court upheld the earlier findings that Voeller and others similarly situated were Johnson's employees, and Johnson now appeals the court's decision. The standard of review for cases involving claims before the Board of Labor Appeals is found in Title 39, Part 24 of Chapter 51: In any judicial proceeding under 39-51-2406 through 39-51-2410, the findings of the board as to facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law. Section 39-51-2410 (51, MCA. Accordingly, those facts, as the Board of Labor Appeals found them to exist, will stand if supported by the evidence, absent fraud. Recent case law has held that "supported by the evidence" means supported by substantial evidence, which is "something more than a scintilla of evidence, but may be less than a preponderance of evidence." Gypsy Highway Gathering System, Inc. v. Stokes (1986), 221 Mont. 11, 15, 716 P.2d 620, 623. See also Larry's Post Co., Inc. v. Unemployment Insurance Division (Mont. 1989) , 777 P. 2d 325, 46 St.Rep. 1193. While the substantial evidence test gives deference to the agency fact finder, the court's judicial review must nonetheless be "searching and careful, subjecting the agency's decision to close judicial scrutiny." Cranston v. Clark ( 9 t h C i r . 1 9 8 5 ) , 767 F.2d 1319, 1321 ( c i t i n q Memorial, Inc. v. H a r r i s ( 9 t h C i r . 1 9 8 0 ) , 655 F.2d 905, 912). More importantly, w e cannot permit t h e letter o f t h e law t o transcend t h e s p i r i t of t h e law. A s we noted when p r e v i o u s l y faced w i t h t h i s question: W e f e e l t h a t whether a person performing s e r v i c e s i s an employee o r an independent c o n t r a c t o r i s t h e q u e s t i o n b e f o r e u s , and s t a t u t e s used a s guides i n making such d e t e r m i n a t i o n s must n o t be d i s t o r t e d t o allow persons who a r e t r u l y independent i n t h e i r o p e r a t i o n t o be h e l d employees merely f o r t a x purposes and r e s u l t i n q b e n e f i t s derived from an employer-employee r e l a t i o n s h i p . S t . Regis Paper Co. v. Unemployment Compensation Comm'n (1971), 157 Mont. 548, 552, 487 P.2d 524, 526. The two-part test t o determine whether an i n d i v i d u a l i s an independent c o n t r a c t o r i s found a t § 39-51-201 (14) , MCA: "Independent c o n t r a c t o r " means an i n d i v i d u a l who r e n d e r s s e r v i c e i n t h e course o f an occupation and: ( a ) h a s been and w i l l c o n t i n u e t o be f r e e from c o n t r o l o r d i r e c t i o n over t h e performance of t h e s e r v i c e s , both under h i s c o n t r a c t and i n f a c t ; and ( b ) i s engaged i n an independently e s t a b l i s h e d t r a d e , occupation, p r o f e s s i o n , o r business. This test, formerly known a s t h e ARC test, was amended by t h e 1987 L e g i s l a t u r e dropping a t h i r d prong of t h e test.. The amended v e r s i o n o f S 39-51-201 (14), MCA, i s now c a l l e d t h e AB test, and i t s emphasis, a s under t h e ABC t e s t , and a t common law, i s c o n t r o l . This Court has p r e v i o u s l y recognized f o u r f a c t o r s t o c o n s i d e r i n determining i f t h e r i g h t t o c o n t r o l e x i s t s : (1) d i r e c t evidence of r i g h t o r e x e r c i s e of c o n t r o l ; ( 2 ) method of payment; ( 3 ) f u r n i s h i n g of equipment; and (4) right to fire. Sharp v. Hoerner Flaldorf Corp. (1978), 178 Mont. 419, 425, 584 P.2d 1298, 1301-02 (citing Larson's Workmen's Compensation Law, Vol. lA, S 44.31, p. 8-35). The Hearings Examiner addressed the first factor, exercise of or right to control, in his Finding of Fact No. 4: "The Appellant asked for advice from the carpenters as well as directed their work or chose among options or suggestions made by the carpenters as their work progressed. The Appellant also chose, as needed, the finish materials purchased and used." In affirming the decision, the District Court relied on the same sort of evidence, finding in its memorandum and order that: [Tlhe record contains evidence that shows the petitioner made numerous changes in the scope and extent of the work to be performed. The petitioner chose the materials and paid the supplier directly for supplies utilized. The petitioner also had the right to approve the work performed and indicated he had the right to make workers work faster. All of the facts pointed to by the Hearings Examiner and the District Court to support their finding of control are usual and ordinary practices in the carpentry business. The finding does not so much show control as it does indicate a business practice. Mr. Voeller testified that Mr. Johnson did not correct the carpenters as to details in the performance of their work and expected them to use their expertise as carpenters to carry out the remodeling project. Mr. Johnson testified that he would tell Voeller and Pontdt his ideas for remodeling and the two carpenters would t e l ! . him if it was possible. In other words, Johnson told Voeller and Pontdt what he wanted done but not - how to do it. This Court has often reiterated the control test in these terms: An independent contractor is one who renders service in the course of an occupation, and represents the will of his employer only as to the result of his work, and not as to the means whereby it is accomplished, and is usually paid for the job . St. Regis Paper Co., 157 Mont. at 552, 487 P.2d at 526 (quoting Kimball v. Ind. Acc. Bd. (1960), 138 Mont. 445, 448, 375 P.2d 688, 690). It is evident that Johnson merely controlled the result of the carpenters' work, not the methods Voeller and Pontdt used to accomplish the end result. As to the second factor, method of payment, evidence showed that both carpenters were paid on an hourly basis and usually submitted their hours to the Johnsons weekly. As a general rule, payment on a time basis is strong evidence of employment status while payment on a completed project basis is consistent with, but not conclusive of, independent contractor status. Solheim v. Tom Davis Ranch f1984), 208 Mont. 265, 273, 677 P.2d 1034, 1038. There is testimony that the method of payment in the carpentry industry is accomplished in one of three ways--on a bid, hourly or cost-plus basis. Mr. Voeller testified that he had done projects on both a bid and hourly basis, and that he usually did smaller jobs on a bid basis. Voeller stated that he commonly did larger jobs on an hourly basis and, after discussion with Johnson, all parties decided that hourly pay would be best on the Johnson job because the Johnsons did not know exactly what they wanted done or how much they could afford. The third test regarding furnishing of equipment preponderates in favor of an independent contractor status between Voeller and Johnson. This Court has adopted the view of Larson's Workmen's Compensation Law, Vol. lC, § 44.34, pp. 8-95 - 8-104, in - Solheim, that an employment relationship usually exists where the employer furnishes equipment, but an employee furnishing his own equipment does not preclude an employment relationship. In Solheim, we concluded that furnishing equipment indicates an independent contractor relationship. Solheim, 677 P.2d at 1039. The right to fire is the final factor determining control. In discussing this final element the Larson treatise notes: The right to terminate the relationship without liability is not consistent with the concept of independent contract, under which the contractor should have the legal right to complete the project contracted for and to treat any attempt to prevent completion as a breach of contract. Larson's Workmen's Compensation Law, Vol. lC, S 44.35, pp. 8-149 - 8-158. Because the contract between the parties was oral, the only evidence before the District Court and the hearings examiners regarding termination comes from the testimony of Voeller and Johnson. Reviewing the testimony, it is apparent that neither man was certain of his rights as to the ability to terminate. When asked by the examiner if Johnson could have decided he no longer wanted Voeller's services, Voeller replied that Johnson "probably" could have. Johnson's answer when asked about his ability to fire the carpenters was equally as tentative: I think, like I testified earlier, if it would have taken them, you know, a real long time. To me it seemed like a long time, and not being a carpenter, you know, it's really questionable what a long time is. I'm sure somewhere along the line I could have, yes. Johnson's reply indicates his belief that, had the carpenters not lived up to their part of the bargain, he would have been justified in terminating the business relationship. However, neither man was directly asked if he believed Johnson could fire Voeller without liability. As discussed above, three of the four control factors substantiate a finding of an independent contractor relationship between Johnson and Voeller. First, Johnson did not possess the right to control how Voeller accomplished the remodeling job, only the right of a homeowner to tell the carpenter what he wanted done as the house was remodeled. Secondly, Voeller and Pontdt furnished all of the equipment necessary to complete the job. Finally, Johnson's right to fire the carpenters was not absolute. As to the other factor, method of payment, while hourly pay usually evidences employment, custom in the industry often finds carpenters working on a per hour basis, and is not conclusive of either an independent contractor or employment status. It must. be remembered that the purpose of this test is not [tlo widen the scope of the term "employment" as used in the statute so as to include therein persons not otherwise included, but . . . to exclude from the definition of the term "employment" persons who might, except for the application of these tests, be included therein. St. Regis Paper Co., 487 P.2d at 526 (quoting National Trailer Convoy, Inc., v. Undercof ler (Ga.App. 1964) , 137 S.E.2d 328, 331). We hold that under the A portion of the AB test of 39-51-201 (14) , MCA, Voeller meets the definition of an independent contractor. Thus, we turn to the I 3 portion of the test which requires the independent contractor to be engaged in an independently established occupation. The District Court, finding that the relationship between IToeller and Johnson f a i l e d p a r t A o f t h e t e s t , d i d n o t address p a r t B. The record c l e a r l y demonstrates t h a t V o e l l e r i s engaged i n a t r a d e independent o f Johnson's. Johnson i s a food broker who s e l l s g r o c e r i e s f o r a l i v i n g . Contracting and c a r p e n t r y have no r e l a t i o n whatsoever t o what Johnson does f o r a l i v i n g . V o e l l e r i s a c a r p e n t e r and has been s i n c e 1985. Accordingly, V o e l l e r a l s o s a t i s f i e s t h e B p o r t i o n o f t h e independent c o n t r a c t o r t e s t . Having met t h e s t a t u t o r y requirements of 5 39-51-201(14), MCA, w e hold t h a t V o e l l e r i s an independent c o n t r a c t o r r a t h e r t h a n employee of Johnson and w e , t h e r e f o r e , r e v e r s e . J u s t i c e s Justice R. C. McDonough dissents. The majority have in essence reviewed this case de novo. They have not applied the proper standard of judicial review. The standard of review of this Board of Labor Appeals determination is set out in 5 39-51-2410(5), MCA, as follows: (5) In any judicial proceeding under 39-51-2406 through 39-51-2410, the findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law. This was the standard employed by the District Court as set out in paragraph two of its Memorandum and Order. "Supported by evidence" has been held by this Court to mean supported by substantial evidence. Jordan v. Craighead (1943), 114 Mont. 337, 136 P.2d 526. A finding of fact under the circumstances here is binding on the Court if it is "supported by substantial evidence, regardless of whether there is substantial evidence or even a preponderance of evidence to the contrary." Gypsy Highview Gathering System, Inc. v. Stokes (1986), 221 Mont. 11, 716 P.2d 620, quoting Jordan, 114 Mont. 337, 136 P.2d 526. Substantial evidence "is something more than a scintilla of evidence, but it may be less than a preponderance of the evidence." Gypsy Highview Gathering System, Inc., 716 P.2d at 623. Is there more than a scintilla of evidence here supporting the factual findings of the Board of Labor Appeals and the hearing examiner? The burden here is on the appellant to show that the worker is an independent contractor and there is a statutory test to determine the worker's status. Section 39-51-201(4), MCA, provides: (14) "Independent contractor" means an individual who renders service in the course of an occupation and: (a) has been and will continue to be free from control or direction over the performance of the services, both under his contract and in fact; and (b) is engaged in an independently established trade, occupation, profession, or business. We need only to discuss "(a)". As to that part, we have cited four factors in determining degree of control in workers' compensation cases which are also applicable here: 1) direct evidence of right or exercise of control; 2) method of payment; 3) furnishing of equipment; and 4) right to fire. See Sharp v. Hoerner Waldorf Corp. (1978), 178 Mont 419, 584 P . 2 1 3 1298 (1978), and Solheim v. Tom Davis Ranch (1984), 208 Mont. 265, 677 P.2d 1034. We said in Sharp: Larson's treatise enumerates four factors to consider when attempting to determine right of control in a given situation. Those factors are: (1) direct evidence of right or exercise of control; (2) method of payment; (3) furnishing of equipment; and (4) right to fire. Larson, S 44.31., p. 8-35. The treatise further points out that the consideration to be given these factors is not a balancing process, rather ". . . independent contractorship . . . is established usually only by a convincing accumulation of these and other tests, while employment . . . can if necessary often be solidly proved on the strength of one of the four items [above]." Larson, supra. From the above it is clear that all four factors are needed to show a worker is an independent contractor. Looking at the factor of the furnishing of equipment, the facts are clear the worker furnished his own tools or equipment and this was a Finding (No. 5) by the examiner. The appellant has met his burden as to this factor required for finding the worker an independent contractor. Second, as the method of payment here the worker was paid by the hour. "It is a strong indication" the status was that of employee. Sharp, 584 P.2d at 1302. Larson, § 44.33, p. 8-41. The workers here were paid weekly for the hours worked that week. This payment by the hour is more than a scintilla of evidence. The appellant claims the reason the hourly method was selected was because the appellants were unclear as to the extent of what they wanted done and were limited as to the amount of money they could spend. The appellant did decide what work was to be done. The weight to be given to the fact of hourly payment and its "strong indication" and the weight to be given to appellant's reason for doing it, is within the province of the fact finder, neither one is conclusive either way. Relative to direct evidence of right or exercise of control, this also is a question of fact. Is there a scintilla of evidence supporting direct control? Changes were made by appellant during the course of the work. Workers did as directed by the changes. The appellant paid an hourly rate and expected the workers to do what he wished. Appellant made day to day decisions as to materials used and paid for them directly to supplier (amounting to over $15,000.00). Appellant had the right to approve the work. See transcript p. 32, lines 11-15 as follows: RAY : You were done upon, er, upon--like the inspection, did he inspect it and have any changes made or what? VOELLER: Oh ya, he had changes all the way through it, you know, but when we were finally done, you know, it was done. He looked at it and it was done. The appellant also felt he had the power to push them along and insist they work faster. This is certainly more than a scintilla of evidence of direct control and it would make a prima facie case, Findings 3 and 4 of the examiner are supported by this evidence. Even if there was not substantial evidence to support the findings of the examiner as to factors of control and method of payment, there is no question there is more than a scintilla of evidence to support Finding 6 of the examiner which is as follows: "Either the appellant or the carpenters could terminate the work relationship without liability." There was no written agreement, only oral. In the examination of Mike Voeller, a worker, by the hearing examiner the following questions were asked and the following answers given: EXAMINER: During the course of the project could you have decided you didn't want to do anymore and stop? VOELLER: Ya, I could have. EXAMINER: All right. Could Mr. Johnson have just decided he was . . . didn't want to employ you anymore or be associated with you anymore and tell you he wanted somebody else to do it? VOELLER: He probably could've if he'd wanted, ya. The following discourse also took place between appellant Johnson and attorney for respondent. BAY: Mr. Johnson, if you weren't happy with the work or felt these workers weren't working fast enough, could you have fired them? JOHNSON: I think, like I testified earlier, if it would have taken them, you know, a real long time. To me it seemed like a long time, and not being a carpenter, you know, it's really questionable what a long time is. I'm sure somewhere along the line I could have, yes. This testimony of the two principal participants is more than a scintilla of evidence that either one could have terminated the relationship without liability. Mr. Voeller's testing is quite clear taken as a whole. It is not precise because of the word "probably" as to his understanding of appellant's riqht. The witness is not a user of words but is a trademan. Voeller certainly felt he could quit. Of the four factors to be met by appellant only one, the furnishing of equipment, has been met. The determinations by the examiner against appellant of the other three questions of fact are supported by substantial evidence. Section 39-51--2410 (5) , MCA, requires that courts accept the findings of fact of the agency if those findings are supported by substantial evidence. The District Court applied the standard and so should we. & F & & > Justice Justice William E. Hunt, Sr.: I join in the dissent of Justice McDonough. | December 19, 1989 |
b1aaf290-5da5-40ee-ab22-3bf8d87d72ad | ESTATE OF STINSON | N/A | 89-049 | Montana | Montana Supreme Court | No. 89-049 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 IN MATTER OF THE ESTATE OF LOUIS WARREN STINSON, a/k/a LOUIS W. STINSON, Deceased. Z -4rn Z, pz- c= 9 c . 0 Z Z r 3 c : r ; . . " .- m - P Q l7-I C 3 3 z , t , APPEAL FROM: District Court of the Twelfth Judicial Distimg, 0 In and for the County of Chouteau, zx s The Honorable Chan Ettien, Judge presiding. c W 3 4 COUNSEL OF RECORD: For Appellant: ~illiam B. Sherman, Conrad, Montana For Respondent: Gale R. Gustafson, Conrad, Montana Filed: submitted on ~riefs: Sept. 15, 1 9 8 9 Decided: November 15, 1 9 8 9 Clerk Justice John C. Sheehy delivered the Opinion of the Court. Appellants Larry Stinson, Verna Stinson Hudson, and Echo Joy Stinson Braff, initiated suit in the District Court of the Twelfth ~udicial District, Choteau County, to contest the will of their late father, Louis Warren Stinson. Personal Representative and respondent, Grace C. Stinson, successfully moved to dismiss the action for failure to prosecute, and summary judgment was entered. Appellants moved to alter or amend the judgment pursuant to Rule 59(g), M.R.Civ.P., and the previous order of September 22, 1988, dismissing the action was nullified and revoked. Appellants now appeal the initial order of dismissal to protect their rights, in the event the District Court order of November 21, 1988 was made at a time when the Court lacked jurisdiction. We dismiss the appeal for lack of jurisdiction. The central issue in this case is whether the ~istrict Court had jurisdiction to nullify and revoke its September 22, 1988 order dismissing the action for failure to prosecute. ~ o u i s Warren Stinson died on April 15, 1984. Respondent Grace Stinson, his wife of 23 years, applied for and was appointed Personal Representative of the estate, pursuant to the deceased's Will of April 18, 1970. The Will devised all of his estate to Grace Stinson, except for $100 to each of ~ o u i s Stinson's children from a previous marriage (contestants/appellants). Grace Stinson initiated informal probate proceedings on May 3, 1984. Contestants filed petitions for revocation of appointment of the Personal Representative and to deny probate on February 28, 1985. Grace Stinson filed her petition for determination of testacy, determination of heirs, and for settlement and distribution of the estate on November 11, 1984. Hearing on the matter was set for March 26, 1985, but was continued indefinitely on that date. In that order, the court commanded counsel to "get together and work up a pre-pre-trial agreement as to deadlines, exchange of exhibits, agreed facts, trial dates available and other matters agreeable." Correspondence between counsel included in the record indicates that contestants sought a settlement of $105,000, to be divided between them. Counsel for Grace Stinson indicated her refusal to such a settlement, and advised that a motion for summary judgment was forthcoming if contestants did not take some action in the matter. Grace Stinson filed a motion for summary judgment on March 31, 1986. Contestants moved to vacate the hearing on the motion, and moved for a pretrial hearing. The hearing on the motion for summary judgment was set and subsequently continued on three occasions. These extensions of time were granted to accommodate the production of telephone records of contestant Joy Stinson Braff. These records had been requested to substantiate claims of Joy Braff that she had, over the years, attempted to maintain contact with her father. From the August 4, 1987 order enlarging time, until July 18, 1988, no motions were filed and no hearings on the matter were held. On July 18, 1988, Grace Stinson moved to dismiss the contest for failure to prosecute. Memoranda were submitted, and on September 22, 1988, the court granted Grace Stinson's motion to dismiss for lack of prosecution. Notice of entry of judgment of dismissal was filed on September 30, 1988. Contestants filed their petition for reconsideration (hereinafter referred to as a Rule 59 (g) , M.R.civ.P. motion to alter or amend a judgment) on October 17, 1988. Contestants stated in an accompanying memorandum that they had not been sleeping on their rights, that the motion for dismissal was filed on July 18, 1988, less than two years after the August 20, 1986 affidavit of Joy Stinson Braff. The court concurred with the contestants and granted the motion to alter or amend the dismissal order of September 22, 1988, thereby nullifying and revoking that order. Contestants now appeal the September 22, 1988 order of dismissal "to protect the rights of contestants in the event the ~istrict Court order of November 21, 1988 denying the motion for dismissal was made at a time when the Court did not have jurisdiction." Rule 59(g), M.R.Civ.P., states in part: Motion to alter or amend a judgment. A motion to alter or amend a judgment shall be served not later then 10 days after the service of the notice of entry of the judgment . . .. This Court has steadfastly held the district courts to a strict interpretation of this rule and "no judge may disregard the requirement as set forth in Rule 59." ~ a i n v. ~arrington (1973), 161 Mont. 401, 506 P.2d 1375. Proper application of Rule 59(g) clearly prohibits the granting of requested relief when the motion is not timely served. McDonald v. McDonald (1979), 183 Mont. 312, 599 P.2d 356. The ~istrict Court issued the order of dismissal on September 22, 1988. Notice of entry of judgment was served on September 30, 1988. Contestants did not file their Rule 59(g) motion to alter or amend judgment until October 17, 1988. Even adding an additional three days as provided by Rule 6(e), M.R.Civ.P., the motion should have been filed by October 13, 1988. Because it was filed too late, the trial court did not have jurisdiction to hear or determine the motion to amend the judgment. ~ccordingly, the ~istrict Court's order of November 21, 1988 is a nullity and cannot stand. O'Connell v. ~eisdorf (19821, 202 Mont. 89, 656 P.2d 199; Matter of Estate of Gordon (Mont. 1981), 628 P.2d 1117, 38 St.Rep. 887. In addition, because the motion to amend the judgment was filed too late, the time for filing notice of appeal was not suspended. ~otice of appeal was filed on November 29, 1988, two months after entry of judgment, well beyond the 30 day time limit provided in Rule 5, M.R.App.Civ.P. Absent a timely notice of appeal, this Court does not acquire jurisdiction to determine an appeal on the merits. price v. Zunchich (1980), 188 Mont. 230, 612 P.2d 1296; O1Connell, supra. The order of September 22, 1988 dismissing for failure to prosecute therefore remains in effect and is no longer appealable. Appeal dismissed. ( L.L-4- -4. /2i2L.tdV Justice we/ Concur : I // | November 15, 1989 |
7f26b9ad-493c-4faa-a119-6504769b0d52 | GARCIA v SCHELL | N/A | 89-270 | Montana | Montana Supreme Court | No. 89-270 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 RAYMOND R. GARCIA and GAIL GARCIA, husband and wife, Plaintiffs and Appellants, -vs- PAUL SCHELL and CAROLINE SCHELL, husband and wife, Defendants and Respondents. APPEAL FROM: ~istrict Court of the ~ineteenth ~udicial ~istrict, In and for the County of ~incoln, The Honorable Robert Keller, Judge presiding. COUNSEL OF RECORD: For Appellant: Bruce McEvoy; Warden, ~hristiansen, Johnson & Berg, Kalispell, Montana For Respondent: Lawrence H. Sverdrup; Sverdrup & Barnes, ~ i b b y , Montana Filed: - - - Submitted on ~riefs: Aug. 17, 1989 Decided: October 24, 1989 Justice John C. Sheehy delivered the Opinion of the Court. Plaintiffs, Raymond and Gail Garcia, filed suit in the District Court for the ~ineteenth ~udicial ~istrict, Lincoln County, to rescind their contract for deed with the defendants, Paul and Caroline Schell. The court entered judgment for the defendants awarding them possession of the real and personal property, or in the alternative, allowing plaintiffs to retain the property by updating and continuing payments. Defendants were also awarded $2,500 in attorney fees plus costs. From this judgment, plaintiffs appeal. We affirm. The issues are: 1. May a contract for the sale of a gas station operated in violation of state law at the time of contract, and subsequently, be rescinded for either lack of consideration or mutual mistake? 2. Did plaintiffs waive any right to rescission by their conduct? Appellants, Raymond and Gail Garcia, entered into a contract for deed with respondents, Paul and ~aroline Schell, on October 16, 1985. Garcias agreed to purchase Schells' self-service gas station, propane plant and 20-hookup RV park for $95,000.00. ~arcias paid $30,000.00 down, and made 29 monthly payments of $698.49, the last payment being made on March 24, 1988. On January 12, 1988, the "Eagle ConocoM business was inspected by the Libby ire Chief and the Deputy State ire Marshall. The Deputy State Fire Marshall again inspected the facility in March of 1988 and determined that several violations of the Uniform ire Code existed. Most serious was the violation of § 79-902(c), which states ". . . Class I or Class I1 liquids shall not be dispensed into the fuel tank of a motor vehicle from above ground tanks." Eagle Conoco's tanks are above ground. The Deputy Fire Marshall listed the corrective steps necessary. Plaintiffs were given the option of installing underground tanks conforming to UFC and Environmental Protection Agency standards within three years, or to make the existing facility as safe as possible, with the understanding that any major renovation would require full conformance with the UFC and EPA standards. The first option's cost, changing to underground leak-resistant tanks, was determined to be approximately $26,700.00. The second option's cost was determined to be approximately $2,000.00. Garcias failed to make their April 16, 1988 payment, or any subsequent payments. Schells notified the Garcias of their default on June 2, 1988. Garcias' attorney sent a letter on June 21, 1988, notifying Schells of their intent to rescind the contract for deed. On that same day, ail ~arcia obtained a loan from the First ~ational Bank in ~ibby, encumbering the gas station with a Deed of Trust and Assignment of Contract for Deed. Garcias continued to use and occupy the premises up to the time of judgment, and sold some items of personal property released by Schells from the security of the contract. On August 2, 1988, under the default provisions in the Contract for Deed, Schells would be entitled to the premises. ~arcias filed their complaint on July 15, 1988, to effect a rescission of the Contract for Deed. Garcias alleged lack of consideration, mutual mistake or, alternatively, actual or constructive fraud on the part of Schells. Garcias asked for $55,132.27 in compensatory damages, in addition to $50,000.00 in punitive damages. I Did the District Court err in determining that neither the illegality of the operation nor the mutual mistake of the parties justified rescission of the contract for deed? The District Court determined that, while failure of consideration and mutual mistake existed, neither were of such seriousness as to justify rescission. Schells contended that the violations of the Uniform Fire Code provisions were not fatal to the contract's consideration. The facts bear this out. ~arcias bargained for, amongst other things, a working, income-producing gas station. Eagle Conoco is such a station. Schells correctly point out that Garcias are not enjoined from operating the station due to the violations. Nor must they install underground tanks to continue operation. The cost of bringing the station up to the standards acceptable to the Montana ire Marshall Bureau is approximately $2,000.00. While this expense constitutes a burden to the Garcias, it is not so great as to justify rescission of the contract for deed. This Court has stated that a breach which goes to only part of the consideration, is incidental and subordinate to the main purpose of the contract, and may be compensated in damages does not warrant a rescission of the contract. Johnson v. Meirs (1946), 118 Mont. 258, 164 P.2d 1012; Halcro v. Moon (1987), 226 Mont. 121, 733 P.2d 1305. ~arcias' contention that they may soon be forced to install underground tanks is not borne out by the record. The State ire Marshall, Ray Blehm, testified that the UFC granted him discretion in allowing nonconforming facilities. He stated that his position was that above-ground tanks would be allowed to remain until replacement occurred through the operator's own volition. Nothing in the record shows that replacement may soon be required by the ~nvironmental Protection Agency, which has instituted new, stricter standards since the contract for deed was formed. The District Court made its decision on the weight of this evidence, and we will not set aside findings of fact unless they are clearly erroneous. Rule 52 (a) , M. R. C ~ V . P. I1 Did Garcias waive their right to rescission? Schells argued, and the District Court concurred, that Garcias waived any right to rescission by their conduct. Rescission of a contract may only be undertaken under certain circumstances. 28-2-1713. How rescission accomplished. Rescission, when not effected by consent, can be accomplished only by the use on the part of the party rescinding of reasonable diligence to comply with the following rules: (1) He must rescind promptly upon discovering the facts which entitle him to rescind . . .. (2) He must restore to the other party everything of value which he has received from him under the contract or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do SO. Garcias' conduct following their notice of rescission was inconsistent with an intent to rescind. On the very day notice of rescission was sent to the Schells, Mrs. Garcia encumbered the property by executing an ~ssignment of the Contract for Deed and a Trust Indenture with the First National Bank of Libby. Further, Garcias continued in their use and occupancy of the premises from June of 1988 (when notice of rescission was given) until after the rendition of judgment in January, 1989. In addition, they disposed of a Jeep and a snowplow (items of personal property transf erred under the contract) after notice of rescission. None of these acts is consistent with a rescission. C lef Justlce 1 | October 24, 1989 |
6595e8fb-5209-453f-ab89-a4af72e624e7 | BENSON v PYFER | N/A | 89-172 | Montana | Montana Supreme Court | No. 89-172 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ROLAND C. BENSON and ARMONIA A. BENSON, Plaintiffs and Appellants, -vs- CLARK PYFER and PAUL KLEFFNER, d/b/a INTERCITY DEVELOPMENT COMPANY, Defendants and Respondents. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Gordon Bennett, Judge presiding. COUNSEL OF RECORD: For Appellant: John L. Hollow, Helena, Montana For Respondent: c3 Filed: L & +- Jacqueline N. Terrell, Helena, Montana i F -- -> 0 > : Submitted on Briefs: Oct. 13, 1989 -- -- L ' c . Decided : December 6, 1989 C . ) 4: - . . a . a 2 z t - Z ZE. C Justice Diane G. Barz delivered the Opinion of the Court. Appellants appeal from an order of the District Court of the First Judicial District, Lewis and Clark County, granting respondents' motion for summary judgment. We affirm. In January of 1979, respondents received approval of a preliminary plat of the Intercity Commercial Subdivision located in Lewis and Clark County. Respondents recorded the final plat on June 26, 1979. On September 10, 1979, the City of Helena created SID # 354 for construction of streets in Block 1 of Intercity Commercial Subdivision. Respondents at that time intended to construct privately the sewer and water facilities necessary for Block 1. Appellants purchased Lot 2 of Block 1 by contract for deed dated September 13, 1979. Pursuant to the contract, appellants purchased Lot 2 "as is" but agree to pay their pro rata share of the cost of installing water and sewer facilities and paved streets. Respondents retained sole discretion to either construct such improvements themselves or obtain approval of an SID for the same. The City of Helena resolved to create an SID for the construction of water and sewer facilities on November 24, 1980. Neither sewer and water facilities were constructed in Block 1. Appellants discontinued making payments required by the contract for deed in August of 1984. One month later, through their attorney, appellants made an offer of rescission to respondents based on the lack of facilities in Block 1 and the inflated purchase price of Lot 2 compared with the value of nearby lots being sold by the City of Helena. Respondents declined this offer. Appellants' complaint filed January 7, 1986, prayed for rescission of the contract for deed founded in respondents' failure to perform their contractual obligations. Appellants alleged respondents breached the contract by not connecting the property to water and sewer facilities or building access roads. Appellants additionally claimed the property was subject to SIDs substantially exceeding the $0.21 per square foot represented by respondents. On March 1, 1988, appellants filed an amended complaint seeking rescission or damages based on respondents' use of plats in inducing appellants' purchase of Lot 2 . Respondents moved for summary judgment on May 16, 1988. Appellants appeal from the District Court's grant of that motion. We affirm. Appellants raise two issues on appeal: 1. Did the District Court erroneously conclude that appellants raised no qenuine issues of material fact? 2. Did the District Court err in finding appellants' claim for rescission barred by laches? Appellants contend the District Court erred in its grant of summary judgment to respondents because genuine issues of material fact remain. Summary judgment is properly granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Rule 56 (c) , M.R.Civ. P. The moving party initially must prove there are no genuine issues of material fact. Pretty on Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60; Eitel v. Ryan (Mont. 1988), 751 P.2d 682, 684, 45 St.Rep. 521, 524. "However, where the record discloses no genuine issue of material fact, the burden of proof shifts to the party opposing the motion, who must come forward with substantial evidence raising an issue of fact." Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 325, 718 P.2d 1341, 1342; Mayer Bros. v. Daniel Richard Jewelers, Inc. (19861, 223 Mont. 397, 399, 726 P.2d 815, 816. Appellants contend the affidavit of Dick Nesbit and certain discovery filed by the respondents after respondents' motion for summary judgment raised genuine issues of material fact. However, appellants fail to disclose exactly what factual issues are raised by these documents. Mere speculation and conclusory statements are insufficient to meet the non-moving party ' s b-urden. Fauerso v. Maronick Constr. Co. (1983), 203 Mont. 106, 112, 661 P.2d 20, 23; Brothers v. General Motors Corp. (1983), 202 Mont. 477, 481, 658 p.2d 1108, 1110; Eitel v. Ryan (Mont. 19881, 751 P.2d 682, 684, 45 St.Rep. 521, 524. We find appellants' contention in this regard without merit. Appellants further assert that the District Court presumed the existence of certain facts which were never at issue. The lower court in its opinion stated: The question here arises from [appellants ' 1 theory that the documents associated with the preliminary filing, but not with the final one, somehow bound the [respondents] to build, and, we presume pay, for the SID1s [sic] in question. The record does not reflect any claim by appellants that respondents should pay for improvements to Block 1. In any case, as appellants seek rescission, not specific performance, the issue of financial responsibility for improvements to Block 1 is not material. Appellants finally assert that the District Court erred in concluding no genuine issue of material fact existed regarding the use of respondents' plats in inducing appellants' purchase of Lot 2 . Appellants rely on our holding in Majers v. Shining Mountains (1986), 219 Mont. 366, 711 P.2d 1375, for the contention that representations contained in plats used to induce the sale of subdivision lots create implied covenants binding upon the seller. Shining Mountains recorded plats containing. designated roads and common areas for a subdivision of approximately 7,000 acres. Majers, 711 P.2d at 1376. The plats were filed before the Subdivision and Platting Act, codified at 76-3-101 et seq., MCA, became effective in 1973. Majers, 711 P.2d at 1376. Majers purchased a lot within the subdivision pursuant to a sales agreement providing that Shining. Mountains would form a nonprofit association to oversee development of the subdivision but containing no commitment to actually construct anything. Majers, 711 P.2d at 1376. We affirmed the district court's grant of summary judgment to Majers based on its ruling that "reservation of easements for roadways in subdivision plats creates an implied common-law covenant by the lot seller to open and construct roadways . . . " Majers, 711 P.2d at 1376. We further found that [Wlhere land is sold with reference to a map or plat showing a park or like open area, the purchaser acquires a private right, generally referred to as an easement, that such area shall be used in the manner designated. However, Whether there is any legally enforceable right to have the roads constructed depends not on the designation in the plats but on the use of those plats in inducing purchases. Majers, 711 P.2d at 1378 (quoting Ute Park Summer Homes Ass'n. v. Maxwell Land Grant Co. (N.M. 1967), 427 P.2d 249, 253). Section 76-3-304, MCA, provides that when land is sold with reference to a properly recorded plat, the plat becomes part of the document conveying the interest in land. The effect of this section is not to create an obligation upon the seller to construct improvements represented on the plat but merely to create an easement for the purchaser's benefit. Majers, 711 P.2d at 1377. Respondents contend that our holding in Majers is inapplicable to the case at hand because the respondents are subject to the provisions of the Subdivision and Platting Act while the sellers in Majers were not. The rule proposed by respondents would deny recovery to purchasers of subdivision lots for fraudulent misrepresenta- tions made by the sellers of those lots. We decline to adopt such a rule. Recently we held that when a seller of land, not subject to the provisions of the subdivision statutes, made representations to the buyer regarding improvements to access roads, the nature of those representations and their effect in inducing the purchase were a submissible jury issue. Dew v. Dower (Mont. 1989), 774 P.2d 989, 991, 46 St.Rep. 981, 985. The purpose of the Subdivision and Platting Act is not to shield sellers from liability for their fraudulent misstatements. Majers, 711 P.2d at 1377. Appellants make the bare, conclusory statement that respondents used the plats to induce appellants' purchase of Lot 2. They introduce no facts to support this contention. In - Dew, two plaintiffs testified as to the defendant's representations, all the male plaintiffs stated they had been shown a certificate of survey which was also referred to in the contract for deed, a realtor stated the defendant showed him stakes defining the boundary of an improved road and the defendant admitted she made certain representations regarding the road. - Dew, 774 P.2d at 990-91. The plaintiffs in Majers stated that not only did defendant's agents affirmatively assure them certain improvements would be made but that defendant refused to make the improvements after repeated requests. Majers, 711 P.2d at 1376. Appellants make no similar factual allegations. We will not speculate as to the possible inducement alleged by appellants nor will we infer facts from appellants' conclusory statements. Appellants further contend that the District Court erred in dismissing their claim for rescission based on laches. Laches is an equitable remedy the propriety of which we will determine on a case by case basis. Matter of Estate of Winter (Mont. 1987), 734 P.2d 178, 180, 44 St.Rep. 430, 433. Section 28-2-1713, MCA, requires a party seeking rescission to use reasonable diligence in asserting its claim once its right to rescind is apparent. Therefore the question before us is whether appellants were reasonably forthcoming in demanding rescission from respondents or whether their claim should be barred by laches. Appellants claim they were not aware until 1986 that they could not obtain a building permit for Lot 2 because the entire block lacked streets and water and sewer facilities. In addition, they claim that "what appeared to be construction of sewer and water had occurred after the contract was signed . . . [i]t turned out to be an outfall line from a subdivision above Intercity. " There is conflicting evidence that this outfall line was constructed prior to appellants' purchase of their lot. Furthermore, the City of Helena Commission voted to abandon the SID for construction of improvements on Block 1 in November of 1981. Appellants contend respondents proclaimed that "connection of the property to utilities was imminent and that a paved access road would soon be built to the property." Despite obvious indications that these improvements had not been made, appellants continued making payments on the contract for deed for five years. Knowledge of the existence of a claim will be imputed to a party who has sufficient information to put it on inquiry notice of that claim. McGregor v. Momrner (1986), 220 Mont. 98, 108, 714 P.2d 536, 542. The District Court had sufficient evidence with which to impute appellants' knowledge of this claim. The plaintiff in McGregor purchased a wholesale and retail gasoline business from defendants. McGregor, 714 P.2d at 539. Although the District Court found the plaintiff had inquiry notice of defendants' negligent misrepresentation as early as 1977, plaintiff continued making payments on the purchase contract until 1981. McGregor, 714 P.2d at 542. We found the district court erroneously permitted the jury to consider rescission as a remedy when the plaintiff failed to assert its claim promptly and with reasonable diligence. McGregor, 714 P.2d at 542. Similarly, appellants in the case at hand failed to demand rescission within a reasonable time. The District Court did not err in finding the appellants' claims barred by laches. Affirmed. We concur: | December 6, 1989 |
da066a65-eb3a-40ac-b54d-d2ff9847abce | GROSS v GROSS | N/A | 89-278 | Montana | Montana Supreme Court | No. 89-278 IN THE SUPREME COURT OF THE STATE OF MONTANA PETER J. GROSS, Plaintiff and Respondent, -vs- RICHARD P. GROSS, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Jeffrey Sherlock, Judge presiding. COUNSEL OF RECORD: For Appellant: Walter S. Murfitt; Luxan & Murfitt, Helena, Montana For Respondent : Gene A. Picotte, Clancy, Montana Filed: Submitted on Briefs: Aug. 17, 1 9 8 9 Decided: OCT 2 4 m i Justice John Conway Harrison delivered the Opinion of the Court. Peter J. Gross (the father) initiated this action to have three deeds that conveyed an interest in property to Richard P. Gross (the son) declared null and void. The District Court of the First Judicial District, Lewis and Clark County, granted summary judgment in favor of the father. The District Court held that the father presented sufficient evidence to overcome the presumption of delivery raised by the father's recording of the deeds. We reverse and direct entry of judgment for the appellant. Appellant raises the following issue for review: Did the District Court err in holding that the plaintiff presented sufficient evidence to rebut the presumption of delivery arising from the recording of the deeds? Appellant, Richard Gross, is the son of respondent, Peter Gross. Peter's wife (Richard's mother) died in 1980. Peter was 80 years old at the time. Sometime after her death, the father suffered a stroke which prompted a discussion between father and son concerning the father putting his affairs in order. Shortly after this discussion, the father executed and recorded three warranty deeds that transferred property from the father to the father and son as joint tenants. The father retained the deeds in his possession, continued to occupy and maintain the property and to pay all expenses associated with the property. After the father executed and recorded the deeds, he told his son that he had p.ut the property into a joint tenancy with him. It is undisputed that the father executed the deeds to avoid probate. Subsequently the father asked the son to reconvey the property, but the son ref.used. The father has since remarried. Several conflicts between the father's affidavit and deposition and the son's deposition appear in the record. The father maintains that the son requested that his name be put on the deeds while the son testified that he had no knowledge of his father's actions until after the deeds were executed. Also, the father contends that the son promised that he would not interfere with his control of the property or object to any disposition of the property he wished to make. The son denies that the subject of control ever arose and that he ever made any such assurances. In Roth v. Palutzke (1960), 137 Mont. 77, 350 P.2d 358, this Court found that, based on what is now S 70-1-509, MCA, when a deed is executed a presumption arises that delivery occurred and that recording the deed strengthens that presumption. We conclude that this presumption can only be overcome by clear and convincing evidence. 23 Am.Jur.2dI Deeds S 172; Controlled Receivables v. Harmon (Utah 1966), 413 P.2d 807. In assessing whether the grantor has presented clear and convincing evidence, the general rule is that the grantor's self-serving statements are not enough to overcome the presumption of delivery. See, 23 Am.Jur.2dI Deeds 5 172; Controlled Receivables, 413 P.2d at 810. Also the fact that the grantor has retained possession of the deeds and continued to occupy and control the land will not rebut the presumption when a close relationship exists between the grantor and grantee. Roth, 350 P.2d at 360. The father testified that he did not intend to create a present interest and argued in essence that his actions subsequent to recording the deeds were inconsistent with an intention to create a present interest. The District Court held that the father had presented sufficient evidence to overcome the presumption of delivery. In reaching its concl~usion, the District Court relied on the father's dominion and control of the property along with his paying all of the expenses such as taxes and insurance. We do not agree that the father presented the kind of clear and convincing evidence required to rebut the presumption of delivery. The District Court felt that the father's intent was the crucial factor and stated that it found no evidence in the record that the father intended to create a present interest. However, the evidence relied on by the District Court to determine that the father did not intend to create a present interest in the son cannot be used to rebut the presumption of delivery given the close relationship between father and son. This Court has held that subsequent acts of a grantor identical to those of the grantor in this case "do not meet the burden of going forward with the evidence imposed by virtue of the presumption of delivery." Roth, 350 P.2d at 360. In Roth, the grantor had retained control of the deeds after recording and continued to manage and control the property. The grantee was the grantor's wife. After the grantor's death, the grantor's daughter argued that such subsequent acts showed that the "deceased had not a present intention to divest himself of his property, and that therefore the presumption of delivery is overcome." Roth, 350 P.2d at 360. Nonetheless, this Court affirmed the district court's finding of delivery. The Roth case signifies that evidence of these particular subsequent acts is not sufficient to rebut the strong presumption of intent to create a present interest raised by recording deeds when a close relationship exists between the grantor and grantee. The District Court's opinion indicates that it interprets the parent-child relationship referred to in Roth as meaning parent-minor child. However, a review of the cases relied upon by the Roth Court discloses cases where subsequent acts of dominion and control by a parent granting to an adult child were held not to overcome the presumption of delivery. Roth makes no distinction between minor and adult children in defining close relationships. Unlike Roth, the grantor in this case is alive and has testified regarding his intent. But, as noted above, a grantor's self-serving statement will not overcome the presumption of delivery raised by recording. No independent third party testimony exists to corroborate the father's testimony regarding his intent. See Curtis v. Ferris (Colo. 1969), 452 P.2d 38. The undisputed evidence in the record establishes that the father intended to avoid probate. As to his property, he chose to accomplish that purpose by executing and recording deeds that granted his son a joint tenancy in the property. This intentional act constituted unrebutted evidence of his intention to create a present interest in the son which upon the death of the father would automatically pass full title to the son. The father testified that he did not intend to pass a present interest to the son and that he retained deeds and controlled the property. But, as discussed above, the father's self-serving statements and those particular subsequent acts, by law, cannot rebut the presumption. The father must present clear and convincing evidence other than his own statements and other than those particular subsequent acts. He has not presented any other clear evidence. The District Court erred in concluding that the father presented clear and convincing evidence sufficient to overcome the presumption of delivery raised by his recording of the deeds. We reverse the District Court and direct entry of judgment for the appellant. We concur: | October 24, 1989 |
96aaf03b-850a-4ef6-bc65-a30db04044f2 | FIRST MONTANA TITLE COMPANY OF BILL | N/A | 89-204 | Montana | Montana Supreme Court | No. 89-204 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 FIRST MONTANA TITLE COMPANY OF BILLINGS, a corporation, Plaintiff and Respondent, -vs- NORTH POINT SQUARE ASSOCIATION, a Utah Limited partnership, AMERICAN n . . GUARANTY LIFE INSURANCE COMPANY, an o w Z CD Oregon corporation; et al., Z Defendants and Appellants. Z m o z o C : t . r c n - n > 2 - - -- w ; C- - I 73 - 1 : rn APPEAL FROM: District Court of the Thirteenth Judicial ~ s t & i c S o In and for the County of Yellowstone, z r w The Honorable G. Todd Baugh, Judge presiding: F 0 P COUNSEL OF RECORD: C 0 ; O For Appellant: -4 Joe Gerbase argued; Anderson, Brown, Gerbase, Cebull, Fulton, Harman & Ross, P.C., Billings, Montana For Respondent : Rodney T. Hartman argued; Herndon, Hartman, Sweeney & Halverson, (First Interstate Rank of Billings), Billings, Montana Donald MacDonald IV,(First Interstate Bank of iss sou la), Missoula, Montana Jo Mickelson argued; Dorsey & Whitney; and Charles W. Hingle, (Interstate Prod. Credit Assoc.) Billings, Montana David Hoefer, Deputy County Attorney, Billings, Montana Submitted: September 13, 1989 Decided: November 21, 1989 Filed: Justice John C. Sheehy delivered the Opinion of the Court. We determine in this case, principally as a mat.ter of contract law, that it was the duty of the escrow holder here to clear title to the parcel of land involved, and then to distribute the balance of the funds accruing from the sale of the land to the holders of the two underlying mortgages. In doing so, we affirm the judgment of the District Court, Thirteenth ~udicial District, Yellowstone County, though on somewhat different grounds, holding in favor of First Interstate Bank of ~illings, First Interstate Bank of Missoula, and Interstate Production Credit ~ssociation. The parties against whom such judgment is effective are American Guaranty Life Insurance Company and Commerce Mortgage Company. The issue posed by appellants in this case is whether judgment liens, which come into effect between the time a landowner executes and records an option for the sale of his lands and the time the optionee exercises the option, take priority over the recorded option. However, we find the controlling issue to be the legal effect of the escrow agreement executed by the parties. Loyd Kimble was the owner of a parcel of land in Yellowstone County. He borrowed $3,000,000 from Commerce Mortgage Company for which he executed to Commerce Mortgage Company a note and mortgage of the land parcel on May 12, 1980. The note and mortgage were assigned by Commerce Mortgage Company to American Guaranty Life Insurance Company and the assignment was recorded on June 4, 1981. Loyd Kimble also borrowed an additional $150,000, using the same land parcel as security, and executed a note and mortgage to Commerce Mortgage Company which mortgage was recorded on July 1, 1981. Loyd ~imble defaulted on his loan payments, and the mortgages went into default. American Guaranty and Commerce Mortgage Company obtained judgment against Kimble on the mortgage loans on July 3, 1986, which judgment was subject to appeal. No sheriff's sale of the land parcel occurred. On July 21, 1986, Kimble entered into an option agreement for purchase of the parcel of land by North Point Square ~ssociates and G. Walter Gasser, the latter as trustee for Walter Gasser Associates, Inc., the option being exercisable on or before January 24, 1987. An abstract of the option was recorded on July 24, 1986 in the records of Yellowstone County. An escrow agreement was entered into between Loyd Kimble, North Point Square Associates, G. Walter Gasser, First Montana Title Company as escrow agent, and American Guaranty Life Insurance Company and Commerce Mortgage Company. The escrow agreement provided among other things that the escrow agent would hold a partial release of lis pendens filed in the prior foreclosure action, a release of the judgment lien obtained in the prior foreclosure action, a release of American Guaranty ~ i f e Insurance Company's mortgage and a release of the mortgage of Commerce Mortgage Company, all in order to clear their respective interests in the parcel of land if the option was exercised. In consideration therefor, both ~merican Guaranty ~ i f e Insurance Company and Commerce Mortgage Company were to receive the proceeds of the sale upon exercise of the option as provided in paragraph 6 of the escrow agreement, hereinafter set forth. Before the option was exercised, however, on August 22, 1986, ~ i r s t Interstate Bank of ~illings obtained a judgment which was a lien upon the parcel of land in the sum of $77,041.01. First Interstate Bank of Missoula obtained a judgment lien upon the parcel of land for $27,000 on September 30, 1986. Interstate production Credit ~ssociation obtained a third judgment lien against the parcel of land on January 1, 1987, as stipulated by the parties. On January 21, 1987, North Point Square Associates and G. Walter Gasser, timely exercised the option by delivery of $336,674.05 to First Montana Title Company, the escrow agent. All parties stipulated to allow the transfer of title to the parcel of land to the optionee free and clear of all liens and encumbrances so that the optionee could proceed with the development of the land. This was done with the understanding that there would be no waiver of the respective claims by the parties, and that the ultimate resolution of their claims would be against the $336,674.05 held in escrow. The money was placed in an interest-bearing account pending the outcome of this lawsuit. Paragraph 6 of the escrow agreement executed by the parties provided as follows: Escrow agent is hereby authorized to use said funds to clear title to the property and to then distribute the balance of the funds to the two underlying mortgagees as follows: (a) To American Guaranty Life Insurance Company-- 97% (b) To Commerce Mortgage Company--3% When the option agreement had been exercised and the money received, the escrow holder, First Montana Title Company of Billings, took the position that under paragraph 6 it must pay off the judgment liens before distributing the balance of the funds to ~merican Guaranty ~ i f e Insurance Company and to Commerce Mortgage Company. The latter two companies disagreed with this interpretation of the escrow agreement. Thereupon First Montana Title Company of Billings, as escrow holder, interpleaded the funds in the District Court, naming all of the interested parties as defendants in the cause, and requesting the District Court to determine which parties were entitled to the funds and in what amounts. First Montana Title Company of Billings has since then been dismissed from the lawsuit. The position of American Guaranty Life Insurance Company and Commerce Mortgage Company is that an option which is recorded prior to the establishment of judgment liens on the same property gives the holder of the option a priority over such subsequent judgment liens. They contend that the escrow agreement had the effect of an assignment for consideration prior to the entry of the judgments and that therefore under the escrow agreement the funds should pass to American Guaranty and Commerce Mortgage Company free of said judgment liens. They further contend that the District Court improperly applied mechanic's lien law to judgment liens in order to hold against them. The District Court granted a motion for summary judgment in favor of the judgment lienholders and against the mortgagees. Judgment was entered thereon and this appeal by the mortgagees resulted. The mechanic's lien argument of American Federal a r i d Commerce Mortgage Company stems from the use by the District Court of Leigland v. ~cGaffick (1959), 135 Mont. 188, 338 P.2d 1037, a mechanic's lien case, as authority for the proposition that a mere right to acquire an interest does not constitute an encumbrance or a transfer of title. The District Court did determine that an option does not transfer legal or equitable title until it is exercised, but the District Court also found that the intervening judgment liens attached to the landowner's real property interest, and that these liens have remained a cloud on the title. The mortgagees also rely on Ide v. ~eiser (1890), 10 Mont. 5, 11, 24 P. 695, 696, to the effect that the optionee does receive something of value by obtaining an option, that is the right to call for and receive lands if he elects under the option. In reaching its conclusion nonetheless, the District Court did rely on contract law. It determined that the option contract and the escrow agreement were executed contemporaneously and referred to the same subject matter, and therefore should be construed together as one instrument. Section 28-3-203, MCA. The District Court noted that there was a condition precedent to the payment of the sale of proceeds: The mortgagees, through the escrow agent, had to deliver to the optionee good and marketable title. The controlling issue in this case is the contractual effect of the language in the escrow agreement. If the escrow holder was required to "clear title" before the mortgagees could receive the balance of the funds, the relative priorities between a recorded option and judgment liens become irrelevant. We hold it was the escrow holder's duty to clear title for the optionee under the escrow agreement. It is clear to us that the decision in this case should turn on the language of the escrow agreement, as a matter of contract. Under paragraph 6 above quoted, the escrow agent was authorized by all of the parties to the agreement to "use said funds to clear title to the property," and then to distribute the proceeds to the mortgagees. In Ogg v. Herman, et al. (1924), 71 Mont. 10, 15-16, 227 P. 476, 477, this Court said: While provision is made that plaintiff shall furnish an abstract showing clear title, good title, and a marketable title, it is apparent that these terms were used interchangeably, and that they are in fact synonymous. A clear title means that the land is free from encumbrances. (citing authority.) A good title is one free from litigation, palpable defects and grave doubts, comprising both legal and equitable titles, and fairly deducible of record. (citing authority.) A clear title means a good title (citing authority) and a good title means a marketable or merchantable title. (Citing authority.) A contract to convey in fee simple, clear of all encumbrances, implies a marketable title (citing authority), and a marketable title is one of such character as assures to the purchaser the quiet and peaceable enjoyment of the property and one which is free from encumbrances. (Citing authority.) This Court further noted in Gantt v. Harper (19281, 82 Mont. 393, 405, 267 P. 296, 298, the following: Webster's definition of the word "clear" as here employed is "free from encumbrance, obstruction, burden, limitation," etc., and the word "title," in the sense here used, "the union of all the elements which constitutes ownership, at common law, divided into possession, right of possession, and right of property, the last two now, however, being considered essentially the same." In our opinion, the words, "clear title" as employed in the plaintiff's letter, denied admission in evidence, means title to the property free from any encumbrance, burden or limitation, uniting all the elements constituting ownership, including right of possession and right of property--i.e., fee-simple title. Such was in effect the contract upon which the defendant agreed to pay a brokerage commission on the sale of the property, and a tender of the performance was complete and in accordance with the defendant's terms. The contractual duty of the escrow agent in this case, agreed to by all the parties, was that the escrow holder should distribute the funds so as to deliver clear title to the optionee upon the exercise of the option. The judgment liens were indeed clouds on the title, and clear title could not be delivered until those judgment liens were satisfied and removed. Therefore, we affirm the judgment of the ~istrict Court. / Justice F Judge, sitting f & the | November 21, 1989 |
cea1d3b4-3bda-46a1-a0be-e64e109f6d67 | BATTEN v WATTS CYCLE MARINE | N/A | 88-297 | Montana | Montana Supreme Court | NO. 88-297 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 EARL BATTEN, individually and d/b/a RIMROCK HONDA-HARLEY DAVIDSON, PI-aintif f and Appellant, -vs- WATTS CYCLE AND MARINE, INC., AND OAKLANP & COMPANY, Defendants and Respondents. APPEAL FROM: District Court of the Thirteenth Judicial Ditrict, In and for the County of Yellowstone, The Honorable G. Todd Raugh, Judge presiding. COUNSEL OF RECORD: For Appellant: Timothy J . Whalen; Whalen & Whalen, Billings, Montana For Respondent: T. Thomas Singer; Moulton, Bellingham, Longo & Mather, Billings, Montana James A. Poore, 111; Poore, Roth & Robinson, Butte, Montana Filed: Submitted on Briefs: Sept. 15, 1989 Decided: November 30, 1989 -- I Clerk Justice Fred J. Weber delivered the Opinion of the Court. Plaintiff (Batten) purchased a motorcycle dealership from defendants. When the business failed, he sued Watts, the seller, and his real estate agent, Oakland, under theo- ries of fraud, constructive fraud, and negligent misrepresen- tation, seeking compensatory and punitive damages. The District Court for the Thirteenth Judicial District, Yellowstone County, granted summary judgment in favor of defendants. From this judgment, Batten appeals. We affirm. The issues presented on appeal are: 1. Did the District Court err in grantinq summary judgment in favor of defendants? 2. Did the District Court err in its award of costs and attorney fees to the defendants? Defendant Watts purchased Billings Honda-Harley Davidson (BHHD) from Arnie Brey in 1976, and operated the business profitably for a number of years. Batten became interested in purchasing a motorcycle business due to his persanal interest in motorcycle riding. He had an educational back- ground which included a Bachelor of Arts Degree, a Bachelor of Science in Geology, several graduate courses in business, and he had studied for the Colorado real estate exam. He had read a significant amount about the motorcycle industry, and the various makes of motorcycles and their sales records. He looked at various dealerships, and in 1981, responding to an advertisement in Cycle News Magazine, became interested in purchasing BHHD. After seeing another ad in the Denver Post, Batten called Watts' agent, Gary Oakland, to inquire about the dealership, and was sent a copy of the brochure which includ- ed the financial statements for the fiscal year ended Novem- ber 29, 1-981. Because the representations in the brochure are central to this case, we will set forth the brochure in pertinent part: PRICE: $360,000.00 DOWN PAYMENT: $160,000.00 EARNEST MONEY REQIJIRED : $ 15,000.00 DESCRIPTION: Billings Honda-Harley Davidson is the largest dealer for Honda and Harley-Davidson motorcycles in the state of Montana. The price includes the parts inventory, used cycles, shop tools, dealership agreement, leasehold improve- ments, trade name, etc. The new merchan- dise inventory is priced above $360,000.00 and is financed on a floor-plan arrangement. In 1981, the company sold over 450 Honda ' s and 7 2 Harley-Davidson motorcycles. OWNER : BROKER: The real estate is leased at the rate of $2,700.00 per month. It consists of approximately 14,400 square feet. The facility is in good condition, is attrac- tive, and has ample parking. The rent is presently $2.25 per square foot including utilities and other expenses. The business is completely staffed with a sales manager, parts manager, service manager, 5 mechanics, and bookkeeper-secretary. It is understood that these people wish to remain with the firm. The seller will agree to a covenant of non-competition. Ronald J. Watts Gary Oakland Upon his request, Batten was later provided with finan- cial statements for other years. He and his family then visited the dealership to inspect the business and the Bill- ings business community. Both the local and out-of-state advertisements put out by Oakland, represented BHHD as the leading dealership in Montana; as making profits on both Honda and Harley-Davidson; that the business had strong assets; was well run and had a nice facility with a complete sales service and office staff. Batten maintains that these representations convinced him to purchase the business. After a series of negotiations with Gary Oakland, Batten signed a purchase agreement and deposit receipt in August, 1982. The deal was closed in October of that year. During the first year of ownership, gross sales were $1.6 million which were higher than any of the previous six years under Watts' management. Batten had profits of approx- imately $20,000 to $24,000. In November, 1983, Batten changed the location of the business, changed the name and the product mix, and fired many of the employees. After 1983, sales dropped and the business did not show a profit. In June, 1985, Batten filed a complaint against Watts and Oakland seeking compensatory and punitive damages. However, he continued to operate the business until May 4, 1988, when he filed a Chapter 7 Petition in Bankruptcy. I Did the District Court err in granting summary in favor of defendants? Batten urges that the representations made by defendants concerning the business amounted to fraud, constructive fraud, or negligent misrepresentation. Summary judgment is only proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56 (c) , M . R . C i v . P . Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment. Simmons v. Jenkins (1988) , 750 P.2d 1067, 45 St.Rep. 328. Summary judgment is never a substitute for a trial on the merits. Kronen v. Richter (1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317. Here, the materials submitted on summary judgment by defendants successfully show that there are no genuine issues of material fact. Thus, the burden of proof shifts to Batten to prove a prima facie case of fraud, constructive fraud, or negligent misrepresentation. In order to prove fraud Batten must. prove all of its nine elements. The elements are: 1. a representation; 2. its falsity; 3. its materiality; 4. speaker's knowledge of the falsity or igno- rance of its truth; 5. speaker's intent that the representation be relied upon; 6. hearer's ignorance of the falsity; 7. hearer's reliance on the representation; 8. hearer's right to rely on the representation; and 9. hearer's consequent and proximate iniury caused by the reliance. Sprunk v. First Rank W. Mont., Missoula (Mont. 1987), 741 P.2d 766, 44 St.Rep. 1429. Fraud, an intentional act of misrepresentation, Gregory v. City of Forsyth (1980), 187 Mont. 132, 609 P.2d 248, can never be presumed but must be proved by a preponderance of the evidence. Wright v. Blevins (1985), 217 Mont. 439, 705 P.2d 113. Mere suspicion of fraud is not sufficient. In Re Marriage of Hoyt (1985), 215 Mont. 449, 698 P.2d 418. Constructive fraud, unlike actual fraud, does not re- quire dishonesty of purpose or intent to deceive. Section 28-2-406(l), MCA; Moschell v. Hulse (19801, 190 Mont. 532, 622 P.2d 155. A plaintiff's opinions alone do not provide a sufficient basis in fact to prove constructive fraud when there is no evidence of any breach of duty or of a fraudulent act or omission. Westlake v. Osborne (Mont. 1986), 220 Mont. 91, 713 P.2d 548. Breach of duty to disclose material facts is an indispensable element of constructive fraud. Mends v. Dykstra (1981), 195 Mont. 440, 637 P.2d 502. Negligent misrepresentation has a lesser standard of proof. It does not require intent to misrepresent, but rather a failure to use reasonable care or competence in obtaining or communicating the information. However, liabil- ity is limited to the loss suffered by the person(s) relying on the information. See State Bank of Townsend v. Maryann's, Inc. (1983), 204 Mont. 21, 33, 664 P.2d 295, 301. In State Bank of Townsend, we cited the Restatement (Second) of Torts S 552, in part, as follows: The liability stated in this Section is likewise more restricted than that for fraudulent misrepre- sentation stated in s531. When there is no intent to deceive but only good faith coupled with negli- gence, the fault of the maker of the misrepresenta- tion is sufficiently less to justify a narrower responsibility for its consequences. Batten sets forth several factual contentions in an attempt to prove fraud, constructive fraud or negligent misrepresentation. In summary, Batten contends that there were misrepresentations regarding "current" inventory; the condition of the premises, the capabilities of the staff, and the operation of the business; the sales volume of the busi- ness; the value of the business; the financial status of the business; the inventory of the business; the unit sales of the business and the floor plan financing; and the amount of the rent for the location of the business. Defendants main- tain that Batten fajl-ed to prove that there were any misrepresentations made by the defendants, whether inten- tional, constructive or negligent. We agree. The District Court concluded that there were no facts presented by Batten indicating that any of the representa- tions were false, and that since liability for fraud will attach only where a misrepresentation is material, Batten's claim fails. We agree. In a detailed memorandum, the Dis- trict Court carefully considered each of Batten's conten- tions. Noting that "a misrepresentation is not material unless it is significant," Bails v. Gar (1976), 171 Mont. 342, 347, 558 P.2d 458, 463, the District Court concluded that even if some of the representations were false, none of them were significant. Furthermore, the District Court pointed out that many of the alleged misrepresentations were nothing more than subjective opinions. Statements of opinion are subject to the common law doctrine of caveat emptor. Dolson Co. v. Imperial Cattle Co. (1981), 191 Mont. 357, 362, 624 P.2d 993, 996. Many of the defects of which Batten complains were noticeable upon reasonable inspection, or "even a superficial investigation" as the District Court points out. Batten failed to make a factual showing that any of the representations were false. Thus, the core element of fraud, constructive fraud and negligent misrepresentation is missing. We hold that the District Court did not err in granting summary judgment in favor of the defendants. Did the District Court err in its award of costs a . n d attorney fees to the defendants? The District Court awarded Watts $24,743.75 in attorney fees and $4,157.78 in disbursements for a total of $28,901.53. The contract provided for reasonable attorney fees and costs. The Court, notinq that this was a rather high figure, explained that the costs were legitimate, and that it would not reduce the award by one-half as requested by Batten. Batten argues that the award is unreasonable. He argues that the effect of this award is punitive and that it will invoke a policy among courts that makes it impossible for valid claims to be pursued by a plaintiff who could not bear such costs. Watts points out that the District Court properly held a hearing and considered the contract between the parties to determine the reasonableness of the fees. Furthermore, Watts contends that the District Court has broad discretion in determining what constitutes reasonable attorney fees, and that this Court shall not disturb the lower court's judgment in the absence of an abuse of discretion. Majers v. Shining Mountains (Mont. 1988), 750 P.2d 449, 453, 45 St.Rep. 283, 288. We agree. After reviewing fully briefed arguments by both parties on this issue, the District Court specifically stated that it considered the contract between the parties which provided for "any costs or expenses, including reasonable attorney fees" prior to the court's determination. It further ac- knowledged that the amount awarded was high, however, the award is reasonable under the circumstances of this case, a ~ d the amount could not justifiably be reduced without being arbitrary. Batten has failed to set forth any facts to show that the District Court abused its discretion. We hold that there has been no abuse of discretion and affirm the District Court's award of costs and attorney fees to the defendant. Batten raises additional issues on appeal which could be significant at trial. However, in light of our decision that summary judqment was proper, it is unnecessary to address those issues. Affirmed. 27czp7 + \ C h i e f J stice Justices / ~ustice William E. Hunt, Sr. I dissent. This opinion is another attempt by the judiciary in the state of Montana to divest plaintiffs of their right to reach the jury. By stating that "the District Court pointed out that many of the alleged misrepresentations were nothing more than subjective opinions," the majority makes it possible for the District Court in a motion for summary judgment to decide as a matter of law whether a statement is one of opinion or of fact. However, in Dolson Co. v. ~mperial Cattle Co. (1981), 191 Mont. 357, 363, 624 P.2d 993, 996, the case cited by the majority for the proposition that "[sltatements of opinion are subject to the common law doctrine of caveat emptor," and in Spence v. Yocum (1982), 201 Mont. 79, 83-84, 651 P.2d 1022, 1025, this Court emphasized that the trier of fact is in the best position to determine whether a representation constitutes a statement of fact or a statement of opinion. Both Dolson and Spence involved appeals from judgments of district court trials where the district courts sat without juries. This case, on the other hand, involves an appeal from a summary judgment. The ~istrict Court in the present case did not sit as a fact finder. Its only function was to determine issues of law, not issues of disputed fact.. Summary judgment should not h a & been granted. | November 30, 1989 |
1b12a646-8457-43d4-bc60-e8ca19fcc7ec | MATTER OF RULES ON DISQUALIFICATION | N/A | -- | Montana | Montana Supreme Court | - - 5 - g P o z p 5 ; r t . 2 'The Court's ?A.tention has k e n drawn to two clgi2ics - , ., m tians ~ee.ted i- the Rules for t h e Sissua?,i".c;_tior~ a & : ' ~ u q B 2 <-3 c- stitntior of J u d g e s adapted by thi.s C ~ m r t on Septeneh 2 . b - . a , , - 11988, and new codified at 3-1-8'11 thrnugi- - 8 1 1 5 z 7 , c : m - C 4 herticns 3-1-904 (1) i a j and (b) , "!CAP are ncdkfierl as f%Zow,-s: i a ) A xatio-: " o r silbstit~tlon of a $ + - + Y ~ - * .- . i 1 : L , & , _ judge s h l l be made by fiLicg a written motinn with i k -. LA,.: clerk, as folicws: s t ~ k , ~ , . . . . . rlndersiy.re6 ilerehv -.loves for sill,ti.iiltinn of District Sudge - - - - in this case.' > * k cacv . - of the nation shaLI be served uscn a i l parties tc the proceeding and the clerk shall * ~ immediately n i i t i f : y the jueqe aad the rirst judge in jurisdiction, i f there has already been a rubstitu- kiorr. A"er a tine1,y ?icltion has been fil,ed, the substitnted 3adqe shall have nn power to act on t h e merits of t h e cause or to decide Legal issues therein, ard shall call in m o t h e r judqe. However, a resident district ;udge who has previnusiy keen s.o~bstitutec': from "ihe case mas: agree to set the calendar, draw a i u r v , cs:nnduct a11 routine matters ineluding arrai-;-ireotcs, . e i r pretrial con- i- &trences , in civil cases, and other matters which do not 90 thc n;erits of t h e c;;sc, if t h e jaiJqc ip j nrisdicticn authnrizc?r the same. . ' ~ (b) The first urstric"-~*o eltho l i s substituted or eisqua4.ified for cause si.~a.ll have . , the d u t y of c2il4.ng L-; a l l c;uhsequnot a1stri-t jusges. In a rnolti-judge court all other judses in that ccart shall be called, ir accordance with that c o u r t % iinterral operati-ig TLI?OS~ before a j u d g e - ~ from another czstrict caurt is called in. It shell be the dot:^ ef the clerk o f court to star~p the name ~ $ 5 the j;dqc? to whom t k ; e czso j . s assj-q-ec? 03 the - ~ face cf the iziti,ciL pleaarnq, coxplzint, order to . - .hnw . - caase, or infcrmaticn, and a i l c a n i n s thereof. I T ioilim;"R"fj that %he above ~ G F - ~ C ? ~ ? F I I ? C t.7 ss and ( ) >%Cn, 2re effective as sf tl:e date o f . > ' - this or2er, w h - Clerk of this C011j:t i s directed to - ? a i l opies of this order to ths failowiag: % c Pode ., Cormissioner o>"".~- St2te? (if p.<cntana; District Court Judges of the State of Montafia; Clerks of the 7istrirt Court.; OF the "ate of kI9ntar:;i; vni a . .- .- , stateS r\: t #-*.-: C n i i r t ~ a d g t ? ~ of the State of Xontana; rn Iresidefit an*. F::eci?t.ixie Director c f the State Bar of &<cnta.ra, with, direction that it he oubiished in the Montana Lawirer; - d - prnsi;icnr 2nd ~:.:ecutii-e Direc",or of t Montana Trial Lawyers Association. "S T% i ) p . ' _ ~ ~ ";-is 68 "has. of Novercber, 19m9, | November 20, 1989 |
911a7cbd-633e-4d0b-a71d-df99b7db9e32 | HART-ANDERSON v HAUCK | N/A | 89-115 | Montana | Montana Supreme Court | No. 89-115 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 LINDA M. HART-ANDERSON, Plaintiff and Respondent, GERALDINE C. HAUCK and STATE FARM INSURANCE COMPANY, Defendants and Appellant. 2 - m ( 3 X - ' . z - 1 -- - Ti, 53 - l - 7 0 x r - lTl - 3 0 C 3 3 4 APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell Fillner, Judge presiding. COUNSEL OF RECORD: For Appellant: K. D. Peterson; Peterson, Schofield & Leckie, ~illings, Montana (Hauck) For Respondent: Ronald R. Lodders; Crowley, Haughey, Hanson, Toole & Dietrich, Billings, Montana L. B. Cozzens, Billings, Montana Filed: Submitted on Briefs: July 13, 1989 Decided: October 2 3 , 1989 Justice Fred J. Weber delivered the Opinion of the Court. This is an appeal from an order by the Thirteenth Judi- cial District, Yellowstone County, granting a directed ver- dict in favor of plaintiff. Defendant appeals. We reverse. The issues presented for our review are: 1. Did the District Court err in granting a directed verdict? 2. Did the District Court err in excluding certain hearsay evidence? 3. Did the District Court err in allowing a police officer to testify as to the cause of the accident? 4. Did the District Court err in excluding testimony regarding a traffic citation? The present case involves a traffic accident and issues of negligence. The case was originally tried by jury in May of 1985. It was subsequently appealed to this Court. In Hart-Anderson v. Hauck (1988), 748 P.2d 937, 45 St.Rep. 18, we remanded the case for a new trial. A second jury trial was held on December 10, 1988, and at the conclusion of the evidence the court granted plain- tiff's motion for a directed verdict, concluding that as a matter of law defendant was negligent and plaintiff was not contributorily negligent. Defendant contends that a directed verdict was not appropriate in that the testimony at trial raised issues of fact as to whether plaintiff was contributorily negligent. Defendant contends that this evidence should have been submitted to a jury. Regarding a directed verdict, this Court has previously stated that, "No case should be withdrawn from the jury if reasonable men may differ as to the conclusions drawn from the evidence. I' Mydlarz v. Palmer/Duncan Const. Co. (1984) , 209 Mont. 325, 682 P.2d 695. Our review of the record reveals issues of fact upon which reasonable men could differ and we conclude that a directed verdict was not appropriate in this case. This automobile accident occurred in Billings, Montana on December 6, 1982. The streets that day were very icy. Plaintiff and defendant were both in vehicles traveling east on Broadway, approaching the intersection to Tenth Avenue, with plaintiff ahead of defendant. Broadway approaches Tenth Avenue with a downhill incline. As plaintiff approached Tenth Avenue, she noticed a large delivery truck crossing the intersection in front of her. She also noticed a small Volkswagen on Tenth Avenue behind the truck. As plaintiff approached the intersection she also noticed defendant ap- proaching from her rear. Ultimately defendant's vehicle hit the rear end of plaintiff's vehicle, knocking plaintiff's vehicle across Tenth Avenue, where it collided with the Volkswagen. It came to rest alongside the Volkswagen, facing south. The damage to plaintiff's car was estimated at $685. There was testimony presented at trial from five eyewit- nesses to the accident. In addition to the testimony of both plaintiff and defendant, there was testimony submitted by deposition from Ms. Heald, the driver of the Volkswagen. The jury also heard testimony from Mr. Poindexter and Mr. Merriweather, both eyewitnesses to the accident. Mr. Merriweather witnessed the accident as he was sitting inside a business establishment at the corner of Broadway and Tenth Avenue. Mr. Poindexter also witnessed the accident from the second floor window of a nearby office building. Some of the testimony from these witnesses differs markedly as to how and where the accident occurred. Plaintiff testified that as she traveled down Broadway her rear tire bumped the curb approximately 50 feet prior to reaching the intersection. She testified that she straightened her vehicle and was beginning her turn when the impact occurred. The testimony of Mr. Poindexter, Mr. Merriweather and Ms. Heald was substantially in accord with this account. These witnesses testified that the impact occurred on Broadway as plaintiff began to turn onto Tenth Avenue. Mr. Poindexter also testified that he saw plain- tiff's rear tire bump the curb approximately 40 to 50 feet from the corner. Defendant however, testified that plaintiff's tire bumped the curb as plaintiff was making her right turn onto Tenth. In substance, defendant stated that she noticed plaintiff having difficulty ahead of her but that she was required to turn right because of the delivery truck on Tenth Avenue. Defendant testified that plaintiff's vehicle was stopped in front of her as she turned the corner, and that the impact occurred on Tenth Avenue. She alleges that she would have made the right turn without problem had plaintiff not had difficulty negotiating her turn and if plaintiff had not stopped in front of her. Defendant relies on this Court's holding in Reed v. Little (1984), 209 Mont. 199, 680 P.2d 937, for the proposi- tion that the defense of contributory negligence is available to her, and should properly have been submitted to the jury. We conclude that Reed is controlling in the present case. In Reed, we discussed negligence per se and its interaction with Montana's newly enacted statute on contributory negligence, B 27-1-702, MCA. In Reed, we stated: We hold that the defense of contributory negligence on plaintiff's part is available to a defendant who has violated a traffic statute. It is for the fact finder to determine the comparative degree of negligence on the part of plaintiff and defendant. Reed, 680 P.2d a t 9 4 0 . I n Reed, defendant rear-ended t h e vehicle ahead of him. Although t h e evidence i n Reed on behalf of defendant estab- l i s h e d t h a t p l a i n t i f f made an abrupt s t o p i n f r o n t of defen- dant, p l a i n t i f f denied t h e stop. This c o n f l i c t i n g testimony was properly submitted t o t h e jury. I n Reed, t h e jury found t h e lead d r i v e r was c o n t r i b u t o r i l y negligent even though defendant h i t h e r from behind. I n t h e present case, defen- dant t e s t i f i e d t h a t p l a i n t i f f was having d i f f i c u l t y control- l i n g her c a r and making t h e r i g h t turn. She t e s t i f i e d t h a t p l a i n t i f f came t o a s t o p i n f r o n t of her. Although t h r e e witnesses corroborated p l a i n t i f f ' s version, nonetheless, defendant t e s t i f i e d i n a contrary manner. It is not appro- p r i a t e f o r t h e c o u r t t o weigh c o n f l i c t i n g evidence; r a t h e r , t h a t i s t h e function of t h e t r i e r of f a c t , i n t h i s case, t h e jury. A s i n Reed, it was possible f o r t h e jurors t o find t h a t p l a i n t i f f came t o an abrupt s t o p i n f r o n t of defendant and was c o n t r i b u t o r i l y negligent. W e conclude t h a t reason- a b l e men might d i f f e r i n drawing conclusions from t h e evi- dence. Thus a d i r e c t e d v e r d i c t i n favor of p l a i n t i f f was not appropriate. W e remand t h i s case t o t h e ~ i s t r i c t Court. Additionally, we address t h e following evidentiary i s s u e s f o r guidance a t a subsequent t r i a l . I1 Did t h e D i s t r i c t Court e r r i n excluding c e r t a i n hearsay evidence? A t t r i a l , counsel f o r defendant made an o f f e r of proof regarding t h e a d m i s s i b i l i t y of c e r t a i n testimony by M r . Poindexter. The o f f e r of proof was denied. I n t h e o f f e r of proof, defendant a s s e r t e d t h a t i f allowed, M r . Poindexter would t e s t i f y t h a t s h o r t l y a f t e r t h e accident, he placed a phone c a l l t o t h e attendant a t a nearby service s t a t i o n , s t a t i n g t h a t he had witnessed t h e accident, and t h a t it was the sole fault of the truck pulling out. Defendant contends that although this testimony is hearsay, it is admissible pursuant to either Rule 803(1) or 803(2), M.R.Evid., as either a present sense impression or an excited utterance. The statement at issue was clearly hearsay. Defendant presented no facts in the offer of proof which would place this statement within either the present sense impression or excited utterance exception to the hearsay rule. We conclude that this offer of proof was properly denied. We affirm the District Court on this ruling. I11 Did the District Court err in allowing a police officer to testify as to the cause of the accident? Officer Oberg, a Billings city police officer, investi- gated the accident shortly after it occurred. He was not an eyewitness to the accident. At trial he testified that he had investigated several hundred automobile accidents in his 14 years as a police officer. He testified that his investi- gation of this accident included interviews with the parties involved, and observations of the scene of the accident, the vehicles, and the road conditions. Officer Oberg was then asked to state his opinion as to the cause of the accident. He stated that in his opinion defendant was driving too fast for the road conditions. Defendant objected to this testimo- ny at trial, urging lack of foundation. Defendant also contends the accident was not sufficiently complex to neces- sitate expert opinion regarding causation. We do not agree that an officer with years of experience in investigating accidents cannot assist the jury in its determinations. In Foreman v. Minnie (1984), 211 Mont. 441, 689 P.2d 1210, this Court allowed a deputy sheriff to testify as to the cause of an automobile accident. In Foreman we also noted that there was adequate opportunity to cross-examine the officer regarding any facts underlying the expert opinion. For other cases allowing an investigating officer to testify regarding the cause of an automobile accident or vehicular speed, see Goodnough v. State (1982), 199 Mont. 9, 647 P.2d 364; Rude v. Neal (1974), 165 Mont. 520, 530 P.2d 428. We conclude that Officer Oberg's testimony could assist the trier of fact on the issue of causation. He had exten- sive experience in these types of investigations and an adequate foundation was presented for his testimony. Defense counsel cross-examined the officer as to the basis of his opinion. The jury is free to decide the weight to be given this testimony. Goodnough, 647 P.2d at 369. We affirm the District Court's ruling on this issue. IV Did the District Court err in excluding testimony re- garding a traffic citation? Defendant made an offer of proof during trial, request- ing that she be allowed to testify to an alleged statement made to her by Officer Oberg. The offer of proof stated that if allowed defendant would testify that while issuing her a traffic citation, Officer Oberg told her, "I'm going to issue this to you, but you don't deserve it, but I have to do it because of my superiors. If I don't do it, they will make me go out and issue it, and then just cause some additional problems." Her offer of proof further stated that Officer Oberg told her if she would plead not guilty, he would re- quest that the ticket be dismissed. Defendant contended that although this alleged statement was hearsay, it was admissi- ble to impeach Officer Oberg's testimony regarding the cause of the accident. The trial court denied this offer of proof. The offered testimony refers to the issuance of a crimi- nal citation and is inadmissible because it is irrelevant and prejudicial. Further, such testimony has no bearing on the cause of the accident. Smith v. Rorvik (Mont. 1988), 751 P.2d 1053, 1056, 45 St.Rep. 451, 455. Additionally, the testimony was hearsay and did not directly impeach Officer Oberg's former testimony. We conclude that the District Court did not err in denying this offer of proof. We affirm the District Court's ruling on this issue. L We Concur: Justices Justice R. C. McDonough dissenting: I would affirm the directed verdict in favor of the plaintiff. The defendant was clearly negligent as a matter of law. The defendant failed to slow and control her vehicle when difficulties of traffic on the highway were foreseeable to her and was the sole proximate cause of the accident. On this record for a fact finder to find that plaintiff's action in ultimately controlling her car was contributory negligence and a proximate cause of the accident is imaginative. There isn't any substantial evidence favorable to the defendant which would permit such a finding. There is not present here, nor under the icy conditions could there have been, a sudden stop or any action by plaintiff which would rise to the point of creating an unforeseeable emergency situation under these circumstances. Justice John C. Sheehy, dissenting: When this case was before us previously, it was a entitled Linda M. Hart-Anderson, plaintiff, v. Geraldine C. Hauck and State Farm Insurance Company, defendants (1988), 748 P.2d 937. Hart-Anderson had sued Hauck and her insurer, State Farm Insurance Company, because of the collision which occurred in Billings, Montana, December 6, 1982. It was the position of Hart-Anderson that Hauck was solely responsible for the collision, that Hauck's insurer should have recognized her sole responsibility and paid the damages sustained by Hart-Anderson's automobile, and that the failure of the insurer to quickly pay such claim was evidence of its bad faith in the handling of insurance claims. On the first trial, the jury determined that Mrs. Hauck was negligent and her negligence was the proximate cause of the property damages suffered by Hart-Anderson; that Hart-Anderson was not negligent, and that as to comparative negligence Mrs. Hauck was 100 percent responsible and Linda Hart-Anderson was zero percent responsible. It found damages to Hart-Anderson's car in the sum of $687.00; it found that Hart-Anderson had suffered emotional distress for which she was entitled to $25,000.00; and it found the insurer guilty of a breach of the unfair Claims Settlement Act of Montana and levied exemplary damages against the insurer in the sum of $687,000.00. On the first appeal to this Court, no issue was made by defendant Hauck or her insurer as to findings of the jury that Hauck was 100 percent responsible for the collision. The judgment in the first case was reversed on appeal on issues relating to the claim against the insurer and no issue was decided on appeal which would dispute the finding of 100 percent negligence on the part of Mrs. Hauck. Nonetheless the majority of this Court, in an opinion ill-considered as we pointed out in dissent, reversed the cause for a retrial of all issues, and directed that the cause be bifurcated as to any liability of the insurer. From the record of this case then, we have the finding of the first jury that Mrs. Hauck was 100 percent negligent because of the collision; we have the testimony of a respected retired claims adjuster that Hauck was 100 percent in fault in the accident and that the plaintiff was not negligent at all; we have the testimony of Earl Hanson, an attorney practicing law in ~illings, that under the facts of this case Hauck was 100 percent negligent; and now, as to the retrial, which is now on appeal, the opinion of the ~istrict Court that the case should not go to the jury because the negligence of Hauck was so clearly established. None of these circumstances deter the majority from ordering a new trial -- on the issue - of negligence! The District Court in this case granted the motion for directed verdict as to Hauck's negligence because whether one accepted her version of the incident or that of the other witnesses, she was nonetheless solely responsible for the accident. The majority here has manufactured an issue of fact in stating "Defendant testified that plaintiff's vehicle was stopped in front of her as she turned the corner, and that the impact occurred on Tenth Avenue." That statement ignores that this case does not concern a sudden stop nor even a following-too-closely situation. Here the defendant Hauck had one-half to one-quarter of a block to see the danger and avoid the collision. Hauck had the primary responsibility to avoid the collision in that situation. In Grabs v. iss sou la Cartage Company, Inc. (19761, 169 Mont. 216, 219, 221, 545 P.2d 1079, 1081, 1082, this Court stated: The classic test employed to determine whether a question is one of fact or law, involves the application of a rule of reason. Where reasonable men could draw different conclusions from the presented evidence, the question is one of fact. But if only one conclusion could reasonably be drawn, the question is one of law, properly resolvable through the procedural device of directed verdict. But the primary responsibility must be on those drivers who have the opportunity to detect the potentially hazardous situation ahead. (Citing authority.) In Custer roadc casting Corp. v. Brewer (1974), 163 Mont. 519, 521-522, 518 P.2d 257, 259, the Court said: However, in cases where a driver of a vehicle is following another vehicle too closely, we follow the doctrine that the primary duty of avoiding a collision rests upon the following driver. This case is controlled by the provisions of § 61-8-329, MCA, which provides: Followinq too closely. (1) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway. In this case, Geraldine Hauck, following on an icy street, as the testimony shows, almost three-quarters of a block behind the Hart-Anderson vehicle, failed to keep her vehicle under control so as to avoid colliding with the Hart-Anderson vehicle. There can be no other conclusion but that she is 100 percent responsible. District judges of this state are in an intolerable position because of the continuing pattern of this Court to set its face against all recoveries by plaintiffs whether by judge or by jury. Here, under the cases cited above in this dissent, the District Court would have been subject to reversal if it had not qranted a directed verdict. Yet here the District Court has been reversed for following the law and grantinq a directed verdict. In this state we don't need tort reform; what is wanting is court reform. I would affirm. Two trials are enough already. I concur in the foregoing dissent of Justice John C. Sheehy. Justice | October 23, 1989 |
e4a97018-ab13-42c2-8ce8-4c7952bdb57d | PETITION OF MONTANA POWER COMPANY | N/A | 14310 | Montana | Montana Supreme Court | No. 14310 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 IN THE MATTER OF THE PETITION OF THE MONTANA POWER COMPANY FOR INCREASED RATES AND CHARGES IN GAS AND ELECTRIC SERVICES; IN DOCKET 6348, ORDER No. 4220C, DEPARTMENT OF PUBLIC SERVICE REGULATION, MONTANA PUBLIC SERVICE COMMISSION. Appeal from: District Court of the Second Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Geoffrey Brazier argued, Helena, Montana James Paine argued, Helena, Montana For Respondent: Corette, Smith, Dean & Pohlman, Butte, Montana Kendrick Smith argued, Butte, Montana Church, Harris, Johnson and Williams, Great Falls, Montana Submitted: December 20, 1978 Decided : FE 2 : M r . ~ u s t i c e Gene B. Daly delivered the Opinion of t h e Court. he Montana Power Company (Montana Power o r MPC) f i l e d several p e t i t i o n s f o r r a t e adjustments before the Public Service Commission (Commission o r PSC) designated a s Docket Nos. 6279 and 6327. By f i n a l amended p e t i t i o n Montana Power requested Commission approval of r a t e s f o r e l e c t r i c u t i l i t y service designed t o produce an increase i n annual operating revenues of $15,650,601 and approval of r a t e s f o r natural gas service designed t o produce an increase i n annual gross operating revenues of approximately $28,800,000. A t approxi- mately the same time the Montana Consumer Counsel (Consumer Counsel) f i l e d a p e t i t i o n f o r an e l e c t r i c r a t e decrease, Docket No. 6336. These matters were consolidated f o r hearing purposes i n t o Docket No. 6348. The Commission conducted public hearings i n Helena i n t h i s docket from October 20 t o November 6, 1975; from January 1 2 t o January 23, 1976; and from February 2 t o February 13, 1976. Individual commissioners a l s o conducted public hearings i n various c i t i e s throughout the s t a t e during November and December, 1975. A t the hearings conducted i n Helena, the Commission heard t h e testimony of 54 witnesses and accepted 93 exhibits during the course of d i r e c t and cross-examination by the Commission, the Commission s t a f f , Montana Power, t h e Con- sumer Counsel and intervenors Anaconda Company, Great ~ a l l s Gas Company, Hoerner Waldorf, Ideal Cement Company and the executive agencies of the United S t a t e s government. O n July 26, 1976, Montana Power f i l e d a p e t i t i o n t o present additional testimony. This p e t i t i o n was subse- quently denied on t h e ground t h a t t h e testimony t o be pre- sented would have been i r r e l e v a n t and prejudicial a s it would have d e a l t with post-test year data. Montana Power a l s o f i l e d a motion on July 2 6 , 1976, f o r immediate temporary r a t e increases f o r its gas and e l e c t r i c services. This motion was argued before the Commission on August 1 2 , 1976. O n January 6 , 1977, the Commission issued Order No. 4220B i n which it granted MPC a temporary increase i n i t s natural gas r a t e , refused t o grant a temporary r a t e increase f o r e l e c t r i c service and denied the Consumer Coun- s e l ' s p e t i t i o n f o r an e l e c t r i c r a t e decrease. The case was submitted f o r decision t o t h e Commission on December 13, 1976. B y Order No. 4220C, dated February 23, 1977, the PSC granted Montana Power an e l e c t r i c r a t e increase of $2,069,000, much l e s s than t h e $15,650,601 sought by MPC, and a gas r a t e increase of $26,862,000. N o party has appealed any portion of the Commission's gas r a t e decision. Montana Power appealed t o t h e D i s t r i c t Court two Com- mission " r a t e base" ( t h e investment on which returns a r e allowed) determinations: t h e PSC's exclusion of $5.7 m i l - l i o n from r a t e base a s exceeding t h e o r i g i n a l c o s t of the property t o Montana Power, and the PCS's use of an average- year r a t e base, computed by dividing by two the sum of MPC's t o t a l p l a n t investment a t t h e beginning of the year and t o t a l p l a n t investment a t the end of t h e year. Montana Power a l s o appealed from a portion of the Commission order i n which t h e PSC s t a t e d t h a t it now found "questionable" an additional $15.7 million i n r a t e base which, i n 1944, the Commission had characterized a s "origi- n a l cost." Although the PSC did not exclude the question- a b l e amount from r a t e base, it did order MPC t o r e t a i n an independent accounting firm acceptable t o the commission t o undertake a determination of the o r i g i n a l c o s t of t h e prop- e r t i e s i n question. Montana Power a l s o appealed from t h e order d i r e c t i n g it t o r e t a i n t h i s accounting firm. The D i s t r i c t Court of the Second J u d i c i a l D i s t r i c t , the Honorable Jack L. Green presiding, issued findings and conclusions on February 6, 1978, and judgment on February 22, 1978. The D i s t r i c t Court affirmed the Commission a s t o its r a t e base determinations eliminating t h e $5.7 million and using an average-year r a t e base. From t h i s portion of the D i s t r i c t Court's judgment, Montana Power appeals further. A s t o t h e portion of t h e Commission's order finding $15.7 million of Montana Power's r a t e base questionable, the D i s t r i c t Court reversed the PSC on t h e ground t h a t the Commission's 1944 finding t h a t t h i s amount was o r i g i n a l c o s t could not now be questioned. The D i s t r i c t Court f u r t h e r concluded t h a t t h e order requiring Montana Power t o r e t a i n an independent accounting firm was beyond the authority of t h e Commission and constituted a confiscation of Montana Power's property. The Commission and the Consumer Counsel have appealed from these portions of the D i s t r i c t Court's j udgment . Additional f a c t s a r e presented a s they become relevant t o t h e discussion of each issue. This appeal presents f o r review the following issues: 1. Whether t h e D i s t r i c t Court correctly affirmed the Commission's elimination of $5.7 million from Montana Power's e l e c t r i c r a t e base a s being i n excess of o r i g i n a l cost. 2. Whether the D i s t r i c t Court correctly held t h a t the Commission had no authority t o consider further an item of $15.7 million i n r a t e base which had been defined a s an o r i g i n a l c o s t by the PSC i n a 1 9 4 4 decision and therefore c o r r e c t l y held t h a t t h e PSC had erroneously ordered a con- f i s c a t o r y accounting t o determine o r i g i n a l c o s t of t h i s property. 3. Whether t h e D i s t r i c t Court c o r r e c t l y affirmed t h e Commission's use of an average-year rate base and r e l a t e d property taxes, adjusted t o include a major new f a c i l i t y ( C o l s t r i p Unit I ) , r a t h e r than a year-end rate base. Before proceeding t o a discussion of t h e s p e c i f i c i s s u e s r a i s e d by t h i s appeal, w e f i n d it h e l p f u l t o make some p r e f a t o r y remarks regarding t h e r e l a t i v e r o l e s and functions of t h e Montana Public Service Commission, t h e D i s t r i c t Court and t h i s Court i n u t i l i t y r a t e cases. I n Chapter 1, T i t l e 70, Revised Codes of Montana 1947, now Chapters 1-3, T i t l e 69 MCA, t h e l e g i s l a t u r e c r e a t e d t h e Public Service Commission of Montana and delegated t o it t h e "duty . . . t o supervise and r e g u l a t e t h e operations of t h e p u b l i c u t i l i t i e s . " Section 70-101, R.C.M. 1947, now s e c t i o n 69-1-102 MCA. A s p a r t of t h e s e d u t i e s , t h e Commission i s given t h e power t o " i n v e s t i g a t e and a s c e r t a i n t h e value of t h e property of every p u b l i c u t i l i t y a c t u a l l y used and u s e f u l f o r t h e convenience of t h e public." Section 70-106, R.C.M. 1947, now s e c t i o n 69-3-109 MCA. I t is t h e proper e x e r c i s e of t h i s power t h a t forms t h e b a s i s of each of t h e i s s u e s i n t h i s appeal. A u t i l i t y d i s s a t i s f i e d with an order of t h e Commission has two s t a t u t o r y r o u t e s of appeal f o r j u d i c i a l review: Section 70-128, R.C.M. 1947, now s e c t i o n 69-3-402 MCA, and s e c t i o n 82-4216, R.C.M. 1947, now s e c t i o n s 2-4-701 through -704 MCA, of t h e Montana Administrative Procedures Act. Montana Power has chosen t h e l a t t e r of t h e s e r o u t e s . This s t a t u t e s t r i c t l y l i m i t s t h e scope of judicial review of an administrative agency decision. Under section 82-4216(1) ( a ) , now sections 2-4-701, -702 MCA, only f i n a l agency decisions i n a contested case may generally be re- viewed. Only i f review of the f i n a l decision would not provide an adequate remedy is a preliminary o r intermediate agency action o r ruling immediately reviewable. Subsection ( 7 ) , now section 2-4-704 MCA, of the same s t a t u t e further l i m i t s t h e scope of review. Under t h a t subsection a D i s t r i c t Court is not allowed t o s u b s t i t u t e its judgment f o r t h a t of the agency a s t o the weight of evidence on questions of f a c t . The court may reverse o r modify the administrative decision only i f s u b s t a n t i a l r i g h t s of the aggrieved party have been prejudiced by v i r t u e of enumerated agency violations o r e r r o r s . I n Vita-Rich Dairy, Inc. v. Department of Business Regulation (1976), 170 Mont. 341, 553 P.2d 980, we examined t h e underlying r a t i o n a l e of t h i s limited review s t a t u t e and s t a t e d three basic principles i n determining what the scope of review should be: " F i r s t . The Court recognizes t h a t limited judi- c i a l review strengthens the administrative pro- cess. Limited review encourages the f u l l and complete presentation of evidence t o the agency by t h e participants i n the administrative pro- cess by penalizing those who attempt t o add new evidence o r new l i n e s of argument a t t h e judi- c i a l review level. A de novo review encourages t h e participants t o save t h e i r evidence u n t i l it r e a l l y counts and present it f i r s t t o the reviewing court r a t h e r than t o t h e agency which has t h e knowledge and experience i n the f i e l d it regulates. The r e s u l t i s t h a t t h e agency which has t h e knowledge and experience i n i t s substantive f i e l d does not hear a l l the evidence, making it d i f f i c u l t t o make a proper decision. I t a l s o r e s u l t s i n t h e decision being made by a reviewing court which does not have t h e spe- c i a l i z e d knowledge o r experience i n t h e area. "Second. J u d i c i a l economy requires t h a t the various functions involved i n the administrative process must be divided on the basis of compara- t i v e a b i l i t i e s and qualifications of each body. Courts a r e s p e c i a l i s t s i n constitutional issues, statutory interpretation, the requirements of a f a i r hearing, and the determination t h a t a find- ing i s supported by substantial evidence. The agency i s a s p e c i a l i s t i n the substantive matter t h a t t h e l e g i s l a t u r e delegated t o it t o regulate. "Third. The agency's actions need a balancing check. In the absence of a body within the agency which i s separated from the a c t u a l decision and i n which a l l p a r t i e s have confidence, a limited j u d i c i a l inquiry t o see (a) t h a t a f a i r procedure was used, (b) t h a t questions of law were properly decided and, (c) t h a t the decision is supported by substantial evidence, is necessary." 170 Mont. a t 343-45, 553 P. 2d a t 982-83. Returning t o our discussion of the r o l e s of each p a r t i - cipating governmental e n t i t y , we note t h a t further review of an agency decision and D i s t r i c t Court f i n a l judgment may be had on appeal t o t h i s Court. Section 82-4217, R.C.M. 1947, now section 2-4-711 MCA. While t h a t section does not s p e l l o u t our scope of review of an administrative agency action, t h a t matter i s f u l l y s e t t l e d by our cases: "This court has recognized t h a t the regulatory commissions of t h i s s t a t e a r e invested with broad powers within t h e i r sphere of adminis- t r a t i o n authorized by the l e g i s l a t u r e . Tobacco River Power Co. v. Pub. Service Comm'n, 109 Mont. 521, 98 P.2d 886. Even i n quasi-judicial proceedings t h e i r informed and expert judgment receives proper consideration by the courts of t h i s s t a t e when such judgment has been reached with due consideration of c o n s t i t u t i o n a l re- s t r a i n t s . Baker Sales Barn, Inc. v. Montana Livestock Comm'n, 1 4 0 Mont. 1, 367 P.2d 775. Much t h a t i s done by these administrative agencies of t h e s t a t e , within the realm of administrative discretion, i s exempt by the l e g i s l a t u r e from supervision by t h e courts i f those r e s t r a i n t s a r e obeyed. ". . . t h i s court i s always confronted i n rate- making cases with t h e question of how f a r t h e court can go i n i n t e r f e r i n g with, o r directing t h e exercise of power, by an equal department of t h e government. W e have repeatedly held t h a t there w i l l be no interference with the orders of t h e Commission unless: " (1) they go beyond the power constitutionally given; ur, " ( 2 ) beyond t h e i r statutory power; o r " (3) they a r e based upon a mistake of law." Cascade County Consumers Ass'n v. Public Service Comm'n ( 1 9 6 4 ) , 1 4 4 Mont. 169, 185-86, 192, 394 P.2d 856, 865, 868. and "Even i f we were so disposed by our personal views, we cannot s u b s t i t u t e our d i s c r e t i o n f o r t h a t of the board unless we can say c l e a r l y t h a t t h e order i s unreasonable." Chicago, M., S t . P. & P. R. Co. v. Board of Railroad Commissioners (1953), 126 Mont. 568, 575, 255 P.2d 346, 351. W e too a r e constrained i n our review of agency actions by t h e principles enunciated i n Vita-Rich Dairy, Inc. I n addition, the findings of a D i s t r i c t Court come t o us with a presumption of correctness: II 1 . . . W e have consistently 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 the evidence f o r t h a t of the t r i a l court. When there is a c o n f l i c t i n the evidence, t h e findings of t h e t r i a l court a r e presumed t o be correct 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 the findings of the t r i a l court, i n a nonjury t r i a l , w i l l not be reversed on appeal, unless there i s a c l e a r pre- ponderance of evidence against the findings." Montana Farm Service Co. v. Marquart (1978), Mont. , 578 P.2d 315, 316, 35 St.Rep. - 631, 633. With these principles i n mind, we now proceed t o an analysis of each s p e c i f i c issue. The elimination of -- $5.7 million --- from r a t e base. The Commission eliminated from Montana Power's r a t e base $5.939 million on t h e ground t h a t the amount, by d e f i n i t i o n of t h e accounts, represented an investment i n excess of o r i g i n a l cost. The Commission did allow Montana Power t o recover t h i s amount i t s e l f , without any return, through amortization over a twenty-year period. The excluded $5.939 m i l l i o n includes $5.787 m i l l i o n f o r p l a n t a c q u i s i t i o n adjustments t h a t exceed t h e o r i g i n a l c o s t of t h e properties. The $5.787 m i l l i o n was t h e remainder i n an account i n e l e c t r i c rate base approved by t h e Commission i n 1944 with t h e s p e c i f i c r u l i n g t h a t t h i s amount should remain i n t h e account " f o r as long as t h e land r i g h t s in- volved a r e used by t h e company and continue t o have value." R e The Montana Power Company (1944), 56 P.U.R. (N.S.) 193, 228-29. This r u l i n g w a s expressly approved by t h e Commis- s i o n i n 1958 a s c o n s t i t u t i n g a p a r t of t h e r a t e base f o r t h e purpose of determining rates, I n re The Montana Power Com- pany (1958), 24 P.U.R.3d 321, and w a s n o t questioned u n t i l t h e Commission and t h e Consumer Counsel responded t o t h e p e t i t i o n of t h e Montana Power Company i n 1975. The balance of t h e $5.939 m i l l i o n i s a $151,889 f e e paid t o an a f f i l i a t e which had been found u n j u s t i f i e d long ago by both t h e PSC and FPC. Montana Power appeals only t h e exclusion of t h e $5.7 million. On t h e treatment of t h i s i t e m t h e D i s t r i c t Court agreed with t h e Commission t h a t t h i s amount should be eliminated from t h e rate base. I n t h e words of t h e D i s t r i c t Court: "This amount is properly eliminated from rate base because by d e f i n i t i o n of t h e accounts [ i n which t h i s item w a s re- corded] t h i s amount represents an investment which exceeds ' o r i g i n a l cost. ' " I n i t s reply b r i e f t o t h i s Court, Montana Power con- cedes t h a t i n 1944 t h e Commission determined t h a t t h e amounts w e r e i n excess of o r i g i n a l c o s t s and does n o t now c o n t e s t t h a t determination: "While we do n o t agree with Judge Green's d e c i s i o n a s t o t h e $5.7 m i l l i o n i s s u e , t h a t was an instance where t h e determination was one of a c q u i s i t i o n adjustment, meaning an amount i n a d d i t i o n t o o r exceeding o r i g i n a l cost." Section 70-106, R.C.M. 1947, now s e c t i o n 69-3-109 MCA, empowers t h e Commission t o value t h e p r o p e r t i e s of u t i l i t i e s . This s t a t u t e was amended i n 1975 and now reads a s follows with t h e amendment emphasized: "The commission may, i n its d i s c r e t i o n , inves- t i g a t e and a s c e r t a i n t h e value of t h e property of every public u t i l i t y a c t u a l l y used and-use; f u l f o r t h e convenience of t h e public. The - commission i s n o t bound t o accept o r use any -- -- a r t i c u l a r value i n determining rates, provided !hat i f v a l u e T s used, such value m x n o t -- -- - exceed t h e o r i g i n a l c o s t of t h e property. I n --- making such i n v e s t i g a t i o n t h e commission may a v a i l i t s e l f of a l l information contained i n t h e assessment rolls of various counties, and t h e public records of t h e various branches of t h e state government, o r any o t h e r information obtainable, and t h e commission may a t any t i m e of i t s own i n i t i a t i v e make a revaluation of such property. " This s t a t u t e is d i s p o s i t i v e of t h i s i s s u e . Under it, t h e Commission is obligated t o eliminate from r a t e base a l l u t i l i t y c o s t s i n excess of o r i g i n a l c o s t . The $5.7 m i l l i o n was found long ago t o be i n excess of o r i g i n a l c o s t and i s t h e r e f o r e properly eliminated. Montana Power's arguments a g a i n s t elimination of t h i s i t e m on t h e b a s i s of res judicata and c o l l a t e r a l estoppel are inapposite where an intervening s t a t u t o r y amendment completely changes t h e b a s i s on which valuation of u t i l i t y property i s t o be made. See, e.g., S t a t e ex rel. Lockwood v. Tyler (19221, 64 Mont. 124, 142, 208 P. 1081, 1088; I n re Pomeroy (1915), 51 Mont. 119, 151 P. 333; S t a t e Farm Mutual Automobile Insurance Co. v. Duel (1945), 324 U.S. 154, 162, 65 S.Ct. 573, 577, 89 L.ed. 812, 819, c i t i n g Pomeroy and o t h e r cases f o r t h e "general r u l e t h a t r e s judicata i s no defense where between t h e t i m e of t h e f i r s t judgment and t h e second t h e r e has been an intervening decision o r a change i n t h e law c r e a t i n g an a l t e r e d s i t u a t i o n . " Further, t h e Commission has always had the power t o make a revaluation of such property. Section 70-106, R.C.M. 1947, now section 69- 3-109 MCA. The judgment of the D i s t r i c t Court on t h i s i s s u e is affirmed. The consideration of t h e guestionable $15.7 million and -- t h e order t o r e t a i n an independent accounting firm. O n - - t h i s i s s u e t h e D i s t r i c t Court and the Commission disagreed. This disagreement a s well a s a summary of the relevant f a c t s i s recorded i n Point No. 2 of the ~ i s t r i c t Court's findings of f a c t : "On t h i s Point No. 2 the Court f i n d s , con- cludes, orders and adjudges a s follows: "For convenience 'Finding of Fact 43' of Order No. 4220C i s hereby quoted i n i t s e n t i r e t y : "'43. Witness Hess urged the Commission t o eliminate an additional $15,722,000 of e l e c t r i c r a t e base ( T r . 2751-2752) . After t h e elimination of acquisition adjustments discussed i n Finding No. 42, t h i s is the amount by which Applicant's e l e c t r i c r a t e base s t i l l exceeds the o r i g i n a l c o s t deter- mination of the Federal Power Commission i n Re t h e Montana Power Co., 4 F.P.C. 213, 57 -- P.U.R. (n.s.) 143 (1945). Because of the questionable nature of the adoption by the Montana Commission i n i t s 1944 opinion of t h e concept "commercial value" ( T r . 2751) , inclusion of t h i s amount i n an o r i g i n a l c o s t depreciated r a t e base remains a matter of continuing concern. However, because t h e record i n t h i s docket is very limited on t h i s point, t h e Commission declines t o eliminate t h e difference. To deal with the problem i n f u t u r e proceedings, the Commis- sion d i r e c t s Applicant t o take the action contained i n Order paragraph 4 . ' "And Order No. 4 of the PSC i s hereby quoted i n i t s entirety: " ' 4 . Applicant is ordered t o immediately take steps t o r e t a i n an independent accounting firm acceptable t o t h i s Commission f o r t h e purpose of undertaking a determination of t h e o r i g i n a l c o s t of Applicant's hydroelec- t r i c properties when f i r s t devoted t o public use. ' "The Court f i n d s t h a t t h e r e was no b a s i s i n t h e f a c t s before t h e PSC t o j u s t i f y t h e s a i d 'Find- i n g of Fact 43' of Order No. 4220C. "The Court f i n d s t h a t t h e r e is no b a s i s i n law and t h e r e i s no b a s i s i n f a c t f o r any considera- t i o n of t h e o r i g i n a l c o s t determination of t h e FPC i n 1945. The Court f i n d s t h a t t h e term 'commercial value' was used by t h e PSC i n i t s 1944 d e c i s i o n b u t t h a t t h e PSC found t h a t t h e items, now amounting t o $15.722 m i l l i o n , w e r e a l l a p a r t of o r i g i n a l c o s t and w e r e placed i n t o p l a n t account, being Account No. 100.1, E l e c t r i c P l a n t i n Service. R e - The Montana Power Company 56 P.U.R. (n.s.) 193, 200, 202, 209-211 and 238 (Account 100.1, 320) (Mont. PSC 1944). N o one, including t h e p r e s e n t PSC, can question t h e s e clear f i n d i n g s and conclu- s i o n s by t h e PSC i n 1944. "The Court f i n d s t h a t t h e r e w a s no b a s i s i n l a w o r i n f a c t f o r t h e PSC i n s a i d 'Finding of F a c t 43' t o consider, o r f o r continuing concern about t h i s amount of money i n an o r i g i n a l c o s t de- p r e c i a t e d rate base. "The Court f i n d s t h a t t h e PSC w a s required t o and d i d d e c l i n e t o e l i m i n a t e t h i s i t e m of $15.7 m i l l i o n of e l e c t r i c rate base. "The Court f i n d s t h a t t h e r e w a s no b a s i s i n f a c t o r law which would j u s t i f y t h e PSC i n adopting s a i d Order No. 4; and t h e Court f i n d s t h a t t h i s Order No. 4 w a s c a p r i c i o u s and would impose upon Montana Power a n estimated c o s t a t a minimum of over $300r000 and any determination by an indepen- d e n t accountant would n o t be binding upon any- one. " The D i s t r i c t Court concluded: "4. The Court concludes t h a t t h e r e w e r e no f a c t s upon which t h e PSC could challenge o r con- s i d e r questionable t h i s $15.722 m i l l i o n i n elec- tric rate base. "The Court concludes t h a t t h e requirements i n Order No. 4 are beyond t h e j u r i s d i c t i o n of t h e PSC and would c o n s t i t u t e a c l e a r c o n f i s c a t i o n of $300,000 o r more of t h e property of Montana Power." A s t h e m a t t e r developed i n t h e earlier proceedings, t h i s i s s u e was found t o contain two subissues which w e r e handled s e p a r a t e l y by t h e D i s t r i c t Court: ( a ) t h e statement by t h e Commission of i t s "continuing concern" over t h i s $15.7 m i l l i o n , and (b) t h e order by t h e Commission t h a t M P C had t o r e t a i n a n independent accounting f i r m acceptable t o t h e Commission t o determine the o r i g i n a l c o s t of the prop- e r t y i n question. For convenience, we a l s o w i l l consider t h e i t e m s separately. I n i t i a l l y , Montana Power argues t h a t , by v i r t u e of a post-judgment motion by Consumer Counsel and supported by a brief by the Commission, these two agencies have conceded t h a t the Commission's statement of continuing concern and order of an independent a u d i t were improper and unlawful and therefore, no r e a l i s s u e a s t o these matters e x i s t on t h i s appeal. W e disagree. The motion by Consumer Counsel would have altered t h e D i s t r i c t Court judgment t o read (with the a l t e r a t i o n s empha- sized) : "Based upon - t h e f a c t s before -- t h e PSC, the Court finds t h a t t h e PSC was required t o and did de- c l i n e t o eliminate t h i s item of $15.7 million of e l e c t r i c r a t e base. "Based upon -- t h e foregoing, the Court f i n d s t h a t t h e r e was -- no b a s i s -- i n f a c t which would j u s t i f y t h e PSC i n adopting said Order No. 4. Thus, --- - - s a i d Order No. - - - 4 is a r b i t r a r y - and capricious. " ' 4 . ' of - Conclusions of -- Law - t o read: " ' 4 . - The Court concludes t h a t there were -- no f a c t s upon which -- t h e PSC could challenge o r con- -- s i d e r questionable t h i s $15.722 million - i n - - e l e c t r i c r a t e base. -- "'On account of ----- t h e lack of a f a c t u a l basis, - the Court concludes t h a t t h e requirements - i n Order No. 4 were unlawful.'" - - - This motion was not granted, therefore Consumer Coun- s e l ' s position was not adopted by the D i s t r i c t Court. More important t o our conclusion is t h e reason s t a t e d by Consumer Counsel f o r advancing t h i s motion: "Consumer Counsel advances t h i s Motion so t h a t the above-mentioned Findings and Conclusions w i l l not be given an interpretation which c o n f l i c t s with the c l e a r language i n the remainder of the Court's Findings, Conclusions and Judgement provisions." Thus, t h e motion w a s n o t designed s o much t o concede t h e impropriety of t h a t p a r t of t h e D i s t r i c t Court's judgment concerning t h e questionable $15.7 m i l l i o n as it w a s intended t o strengthen t h a t p a r t of t h e D i s t r i c t Court judgment r e l a t i n g t o t h e exclusion of t h e $5.7 m i l l i o n by removing any p o s s i b i l i t y of an i n c o n s i s t e n t i n t e r p r e t a t i o n of t h e judgment a s a whole. When t h e motion w a s denied, Consumer Counsel was f r e e t o attempt t h e a l t e r n a t i v e means of re- moving what it perceived t o be an apparent inconsistency i n t h i s order by obtaining a complete r e v e r s a l of t h e p a r t of t h e judgment r e l a t i n g t o consideration of t h e $15.7 million. A s t o t h e conclusion of t h e t h e D i s t r i c t Court " t h a t t h e r e were no f a c t s upon which t h e PSC could challenge o r consider questionable t h i s $15.722 m i l l i o n i n e l e c t r i c r a t e base", w e conclude t h a t t h i s was an improper, premature i n t r u s i o n by t h e D i s t r i c t Court i n t o t h e administrative process and therefore reverse. The expression by t h e Commission of i t s continuing concern over t h i s $15.7 m i l l i o n possibly i n excess of orig- i n a l c o s t is not a f i n a l decision by t h e Commission; nor does it q u a l i f y as a preliminary r u l i n g f o r which review of any f i n a l order would not be adequate. A t best t h i s has created a nonissue. I f i n t h e f u t u r e , a f t e r a proper hearing, an adverse f i n a l order be issued on t h e matter, j u d i c i a l review would be i n order. Montana Power has suffered no l o s s on t h i s matter and i n f a c t may never s u f f e r any loss. Montana Power recognized t h i s prematurity i n i t s r e p l y b r i e f t o t h e D i s t r i c t Court: "vhp nnlv relevance of a l l of t h e discussion of * **- ---- - - - - - -.-- - - ---- - t h e $15.7 m i l l i o n -- is i n connection with -- t h e r i g h t o r a u t h o r i t y of -- t h e Commission t o order ~ o n t a n a ~ o w e r t o r e t a i n an independentaccoun- t a n t . " ( ~ m ~ h a s i s i n o r i g i n a l . ) And i n its reply brief t o t h i s Court, M P C stated: "In declining t o a c t now, t h e PSC has c l e a r l y --- given an indication of what it w i l l do i n future proceedings; and t o t h a t end, the PSC has ordered MPC t o h i r e independent accountants." (Emphasis added. ) A s we have noted, the Public Service Commission is empowered t o "investigate and ascertain the value of t h e property of every public u t i l i t y . " Section 70-106, R.C.M. 1 9 4 7 , now section 69-3-109 MCA. Under the same s t a t u t e , a s it has read from the time of its f i r s t enactment i n 1913, "the commission may a t any time of i t s own i n i t i a t i v e make a revaluation of such property." I n its use of the t e r m "revaluation" t h e l e g i s l a t u r e c l e a r l y contemplated t h e p o s s i b i l i t y t h a t l a t e r Public Service Commissions, under appropriate circumstances, may modify o r a l t e r t h e property valuations made by e a r l i e r commissions. Administrative p o l i c i e s change, compelled by changing s o c i a l o r economic conditions or by changing s t a t u t o r y guidelines. In 1975, by i t s amendment t o section 70-106, now section 69-3-109 MCA, the l e g i s l a t u r e changed one of the basic principles upon which u t i l i t y r a t e bases had been calculated i n Montana. Before 1975 u t i l i t y r a t e bases were calculated on the basis of the reproduction c o s t new o r commercial value of u t i l i t y plants, of which o r i g i n a l c o s t was only one f a c t o r t o be considered. See, e.g., Re The Montana Power Company, 56 P.U.R. (N.S.) a t 200, 204; S t a t e ex r e l . Olsen v. Public Service Commission (1957), 131 Mont. 272, 276-77, 309 P.2d 1035, 1038; Tobacco River Power Co. v. Public Service Commission (1940), 109 Mont. 521, 529-30; 98 P.2d 886, 890. From 1975 forward, however, t h e legis- l a t u r e transformed o r i g i n a l c o s t i n t o the factor t o be considered i n r a t e base calculation; from 1975 forward, u t i l i t y plants could not be valued i n excess of o r i g i n a l cost. Section 70-106, R.C.M. 1947, now section 69-3-109 MCA. The determination of o r i g i n a l cost, therefore, has a new importance i n t h e s e t t i n g of u t i l i t y r a t e s . W e now proceed t o the question of the Commission's authority i n ordering Montana Power t o r e t a i n an acceptable, independent accounting firm t o investigate t h e o r i g i n a l c o s t s of the $15.7 million properties. Unlike the statement of continuing concern, t h i s i s a f i n a l order by t h e Commis- sion which does impose an obligation on Montana Power and i s therefore reviewable under section 82-4216(1)(a), now sec- t i o n 2-4-702 MCA. National Van Lines, Inc. v. United S t a t e s (7th C i r . 1964), 326 F.2d 362, 372. The D i s t r i c t Court concluded t h a t the order of the Commission t h a t Montana Power r e t a i n the accounting firm was "beyond t h e jurisdiction of the PSC and would c o n s t i t u t e a c l e a r confiscation of $300,000 o r more [as the estimated c o s t of t h e accounting] of the property of Montana Power." W e agree with the D i s t r i c t Court and hold t h a t the Commis- sion lacks t h e r e q u i s i t e s t a t u t o r y authority t o compel Montana Power t o h i r e an independent accounting firm accept- able t o t h e Commission f o r the purpose of determining the o r i g i n a l c o s t s of t h e disputed properties. City of Polson v. Public Service Comm'n (1970), 155 Mont. 464, 4 6 9 , 473 P.2d 508, 511. The power of the Commission under section 70-106, now section 69-3-109 MCA, t o "investigate and ascertain" the value of u t i l i t y property has been discussed above. he means and authority by which the Commission is t o conduct i t s i n v e s t i g a t i o n i s i n d i c a t e d i n s e v e r a l s t a t u t e s . ~ . g . , s e c t i o n s 70-106, -107, -108, -117, R.C.M. 1947, now s e c t i o n s 69-3-109, 69-3-202, 69-3-203, 69-3-106 MCA. The Commission a s s e r t s t h e s e s t a t u t e s g i v e it t h e necessary a u t h o r i t y t o compel an independent a u d i t . W e do n o t read t h e a u t h o r i t y granted t h e r e i n s o broadly. I n s t e a d , it i s c l e a r from t h e s t a t u t e s t h a t t h e Commission i s em- powered only t o r e q u e s t d e s i r e d information from a u t i l i t y , n o t t o d i r e c t t h e means by which such information is t o be gathered. Under such a u t h o r i t y , t h e Commission is c l e a r l y empowered t o r e q u e s t and o b t a i n from Montana Power account- i n g information on t h e o r i g i n a l c o s t s of disputed p r o p e r t i e s , b u t it is up t o Montana Power t o decide how t o go about c o l l e c t i n g t h i s information. The Commission argues t h a t , i f Montana Power conducts t h e a u d i t i t s e l f , t h e r e s u l t s "would be t a i n t e d by suspi- c i o n s of s e l f - i n t e r e s t . " This argument could be applied t o any information supplied by any u t i l i t y t o t h e i om mission. Y e t from t h e above-noted s t a t u t e s , it is c l e a r t h a t t h e primary source of information about u t i l i t y operation is t h e u t i l i t y i t s e l f . E.g., s e c t i o n s 70-107, -108, R.C.M. 1947, now s e c t i o n s 69-3-202, -203 MCA. The Commission, of course, i s always f r e e t o weigh any such information a g a i n s t any information t o t h e c o n t r a r y presented by o t h e r agencies o r its own s t a f f . For t h e foregoing reasons, t h e judgment of t h e D i s t r i c t Court t h a t t h e Commission cannot question t h e i n c l u s i o n of t h e $15.7 m i l l i o n i n Montana Power's r a t e base is reversed. The judgment of t h e D i s t r i c t Court t h a t t h e Commission l a c k s a u t h o r i t y t o compel an independent a u d i t is affirmed. The U s e of Average-Year Rate Base. O n t h i s item, t h e --- -- D i s t r i c t Court and t h e Commission agreed. The findings of t h e D i s t r i c t Court a r e again helpful: "The Commission calculated Montana Power's revenues on t h e b a s i s of the average r a t e base f o r t h e test year and included only one-half the test year property taxes t o be consistent with average r a t e base. Findings 4 4 and 58A. The ' r a t e base' includes a u t i l i t y ' s unrecovered investment, upon which t h e u t i l i t y i s e n t i t l e d t o earn a r e t u r n from its customers. (The revenue requirement a l s o covers expenses such a s taxes, depreciation, f u e l , wages, etc. ) The value of t h e average r a t e base i s t h a t it matches the revenues and expenses occurring during t h e test year. The required matching of annual revenues and expenses with average r a t e base follows t h e same p r i n c i p l e as calculating annual i n t e r e s t charges on the aver- age amount of debt outstanding during t h e year, n o t t h e year-end l e v e l of debt. The Commission's decision i s supported by the record evidence and by authority and i s therefore affirmed. " I n the record, Consumer Counsel witness H e s s recommended t h a t Montana Power's test-year r a t e base be calculated according t o t h e average Montana Power investment i n electric service f a c i - l i t i e s and r e l a t e d f a c i l i t i e s during t h e months of 1975, adjusted t o include t h e investment [ i n ] t h e C o l s t r i p I generating u n i t from t h e beginning of the year 1975 with r e l a t e d revenue and expense adjustments. H e t e s t i f i e d t h a t t h e p r i n c i p a l reason f o r using an average r a t e base, r a t h e r than a year-end r a t e base, is t h a t an average r a t e base matches t h e revenues received and ex- penses incurred during t h e course of t h e t e s t year ( T r . 2742-4). While other s t a t e s do some- t i m e s u t i l i z e t h e year-end base, P e t i t i o n e r has f a i l e d t o e s t a b l i s h t h a t the Commission erred i n not using t h e year-end r a t e i n t h i s case. "Inevitably t h e r a t e s set by regulatory commissions may prove too low o r too high. How- ever, a commission must decide a case on the b a s i s of t h e record before it. I n t h i s case, the Com- mission acted within reason and on t h e b a s i s of t h e evidence i n deciding t h a t Montana Power had not c a r r i e d i t s burden of proof t o j u s t i f y a year- end base. " One f u r t h e r f a c t warrants mentioning. The average-year r a t e base adopted by t h e Commission and adjusted t o include C o l s t r i p I f o r t h e e n t i r e year includes nearly 90 percent of Montana Power's increased investment f o r t h e year. O f Montana Power's claimed increase i n p l a n t investment over t h e year of $92.5 million, a l l but $8.8 million was allowed i n r a t e base by the Commission. O n t h i s issue, the principles of Vita-Rich Dairy Inc. regarding agency expertise and our comments concerning the scope of review become most important. From the b r i e f s submitted and the cases c i t e d by both sides, it appears t h a t both the year-end r a t e base urged by Montana Power and the average-year r a t e base adopted by the Commission may be c o r r e c t and proper methods f o r valuing u t i l i t y property under c e r t a i n circumstances. The Commission i t s e l f has used both methods i n recent years. Cf. Montana-Dakota U t i l i t i e s Company (1959), 28 P.U.R.3d 355 (year-average, o r i g i n a l c o s t r a t e base) with Montana Power Co. (1962), 42 P.U.R.3d 2 4 1 (year-end f a i r value r a t e base.) I t is i n t e r e s t i n g t o note t h a t i n a very recent case involving Montana Power, the Commission adopted an average r a t e base. Commission Order No. 4350D, Docket No. 6454, Service Date 4-25-78, Applica- t i o n of Montana Power Company. Apparently, Montana Power has not contested t h e Commission's employment of average r a t e base i n t h i s more recent case. A federal administrative law judge analyzed t h e various issues i n the case of Union E l e c t r i c Co. ( 1 9 7 2 ) , 47 FPC 1 4 4 , 176, a f f ' d 47 FPC a t 151: "The t e s t year concept requires t h a t revenues, expenses and investment be synchronized--that they r e l a t e t o the same period. When revenues f o r t h e e n t i r e t e s t year a r e used, t h e corre- sponding r a t e base i s t h e average f o r t h e year. This is the usual practice. E.g., United Fuel Gas Company, 1 2 F.P.C. 251, 256 (1953). "Union wants t o use the year-end r a t e base, which i s larger than the t e s t year average be- cause of successive plant additions made over t h e year. It does not want t o include a s a cor- responding adjustment the additional revenues and expenses associated with t h e l a r g e r invest- ment. Union's proposal produces a d i s t o r t i o n i n t h e t e s t year r e s u l t s , and i s t h e r e f o r e ob- j ectionable. "Union's reason i s t h a t because of regulatory l a g during t h e period of r i s i n g c o s t s it needs e x t r a money. I f regulatory l a g reduces r e t u r n below a f a i r amount, t h i s should be d e a l t with as a s e p a r a t e problem. Moreoever, Union shows no s p e c i f i c r e l a t i o n s h i p between any inadequacy due t o regulatory l a g and t h e e x t r a amount t h a t would be derived from t h e use of a year-end r a t e base. "The Commission has on occasion used a year-end rate base where t h e p a r t i c u l a r f a c t s warranted. O t t e r T a i l Power Company, 8 F.P.C. 393, 401 (1949); United Gas Pipe Line Company, 31 F.P.C. 1180, 1194 (1964). But Union has not shown t h a t t h i s tech- nique i s necessary t o i n s u r e it a f a i r r e t u r n i n t h i s proceeding." During t h e proceedings before t h e Commission, it was brought o u t t h a t when a year-end r a t e base is adopted, proper regulatory p r i n c i p l e s requires a concomitant r e c a l - c u l a t i o n of revenues and expenses s o a s t o match income and expenses with t h e increased r a t e base. I n t h i s case, Montana Power f a i l e d , o r refused, t o o f f e r t h e necessary adjustments. Montana Power's complaints concerning i n f l a t i o n and regulatory l a g a s j u s t i f i c a t i o n f o r a year-end rate base a r e n o t convincing. A s noted by commissions i n o t h e r states: "That i n f l a t i o n , a t t r i t i o n and regulatory l a g may e x i s t does n o t mandate t h e Commission's use of a terminal [period end] r a t e base t o r e s o l v e t h e s e problems." Maryland Pub. Service Commission v. Baltimore Gas 61 E. Co., (1974), 273 Md. 357, 329 A. 2d 691, 698. "While a few commissions a r e finding it popular today t o use year-end r a t e bases and v a r i a t i o n s thereof, t h i s commission has s t e a d f a s t l y continued t o i n s i s t t h a t t h e problems of i n f l a t i o n and at- t r i t i o n , such as they a r e , are more properly t h e concern of r a t e of r e t u r n . A r t i f i c i a l and mechan- i c a l adjustments t o r a t e base usurp t h e function of r a t e of r e t u r n and can only be misleading t o a l l concerned." R e Niagara Mohawk Power Corp., (N.Y. 1960), 35 P.U.R.3d 149, 158. What the issue b o i l s down t o i s t h i s : t h e Co-ission adopted an e n t i r e l y c o r r e c t and proper method of valuation which the D i s t r i c t Court affirmed. Montana Power on appeal urges us t o adopt a d i f f e r e n t , a l b e i t c o r r e c t and proper, method of valuation but has f a i l e d t o make the normal adjustments t o revenues and expenses t o r e f l e c t t h e year-end investment. In the absence of any evidence t h a t the Commis- sion acted unlawfully or disregarded recognized regulatory procedures and practices, we a r e bound by our limited scope of review t o affirm the D i s t r i c t Court. This reasoning and conclusion applies a l s o t o the r e l a t e d treatment of Montana Power's taxes f o r 1975. In summary the judgment of the D i s t r i c t Court t h a t the Commission properly excluded $5.7 million from Montana Power's r a t e base and properly adopted an average-year r a t e base is affirmed. The judgment of the D i s t r i c t Court t h a t the Commission could not a t any time i n the f u t u r e consider o r challenge an additional $15.7 million of Montana Power's r a t e base i s reversed. The judgment of the D i s t r i c t Court t h a t the Commission lacks authority t o order Montana Power t o h i r e an acceptable, independent accounting firm t o deter- mine the o r i g i n a l c o s t of c e r t a i n Montana Power properties i s affirmed. * ' J u s t i c e W e concur: 7 4 / ' --9? Chief J u s t i c e . J u s t i c e Daniel J. Shea, deeming himself disqualified, did not s i t i n t h i s case. | February 21, 1979 |
c88d498a-63ff-4c05-bf21-14804ce417f5 | STATE v CLAWSON | N/A | 89-108 | Montana | Montana Supreme Court | N o . 8 9 - 1 0 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- SHAWN DREW CLAWSON, D e f e n d a n t and A p p e l l a n t . u 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 $ I n and for t h e C o u n t y of L e w i s & C l a r k , -4 T h e H o n o r a b l e H e n r y L o b l e , J u d g e presiding. COUNSEL OF RECORD: For A p p e l l a n t : E d m u n d F. Sheehy, Jr.; C a n n o n & Sheehy, 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 P a u l D. Johnson, 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 A. C l e m e n s , D e p u t y C o u n t y A t t y . , H e l e n a , M o n t a n a Filed: S u b m i t t e d on B r i e f s : A u g . 2 4 , 1 9 8 9 D e c i d e d : O c t o b e r 1 9 , 1 9 8 9 P I 1 C l e r k Justice Fred J. Weber delivered the Opinion of the Court. Defendant, Shawn Drew Clawson, was charged with aggra- vated kidnapping, aggravated assault, sexual intercourse without consent, and attempted deliberate homicide in the District Court for the First Judicial District, Lewis and Clark County. The aggravated assault charge was dismissed. The jury found defendant guilty as charged of the offenses of of aggravated kidnapping, sexual intercourse without consent, and attempted deliberate homicide. Defendant was sentenced to 100 years for aggravated kidnapping, 100 years for at- tempted deliberate homicide, 40 years for sexual intercourse without consent, 100 years as a persistent felony offender, and 10 years for the use of a weapon, to run consecutively, making a total of 350 years. He was also declared ineligible for parole. Defendant appeals. We affirm. Defendant presents three issues on appeal: 1. Did the District Court err in ruling that sexual intercourse without consent is not a lesser included offense of aggravated kidnapping, and therefore not dismissing the charge of aggravated kidnapping? 2. Did the District Court err in finding that the offense of attempted deliberate homicide was not impliedly repealed by the newly enacted offense of criminal endangerment? 3. Did the District Court err in denying defendant's motion for mistrial when the prosecution addressed punishment in its rebuttal closing argument? The victim, L.B., lived in Helena, Montana. Near mid- night, on June 10, 1980, L.B. received a phone call from a man stating that he had borrowed some car parts and tools from her husband and wanted to return them that night. L.B. felt uneasy because of the call and called her husband who was working i n the s t a t e of Idaho. H e d i d not r e c a l l loaning t o o l s t o anyone. H e r husband c a l l e d l a t e r t o make s u r e she was a l l r i g h t . He a l s o asked a male f r i e n d , M r . E . , i n Helena t o check on L.B. M r . E. c a l l e d L.B. s h o r t l y a f t e r t h e cal-1 from her husband. While he was t a l k i n g t o h e r , t h e defendant b u r s t i n t o t h e house through a bedroom window. L.B. t e s t i f i e d t h a t she recognized defendant a s t h e man who had come t o h e r home a week e a r l i e r requesting a t o u r of it because it was f o r s a l e , and a l s o a s t h e man who made t h e phone c a l l e a r l i e r t h a t night. A s he approached her, she screamed "Oh no, O h no." Defendant put a k n i f e t o L . B . ' s t h r o a t and then hung up t h e phone. He forced her t o leave clad only i n a n i g h t s h i r t and without s l i p p e r s , and took her t o h i s c a r several blocks away. She made several unsuccessful escape attempts. Because t h e r e a r e no s i g n i f i c a n t f a c t u a l i s s u e s r a i s e d by t h e defendant we w i l l not d e t a i l t h e very extensive crimi- n a l conduct of t h e defendant which extended over a period of many hours, s t a r t i n g a f t e r 1:00 a.m. Beginning i n a vacant bus near her home and then continuing i n various locations around t h e c i t y , defendant repeatedly committed a c t s of sexual intercourse without consent on L.B., and i n addition, by force required her t o take p a r t i n various deviate sexual a c t s . Defendant repeatedly t o r t u r e d L . R . , choked h e r a number of times, burned her body with c i g a r e t t e s and beat her physically with a club. F i n a l l y , a f t e r d r i v i n g L.B. several miles o u t of town, defendant slammed her head i n t o a rock and stabbed her 15 times i n her chest and abdomen. W e emphasize t h a t t h e record i s devoid of any evidence, o r even suggestion of evidence, which demonstrates consent o r p a r t i c i p a t i o n i n any of t h e conduct by L.B. The b e s t i a l i t y of t h e conduct on t h e p a r t of defendant i s overwhelmingly present i n t h e record. W e a r e unable t o comprehend t h e lack of consideration for another human being which was demonstrated by defendant, and which is apparent even from his own testi- mony. In the event that defendant finds it appropriate to seek further review, we invite any federal court to review the extensive transcript in order to gain an adequate under- standing of the facts of this case. Because of his fear of being caught, defendant concocted a story for L.B. to tell Mr. E. in order to explain why she hung up on him. Defendant forced L.B. to call Mr. E. and to relay the story about friends with whom she left to go drink- ing in Butte. L.B. attempted to tip off Mr. E. by asking questions about his wife although he was unmarried. Mr. E. had already called the police and sent them to L.B.'s home. Defendant also forced L.B. to call the police with the same phony story. As dawn approached, the defendant became ner- vous and drove L.B. out of Helena into the foothills near Canyon Ferry. He stopped when L.B. said that she had to go to the bathroom. L.B. testified that she next awoke in the bottom of a ravine, clad in only her nightshirt, and bleeding from her wounds. She testified that she did not move at all that day because she was not strong enough to get up. At dusk she walked for about half an hour, and during that night alter- nated between walking and sleeping. Cactus spines punctured her bare feet. In the morning she slowly made her way out of the ravine to a road. Two people in a pickup truck drove past and saw her sitting on the side of the road with blood on her head. They rushed her to the hospital, where it was discovered she had been stabbed 15 times in her chest and abdomen. The hospital physician who treated L.B. testified that she had several "potentially fatal stab wounds," had lost a "minimum of 25% of her blood volume," and that her head wounds would have been potentially fatal had they not "occurred on a particularly hard portion of the skull." He testified that L.B. probably would not have survived more than a few hours, had she not been rescued. I Did the District Court err in ruling that sexual inter- course without consent is not a lesser included offense of aggravated kidnapping, and therefore not dismissing the charge of aggravated kidnapping? Defendant contends that pursuant to 5 46-11-502, MCA, sexual intercourse without consent is a lesser included offense of aggravated kidnapping and that he cannot be con- victed of both without resulting in double jeopardy. The basis of his claim is that the "without consent" element of sexual intercourse without consent is established by the kidnapping because the taking of someone against her will is without consent. At the close of the State's case-in-chief, defendant moved to dismiss the charge of aggravated kidnap- ping for that reason. The State argues that in determining if one offense includes another, the statutory elements of each offense must be analyzed to determine if each offense contains an element different from the other. The State refers to a number of Montana cases and in particular relies upon State v. Thornton (1985), 218 Mont. 317, 708 P.2d 273. Defendant agrees that Thornton sets forth the appropriate standard. In Thornton -- the standard is discussed at some length as follows: Defendant's argument relies upon the holding found in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309, which states: "The applicable rule is that where the same act or transaction constitutes a violation of two distinct stat,utory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. " The first sentence of S 46-11-502, MCA, states: "When the same transaction may establish the com- mission of more than one offense, a person charged with such conduct may be prosecuted for each such offense." The statute goes on to enumerate some exceptions to this statement. Defendant, however, has not indicated which exception he relies on, but his argument appears to center around exception (1). This exception states: "[Defendant] may not, however, be convicted of more than one offense if . . . one offense is included in the other. In a series of recent cases this Court has clarified the application of the Blockburger rule and S 46-11-502. To determine if one offense is includable within another, the analysis looks to the statutory elements, not the particular factual situation. (Citations omitted. ) If each offense contains an element different than the other there is no inclusion, even though there may be a sub- stantial overlap in proof. (Citations omitted.) The State maintains that the statutory definition of sexual intercourse without consent does not require the p,urpose to facilitate commission of a felony as defined in this case for aggravated kidnapping. In a similar manner, the statutory definition of aggravated kidnapping as here charged, does not require sexual intercourse without consent, but only the purpose to facilitate commission of a felony. We agree. Under S 45-5-303(l) (a) and (c) , MCA, the offense of aggravated kidnapping is committed when 1) a person knowingly or purposely, 2) without lawful authority, 3) restrains another person 4) by the use of threats or physical force, 5) with the purpose to facilitate commission of any felony. Section 45-5-503(1), MCA, provides that a person commits the offense of sexual intercourse without consent when he 1) knowingly, 2) has sexual intercourse, 3) without consent with a person of the opposite sex. We look to the statutes to determine if each offense requires proof of a fact which the other does not. State v. Madera (1983), 206 Mont. 140, 670 P.2d 552. To prove aggravated kidnapping the State must prove the kidnapping was committed with the purpose to facilitate commission of any felony. The State need not prove the actual commission of a felony. The State need only prove that there was the purpose to facilitate or aid in the com- mission of a felony. As appears from $ 45-5-503(l), MCA, that element is not required to prove sexual intercourse without consent. In order to prove sexual intercourse without consent, the State must prove an act of sexual intercourse. That element is not required under the aggravated kidnapping statute, $ 45-5-303 (1) (a) and (c) , MCA. Our comparison of the stat,utory elements of both crimes makes it clear that under the Thornton test, each offense contains an element different than the other. As a result, it is clear that one offense is not included in the other as prohibited under (5 46-11-502(1), MCA. That disposes of the principal argument on the part of the defendant. In addition, on appeal, defendant attempted to argue the application of (5 46-11-503(4), MCA, which provides that a person may not be convicted of more than one offense if the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other prohibits a specific instance of such conduct. As pointed out by the State, the defendant did not object on this theory at the trial court level. It is true that the district court may not be put in error for a ruling that it has not made. Nonetheless we will briefly discuss this theory in order to eliminate the contention of the defendant. Clearly sexual intercourse without consent is not a specific instance of aggravated kidnapping. As a result there is a failure to meet the definitional provision of § 46-11-503, MCA. We therefore conclude that under § 46-11-502, MCA, and Thornton, sexual intercourse without consent is not a lesser included offense of aggravated kidnapping. We affirm the holding of the District Court in so ruling. I1 Did the District Court err in finding that the offense of attempted deliberate homicide was not impliedly repealed by the newly enacted offense of criminal endangerment? The offense of attempt is defined in 5 45-4-103(1), MCA, as follows: A person commits the offense of attempt when, with the purpose to commit a specific offense, he does any act toward the commission of such offense. A person commits the offense of deliberate homicide as defined in § 45-5-102 (I), MCA, if: (a) he purposely or knowingly causes the death of another human being; or (b) he attempts to commit, commits, or is legally accountable for the attempt or commission of rob- bery, sexual intercourse without consent, arson, burglary, kidnapping, aggravated kidnapping, . . . or any other forcible felony and in the course of the forcible felony or flight thereafter, he or any person legally accountable for the crime causes the death of another human being. Criminal endangerment is defined in 5 45-5-207(1), MCA: (1) A person who knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminal endangerment. Defendant argues that the intent of the 1987 Montana Legislature in enacting the criminal endangerment statute 5 45-5-207, MCA, was to impliedly repeal the offense of at- tempted deliberate homicide. This would reduce the penalty imposed on defendant from a possible maximum penalty of life imprisonment to a maximum penalty of ten years. He contends that proof of criminal endangerment would show attempted deliberate homicide or vice versa, so it would not make sense to say that both offenses still exist under Montana law. The State contends that any intention of the legislature to repeal an offense must be clear and manifest, which is not present in this case. It maintains that the key is whether each statute requires proof of an additional fact which the other does not require. It argues that because criminal endangerment does not require a purposeful act to cause the death of a human being, as does attempted deliberate homi- cide, defendant's argument fails. The legislative history does not indicate that the creation of the offense of criminal endangerment impliedly repealed the offense of attempted deliberate homicide. The offense entails a wide variety of offenses, resulting from gross negligence and reckless behavior. Judiciary Committee Notes, February 5, 1987, page 4. The legislature considered endangerment statutes of Colorado, Washington, Oregon, Alaska and Arizona in drafting the criminal endangerment statute. Those states all consider endangerment as an assault-type offense and have classified it as a misdemeanor, gross misde- meanor, and a felony. One of the cases analyzed by the legislature was a Washington Supreme Court decision. In that case, the defen- dant fired a .22 rifle at passing cars, parked cars and apartment buildings as a Halloween prank. He was convicted of assault and reckless endangerment. The reckless endanger- ment charge was based on the firing of the gun at an inhabit- ed apartment building where one bullet went through a window and into a wall. The Court ruled that this did not consti- tute double jeopardy, holding that "definite punishment" is not the same as "double punishment." State v. Turner (1981), 29 Wash.App. 282, 627 P.2d 1324. Washington law defines "reckless endangerment" as follows: (1) A person is guilty of reckless endangerment when he recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person. (2) Reckless endangerment is a gross misdemeanor. Wash. Rev. Code S9A. 36.050 (1975) . The only significant difference between the Washington statute and the Montana statute is the use of the term "reckless" in the Washington statute rather than "knowingly" as defined in Montana. Either way it is clear that the statute is created to punish reckless or negligent behavior which has the inherent poten- tial of resulting in death or serious bodily injury to anoth- er person. Thus, criminal endangerment is clearly distinguishable from attempted deliberate homicide because the purpose of the behavior itself is different even if the result of the behavior may be the same. We affirm the Dis- trict Court's conclusion that the offense of attempted delib- erate homicide was not impliedly repealed by the newly enacted offense of criminal endangerment. Did the District Court err in denying defendant's motion for mistrial when the prosecution addressed punishment in its rebuttal closing argument? At trial, defendant admitted to committing aggravated kidnapping and sexual intercourse without consent. The jury, then, only needed to decide whether defendant committed attempted deliberate homicide or either mitigated attempted deliberate homicide or criminal endangerment. As already discussed, defendant adamantly argued that he did not intend to kill L.B. so he could only be charged with criminal endan- germent. During closing arguments, the State made reference to the differences in punishment in these offenses. This was the basis of defendant's motion. The pertinent part of the disputed closing argument follows: State's Closing Argument: What about the defendant? Do you believe him? Is he a credible witness? Does he have a motive to lie? Sure he does. I think he summed it up in his statement that he made to [L.R. ] in the car when Mr. Sheehy said well what did you talk about? I don't know why I am doing this. I just got out of jail for doing this. It happens every time I see an attractive woman. That is what he said. And that is why he is lying in this case. He does not want to go back to jail. So he told you a bare outline of what happened that night. He admitted- to parts of it. He admitted to parts that there was physical evidence to substantiate, things that he couldn't dispute because the evidence was bla- tantly there in front of him. And then he mini- mized the rest of it . . . Defendant's Closing Argument: Now--I know Ms. Clemens says Shawn Drew Calwson has got a reason to lie. Doesn't want to go back to jail when he tells you specifically that he didn't have the intent to kill her. [H]e is going back to jail. He is going back to jail; has been in jail since the 15th of June, 14th of June. He got up here and admitted his guilt, admitted that he had sexual intercourse without consent, admitted that he had aggravated kidnapping. Why? If he intended to kill her wouldn't he say I intended to kill her? What has he got to gain from that? It has got nothing to do with not going back to jail . . . State's Rebuttal: There is a big difference between criminal endan- germent and attempted deliberate homicide. Mr. Clawson is worried about how long he is going to be in jail. HOW many years he will be there and whether he will ever be out again. That is what he is worried about. That is why his attorney wants you to find him guilty of criminal endangerment and not attempted deliberate homicide. The State maintains that this was not prejudicial in light of the cautionary instructions given to the jury imme- diately after denying the motion: You are not to be concerned with the penalty pro- vided by law for the offenses charged or to specu- late on what it might be or should be in this case. Imposing sentence within the bounds set by the legislature is the exclusive business of the Court and has nothing whatever to do with your verdict. Your task is to consider the facts and render your verdict upon the facts . . . You should take the law in this case from the instructions alone. You should not give any weight to statements of counsel or of anyone else as to what the law is, nor should you allow yourselves to decide this case contrary to these instructions, even though you might believe that the law ought to be otherwise. The State further points out the District Court's ruling on the motion: I have no objection to telling the jury that in accordance with the instructions that they were given that punishment is not their job, it is my job. And they are not to consider it. But I do not think that a mis-trial should be granted. I don't think the jury was in any way prejudiced by it and as I did remark at one time the Court's instruction refers to mitigated attempted, mitigated deliberate homicide and criminal endan- germent as being lesser included offenses. From that almost any person of average intelligence would surmise that the punishment for a lesser included offense is less than it is for the main crime. I just think that is--that is implied in the Court's instructions. So it is just one of those things that I think everybody understood. The State contends that even if the remarks in closing were improper, any error is presumed to be corrected if the Dis- trict Court gave the jury a proper cautionary instruction. There must be a manifest necessity to declare a mistrial and the defendant must have been deprived of a fair and impartial trial. State v. Brush (1987), 741 P.2d 1333, 1336. The test for declaring a mistrial was stated by the United States Supreme Court in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 580: "[Tlhe law has invested Courts of justice with the author- ity to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circum- stances into consideration, there is a manifest necessity for the act, or the ends of public jus- tice would otherwise be defeated. They are to exercise a sound discretion on the subject . . . [Tlhe power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; . . . State v. Close (1981), 623 P.2d 940, 945-946, 38 St.Rep. 177, 183. State v. Doney, (Mont. 1981), 636 P.2d 1377, 1383, 38 St.Rep. The references to the differences in punishment were made to explain why the defendant had a motive to lie. We agree with the District Court's conclusion that there was no prejudice to the defendant by the references to punishment. Furthermore, the evidence is replete with detailed testimony of L.B. which overwhelmingly established the offense of attempted deliberate homicide. The District Court promptly gave the jury a cautionary instruction admonishing them to disregard the State's reference to punishment. We conclude that the District Court was correct in denying the defen- dant's motion for mistrial on this theory. We also note that the defendant argued that the action of the State in calling the defendant a "liar" was prejudi- cial. The State's reference to defendant as a "liar" was nothing more than an opinion based on the State's analysis of evidence, and did not constitute an expression of the State's personal opinion of guilt. See State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341. We conclude there was no basis for mistrial as a result of this action by the State. We affirm the District Court. We Concur: 4 Justices Justice John C. Sheehy did not participate in this matter. | October 19, 1989 |
8341f6e0-d8cf-45f7-97bd-7b0b9af4c3fb | WATSON v FULTZ | N/A | 88-469 | Montana | Montana Supreme Court | No. 88-469 IN THE SUPREME COURT OF THE STATE OF MONTANA LYLE A. WATSON, d/b/a LAW REALTY, plaintiff and Appellant, -vs- BASIL R. FULTZ, Defendant and Respondent. APPEAL FROM: ~istrict Court of the Eighth Judicial ~istrict, In and for the County of Cascade, The Honorable Joel Roth, Judge presiding. COUNSEL OF RECORD: For Appellant: K. Dale Schwanke; ~ardine, Stephenson, Blewett & Weaver, Great Falls, Montana For Respondent: Linnell, Newhall & n art in; Norman L. Newhall, Great Falls, Montana Submitted on Briefs: Aug. 31, 1989 Decided: October 17, 1989 Filed: Chief Justice J. A. Turnage delivered the Opinion of the Court. Plaintiff Watson sued defendant Fultz for a real estate commission on a sale of Fultzls farm near Geraldine, Montana. Sitting without a jury, the District Court for the Eighth Judi- cial District, Cascade County, entered judgment for Fultz. Watson appeals. We affirm. The issues are: 1 . Did the District Court err in ruling that Watson was not entitled to a real estate commission from Fultz? 2. Did the District Court err in awarding Fultz attorney fees and costs? In June 1984, Fultz placed an ad in the Great Falls Tribune for the sale of his 5,000-acre farm. He intended to exchange his farm on a tax-free basis for another farm where he might pursue a cattle operation in addition to growing grain. Although Fultz did not list his farm with any realtors, several realtors, including Watson, attempted to locate purchasers for the farm. By November of 1984, Fultz, with the assistance of a realtor other than Watson, had located a farm and ranch in Big Horn County which he wished to purchase. Fultz signed a Buy/Sell Agreement on the Big Horn County property on December 4, 1984. He entered into a standard listing contract with Watson for the sale of the Fultz farm two days later. As the District Court found, the contract included the following pertinent provisions: a. The selling price shall be "One Million Nine Hundred Thousand Dollars net to Seller and One Hundred Thousand Dollars to Law Real- ty for a total of Two Million Dollars.!! b. The selling price shall be "paid in cash at time of ~lose.~! c. The agreement "begins on 12-6-84 and expires at midnight on 1 - 6 - 8 5 . ! ! d. I1This listing is subject to Fultz being able to satisfactory [sic] trade the above lands for lands in Big Horn Co. on a tax free exchange." e . I1This sale includes all lands." The listing contract was on a form supplied by Watson. Watson crossed out the standard form language providing for exclusivity of contract and typed in the words, "this is a non-exclusive listing. By December 6 and 7, 1984, Watson had obtained written offers to purchase portions of Fultzls farm from Dan Roddy and Gene McKeever, whom he had located before getting the listing contract with Fultz. These offers differed from the terms of sale in the listing contract in several aspects. They were offers to purchase less than all of Fultzfs farm and they both required Fultz to allow thirty days beyond January 15, 1985, for completion of financing. The offers also were contingent upon the buyers being able to obtain loans. Fultz signed counterof- fers on December 14, 1984, which made the following changes to the offers: they deleted the provision allowing thirty days beyond January 15, 1985, for completion of financing; they in- serted a provision that each sale was subject to all of Fultzls farm land being sold; and they inserted a provision that the "Federal Land Bank must have a commitment from Spokane by Decem- ber 31, 1984 [for financing] .I1 McKeever refused to accept Fultzls counteroffer. On December 28 and 29, 1984, Watson obtained three new offers for a portion of the Fultz farm. The total acreage covered by these three offers did not include 800 acres of the farm. The offers, by their terms, were good for five days. Each of these provided that the offer was llsubject to finance which will be confirmed by 15 Jan. 1985." Fultz refused to accept the offers. On January 4, 1985, Fultz called Watson's office and left a message that he did not want Watson representing him any longer, that it was "taking too long.I1 Fultz met with Watson later that day. On January 6, 1985, Watson was able to obtain an offer from John Bowman for the remaining 800 acres of the Fultz farm. The offer was contingent upon Watson taking a lesser commission on the sale and then making a resale of the property. This part of the agreement was not disclosed to Fultz. Watson was able to obtain extension agreements from two of his December 28 and 29 buyers, but the third buyer rescinded his offer in writing. On January 8, 1985, Fultz met with his attorney and Watson. Fultz refused to sign the latest offers on his farm. This suit resulted. After a one-week trial, the District Court made com- prehensive findings and conclusions and entered judgment for Fultz. I Did the District Court err in ruling that Watson was not entitled to a real estate commission from Fultz? Watson makes several arguments under this issue. He first asserts that he is entitled to a commission because Fultz pre- maturely terminated his authority to sell Fultzls farm. The findings of the District Court contain nothing about Fultzls call to Watson's office on January 4, 1985, in which he allegedly terminated the contract. However, as Fultz points out, Watson testified that after his meeting with Fultz later that day, he went on with the understanding that the listing agreement was still in effect. Additionally, Fultz met with one of Wat- son's buyers on January 6. We conclude that the District Court did not err in omitting any finding that Watson's authority had been prematurely terminated. The listing contract between Watson and Fultz contained the following clause which Watson typed in: This listing is subject to Fultz being able to satisfactory [sic] trade the above lands for lands in Big Horn Co. on a tax free ex- change. Watson argues that an objective standard for a satisfactory trade should be used. The District Court found that since the listing contract was drafted by Watson, any ambiguities must be construed against him and in favor of Fultz. It found that "[tlhe term 'satisfactory' is a subjective standard rather than a reasonable man standard." We agree. Fultz testified that the trade ar- ranged by Watson was not satisfactory to him because his accoun- tant told him that the tax consequences to him of the exchange would be in the range of $80,000 to $100,000. We conclude that Fultz's testimony was sufficient to show that the trade arrange- ment was not satisfactory to him and thus did not meet the con- tract requirement set forth in the clause printed above. Watson's next argument is that he did not breach his fidu- ciary duty to Fultz by failing to disclose his side agreement with Bowman. Under that agreement, Watson would forego $30,000 of his sales commission on the portion of Fultz's farm sold to Bowman until he resold that portion of the farm for Bowman. The District Court found that Watson thereby breached his fiduciary duty to Fultz because he acquired a personal stake in the sale by which his 'Ipersonal interests became paramount to the interests to Fultz." This finding is supported by this Court's statement in Lyle v. Moore (1979), 183 Mont. 274, 277, 599 P.2d 336, 337: This fiduciary relationship between a broker and his client has been found to encompass a "duty of full disclosuren by a number of courts. We hold that the finding that Watson breached his fiduciary duty to Fultz is not clearly erroneous. Watson's final argument under this issue is that the offers he produced did not vary substantially from the terms of the listing contract. However, Watson did not find buyers for all of the farmland until after the listing agreement expired on January 6, 1985. Watson did not come up with a "satisfactory trade1' on a "tax free exchange. " Watson did not arrange cash sales, but sales dependent upon financing which would not, by the terms of the offers, be certain until after the listing had expired. We agree with the District Court that these differences constituted substantial variation from the terms of the listing contract. In summary, we hold that the District Court did not err in ruling that Watson was not entitled to a real estate commission from Fultz. Did the District Court err in awarding Fultz his attorney fees and costs? The listing contract between Watson and Fultz provided that, In case you engage an attorney's services in regards to this contract, or in case of suit or action on this contract, I/we agree to pay collection costs, court costs and reasonable attorney fees, both trial and appellate, incurred by you, if you prevail. The contractual right to attorney fees is reciprocal. Section 28-3-704, MCA. The hearing on attorney fees to be awarded to Fultz was set in the District Court's findings, conclusions, and order. That document stated, on its final page: IT IS HEREBY ORDERED that a hearing to deter- mine Defendant's attorney's fees is set for the 16th day of March, 1988, at 2:30 o'clock P.M. Thereafter, a final judgment will be entered. Watson's attorney states that he did not notice this portion the findings, conclusions, and order. He also did not notice the mention of the hearing date in Fultzls March 3, 1988, motion to amend findings, with which he was served. When he failed to appear at the March 1 6 hearing, he was summoned to the courtroom. The court refused his request for a continuance and allowed Fultz to present his evidence in support of his claim for $27,888.75 in attorney fees and $637.60 in costs. Watson argues that even if this Court upholds the lower court's ruling on Issue I, it should reverse the award of attor- ney fees and costs to Fultz. He asks for a new trial on attorney fees. He argues that any negligence of his attorney in failing to notice that the hearing date had been set should not be im- puted to him. In Griffin v. Scott (1985), 218 Mont. 410, 413, 710 P.2d 1337, 1339, we held that the district court did not abuse its discretion in ruling that an attorney's failure to read his mail for five weeks was not excusable neglect under which relief from judgment was available pursuant to Rule 60(b), M.R.Civ.P. Simi- larly, in this case we hold that the District Court did not abuse its discretion in ruling that Watson's counsel's failure to carefully read the court's findings, conclusions, and order was not excusable neglect. Watson also states that Fultz failed to supplement his answers to interrogatories with the name of the expert witness called to testify in support of the amount of attorney fees claimed. However, the interrogatories and the pre-trial order requiring supplemental answers to interrogatories were directed to witnesses at the trial in this matter, not to those at the post-trial hearing on attorney fees. We hold that Fultz was not required to supply Watson with the name of his witness at the hearing on attorney fees. Affirmed and remanded to the District Court for a determina- tion of the amount of attorney fees to be awarded to Fultz on the appeal, pursuant to the partiest contract. We concur: | October 17, 1989 |
718a0e42-3a9b-42c8-bd8f-4c689557294b | FIELDS v WELLS | N/A | 89-344 | Montana | Montana Supreme Court | N o . 89-344 I N THE SUPREME COURT O F THE STATE OF M O N T A N A 1989 w : 1L 01) 0 w T O M M. FIELDS and V I C K I J. FIELDS, Z d m 5 0 4 P l a i n t i f f s and A p p e l l a n t s , ",zz -vs- c ri I - 1 3 3 m 3 - P = M A E WELLS, rno 3 3 : r- i--. m:7 o Defendant and Respondent. 00;" cn C P2 APPEAL FROM: District C o u r t o f t h e F i r s t J u d i c i a l District, I n and f o r t h e Co.unty o f Lewis & C l a r k , The Honorable J e f f r e y S h e r l o c k , Judge p r e s i d i n g . COUNSEL OF RECORD: For A p p e l l a n t : Tom and V i c k i F i e l d s , p r o se, Mentor, Ohio For Respondent: John H . G r a n t ; Jackson, Murdo & G r a n t , Helena, Montana Submitted on B r i e f s : S e p t . 1 5 , 1989 Decided: October 17, 1989 F i l e d : J u s t i c e Diane G. Barz 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 , Thomas M. and Vicki J. F i e l d s , f i l e d a complaint i n t h e D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t , Lewis and Clark County, seeking monies a l l e g e d l y due from defendant, Mae Wells. The D i s t r i c t Court dismissed t h e complaint with prejudice. P l a i n t i f f s appeal. W e affirm. O n appeal, each p a r t y s e t s f o r t h i t s own version of t h e i s s u e s . However, t h e germane i s s u e s r a i s e d on appeal are: 1. Whether t h e D i s t r i c t Court abused i t s d i s c r e t i o n i n denying p l a i n t i f f s ' request f o r a continuance of t h e May 5, 1989 t r i a l . 2 . Whether t h e D i s t r i c t Court e r r e d i n granting defendant's motion t o dismiss p l a i n t i f f s 1 complaint. 3 . Whether t h e D i s t r i c t Court e r r e d i n denying p l a i n t i f f s ' requests t o order defendant t o post bond and t o name o t h e r s a s codefendants i n t h e a c t i o n . 4 . Whether defendant i s e n t i t l e d t o h e r a t t o r n e y f e e s t h a t were incurred a s a r e s u l t of t h i s a c t i o n . Thomas M. and Vicki J. F i e l d s , p l a i n t i f f s , brought t h i s a c t i o n i n January, 1987, a l l e g i n g t h a t Mae Wells, defendant, breached a c o n t r a c t f o r t h e s a l e of a mobile home and t h e r e f o r e owed them over $4,000. A f t e r a s e r i e s of unforeseen delays, a scheduling conference was held on March 3, 1989 and t h e t r i a l was s e t f o r May 5, 1989. The F i e l d s e s , who c u r r e n t l y r e s i d e i n Mentor, Ohio, d i d not a t t e n d t h e scheduling conference. Therefore, pursuant t o Montana Uniform D i s t r i c t Court Rule No. 1 0 , Wells s e n t t h e F i e l d s e s a n o t i c e dated March 13, 1989, advising them of t h e t r i a l d a t e , t h e scheduling conference order, and t h a t they should e i t h e r appear a t t r i a l o r h i r e an a t t o r n e y t o e n t e r an appearance on t h e i r behalf. The F i e l d s e s responded with a "Reply t o Court Order f i l e d Mar. 6 , 1989" dated March 11, 1989 and "Various Motions" dated March 19, 1989. I n t h e s e documents, t h e F i e l d s e s informed t h e c o u r t t h a t they f e l t confident t h a t t h e court could fairly judge the case based upon their March 11, 1989 letter and without them being present for the May 5, 1989 trial. In a March 30, 1989 letter to the Fieldses, the District Court stated explicitly that if they did not attend the May 5, 1989 trial, they would automatically lose and the case would be dismissed. The District Court further explained that although it may bend certain procedural rules for individuals not represented by attorneys, certain rules cannot be waived, including a party's right to require the opponents to appear and to cross-examine them. The Fieldses subsequently filed a letter with the court dated April 3, 1989, stating that they ,understood that they would automatically lose the case if they did not appear for the May 5, 1989 trial, but nonetheless asserted that they should not be required to appear. The Fieldses then filed a request for continuance dated April 24, 1989 with the District Court. A copy was not sent to Wells or her attorney. In their "motion for continuance," the Fieldses stated that they have sought to obtain competent counsel but asserted that the attorneys they contacted "felt that the financial condition of the defendant and the size of the amount owed [could not] justify the cost that the court is asking [them] to incur." The District Court denied the motion. The Fieldses did not appear at the May 5, 1989 trial nor did an attorney appear on their behalf. The District Court therefore granted FJells' motion to dismiss, stating that the Fieldses failed to file a pretrial order by April 24, 1989, as ordered by the court; they failed to appear for the May 5, 1989 trial; and they failed to comply with the court's scheduling order. The court dismissed the complaint with prejudice and awarded Wells the costs of her suit. The Fieldse~ appeal. The first issue raised on appeal is whether the District Court abused its discretion in denying the Fieldses' request for a continuance of the May 5, 1989 trial. Sections 25-4-501 and -503, MCA, are the two statutory grounds under which a district court is authorized to grant a continuance. Section 25-4-501, MCA, states that " [a] motion to postpone a trial on grounds of the absence of evidence shall only be made upon affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to procure it." Section 25-4-503, MCA, states that "[ulpon good cause shown and in furtherance of justice, the court may, in its discretion, postpone a trial or proceeding upon other grounds than the absence of evidence under such conditions as the court may direct." The District Court denied the Fieldses' motion for continuance on the grounds that they failed to provide a good reason. On appeal, this Court's function is to determine whether the District Court abused its discretion. In the present case, the Fieldses did not meet the requirements mandated in either of the statutes that allow postponement of a trial. The Fieldses submitted neither an affidavit that showed the materiality of the evidence that they expected to obtain nor did they demonstrate a good cause that would allow the District Court, in its discretion, to postpone the trial. The Fieldses merely stated that they were attempting to locate an attorney to represent them and then provided a list of attorneys they supposedly contacted. The record reveals that the Fieldses had ample time in which to locate an attorney to represent them. They were first notified by a letter dated March 13, 1989 from Wells' attorney suggesting they procure an attorney to represent them and then subsequently by a letter from the District Court dated March 30, 1989. The Fieldses did not set forth a good cause as to why they were unable to obtain a counsel. The District Court therefore did not abuse its discretion in denying Fieldses' motion for a continuance. The second issue raised on appeal is whether the District Co.urt erred in granting Wells' motion to dismiss the Fieldses' complaint. The District Court sent a letter to the Fieldses dated March 30, 1989, stating explicitly that they would automatically lose the case if they did not appear for the May 5, 1989 trial. The Fieldses did not appear at the required time set for the trial. The District Court therefore granted Wells' motion to dismiss, stating that the Fieldses failed to appear at the time and place set for trial and that they also failed to comply with the court's scheduling order regarding preparation and filing of a pretrial order. The Fieldses argue that considering the excessive cost they "feel that unless [Wells] can demonstrate a need for [their] appearance at the hearing, there is no reason for it." The Fieldses reason that the case rests upon the documents already submitted to the court, and that any questions about these documents can be answered either by mail or by checking the public repositories for such records. Unfortunately, the Fieldses' misunderstanding of the law and their decision to ignore court directives has resulted in a failed attempt to bring a successful lawsuit. The Fieldses insist that they did not need to attend the May 5, 1989 trial, however, the law dictates otherwise. The Fieldses rely upon their March 11, 1989 letter to the District Court as sufficient evidence upon which the District Court could "fairly judge" the case. An examination of the March 11, 1989 letter, however, demonstrates that it is replete with hearsay. Hearsay is defined in our statutes as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. " Rule 801 (c) , M.R.Evid. The March 11, 1989 letter contains numerous statements regarding the sale of the mobile home to Wells. The unsworn written statements were made out of court and did not afford Wells the opportunity to confront the writers--the Fieldses--or to question them as to the veracity of the statements. Under Rule 802, M.R.Evid., "[hlearsay is not admissible except as otherwise provided by statute, these rules, or other rules applicable in the courts of this state." No exceptions are applicable in this case. The District Court therefore did not abuse its discretion in granting Wells' motion to dismiss the Fieldses' complaint. The third issue raised on appeal is whether the District Court erred in denying the Fieldses' requests to order Wells to post bond and to name others as codefendants. In light of the disposition of issues number one and two, we do not need to address this issue. The last issue raised on appeal is whether Wells is entitled to her attorney fees that were incurred as a result of this action. The contract underlying this dispute provides that "[ilf legal action is necessary to enforce any of the provisions of this agreement, the successful party is entitled to his costs and reasonable attorney fees as determined by a court of competent jurisdiction." Wells requested her costs and attorney fees in her counterclaim that she filed with the court dated March 24, 1987. In its May 12, 1989 Memorandum and Judgment, the District Court ordered the case dismissed with prejudice and awarded Wells the costs of her suit, but did not address the issue of attorney fees. We have previously stated that a party's right to attorney fees is based upon either a statute or an underlying contract which provides for their recovery. Northwestern Nat'l Rank v. Weaver-Maxwell, Inc. (1986), 224 Mont. 33, 44, 729 P.2d 1258, 1264; Diehl and Assocs. v. Houtchens (1979), 180 Mont. 48, 53, 588 P.2d 1014, 1017. In this case, the underlying contract provides for the recovery of attorney fees for the successful party in the lawsuit. The District Court issued a final judgment by dismissing the Fieldses' complaint with prejudice. Wells therefore emerged as the successful party. We therefore remand this case to the District Court for a determination of reasonable attorney fees due Wells as a result of this lawsuit--fees generated from both the District Court action and the appeal--and for any additional costs that she incurred as a result of this appeal. Affirmed and remanded. Justice \ \ We concur: Justices Justice John C. Sheehy recuses himself from participation in this case. | October 17, 1989 |
ede8680e-7918-4831-81ce-0ab20741ee4c | GRAVELEY RANCH v SCHERPING | N/A | 89-035 | Montana | Montana Supreme Court | No. 89-035 IN THE SIJPREME COURT OF THE STATE OF MONTANA 1989 GRAVELEY RANCH, Plaintiff and Appellant, -vs- THOMAS SCHERPING and ANITA SCHERPING, Defendants and Respondents. APPEAL FROM: District Co,urt of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Gordon Bennett, J.udge presiding. COUNSEL OF RECORD: For Appellant: Charles A. Graveley, Helena, Montana For Respondent: G. Curtis Drake and Glen L. Drake; Keller, Reynolds, Drake, Sternhagen & Johnson, Helena, Montana. Submitted on Briefs: July 7, 1989 Decided: November 17, 1989 Filed: Justice R. C. McDonough delivered the Opinion of the Court. Plaintiff appeals from an order of the District Court of the First Judicial District, Lewis and Clark County, granting summary judgment in favor of the defendants, the Scherpings. The issue on appeal is whether summary judgment was properly granted based on the running of the statute of limitations. We reverse the District Court's order and remand this case for trial. On October 29, 1987, the Graveley Ranch filed a lawsuit seeking damages for the death of 27 cows, 11 calves, the expectant offspring of those cows, and other miscellaneous expenses incurred as a result of defendants' negligence. The complaint establishes that the plaintiff holds a grazing permit for 177 head of cattle on lands adjacent to defen- dants' property. On September 30, 1984, defendants' resi- dence burned to the ground, leaving lead batteries inside the foundation walls exposed with no means of protection from plaintiff's cattle which were pastured in the area during the summer of 1985. During that summer, plaintiff contends that he noticed some of his cattle "were looking very bad and were losing weight." Plaintiff traced these symptoms and result- ing deaths to the exposed lead batteries, alleging that: . . . (plaintiff) caused some of those animals to be tested and learned that several cows had died from lead poisoning. On November 4, 1985, he received a letter from the Solid and Hazardous Waste Bureau of the Montana Department of Health and Environmental Services that the source of the lead poisoning had been pinpointed as the founda- tion of defendants' destroyed home. Plaintiff contended that 2 7 cows and 11 calves died as a result of lead poisoning between September 1985 through the calendar vear 1986. In the answer, defendants1 alleged as a defense that the two-year statute of limitations period provided in $ 5 27-2-207, MCA, had run against the plaintiff prior to the filing of the action. Defendants moved for summary judgment, which plaintiff resisted on the ground that the limitation period did not begin to run until formal confirmation of the source of the injury was received. Plaintiff pinpointed November 4, 1985, as the date of formal confirmation when he allegedly received a letter from the Department of Health and Environmental Sciences. The District Court refused to toll the statute of limi- tations because it concluded that plaintiff had knowledge of the actual cause of the injury prior to November 4, 1985, as evidenced by the following letter from plaintiff's counsel to the defendants dated September 25, 1985: . . . As a result of your failure to clean up the property, my brother has suffered the loss of at least six head of grown cattle and may incur sub- stantial expense in drawing blood and testing the same on over 700 head of cattle. The lead poison- ing has been confirmed by the State Department of Health, and the source has been identified as the lead batteries that were left at the uncleaned scene of the fire. . . . In its Answer to Interrogatories and Requests for Admissions on July 14, 1988, plaintiff admitted that the copy of the September 25 letter was true and correct. We agree with the District Court that plaintiff's knowledqe of the cause of inj,ury as of September 25, 1985, precludes a tolling of the statute of limitations until November 4, 1985 when formal confirmation was allegedly received. Plaintiff further contends that the statute of limitation period should be tolled until the damage was completed or stabilized. The District Court also rejected this argument, concluding that once plaintiff had knowledge and confirmation of the cause of the injury, no f,urther stabilization was necessary. We conclude that the continuing nature of the injury in this case tolls the statute, and remand the case to the District Court. In reaching this conclusion, we must first determine the type of injury sustained by the plaintiff. A nuisance is statutorily defined in Montana as: Anything which is inj.urious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. . . Section 27-30-101, MCA. We conclude that the presence of exposed lead batteries on defendants1 property resulting in a series of livestock deaths is potentially injurious to health and sufficiently interfered with plaintiff's use of property for grazing so as to constitute a nuisance under S 27-30-101, MCA. Whether or not the two-year statute of limitations can be tolled in a nuisance case depends upon whether it is a permanent, temporary, or continuous nuisance. In making such a determination, this Court has followed the general state- ment set forth in 39 Am.J.ur., Nuisance, S 141, which is re- stated in 58 Arn.Jur.2dI Nuisance S 132, pgs. 701-702. The nature of a nuisance as permanent or temporary, which, as has been seen, is a question that £re- quently is difficult to determine, has an important bearing on the running of the statute of limita- tions. Where a nuisance is permanent in character, and its construction and continuance necessarily result in an injury, all damages are recoverable in only one action, and the statute commences to run from the completion of the structure or thing which constitutes or causes the nuisance. The fact that the nuisance continues does not make the cause of action a recurring one. The running of the statute is not prevented by the fact that the plaintiff failed to discover that permanent character of the injury, or its cause, in time to bring an action for damages. On the other hand, when the injury is not complete, so that the damages can be measured in one action at the time of the creation of the nuisance, but depends upon its continuance and uncertain opera- tion of the seasons or of the forces set in motion by it, the statute will not begin to run until actual damage has resulted therefrom. Each repeti- tion of a temporary continuing nuisance gives rise to a new cause of action, and recovery may be had for damages accruing within the statutory period next preceding the commencement of the action. . . See Walton v. City of Bozeman (1978), 179 Mont. 351, 356, 588 P.2d 518, 521; Nelson v. CC Plywood (l970), 154 Mont. 414, 434, 465 P.2d 314, 324-25. In Nelson, this Court held that pollution of the plain- tiffs' groundwater by defendant's dumping of glue waste was a continuing temporary nuisance justifying a tolling of the statute of limitations. Although the dumping began in 1960 and plaintiffs did not file their complaint until 1965, this Court held that the limitation period would be tolled and that plaintiffs could recover for all damages inc,urred in the two years preceding the filing date. In Walton, supra, this Court also found a continuing nuisance where the City of Bozeman relocated an irrigation ditch and constructed a storm sewer which caused annual flooding of plaintiffs' farm crops. This Court held that: . . . the damages caused here were a continuinq nuisance and as such were within the applicable statute of limitations, because at all times, the City could have abated the nuisance by taking curative action. Since the nuisance was so termi-- nable, it cannot be deemed to be a permanent nui- sance as of the creation date in 1967. The instant case is similar to Nelson and Walton. In Nelson, we held that a new cause of action arose each time the defendants dumped glue waste. Here, although the plaintiff's injury is traceable to a single nonrecurring event, the continuing presence of the exposed batteries created an ongoing hazard potentially injurious to health and interfering with plaintiff's use of the land for grazing. This hazardous situation could have been readily abated by removing the ruptured batteries from the site and cleaning the foundation walls. Thus, following our statement in Walton, because the nuisance was terminable through cleaning of the site, it cannot be deemed to be a permanent nuisance as of the date of the fire. Our conclusion that this nuisance is continuing and temporary is further supported by our decision in Shors v. Branch (1986), 221 Mont. 390, 720 P.2d 239. In Shors, we held that the presence of a gate blocking access to a river constituted a continuing tort in that it could have been readily abated by removal of the gate. Thus, plaintiffs had. a cause of action each day the gate obstructed the free use of their easement and could recover damages for the two years preceding filing of the action. The instant case is similar to Shors. Removal of the gate in Shors could have directly remedied the situation by affording the plaintiffs the immediate unobstr,ucted use of their easement. Here, the contaminants from the ruptured batteries co,uld and should have been cleaned up by the defendants. An immediate cleaning of the site could have prevented the death and illness of the plaintiff's cattle. The nuisance in this case is temporary, because cleaning the site would have readily abated the hazard. I n c o n t r a s t t o a temporary, ongoing nuisance, a perma- nent n.uisance i s one where t h e s i t u a t i o n has " s t a b i l i z e d " and t h e permanent damage i s "reasonably c e r t a i n . " See Haugen T r u s t v. Warner (1983), 204 Mont. 508, 665 P.2d 1132, c i t i n g Blasdel v. Montana Power Co. (1982), 196 Mont. 417, 640 P.2d 889, U . S. v. Dickinson (1947), 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed 1789. I n Haugen T r u s t , t h i s Court held t h a t damage caused by s u b d i v i s i o n c o n s t r u c t i o n had n o t " s t a b i l i z e d " a s of t h e d a t e of t h e f i r s t flooding because: The e x t e n t of t h e damages t o t h e basement v a r i e s from occurrence t o occurrence, depending on t h e l e v e l of t h e water i n t h e basement and t h e c o n d i t i o n o f t h e basement a t t h e t i m e of each f l o o d . . . . The damage i s n o t y e t permanent. Therefore, t h e nuisance i s of a temporary and continuous n a t u r e and g i v e s rise t o a s e p a r a t e cause of a c t i o n each time it causes d a m a g ~ . 665 P.2d a t 1135. Upon remand, p l a i n t i f f s i n Haugen - - T r u s t would b e allowed t o recover damages f o r i n j u r i e s s u f f e r e d two y e a r s p r i o r t o t h e d a t e of t h e i r complaint, assuming such damages were proven a t t r i a l . I n B l a s d e l p l a i n t i f f s f i l e d s u i t seeking damages f o r p r o p e r t y destroyed by a r i s i n g groundwater t a b l e due t o t h e r a i s i n g o f Flathead Lake by t h e c o n s t r u c t i o n o f K e r r Dam. P l a i n t i f f s f i r s t complained o f adverse e f f e c t s t o t h e i r p r o p e r t y i n 1941. They d i d n o t f i l e t h e i r complaint u n t i l 1960. The t r i a l c o u r t found t h a t t h e water t a b l e f l u c t u a t e d from y e a r t o y e a r causing i n t e r m i t t e n t damage t h a t d i d n o t become permanent u n t i l 1959-1960 when t h e water t a b l e s t a b i l i z e d . The c o u r t h e l d t h a t t h e s t a t u t e d i d n o t begin t o run u n t i l t h a t t i m e . W e affirmed. The i n s t a n t c a s e can be d i s t i n q u i s h e d from B l a s d e l and Haugen T r u s t . Here, t h e damage was permanent i n t h a t s i x - - - The instant case can be distinguished from Blasdel and Haugen Trust. Here, the damage was permanent in that six cows had died before September 25, 1985, and the remaining damage was reasonably ascertainable through testing of the remainder of the herd. Thus, the statute is not tolled until the death or illness of the last cow poisoned. However, the presence of the lead batteries does constitute a nuisance which could have been abated at any time by the defendants. Thus, the nuisance is continuing until it is abated; the statute does not begin to run until the batteries are removed and the toxic residue cleaned from the site of the fire. If defendants have made no effort to remove the hazardous materials from the fire site, a new cause of action may arise each time a cow becomes ill or dies as a result of lead poisoning. Once the nuisance is removed, the statute of limitations will bar any action commenced later than two years after abatement of the nuisance, or discovery of the cause of the injury whichever occurs later. In either case, the plaintiff's alleged cause and possible recovery will be limited to damages for injuries to his herd, subject to any mitigating circumstances, suffered within two years prior to the date of filing its complaint. The District Court's order granting summary judgment for defendants is reversed and the case is remanded for a trial on the merits. Reversed and remanded for further proceedings consistent with this opinion. / @ ~ ~ % z & Justice We Concur: Chief Justice &* / ' , , p w - Justices 7 Justice L. C. Gulbrandson dissenting. I respectfully dissent. In my opinion, the majority has ignored recent decisions of this Court involving statute of limitations and has enlarged the discovery exception by relying upon a theory of "nuisance" under S 27-30-101, MCA, a theory which was never argued to the District Court or to this Court. This Court, in Holman v. Hanson (Mont. 1989), 773 P.2d 1200, 1203, 46 St.Rep. 734, 738, stated: [Wlhether there has been a "discovery" of facts sufficient to start the running of the statute of limitations is a question of law. The majority has correctly concurred with the District Court that the plaintiff had knowledge of the cause of injury as of September 25, 1985, but then ignores this Court's comments in Bennett v. Dow Chemical Co. (1986), 220 Mont. 117, 121, 713 P.2d 992, 995, [Tlhere is no Montana precedent for utilizing discovery doctrine to toll the statute of limitations beyond discovery of the cause of an injury. The appellant has, in effect, argued that the statute of limitations in this case should be tolled until his damages had stabilized and stated in his reply brief: Plaintiff had no idea how many more, if any, additional cattle would die as a result of the lead poisoning. His damages had, in no way, stabalized [sicl and, his cattle continued to die for the remainder of 1985 and all of 1986. This argument was rejected by this Court in E.W. v. D.C.H. (Mont. 1988), 754 P.2d 817, 820-21, 4 5 St.Rep. ?78, 783: Finally, it is argued that the running of the statutory period should be tolled because EW's injuries were not complete until after the statute of limitations had run. However, "it is not necessary to know the total extent of damages that an act causes to begin the running of the statute of limitations." . . . Few are the injuries that could not someday develop additional consequences. To adopt the theory advocated by EW would again postpone the statutory period indefinitely. Section 27-1-203, MCA, provides that "damages may be awarded . . . for detriment . . . certain to result in the future." In Frisnegger v. Gibson (1979), 183 Mont. 57, 598 P.2d 574, we construed S 27-1-203 consistent with the Montana practice of instructing juries that damages need only be reasonably certain. 183 Mont. at 71, 598 P.2d at 582. Under the Frisnegger rationale, EW could have presented evidence of, and received damages for, future harm, if any. (Citations omitted. ) In my view, the appellant's stabilization argument is without merit in view of the statement in the September 25, 1985, letter of demand that: As a result of your failure to clean up the property, my brother has suffered the loss of at least six head of grown cattle and may incur substantial expense in drawing blood and testing the same on over 700 head of cattle. and the further argument of appellant set forth above that cattle "continued to die for the remainder of 1985 and all of The majority has apparently agreed that the stabilization argument is without merit by stating in the majority opinion: Here, the damage was permanent in that six cows had died before September 25, 1985, and the remaining damage was reasonably ascertainable through testing of the remainder of the herd. I concur that the remaining damage was reasonably ascertainable and would, therefore, affirm the ruling of the District Court. Chief Justice J. A. Turnage: I concur in the dissent of Justice Gulbrandson. c Chief Justice | November 17, 1989 |
60db9969-2fa2-4f32-9a1f-90a4bd73fc3c | MARRIAGE OF GUCKEEN | N/A | 89-246 | Montana | Montana Supreme Court | NO. 89-246 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 IN RE THE MARRIAGE OF: SHARLENE H. GUCKEEN, Petitioner and Respondent, and TERRY H. GUCKEEN, Respondent and Appellant. APPEAL FROM: District Court of the Eighth Judicial District In and for the County of Cascade The Honorable Thomas M. McKittrick, Judge presiding. COUNSEL OF RECORD: For Appellant: Howard F. Strause, Great Falls, Montana For Respondent: James D. Elshoff, Great Falls, Montana Submitted on Briefs: October 25, 1 9 8 9 Decided: December 1, 1 9 8 9 H - T Filed: FILE DEC 1 . . 4989 Justice John Conway Harrison delivered the Opinion of the Court. Terry Guckeen appeals a judgment of the District Court of the Eighth Judicial District, Cascade County, Montana. The District Court ordered appellant to pay respondent Sharlene Guckeen $17,700 in back child support representing 118 months at $150/month. We reverse the judgment and remand to the District Court for a rehearing. Appellant presents a single issue for review. Did the District Court err in declining to exercise its equitable powers when the parties have orally and in writinq altered the terms of a sixteen-year-old divorce decree? Terry and Sharlene Guckeen were divorced on March 6, 1972. The divorce decree awarded custody of the couple's three minor children to Sharlene and ordered Terry to pay $150 per month in child support. (One of these children died in 1974.) Almost immediately after the divorce, Terry and Sharlene began living together and continued to live together until January of 1978. The parties stipulated that no support payments are due prior to July, 1978. After the divorce, Terry and Sharlene had two more children: Brian, born December 18, 1974 and Brandon, born February 18, 1979. Except for a short period of time, Brian has always lived with his father and Brandon has always lived with his mother. No custody or support order has ever been sought with regard to these two children and neither Terry nor Sharlene has paid to or requested support from the other with regard to these two children. On January 26, 1978, Terry and Sharlene entered into a written agreement that gave custody of the children mentioned in the divorce decree to Terry. The agreement also provided that Terry would never collect any child support payme~ts from Sharlene. In spite of the written agreement giving custody of the children to Terry, the parties made an oral agreement that the children could live with whichever parent they wished. Pursuant to that oral agreement, the children mentioned in the divorce decree have spent roughly equal time with each parent. Terry has made no support payments to Sharlene and Sharlene has not requested any support payments. Terry did make child support payments to the State of California through Cascade County when California sought recovery for Aid to Families of Dependent Children payments. The youngest child mentioned in the divorce decree reached majority on October 21, 1987. On June 26, 1985, Sharlene filed a motion requesting a judgment against Terry for past due child support. A hearing was finally held on June 6, 1988. Rased on the change in custody arrangements after the divorce decree, Terry sought to invoke the District Court's equitable powers to estop Sharlene's claim for back child support. In its February 16, 1989 Conclusions of Law, the District Court found that Terry had not done equity because he had not paid any support for his four children in the past sixteen years. Therefore the District Court held that Terry had attempted to invoke the District Court's equity power with unclea-n hands and the District Court declined to exercise its equitable powers. Appellant argues that the District Court should have granted him equitable relief because of this Court's decisions in the following five cases: State ex rel. Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148; In re the Marriage of Cook (1986), 223 Mont. 293, 725 P.2d 562; In re the Marriage of Jensen (1986), 223 Mont. 434, 727 P.2d 512; In re the Marriage of Sabo (1986), 224 Mont. 252, 730 P.2d 1112; and In re the Marriage of Ryan (Mont. 1989), 778 P.2d 1389, 46 St.Rep. 1543. We agree. The above-mentioned cases illustrate the equitable exception to the general rule that child support payments cannot be modified retroactively. Marriage of Ryan, 778 P.2d at 1390. The equitable exception arises when the parties by consent and conduct alter the terms of the original decree. Marriage of Sabo, 730 P.2d at 1114. In the instant case, the parties by consent and conduct altered the terms of the original decree. Terry had residential custody of and totally supported the children mentioned in the divorce decree approximately half of the time until they reached majority. Where the parties have altered the original custody arrangements, equity functions to reconcile reasonable child support with actual residential custody. The above-mentioned cases clearly articulate the guidelines to be used in this reconciliation. We reverse the judgment and remand to the District Court for rehearinq consistent with this opinion. We concur: & & Justices No. 8 9 - 2 4 6 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 I N RE THE MARRIAGE OF: TERRY H. GUCKEEN, P l a i n t i f f and A p p e l l a n t , and SHARLENE GUCKEEN, R e s p o n d e n t and R e s p o n d e n t . m r-: w 0 g 0 W C W APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r e t I n and f o r t h e C o u n t y of C a s c a d e T h e H o n o r a b l e T h o m a s M. M c K i t t r i c k , Judge presiding. COUNSEL OF RECORD: F o r A p p e l l a n t : H o w a r d F . S t r a u s e , G r e a t F a l l s , Montana F o r R e s p o n d e n t : J a m e s D. E l s h o f f , G r e a t F a l l s , Montana S u b m i t t e d on B r i e f s : O c t o b e r 2 5 , 1 9 8 9 D e c i d e d : D e c e m b e r 1, 1 9 8 9 F i l e d : | December 1, 1989 |
990af673-9cca-4822-930f-c2d2f21fdccb | HUGHES v BLANKENSHIP | N/A | 89-140 | Montana | Montana Supreme Court | NO. 89-140 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 JOHN C. HUGHES, as administrative manager of the Western Conference of Teamsters pension Trust Fund, plaintiff and Appellant, -vs- JIM BLANKENSHIP, d/b/a BLANKENSHIP CONSTRUCTION, f/k/a BLANKENSHIP PAVING, Defendant and Respondent. APPEAL FROM: ~istrict Court of the Second ~udicial ~istrict, In and for the County of Silver Bow, The Honorable Mark ~ullivan, Judge presiding. COUNSEL OF RECORD: For Appellant: Michael C. coil, Bozeman, Montana For Respondent: John F. Lynch, Great Falls, Montana Filed: submitted on ~riefs: Sept. 21, 1989 Decided: November 7, 1989 Justice John Conway Harrison delivered the Opinion of the Court. The plaintiff, John Hughes, in his capacity as administrator of the Western Conference of Teamsters' Pension Fund, initiated this suit to recover $45,427.39 owed by the defendant Jim Blankenship as a union contractor for unpaid contributions to the Pension Fund (Fund), plus damages and interest. Blankenship defends on the grounds that the collective bargaining agreement he entered with the Teamsters Union was to be applicable only to employees working on non-residential patching and paving jobs and that the collective bargaining agreement actually entered was entered into by mistake. The Union is not a party to this lawsuit. Following a non-jury trial, the District Court entered judgment in favor of Blankenship, ordering the Fund to do an accounting of Blankenship's contributions and to return all funds paid by Blankenship to his employees. From this decision the Fund now appeals. We reverse and remand. The issues presented by the appellant are: 1. Is the District Court's judgment consistent with the governing principles of federal labor law by which this case is controlled? 2. Was the contract between the parties ratified by the respondent's actions such that he is not entitled to rescission? 3. Does the par01 evidence rule bar admission of certain evidence herein, and if barred, does the remaining evidence support the District Court's conclusions? 4. Can the District Court sua sponte order relief not requested by either party? 5. Is the appellant entitled to gather financial data from the respondent for the period of 1986 to 1988 for the purposes of an additional audit? Since 1972 the respondent, Jim Blankenship, has owned and operated Blankenship Construction, formerly known as Blankenship Paving, in Butte, Montana. Pickets went -up at the sites where Blankenship's company was working in 1976. Following negotiations with union representative Jim Roberts, on July 8, 1976, Blankenship became signatory to the Highway and Heavy Construction Labor Contract then in force. As part of that document Rlankenship was also required to sign a collective bargaining compliance agreement. Subsequent compliance agreements were signed on November 9, 1977 and July 31, 1981. In accordance with the original contract and the compliance agreements, Blankenship also signed employer - union pension certification documents, by which he agreed to be bound by the declaration of trust and pension plan of the Fund. The Fund, in accordance with the terms of the contract, conducted an audit. Through the audit the Fund discovered that Rlankenship was in arrears on his pension contributions. When the Fund demanded back payment Blankenship refused, citing an agreement which he and Jim Roberts made at the time Blankenship entered into the Highway and Heavy Construction Labor Contract. The gist of the side agreement was that employees working on residential and small, commercial-type paving jobs would not be subject to the Highway and Heavy Construction Labor Contract. Blankenship believed these terms were written as part of the contract. At trial Blankenship testified that he only signed the contracts because union representative Roberts had assured him that he had no obligation under the union contract to make contributions to the pension tr.ust fund for employees working on small commercial or residential paving iobs. An earlier audit performed by a Montana Teamsters Health and Welfare Trust Fund auditor gave credence to the agreement between Blankenship and Roberts, excluding Blankenship Construction employees engaged in residential, small com~ercial, and shop work from the coverage of the collective bargaining agreement. Only after his deposition in July of 1988, did Blankenship realize the agreement between himself and Roberts was oral rather than written. Following a bench trial the District Court concluded that the contract between the parties should be rescinded because the mutual mistake of fact concerning the side agreement between union representative Roberts and Blankenship was so substantial and fundamental as to defeat the object of the parties. The court, in its findings of fact and conclusions of law, ruled that Roberts as an experienced union contract negotiator had either knowingly or negligently misrepresented the conditions under which a compliance agreement or a collective bargaining agreement could legally be executed. The District Court found that Roberts, in his deposition, admitted he made the representation to Blankenship that only employees working on "heavy" construction were subject to the contract and that the representation was not set forth in the standard form compliance agreement in contravention to federal labor law. Because both parties shared the misconception that there could be oral modification of the collective bargaining agreement as to when and where it applied, the District Court ruled the material mistake of fact mandated rescission of the July 8, 1976 compliance agreement and all subsequent compliance agreements, the collective bargaining agreements, and the trust agreements. The District Court further ordered an accounting of all contributions paid to the Fund by Blankenship on behalf of his employees and that the Fund return such contributions directly to those employees. Because we find that the parol evidence rule prohibits the introduction of evidence regarding any oral modification of the labor contract, we will only specifically address appellant's third issue. All remaining issues will only be dealt with tangentially, as they relate to the parol evidence rule in labor contracts. Appellant brought this case to force the respondent to make contributions to the Fund in accordance with the labor contract and compliance agreements between respondent and the union. As such, the Labor Management Relations Act (LMRA) , Section 302, 29 U.S.C. 55 185 et seq., applies. This Court has often noted that State courts possess concurrent jurisdiction with Federal courts but must apply Federal substantive law where suit has been initiated under the LMRA to enforce a contract between a labor organization and an employer. Audit Services, Inc. v. Clark Brothers Contractors (1982), 198 Mont. 274, 645 P.2d 953; Audit Services, Inc. v. Harvey Bros. Construction (1983), 204 Mont. 484, 665 P.2d 792; and Audit Services, Inc. v. Houseman (1987), 227 Mont. 57, 737 P.2d 71. At trial appellant objected to the introduction of evidence of an oral modification to the collective bargaining agreement, namely the oral side agreement between Blankenship and Roberts exempting certain employees from coverage under the contract. The court heard testimony from both Blankenship and Roberts concerning the oral modifications. Appellant argues that by admitting such evidence the District Court violated the parol evidence rule. We agree. As noted above, the State court must apply Federal law in labor contract disputes. In a leading case, the Ninth Circuit Court interpreted Federal statute 29 U.S.C. § 1 8 5 ( c ) ( 5 ) t o mean t h a t w r i t t e n t r u s t fund c o n t r i b u t i o n obli.gations cannot be modified o r a l l y . Waggoner v. D a l l a i r e ( 9 t h C i r . 1981), 649 F.2d 1362, 1366. C i t i n g Waggoner, t h i s Court h a s p r e v i o u s l y h e l d t h a t par01 evidence of o r a l modi.fications t o c o n t r a c t s s u b j e c t t o t h e LMRA i s i n a d m i s s i b l e . Audit S e r v i c e s , Inc. v. Houseman, 737 P.2d at. 72; Audit S e r v i c e s , Inc. v . Harvey Rros. Construction, 665 P . 2 1 1 a t 796. W e s o hold once again and r e v e r s e and remand f o r a hearing c o n s i s t e n t with t h i s opinion. | November 7, 1989 |
6baaf750-d0bc-4332-80cc-7fe59e286b1e | W M GIBSON JR v GRAFF COMMUNICA | N/A | 89-265 | Montana | Montana Supreme Court | No. 89-265 IN THE SUPREME COURT OF THE STATE OF MONTANA WILLIAM GIBSON, JR., INC., a Montana corporation, and WILLIAM GIBSON, JR., individually, Plaintiffs and Appellants, -vs- JAMES GRAFF COMMUNICATIONS, INC., a Montana corporation, JAMES GRAFF, individ.ually, SAGE ADVERTISING, INC., a Montana corporation, ROBERT A. HENKEL, individually, and SAGE ADVERTISING, BILLINGS, a partnership, , . Defendants and Respondents. APPEAL'FROM: District Court of the Thirteenth Judicial District, c ( . - In and for the County of Yellowstone, I - - The Honorable Russell Fillner, Judge presiding. I . , ! COUNSEL -OF RECORD : L i *JJ (For Appellant: * . . John J. Cavan, Cavan, Smith, Grubbs & Cavan, Billings, Montana For Respondent: Steven J . Lehman; Crowley, Hauqhey, Hanson, Toole and Dietrich, Billings, Montana Filed: Submitted on Briefs: Sept. 7, 1989 Decided: September 27, 1989 Justice John Conway Harrison delivered the Opinion of the Court. William Gibson, Jr., Inc., and William Gibson, Jr., individ,ually, (Gibson) filed suit in the Thirteenth Judicial District, Yellowstone County, seeking damages under several theories arising out of respondents' termination of Gibson's employment contract. The District Court granted respondents' motion for a stay of proceedings and to compel arbitration based on arbitration clauses in the partnership agreement and employment agreement under the Federal Arbitration Act. From that order Gibson appeals. We affirm. We rephrase the issues appellants present for review as follows : 1. Did the District Court err because the contracts at issue do not involve interstate commerce? 2. Did the District Court err because the appellants' claims are outside the scope of the arbitration clause in the contracts? 3. Did the District Court err because respondents have defaulted and waived their right to insist on arbitration? 4. Did the District Court err because the contracts specify that the law of Montana will govern the rights and obligations of the parties thereunder, and any interpretation and construction of the agreement. We will discuss only issue No. 1 as we find it to be controlling. We have considered appellants' other contentions and find that they must be rejected. The parties to this action entered into the following contracts: (1) an employment agreement between Sage Advertising, Billings and James Graff dated November 30, 1979; (2) an employment agreement between Sage Advertising, Billings and William Gibson, and (3) a partnership agreement between Sage Advertising, James Graff Communications, Inc., and William Gibson, Jr., Inc. forming Sage Advertising, Billings dated November 21, 1980. All three contracts contain similar arbitration clauses. An example is the arbitration clause in the partnership agreement which provides as follows: Arbitration. If at any time during the existence of the Partnership or after the dissolution or termination thereof, any question, disagreement or difference shall arise among the parties hereto concerning the Partnership, its affairs, transactions, business or accounts or the meaning - or interpretation of the agreement, or the rights, duEes or - obligations of any party hereto, s u x question, disagreement or difference shall be submitted to and determined by the American Arbitration Association in accordance with its rules then in force. (Emphasis added.) Sage Advertising, Billings was in the business of providing advertising services. Sage Advertising, Billings hired Mr. Graff as manager of its daily affairs and Mr. Gibson as creative director in charge of graphics plus other duties. During the term of Mr. Gibson's employment, Sage Advertising, Billings performed advertising services for clients in Wyoming and North and South Dakota as well as Montana. Sage sold and delivered advertising goods in these states as well. Respondents terminated Mr. Gibson's employment on August 11, 1984. After Mr. Gibson's termination, the parties attempted for several years to negotiate a settlement of Mr. Gibson's wrongful termination claim. These negotiations included a January 14, 1987 letter to appellants' counsel from respondents' counsel which suggested binding arbitration to settle the dispute. Appellants filed suit on August 11, 1987. Respondents' answer of September 24, 1987 raised as a defense the arbitration clauses in Gibson's employment agreement and the partnership agreement. Did the District Court err because the contracts at issue do not involve interstate commerce? The law is clear that if a contract falls within the ambit of the Federal Arbitration Act, (FAA) , 9 U.S .C. §§ 1 , et seq., then an arbitration clause found in that contract must be enforced. Passage v. Prudential-Bache Securities (1986), 223 Mont. 60, 63-64, 727 P.2d 1298, 1300. Appellants contend that the District Court erred in holding that the partnership and employment agreements are contracts involving interstate commerce within the meaning of the FAA. We disagree. Appellants acknowledge that Sage Advertising, Billings conducted business in Wyoming and North and South Dakota. By appellants' estimate at least five percent of Sage's clients were from out-of-state. But appellants assert that the amount of business Sage transacted in those states was too small to justify designating Sage as involved in interstate commerce. Although the percentage of Sage's interstate business may have been small, it is clear that Sage, Billings' activities affected interstate commerce bringing it within the scope of § 2 of the FAA. Bernhardt v. Polygraphic Co. (1956), 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199. Thus the District Court correctly found that the FAA applied to the partnership and employment agreements and required enforcement of the arbitration clauses. We affirm the District Court. We concur: / | September 27, 1989 |
859a9dfe-ab69-4606-94cb-305e0f999f41 | STATE EX REL U S F G v DIST | N/A | 89-178 | Montana | Montana Supreme Court | No. 89-178 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE, ex rel., UNITED STATES FIDELITY AND GUARANTY COMPANY, Relator, -vs- THE MONTANA SECOND JUDICIAL DISTRICT COURT, SILVER BOW COUNTY; and the HONORABLE ARNOLD OLSEN, Presiding Judge, Respondent . ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Relator: Robert J. Emmons argued, Great Falls, Montana For Respondent: Ross P. Richardson argued, Butte, Montana For Amicus Curiae: Robert F. James argued; James, Gray & McCafferty, (Farmers Union Mutual Ins., Natl. Assoc. of Independent Insurers, Natl. Farmers Union Prop. & Cas. Co.), Great Falls, Montana Randy J. Cox argued; Boone, Karlberg & Haddon, (Montana Defense Trial Lawyers), Missoula, Montana FILED illiam Conklin argued & Allen P. Lanning, (State arm Mutual Auto. Ins. Co.), Great Falls, Montana NOV 15 1989 Filed: Submitted: September 25, 1989 Decided: November 15, 1989 I 1 Clerk '"'--" ' Justice Fred J. Weber delivered the Opinion of the Court. This petition for writ of supervisory control arises from an order by the District Court of the Second Judicial District, Silver Row County, Montana, ordering United States Fidelity and Guaranty Company (USF&G) to produce its entire claims file, including production of letters between USF&G and its attorney. USFCG seeks the writ. We accept jurisdic- tion, vacate the order of the District Court, and remand for entry of an appropriate protective order. The issues presented for our review are: 1. Is issuance of a writ of supervisory control appro- priate regarding a motion to compel discovery? 2. Is correspondence between USF&G and its attorneys, which occurred after litigation was commenced, privileqed from disclosure in a bad faith action filed after resolution of the underlying claim? The facts giving rise to this case began on June 11, 1986, when a truck owned by Gray Rock Trucking, an insured of USF&G, ran off the road, down an embankment, and collided with the home of John and Sharlene Montoya. This occurred in Butte, Montana. The house was an older home in which Mrs. Montoya had lived all her life. The Montoyas had done extensive remodel- ing. As a result of the impact, the house was knocked off its foundation, the foundation was cracked, and support beams were disturbed. The Montoyas had to move out of their house. A claims adjuster, Mike McNabb, investigated the acci- dent for USF&G. Additionally, USF&G retained the law firm of Gough, Shanahan, Johnson, and Waterman to represent its insured, Gray Rock Trucking, in this matter. In attempting to settle the damage claim there were disputes over inspec- tion and appraisal of the house. The Montoyas hired an attorney, Patrick McGee. Settlement discussions between Mr. McGee and counsel for USF&G began in the fall of 1986 and the Montoyas filed the damage action on March 25, 1987. That claim was settled December 17, 1987. On April 25, 1988 the Montoyas filed the present action based on the Unfair Trade Practices Act, S 33-18-201 (2) (3) and (6), MCA, which states: Unfair claim settlement practices prohibited. No person may, with such frequency as to indicate a general business practice, do any of the following: (2) fail to acknowledge and act reasonably prompt- ly upon communications with respect to claims arising under insurance policies; (3) fail to adopt and implement reasonable stan- dards for the prompt investigation of claims aris- ing under insurance policies; (6) neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear; The complaint alleges that USF&G failed in its statutory duty to "acknowledge and act reasonably promptly" and that it failed to adopt and implement reasonable standards for prompt investigation of claims. It further alleges that USF&G acted fraudulently, oppressively, maliciously and outrageously toward the Montoyas. The damages requested include general, special, and punitive. On April 25, 1988, the Montoyas requested that USF&G produce its entire claims file, including "all written commu- nications or memoranda of communications between the Defen- dant and its attorney." Defendants moved for a protective order asserting the attorney-client privilege and work product rule as to five letters. However, two of these letters have been produced by defendant, leaving three let- ters presently at issue. The three letters at issue are communications from the Gough, Shanahan, Johnson and Waterman firm to USF&G. These letters were written April 12, August 11, and December 10, of 1987, after the damage action was filed. In the motion for a protective order, USF&G offered to produce the documents for in-camera review by the District Court. However, the co,urt did not review the documents. Following oral argument and consideration of briefs, the District Court denied USF&G1s motion for a protective order. USF&G petitions this Court for a writ of supervisory control, requesting that these letters be protected. Is issuance of a writ of supervisory control appropriate regarding a motion to compel discovery? The standard for issuance of a writ has been stated as follows: Supervisory control is proper to control the course of litigation when the lower court has made a mistake of law or willfully disregarded the law so that a gross injustice is done and there is no adequate remedy by appeal; also, to prevent extend- ed and needless litigation. Continental Oil v. Elks Nat. Foundation (Mont. 1989), 767 P.2d 1324, 1326, 46 St.Rep. 121, 123. See also Rule 17(a), M.R.App.P., stating that: The supreme court is an appellate court but it is empowered by the constitution of Montana to hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. The institution of such original proceedings in the supreme court is some- times justified by circumstances of an emergency nature, as when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy, or when supervision of a trial court other than by appeal is deemed necessary or proper. Although interlocutory review of discovery orders is not favored, State ex rel. Guar. Ins. v. Dist. Court (Mont. 1981), 634 P.2d 648, 38 St-Rep. 1682, the writ will issue in an appropriate case. - See, - e.g., State ex rel. Burlington Northern v. Dist. Ct. (Mont. 1989), P.2d - , 46 St.Rep. 1625 (writ issued because an order placed a party at a sig- nificant disadvantage in litigating the merits of a case); Kuiper v. Dist. Court (Mont. 1981), 632 P.2d 694, 38 St.Rep. 1288 (writ issued to determine whether district court proper- ly granted a protective order); Jaap v. Dist. 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 plaintiff's physicians). A case by case analysis must be employed in determining whether supervisory control should be accepted. State ex rel. Deere and Co. v. Dist. Court (19861, 224 Mont. 384, 730 P.2d 396. In the present case the District Court has ordered production of communications which clearly implicate the attorney-client privilege. Whether these are discoverable in the context of bad faith insurance litigation is an issue of first impression in Montana. Defendants have exhausted their remedies in District Court. We have examined the three letters and conclude that if USF&G is required to disclose these letters the harm would be irreparable and the remedy of appeal inadequate. We conclude that issuance of the writ is necessary in this case. Is correspondence between USF&G and its attorneys, which occurred after litigation was commenced, privileged from disclosure in a bad faith action filed after resolution of the underlying claim? The District Court ordered production of letters written by the Gough firm to the insurer, USF&G. We begin by estab- lishing that these communications are within the context of an attorney-client relationship. It is well established that the attorney hired by the insurer to represent its insured, actually is representing both the insurer and the insured. See, e.g., American Mutual Liability Ins. Co. v. Superior - - Court (1974), 113 Cal.Rptr. 561, 571-72; Rogers v. Robson, Masters, Ryan, Brumund, Etc. (Ill. 1979), 392 N.E.2d 1365, 1370; Longo v. American Policyholders' Ins. Co. (N.J. Super. 1981), 436 A.2d 577, 579. This concept of dual or joint representation has been widely acknowledged, and sanctioned by the courts. In Jessen v. O'Daniel (D.Mont. 1962), ,210 F.Supp. 317, Judge Jameson stated: Under an insurance contract, however, the insurer initially employs the attorney to represent the interests of both the insured and the insurer. (Emphasis in original) . Jessen, 210 F.Supp. at 331-32. We approved of this statement by Judge Jameson in Safeco Ins. Co. v. Ellinghouse (1986), 223 Mont. 239, 252-53, 725 P. 2d 217, 226, and implicitly acknowledged this cornmonality of interest. Absent a conflict of interest, the attorney hired by the insurance company to defend its insured, repre- sents both. The letters at issue, therefore, written by the Gough firm to USF&G were attorney-client communications. Communications between an attorney and the client have traditionally been privileged from disclosure: The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence S 2290 (McNaughton rev. 1961) . Its purpose is to encour- age full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recogniz- es that sound legal advice or advocacy serves public ends and that such advice or advocacy de- pends upon the lawyer's being fully informed by the client. As we stated last Term in Trammel v. United States, 445 U.S. 40, 51 (1980): "The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out." And in Fisher v. United States, 425 U.S. 391, 403 (1976) , we recognized the purpose of the privilege to be "to encourage clients to make full disclosure to their attorneys." This rationale for the privi- lege has long been recognized by the Court, see Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (privi- lege "is founded upon the necessity, in the inter- est and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the conse- quences or the apprehension of disclosure"). Upjohn Co. v. United States (1981), 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584, 591. In Montana this privilege has been codified in § 26-1-803, MCA, which provides: (1) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him or his advice given to the client in the course of professional employment. (2) A client cannot, except voluntarily, be examined as to any communication made by him to his attorney or the advice given to him by his attorney in the course of the attorney's professional employment. This Court applied this statute to bar production of communications between Goodyear Tire Company and its attorney in Kuiper. In that case we followed the rule that communi- cations to which the attorney-client privilege is applicable are not discoverable. See generally Kuiper, 632 P.2d at 699. A recent case from the Ninth Circ-uit, Admiral Ins. v. U.S. Dist. Court for Dist. of Ariz. (9th Cir. 1989), 881 F.2d 1486, discussed at length the discoverability of attorney-client communications. Although the case did not involve bad faith litigation, we conclude that its stated principles apply to the present issue. It enumerated the essential elements of the privilege as follows: Where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at this instance permanently protected from disclosure by himself or by the legal adviser, unless the protection be waived. Admiral Ins., 881 F.2d at 1492. Admiral Ins. involved securities fraud allegations against Admiral Ins. Co. Plaintiffs were investors. Attor- neys hired by Admiral in anticipation of litigation deposed two of Admiral's corporate officers. Plaintiffs sought production of the interview statements because the two offi- cers asserted the Fifth Amendment and refused to cooperate when plaintiff deposed them. Plaintiffs contended they were entitled to these statements since they had no other means to obtain this information. The district court ordered the interview statements produced. The Ninth Circuit reversed, holding that an unavailabil- ity exception is inconsistent with the nature and purpose of the privilege, and that the privilege is not to be confused with the work product rule, stating: While the work-product rule protects a client's investment in his attorney's labor to prevent unfair exploitation, the privilege protects commu- nications between client and counsel to encourage the client to be forthcoming with his attorney so that appropriate legal advice can be offered. As Professor Saltzburg explained: The principal difference between the attorney-client privilege and the work product doctrine, in terms of the protections each provides, is that the privilege cannot be overcome by a showing of need, whereas a showing of need may justify discovery of an attorney's work product. Saltzburg, Corporate and Related Attorney-Client Privilege: A Suggested Approach, 12 Hofstra, L.Rev. 279, 299 (1984). Admiral Ins., 881 F.2d at 1494-95. * * * The attorney-client privilege, like all other evidentiary privileges, may obstruct a party's access to the truth. Although it may he inequita- ble that information contained in privileged mate- rials is available to only one side in a dispute, a determination that communications or materials are privileged is simply a choice to protect the commu- nication and relationship against claims of compet- ing interests. Any inequity in terms of access to information is the price the system pays to main- tain the integrity of the privilege. An unavail- ability exception is, therefore, inconsistent with the nature and purpose of the privilege. Admiral Ins., 881 F.2d at 1494. In summary, Admiral Ins. held that the attorney-client privilege is to be distinguished from the protection given attorney work product. Whereas a showing of need may over- come the immunity given to work product, no showing of need can be invoked to overcome the privilege. It noted the policy underlying the privilege which is to encourage the client to be open and frank with the attorney, and to enable the attorney to provide the best possible legal advice and to encourage the client to act in accordance with the law. While recognizing that the privilege denies access to these communications, the court held that the legal system's need for the privilege outweighs an asserted need for the informa- tion. We conclude that the reasoning of the Ninth Circuit in Admiral Ins. is compelling and correct. We therefore adopt its reasoning. Plaintiffs contend that the privilege must give way in the context of bad faith litigation because the plaintiff must be able to determine whether the insurance company had a good faith basis for its decision. They urge that the requi- site information includes knowledge of reliance on advice of counsel, and that if discovery is not permitted in the present case it will render the Unfair Trade Practices Act ineffectual. Plaintiff contends that the nature of the cause of action should control discoverability. We disagree and conclude that it is the nature of the relationship which is determinative. Plaintiffs contend that their inability to discover these communications will impede the policy behind the Unfair Trade Practices Act. We conclude that the opposite is true. The attorney-client privilege allows for an honest, careful and prompt analysis by qualified persons. This enables the insurer to evaluate and settle a claim expeditiously and in this way furthers the policy behind the Act. The free flow of information between the attorney and client equally bene- fits the claimant because it is this kind of communication which results in the settlement of most insurance claims. Normally, all communications between attorney and cli- ent, including conversations and phone calls, are memorialized in writing. If these writings are all poten- tially discoverable, the impact on an attorney's ability to fully advise a client would be devastating. An insurance company must have an honest and candid evaluation of a case, possibly including a "worst case scenario." A concern by the attorney that communications would be discoverable in a bad faith suit would certainly chill open and honest communica- tion. An attorney's inability to communicate freely with the client would impede all communications and could diminish the attorney's effectiveness. It could also impede settlements. We conclude that the need for the privilege outweighs any alleged need of the plaintiffs. Plaintiffs rely on two decisions by Montana Federal District Courts, In re Bergeson (D.Mont. 1986), 112 F.R.D. 692, and Silva v. Fire Ins. Exchange (D.Mont. 1986), 112 F.R.D. 699, for their contention that the privilege must give way in bad faith insurance litigation. These decisions both involved a bad faith allegation by an insured against his own insurance company. They were thus " first-party I' suits. The federal courts allowed discovery of attorney-client communi- cations. The present case is a "third-party" suit since the plaintiff is a claimant rather than the insured. However, plaintiff contends that the same rule should apply. We reject plaintiff's contention for two reasons. First, whether this information would be discoverable in first party bad faith litigation has not been decided by this Court. Second, there is a valid distinction between a first party suit and a third party suit in insurance litigation. See, Baker v. CNA Ins. Co. (D.Mont. 1989) 123 F.R.D. 322. The relationship between the insurance company and its in- sured is fiduciary. No fiduciary relationship exists between an insurance company and a third party claimant, and an adversarial relationship may exist. Thus plaintiff's argument is unpersuasive. Plaintiff urges an exception to the privilege based on other theories such as civil fraud, citing Escalante v. Sentry Ins. (Wash.App. 1987), 743 P.2d 832, and United Ser- vices Automobile Assn. v. Werly (Alaska 1974), 526 P.2d 28. Both of these cases involved third party bad faith claims against an insurance company. The courts in these cases allowed the privilege to be defeated upon a prima facie showing of fraud after an in camera review. We reject the reasoning of those cases, which would extend the civil fraud exception to bad faith allegations. The civil fraud excep- tion to the attorney-client privilege has traditionally been invoked where an attorney or client is involved in unlawful or criminal cond.uct, or future fraudulent activity. 2 J. Weinstein, Evidence S 503 (d) (1) (01) ; Annot., 31 ALR 4th 458. We agree with the Florida Co,urt in Kujawa v. Manhattan Nat. Life Ins. Co. (Fla. 1989), 541 So.2d 1168, a bad faith insurance case, wherein the court stated that the "legisla- ture in creating the bad faith cause of action did not evince an intent to abolish the attorney client privilege and work product immunity." Kujawa, 541 So.2d at 1169. As a final argument, plaintiffs contend that USF&G waived the right to claim the privilege by its production of other letters between itself and the Gough firm. Specifical- ly, they note that a letter which was produced contained a reference to the August 11 letter. They urge therefore that USF&G waived its right to claim that the letter of August 11 is privileged. While it is true that the privilege may be waived (S 26-1-803, MCA), we do not agree that by the insur- er's production of certain correspondence, it waived its right to withhold other correspondence. Nor does the refer- ence to the August 11 letter require production of that letter. See generally 8 Wigmore, Evidence § 2327 (McNaughton Rev. 1961). We decline to accept plaintiff's legal theories which would sweep aside the privilege. As stated by the Admiral Ins. court, the exception urged by plaintiff would either "destroy the privilege or render it so tenuous and uncertain that it would be 'little better than no privilege at all. ' Upjohn, 449 U.S. at 353, 101 S.Ct. at 661." Admiral Ins., 881 F.2d at 1495. As should be apparent from our analysis, we have concluded that a balancing of the interests of all parties requires a conclusion that the attorney-client privilege must remain inviolate. We vacate the District Court's denial of USF&G8s motion for a protec- tive order, and remand for entry of an appropriate protective order in regard to the three letters. We Concur: No. 8 9 - 1 7 8 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 STATE, ex rel., UNITED STATES F I D E L I T Y AND GUARANTY COMPANY, R e l a t o r , -vs- THE MONTANA SECOND J U D I C I A L D I S T R I C T COURT, S I L V E R BOW COUNTY; and t h e HONORABLE ARNOLD OLSEN, Presiding Judge, R e s p o n d e n t . ORIGINAL PROCEEDING: COUNSEL OF RECORD: For R e l a t o r : R o b e r t J. Emrnons argued, G r e a t F a l l s , M o n t a n a For R e s p o n d e n t : R o s s P. R i c h a r d s o n argued, B u t t e , M o n t a n a For A m i c u s C u r i a e : R o b e r t F. J a m e s argued; J a es, G r a y & M c C a f f e r t y , 3 ( F a r m e r s U n i o n M u t u a l ~ n s , j , $ ~ r e a t F a l l s , M o n t a n a R a n d y J. C o x argued; B o o n e , K a r l b e r g & H a d d o n , ( M o n t a n a D e f e n s e T r i a l L a w y e r s ) , M i s s o u l a , M o n t a n a W i l l i a m C o n k l i n argued & A l l e n P. L a n n i n g , ( S t a t e F a r m M u t u a l A u t o . Ins. Co.), G r e a t F a l l s , M o n t a n a S u b m i t t e d : S e p t e m b e r 2 5 , 1 9 8 9 D e c i d e d : N o v e m b e r 15, 1 9 8 9 IN THE SUPREME COURT OF THE STATE OF MONTPA , 0 m z 0 No. 89-178 3 rn =; z c = J b m 2z STATE ex rel. UNITED STATES FIDELITY AND GUARANTY COMPANY, Relator, THE SECOND JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF SILVER BOW, and HONORABLE ARNOLD OLSEN, Presiding judge, Respondent. Relator and amici curiae have filed herein a petition for rehearing in this cause, asking this Court to delete a certain statement from the opinion filed in this cause on November 15, 1989. No objections to the petition for rehearing have been filed. ACCORDINGLY, IT IS HEREBY ORDERED that the following para- graph, which begins on page 11 and ends on page 12 of this Court's Opinion of November 15, 1989, is deleted: We reject plaintiff's contention for two reasons. First, whether this information would be discoverable in first party bad faith litigation has not been decided by this Court. Second, there is a valid distinction between a first party suit and a third party suit in insurance litigation. See, Baker v. CNA Ins. Co. (D. Mont. 19891, 123 F.R.D. 322. The relationship between the insurance company and its insured is fiduciary. No fiduciary rela- tionship exists between an insurance company and a third party claimant, and an adversarial relationship may exist. Thus plaintiff's argument is unpersuasive. I T I S FURTHER ORDERED that the deleted paragraph is replaced by the following paragraph: We reject plaintiff's contention for two reasons. First, whether this information would be discoverable in first party bad faith litigation has not been decided by this Court. Second, there is a valid distinction between a first party suit and a third party suit in insurance litigation. See, Baker v. CNA Ins. Co. (D. Mont. 1989), 1 2 3 F.R.D. 3 2 2 . Let remittitur issue forthwith. & DATED this 4 -- day of January, 1990. We concur: Justices | November 15, 1989 |
70cbe8e1-c828-464a-9317-46ba9c397e29 | MARRIAGE OF DEICHL | N/A | 89-227 | Montana | Montana Supreme Court | No. 89-227 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF ARNOLD DEICHL, I 0 Petitioner and Appellant, z and 2 E Zr c n MARY ANN DEICHL, 5 c --{ -0 7' Respondent and Respondent. m 1 3 - o T r m VI APPEAL FROM: ~istrict Court of the ~hirteenth ~udicial ~istrict, In and for the County of Yellowstone, The Honorable Robert Holmstrom, Judge presiding. COUNSEL OF RECORD: For Appellant: Chris J. Nelson, ~illings, Montana For Respondent: Larry Cole, ~illings, Montana Filed: Submitted on ~riefs: Sept. 7, 1989 Decided: October 19, 1989 Chief Justice J. A. Turnage delivered the Opinion of the Court. Appellant Arnold Deichl appeals several decisions made by the District Court of the Thirteenth Judicial District, Yellowstone County, in granting Deichl's petition for dissolution. We affirm. Deichl asks whether the District Court erred, 1. In refusing to sanction the wife for failure to appear for a deposition, 2. In failing to consider the husband's ability to pay the wife lifetime maintenance of $450 per month, and 3. In ordering the husband to pay taxes resulting from the court-ordered, premature liquidation of Individual Retirement Accounts. The District Court in this case found that during the marriage the husband worked as an executive for several farm equipment companies and at the time of the dissolution, had a take-home pay of $1,566.26 per month. The court found that the wife worked as a homemaker raising the couple's three children. She performed some volunteer work and was occasionally employed in clerical positions. At the time of the dissolution, the wife was forty- seven years old and held a sales and clerical position with a car rental agency providing take-home pay of $530.84 per month. She was receiving medical treatment for arthritis and depression, and had difficulty dealing with stressful situations. Because of the wife's inability to adequately support herself and the modest value of family property available for distribution, the District Court ordered the husband to pay the wife lifetime maintenance of $450 per month. Before trial, the husband twice attempted to depose the wife. The court quashed the first attempt and entered a protective order to guard the wife's health and well-being. On the second attempt, the court refused to provide a protective order, but the wife failed to appear for the deposition. The court denied the husband's subsequent motion for sanctions. In granting the dissolution, the District Court divided the couple's modest property which included two IRA accounts. The court ordered the liquidation of the accounts to pay outstanding medical bills and equally apportionedthe remainder to the parties. The husband was ordered to pay the tax penalties caused by the premature liquidation. The husband now challenges the District Court's decisions. The laws controlling review of the issues in this case are well settled. First, control of discovery is within the trial court's discretion, and we will reverse its decisions only when they materially affect the substantial rights of the appellant and allow the possibility of a miscarriage of justice. Massaro v. Dunham (1979), 184 Mont. 400, 404-05, 603 P.2d 249, 251-52. Second, a District Court's award of maintenance will not be disturbed if it is supported by substantial credible evidence and exhibits no clear abuse of discretion. In re Marriage of Cole (Mont. 1988), 763 P.2d 39, 41, 45 St.Rep. 1965, 1967. Finally, in the distribution of marital property and obligations, we will reverse the District Court only when it has committed a clear abuse of discretion. In re Marriage of Stewart (Mont. 1988), 757 P.2d 765, 767, 45 St.Rep. 850, 852. In essence, the appellant now asks this Court to reweigh many of the District Court's factual determinations. This we decline to do. The District Court heard the conflicting evidence, made its determinations, and entered suitable findings of fact and conclu- sions of law. Those findings and conclusions are supported by substantial credible evidence in the trial record, and we find no abuse of discretion. Affirmed; appellant to pay the respondent's costs. . Chief A Justice a ~ + We concur: | October 19, 1989 |
c860ea92-4276-4d72-a684-d154d7873ac8 | KRIEG v MASSEY | N/A | 89-266 | Montana | Montana Supreme Court | No. 89-266 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 LESLIE D. KRIEG, Plaintiff and Appellant, DEWEY E. MASSEY, and FLORENCE E. MASSEY, individually and d/b/a MASSEY APPARTMENTS; and BETTY J. YOUNG, a/k/a B.J. YOUNG, Defendants and Respondents. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane Barz, Judge presiding. COUNSEL OF RECORD: For Appellant: K. D. Peterson; Peterson, Schofield & Leckie, Billings, Montana For Respondent: James R. Halverson; Herndon, Hartman, Sweeney and Halverson, Billings, Montana Filed: Submitted on Briefs: Aug. 17, 1 9 8 9 Decided: October 24, 1989 Clerk Justice Fred J. Weber delivered the Opinion of the Court. The plaintiff, Leslie D. Krieg, brought this wrongful death action founded on negligence for failure of defendants to prevent the suicide of his 77 year-old uncle, Arthur Leslie Van Hoose. The District Court for the Thirteenth Judicial District, Yellowstone County granted defendants' motion for summary judgment and dismissed the case with prejudice. From this judgment, Mr. Krieg appeals. We affirm. The sole issue is: Did the District Court err in granting summary judgment in favor of defendants? Masseys are the owners and operators of the Massey Apartments in Billings, Montana. When Mr. Van Hoose moved into the Massey Apartments, Mr. Massey introduced Mr. Van Hoose to the apartment manager, Mrs. Young, an elderly lady in her seventies. The next day, Mr. Van Hoose told Mrs. Young he was having leg and stomach pain. Mrs. Young offered the use of her phone to Mr. Van Hoose so that he could call a doctor. He declined. She then offered to take him to the hospital to see a doctor. He accepted this offer, however, Mrs. Young told him she was expecting her daughter and would have to wait until her daughter arrived. Later, when Mrs. Young was walking past Mr. Van Hoose's room, his door was open and she noticed he was walking around the room holding a pistol. Mrs. Young told him not to point the gun at her. He responded with, "Guns take care of all problems." Mrs. Young stated, "It doesn't take care of problems, it causes problems." She then took the pistol from Mr. Van Hoose with the intention of taking it to her apart- ment. When Mr. Van Hoose protested, she obtained a chair from the kitchen, climbed up on the chair and put the pistol on the top of a closet, thinking he would leave it alone. Mr. Van Hoose appeared calmer and Mrs. Young repeated that she would take him to the doctor, then left. She did nothing else about the gun incident. Approximately an hour later, Mrs. Young heard a loud "thud." She was not concerned about the noise until the thought occurred to her that Mr. Van Hoose may have climbed up on the chair to get the pistol, and fallen off. She then went back to his apartment and discovered he had killed himself with the pistol. Did the District Court err in granting summary judgment in favor of defendants? We begin by emphasizing that summary judgment is never a substitute for a trial on the merits. Kronen v. Richter (1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317. It is only appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Any inferences to be drawn from the factual record must be resolved in favor of the party opposing summary judgment. Simmons v. Jenkins (1988), 750 P.2d 1067, 45 St.Rep. 328. In its summary judgment the District Court relied on the general rule that: Negligence actions for the suicide of another will generally not lie since the act or suicide is considered a deliberate intervening act exonerating the defendant from legal responsibility, noted the court, but two exceptions to this general rule exist: a. [W] here the defendant's tortious act causes a mental condition in the decedent that proxi- mately results in an uncontrollable impulse to commit suicide or that prevents the decedent from realizing the nature of his act; b. [W] here there is a duty to prevent the suicide, the situation typically arising when someone is obligated to exercise custodial care over the eventual decedent, is in a position to know about the latter suicidal potential, and is lax with respect to taking preventive measures. 41 ALR 4th, 353. The District Court then found that the relationship between Mr. Van Hoose and Mrs. Young was non-custodial and that there was no evidence that Mr. Van Hoose's suicide was a foresee- able event. The court therefore concluded that Mrs. Young owed no duty to prevent Mr. Van Hoose's suicide. Plaintiff contends that when Mrs. Young entered Mr. Van Hoose's room and attempted to take the pistol away, she imposed upon herself a duty to prevent the suicide. Plain- tiff urges that Mrs. Young breached this duty because she was negligent in her intervention. He claims she could have prevented the suicide of Mr. Van Hoose by removing the pistol. It is fundamental that an action for negligence requires 1) a legal duty, 2) a breach of the duty, 3) causation, and 4) damages. Prosser and Keeton on Torts, S 30, at 164-165 (5th ed. 1984); R.H. Schwartz Const. Specialties v. Hanrahan (1983), 207 Mont. 105, 672 P.2d 1116. Traditionally, a person is not liable for the actions of another and is under no duty to protect another from harm in the absence of a special relationship of custody or control. If originally, no special relationship existed, but the defendant interjects himself into the situation so as to create a special rela- tionship of control, a duty may be imposed. Prosser and Keeton on Torts, § 56 at 375-377, (5th ed. 1984). Defendant relies on Pretty on Top v. Hardin (1979) , 182 Mont. 311, 597 P.2d 58, as authority that no duty arose. That case involved a custodial situation of a jailer and a prisoner. When the prisoner committed suicide the wife claimed the prison had a duty to prevent the suicide. Howev- er, in Pretty on Top this Court affirmed the district court's grant of summary judgment in favor of defendant since the suicide of the prisoner was not foreseeable. Since foresee- ability was lacking we stated that the district court was required to follow the general rule that suicide is an inten- tional act and grant defendant's motion for summary judgment. Pretty on Top, 597 P.2d at 60. The same rule applies even more forcefully in the present case. The general rule, as relied upon by the Dis- trict Court, in the area of civil Liability for suicide is that " [nlegligence actions for the suicide of another will generally not lie since the act or suicide is considered a deliberate intervening act exonerating the defendant from legal responsibility . . . " 41 ALR 4th, 353. Prosser and Keeton on Torts fj 44 at 280-81 (4th ed. 1971); McPeake v. Cannon Esquire, P.C. (Pa.Stiper. 1989), 553 A.2d 439; McLaughlin v. Sullivan (N.H. 1983), 461 A.2d 123. We expressly adopt this rule. There are two narrow exceptions to this rule. The first exception deals with causing another to commit suicide and is not applicable to the present case. The second exception allows the imposition of a duty to prevent suicide but only in a custodial situation where suicide is foreseeable. These situations typically involve hospitals or prisons. 41 ALR 4th at 353. The facts of the present case clearly do not fit within this exception to the general rule. As the District Court found, Mrs. Young was not in a custodial relationship with Mr. Van Hoose. He had lived in her apartment less than two days and she had no control over him. Our research has d i s c l o s e d no cases holding t h a t a landlord t e n a n t r e l a t i o n - s h i p i s a c u s t o d i a l r e l a t i o n s h i p which would impose a duty t o prevent s u i c i d e . W e agree with t h e D i s t r i c t Court t h a t 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 on t h e existence of a c u s t o d i a l r e l a t i o n s h i p . The f a c t t h a t t h e r e was no c u s t o d i a l r e l a t i o n s h i p o r s p e c i a l circumstances, a c t u a l l y ends our i n q u i r y because no duty can be e s t a b l i s h e d . The D i s t r i c t Court, however, went on t o determine t h a t t h e s u i c i d e i n t h i s case was not foreseeable. M r s . Young t e s t i f i e d t h a t she d i d not think M r . Van Hoose should have t h e gun, b u t t h a t she d i d not t h i n k he was planning on k i l l - i n g himself. When asked why she p u t t h e gun on top of t h e c l o s e t , she s a i d , "I figured he'd leave it alone." She then returned t o h e r own apartment. P l a i n t i f f f a i l e d t o present any evidence t o show t h a t M r . Van Hoose's s u i c i d a l tendencies had been communicated t o M r s . Young. Further, nothing indi- c a t e s t h a t she had any s p e c i a l t r a i n i n g t o f o r e s e e t h a t M r . Van Hoose intended s u i c i d e . W e conclude t h a t no genuine i s s u e of m a t e r i a l f a c t e x i s t e d regarding f o r e s e e a b i l i t y . P l a i n t i f f , however, urges t h a t because M r s . Young "in- t e r j e c t e d h e r s e l f i n t o t h e s i t u a t i o n " by taking t h e gun from M r . Van Hoose, she imposed a duty upon h e r s e l f . He contends t h a t she then breached t h i s duty by negligently placing t h e gun on top of t h e c a b i n e t r a t h e r than removing it. W e de- c l i n e t o a f f i r m p l a i n t i f f ' s contention t h a t M r s . Young's a c t i o n s c r e a t e d a duty t o prevent s u i c i d e s i n c e , a s previous- l y s t a t e d , t h e general r u l e i s t h a t no duty e x i s t s i n t h i s a r e a absent a c u s t o d i a l r e l a t i o n s h i p o r s p e c i a l circumstanc- e s . However, even i f a duty had a r i s e n , t h e a c t s of M r s . Young placed M r . Van Hoose i n no worse p o s i t i o n than before she took t h e gun from him. W e conclude t h a t 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 on t h e i s s u e of negligence. P l a i n t i f f f a i l e d t o p r e s e n t t h e D i s t r i c t Court with any f a c t s which would establish either a duty or a breach. The general rule that suicide is an intentional act which forecloses civil liability is applicable, and the District Court was correct granting summary judgment in favor of defendants. We affirm the District Court's grant of summary judgment. We concur: | October 24, 1989 |
ae3d630b-42b7-4e61-bfce-594e8db14563 | LEWIS v LEWIS | N/A | 89-060 | Montana | Montana Supreme Court | NO. 89-060 I N THE SUPREME C O U R T O F T H E STATE O F M O N T A N A 1989 ANN LEWIS, p l a i n t i f f and Respondent, x o -vs- JOSEPH ROSCOE LEWIS, Defendant and Appellant. ; o APPEAL FROM: ~ i s t r i c t Court of t h e Fourteenth J u d i c i a l D r S t r i c t , I n and f o r t h e County of Musselshell, The Honorable H . R. Obert, Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: Karl Knuchel, Livingston, Montana For Respondent : Dane C. ~ c h o f i e l d ; Peterson, ~ c h o f i e l d & ~ e c k i e , ~ i l l i n g s , Montana Jean S. Schanen; Schanen Law ~irrn, ~ a s i l l a , Alaska Submitted on B r i e f s : J u l y 7 , 1989 Decided: October 31, 1 9 8 9 ~ustice John C. Sheehy delivered the opinion of the Court. Ann Lewis filed an action in the ~istrict Court, Fourteenth ~udicial District, Musselshell County, to enforce a default judgment entered in Alaska against her former husband, Joseph Roscoe Lewis. Eventually the ~istrict Court awarded summary judgment in favor of Ann ~ e w i s and against Joseph Lewis in the amount of $388,405.91. From that judgment, defendant Joseph Lewis appeals. We affirm the District Court. The central issue in this cases is whether the Alaska court had in personam jurisdiction of the defendant Joseph - Lewis to render a valid judgment against him which could be enforced in the sister state of Montana. When Ann Lewis filed this action in Musselshell County against Joseph ~ewis, she obtained personal service upon him in Musselshell County. Through his counsel, he made a special appearance in the action, moving the court to dismiss for lack of jurisdiction in the Alaska court, and because of that lack of jurisdiction to quash the service of summons made on him in the Musselshell County action. The District Court received briefs from all parties and affidavits from Jean S. Schanen, an Alaska attorney who represented Ann Lewis in the Alaska court actions. The District Court denied the motions to dismiss and eventually Joseph Lewis filed his answer in the cause generally denying all the allegations of Ann Lewis' complaint and praying the Montana court to hear the merits of his case and render judgment in his favor. On September 1, 1988, the plaintiff Ann Lewis moved for summary judgment in her favor. Joseph Lewis responded to the motions saying that he agreed with the position of Ann ~ e w i s that the previous ruling by the District Court on his objections to jurisdiction were dispositive and that he wanted to make the previous rulings appealable to the Supreme Court of the state of Montana, after judgment. The ~istrict Court had held a hearing on December 4, 1987, at which the Alaska attorney Jean Schanen, and Ann Lewis both testified. Joseph R. Lewis did not testify at that hearing, nor did he at any stage of the proceedings present affidavits contesting in any respect the affidavits or testimony of the plaintiff or her attorney. ~ccordingly, the statement of facts which we set out hereafter is unrebutted in the record. Joseph R. ~ e w i s and Ann ~ e w i s were husband and wife residing primarily in Alaska during their 28 year marriage. During the course of the marriage, the Lewises acquired substantial property. Joseph R. Lewis managed the couple's business affairs and made the important business decisions. In the latter years of the marriage, Joseph R. ~ e w i s created a large number of foreign trusts, transferring real and personal property into them, for purposes of tax avoidance. From 1976 to 1983, Joseph R. Lewis filed no state or federal tax returns. In 1983, Joseph R. Lewis left Alaska without disclosing his whereabouts to his v r i f e or to others. Several months later Ann Lewis Learned that he was residing in Montana. She filed an action in Alaska for divorce, serving Joseph R. Lewis personally with a divorce complaint at his domicile near Roundup, Montana. Joseph R. Lewis did not answer the complaint, although he acknowledged that he had received it. H ~ S default was subsequently entered against him. prior to the default hearing in Alaska, the Internal Revenue service contacted Ann Lewis regarding delinquent tax returns from 1976 to 1983. She was informed that the foreign trust schemes undertaken by Joseph R. Lewis were fraudulent, and that a significant amount of tax, penalty and interest was owing for which she was responsible. Ann ~ e w i s moved at the default hearing before the Alaska court for leave to amend her complaint to state additional claims against Joseph R. Lewis for the penalties, interest and professional fees that were involved. The Alaska court granted the motion to amend, but later reversed that ruling, stating that Ann Lewis should file a separate action against her husband with respect to those matters. Ann Lewis did file a separate action to recover from her former husband the IRS taxes, penalty, interest and professional expenses. The divorce decree of September 10, 1984, which was sent to Joseph R. ~ e w i s by mail made reference to the unadjudicated tax matters. In the divorce action, before the Alaska court reversed itself, requiring the tax matter to be pursued as an independent action, attempts had been made to serve the amended complaint on Joseph R. Lewis at the address where the original complaint was served. Certified mail at his last known address was returned unclaimed. Efforts to locate Joseph Lewis through the Musselshell County sheriff's office were also unsuccessful. Jean Schanen testified in this case that with respect to the second action, she tried to serve Joseph Lewis by certified mail which was returned with an indication from the post office that he was no longer at that address. She then attempted to obtain personal jurisdiction by having Lewis served through the sheriff's office and she received a return from the sheriff's office indicating that he could not be found . Other information respecting Joseph ~ewis' whereabouts was unavailing. Ann Lewis learned that he had purchased a motor home and was traveling around from place to place and no one knew exactly where he was at any given time. Counsel for Ann Lewis then made application to the Alaska court for permission to serve Joseph R. ~ e w i s by publication as permitted under the Alaska Rules of civil Procedure. She filed an affidavit of diligent inquiry which was required under the Alaska rules. The court held a hearing on the matter, and the presiding judge suggested that they ascertain from Joseph R. Lewis' brother, C. R. Lewis of Anchorage, Alaska, as to his whereabouts. C. R. Lewis confirmed to Ann ~ewis' attorney's firm that his brother was moving from place to place and C. R. Lewis did not know his whereabouts at the time. When the Alaska court learned of this additional unsuccessful attempt, it allowed service by publication upon Joseph R. Lewis in the Palmer, Alaska, area. After Joseph R. ~ e w i s defaulted by not appearing in the Alaska action, the Alaska court rendered a judgment of $346,183.47 against him, with interest at 10.5% per annum. Ann Lewis then commenced her action in Montana to enforce her Alaska judgment. By that time, Joseph ~ e w i s had purchased a ranch and was served personally with the summons in the action to enforce the Alaska judgment. We determine that the Alaska court had jurisdiction to render an - in personam judgment against Joseph R. ~ e w i s in the circumstances of this case. In Montana, the effect of a judicial record of a sister state is the same in this state as in the state where it was made, except that it can only be enforced here by an action or special proceeding. section 26-3-203, MCA. However, any judicial record, including the record of a judgment of a sister state may be impeached by evidence of want of jurisdiction in the court or judicial officer from which the record comes. section 26-3-105, MCA. In determining whether the judgment of the sister state based upon long-arm service or constructive service is valid, we examine the proceedings in the record of the sister state to determine if they comport with due process. Hughes v. Salo (1983), 203 Mont. 52, 659 P.2d 270; Kulko v. ~alifornia superior Court (1978) , 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132. If a judgment is rendered in a sister state in violation of due process, it is void in the rendering state, and is not entitled to full faith and credit elsewhere. Pennoyer v. Neff (1878), 95 U.S. 714, 732-733, 24 L.Ed. 565. Alaska's Rules of Civil Procedure provide in Rule 4(12) (e) for service by publication where personal service otherwise cannot be made outside the state: (el Other service. - When it shall appear by affidavit of a person having knowledge of the facts filed with the clerk that diligent inquiry a party cannot be served with process under (d) [personal service outside the state1 of this rule, service shall be made by publication or as otherwise directed by the court as provided in this subdivision . . . The same rule also provides in subparagraph (1) , as to what constitutes "diligent inquiry." There is no question that the facts of this case match up to the diligent inquiry requirements in Alaska. Ann Lewis' suit was for her reimbursement of federal income taxes, penalties and expenses which she had to pay arising out of marriage of the parties in Alaska. Joseph R. Lewis' contacts with Alaska were continuous and of long duration. H ~ S acts and omissions in Alaska gave rise to Ann ~ewis' claims against him. H ~ S contacts with Alaska met the requirements for long-arm jurisdiction over him. Hanson v. Denkla (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. In Kennecorp Mortgages, Inc. v. ~ i r s t ~ational Bank of Fairbanks (Alaska 1984) , 685 P. 2d 1232, the Alaska court considered the question of long-arm jurisdiction in the context of a motion to set aside a default judgment. The court said at 1238: The primary inquiry in evaluating a nonresident defendant's contact with a forum state is a consideration of the defendant's purposeful activity with respect to that state. As explained by the United States Supreme Court, "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. (Citing Hanson, supra. ) " We determine that the judgment would be enforceable in Alaska. The Montana Rules of civil Procedure would not permit service by publication in like circumstances. Rule 4D(5), M.R.Civ.P. However, our inquiry under S 26-3-203, MCA, is to determine the effect of the judicial record in the sister state, and to give it the same effect in this state if it is otherwise valid. The Alaska court has determined that its rule permitting long-arm service on nonresident defendants comports with due process. It has stated: It is not enough that the legislature has asserted jurisdiction over appellee in the circumstances of this case. The constitutional requirements of due process of law must also be satisfied before jurisdiction will exist. Before a binding judgment in personam could be made against appellee, the due process clause of the federal constitution requires that appellee have sufficient contact with Alaska so as to make it reasonable and just, according to our traditional conception of fair play and substantial justice, to permit the state to enforce the obligations which appellee has allegedly incurred. Northern Supply, Inc. v. ~urtiss- right Corporation (Alaska 1965), 397 P.2d 1013, 1017. The presence of Joseph R. ~ e w i s in Alaska during his marriage, during which time he performed the acts which gave rise to his eventual liability to his former wife constitutes sufficient contact with Alaska to make the binding judgment reasonable and just and in conformance with notions of fair play and substantial justice. ~nternational Shoe Company v. Washington (1945), 3 2 6 U.S. 310, 3 2 0 , 6 6 S.Ct. 154, 90 L.Ed. 95, 104. Joseph R. Lewis also contends in this appeal that a copy of the judgment was not mailed to him as required by the Alaska Rules of Civil Procedure. However, the same rule also provides that such mailing must be made if the address of the defendant is known. In this case, his address was not known. Moreover, this is an issue that is raised for the first time on appeal. Wyman v. DuBray Land Realty (~ont. 1988), 752 - We affirm the ~istrict Cour | October 30, 1989 |
a39de583-fa5b-472c-9b5b-4d14445045bf | MILK RIVER PRODUCTION CREDIT ASS N | N/A | 89-240 | Montana | Montana Supreme Court | No. 89-240 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 MILK RIVER PRODUCTION CREDIT ASSOCIATION, a federal instrumentality, Plaintiff and Respondent, -vs- BIG HOOK LAND & CATTLE COMPANY, a Montana corp.; HAROLD GOOLSBEE, JR., ALYCE GOOLSBEE; SHERLEE T. GRAYBILL; GRAYBILL, OSTREM, WARNER AND CROTTY; JOHN H. LEEDS, D.V.M., Defendants and Appellants. BIG HOOK LAND & CATTLE CO., et al., Counterclaimants and Third-Party Plaintiffs and Appellants, -vs- MILK RIVER PRODUCTION CREDIT ASSOCIATION, a federal instrumentality, Counterclaim Defendants and Third- Party Defendants and Respondents. APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable John Warner, Judge presiding. COUNSEL OF RECORD: For Appellant: Leo Graybill, Jr.; Graybill, Ostrem, Warner & Crotty, Great Falls, Montana For Respondent: Gary S. Deschenes; Alexander, Baucus & Linnell, Great Falls, Montana Filed: Submitted on Briefs: Aug. 31, 1989 J ) e . c i d e d : October 25, 1989 Justice Fred J. Weber delivered the Opinion of the Court. Defendants Harold and Alyce Goolsbee appeal a grant of partial summary judgment entered against them by the Twelfth Judicial District Court, Hill County, Montana. Because the partial summary judgment was not a final order and was not certified to this Court pursuant to Rule 54 (b) , M.R.Civ.P., we dismiss the appeal without prejudice. On November 14, 1985, Milk River Production Credit Association (Milk River PCA) brought a foreclosure action against Big Hook Land and Cattle Company, Harold and Alice Goolsbee, and several other defendants. The Goolsbees filed an answer and counterclaim in February 1986, alleging a breach of the duty of good faith and fair dealing, the need for an accounting, nonconsideration for subordination of mortgage, and other assertions. On March 4, 1986, Milk River PCA moved to strike affirmative defenses and to dismiss counterclaims. This motion was granted after oral argument. Milk River PCA then filed a motion for summary judgment against all defendants on September 29, 1986. After a hear- ing on this motion in October 1986, the District Court ruled from the bench that summary judgment would be granted against all defendants. The day after the hearing Big Hook Land and Cattle Company filed for bankruptcy. No written order was ever filed against any party at that time. Over two years later, on January 18, 1989, the District Court entered partial summary judgment against defendants Harold Goolsbee and Alyce Goolsbee. No order has been en- tered against any defendant other than the Goolsbees. Fur- ther, the Goolsbees did not request that the District Court certify the order pursuant to Rule 54(b), M.R.Civ.P. On appeal the Goolsbees raise issues regarding certain discovery rulings by the District Court. They also allege that the District Court erred in dismissing defendants' defenses and counterclaims by determining that the state court did not have jurisdiction since Milk River PCA is a federal instrumentality. We do not reach these issues since we conclude that the Goolsbees' appeal is premature. An appeal may he taken from a "final order," Rule 1, M.R.App.P., or the district court may certify an order for appeal pursuant to Rule 54 (b) , M.R.Civ.P., which states: Judgment upon multiple claims or involving multiple parties. When multiple claims for relief or multiple parties are involved 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 express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however desig- nated, 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 other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. This Court has repeatedly emphasized that a judgment which leaves undetermined the liability of one or more defen- dants cannot be appealed unless it is expressly made final upon a determination that there is no just reason for delay. Roy v. Neibauer (1980), 188 Mont. 81, 85, 610 ~ . 2 d 1185, 1188. Appellants urge that Milk River PCA has treated this as a final order in that this Montana judgment has been entered in California against the Goolsbees. They contend that Milk River PCA is therefore estopped from raising the certifica- tion issue. Appellants misunderstand the certification requirement. It is not a mere formality, as stated in the recent case of McDonald v. Unirex, Inc. (1986), 221 Mont. 153, 154-55, 721 P.2d 302, 303: We dismissed the appeal in Neibauer because no attempt was made to comply with the certification requirements of Rule 54(b). In that case, as an aid to practitioners, we set out the factors which we will consider in reviewing a Rule 54(b) certifi- cation. Since that time, we have refused to con- sider several appeals in which the certification requirements were partially, but not adequately met. Montana practitioners are held on notice that the Rule 54 (b) certification requirement is not viewed by this Court as a mere formality, but as a necessary and valuable tool for preventing piece- meal litigation and waste of the resources of both litigants and the courts. (Citations omitted. ) Accordingly, this appeal i t prejudice. | October 25, 1989 |
45993e72-a930-4960-b065-8adf70b0a07a | STATE COMPENSATION INSURANCE FUND | N/A | 89-072 | Montana | Montana Supreme Court | N o . 8 9 - 7 2 I N THE SUPREME COURT OF THE STATE O F MONTANA 1 9 8 9 STATE COMPENSATION INSURANCE FUND, A p p e l l a n t , -vs- SKY COUNTRY, I N C . , R e s p o n d e n t . 0 5 r0 APPEAL FROM: T h e W o r k e r s ' C o m p e n s a t i o n C o u r t , T h e ~ o n o r a b g T i w t h y R e a r d o n , Judge presiding. COUNSEL O F RECORD: For A p p e l l a n t : C h a r l e s A d a m s , S t a t e Comp. I n s . Fund, H e l e n a , M o n t a n a For R e s p o n d e n t : John P. A t k i n s ; B r y a n & A t k i n s , B o z e m a n , M o n t a n a For A m i c u s C u r i a e : 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 C l a y R. S m i t h , S o l i c i t o r , 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 : A u g . 31, 1 9 8 9 D e c i d e d : O c t o b e r 1 7 , 1 9 8 9 Justice John Conway Harrison delivered the Opinion of the Court. This appeal results from a lengthy administrative process which culminated in the Workers' Compensation Court. Respondent Sky Country, Inc., a Bozeman trucking firm, contested a finding by the Audit Bureau of the Department of Labor and Industry concluding that several of its drivers classified as "independent contractors" were actually "employees" for Workers' Compensation insurance purposes. Further administrative proceedings affirmed the Audit findings, and Sky Country sought judicial relief in the Workers' Compensation Court. The Workers' Compensation Court held that Sky Country had been denied due process of law because the Division of Workers' Compensation was the real party in interest as well as the prosecutor and adjudicator in the administrative process and reversed the administrator's decision. From that decision, the State Compensation Insurance Fund appeals. Sky Country is insured by the State Compensation Fund under Plan No. 3 of the Workers' Compensation Act, as prescribed in S 39-71-2301, et s e q . , MCA. Following a February 1986 audit, the Department of Labor and Industry concluded that, for purposes of reporting for workers' compensation and unemployment insurance, certain individuals were employees rather than independent contractors. Because the workers were reclassified as employees, it was determined that Sky Country owed an additional $2,907.59 for premium underpayment for its workers' compensation insurance from July 1, 1984 through June 30, 1985. In September 1986, Sky Country requested an administrative review of the audit determination. Upon review, which included an informal conference, the administrator of the Division of Workers' Compensation agreed with the audit finding that the individuals were employees rather than independent contractors. Sky Country next initiated contested case proceedings under the Montana Administrative Procedure Act, found at Title 2, Chapter 4, Part 6, MCA. In May 1987, an evidentiary hearing was held before Steven Shapiro, a hearing examiner and chief legal counsel for the Workers' Compensation Division. Shapiro's findings were also adverse to Sky Country. The administrator of the Division of Workers' Compensation issued the Division's Final Order which adopted the hearing examiner's proposed decision. Sky Country then sought relief in the Workers' Compensation Court, filing a Petition for Appeal in September, 1988. Of the various grounds for reversal, Sky Country's assertion that it was denied due process because the Workers' Compensation Administrator's decision was "tainted by the pecuniary interest the [Workers1 Compensation] Division has in the outcome" persuaded the Workers' Compensation Court. The Workers' Compensation Court reversed, holding that Sky Country had been denied due process of law in violation of Article 11, Section 17, Mont. Const. (1972) "because the Division of Workers' Compensation is the real party in interest . . . as well as the prosecutor and adjudicator [ . I " The Workers' Compensation Court explicitly noted that there was no evidence that either the hearing examiner or the Workers' Compensation Administrator exhibited "any improper, arbitrary conduct in the hearing and decision-making process." The issues presented by the parties to this action focus on whether Article 11, Section 17 of the Montana Constitution barred the Division of Workers' Compensation from assuming jurisdiction of the underlying dispute concerning the employment status of the individuals working for Sky Country. Through an amicus curiae brief, the Montana Attorney General proffers a second, and we think more compelling, issue: Does 5 39-71-415, MCA, require that the administrative proceeding be transferred from the Division of Workers' Compensation to the Appeals Bureau of the Department of Labor and Industry as of July 1, 1987, thereby denying the Workers' Compensation Court jurisdiction to determine the appeal from such proceeding? Although the controversy over the status of Sky Country's workers arose before the effective date of $ 39-71-415, MCA, the statute nonetheless applies to this dispute. Section 39-71-415, MCA, which became effective on July 1, 1987, provides a procedure for resolving disputes regarding independent contractor status. Section 39-71-415 (I), MCA, states: (1) If an individual, employer, or insurer has a dispute as to whether an individual is an independent contractor or an employee as defined in this - chapter, any party may petition a department of labor and industry appeals referee for resolution of the dispute in accordance with 39-51-1109 and may appeal from a decision of the appeals referee in the same manner as prescribed in 39-51-2403 and 39-51-2404. The legislative intent is to create a single administrative procedure for settling disputes over the status of workers as employees or independent contractors for both unemployment compensation and workers' compensation purposes. February 17, 1987, Minutes of Senate Labor and Employment Relations Committee at 1-4; March 13, 1987, Minutes of House Business and Labor Committee at 2-3. Sky Country's quarrel with the audit finding that its workers were employees for insurance purposes fits squarely within the intent of 5 39-71-415, MCA. Section 1-2-109, MCA, provides that "[nlo law contained in any of the statutes of Montana is retroactive unless expressly so declared." New legislation, such as in this case, which affects only procedural matters and does not relate to substantive rights of the parties does not fall within the ambit of § 1-2-109, MCA. Weiss v. State (1986), 219 Mont. 447, 449, 712 P.2d 1315, 1316. The status of a worker as to whether he is an independent contractor or an employee implicates more than just collection of workers' compensation premiums. It also involves the rights of the State to collect unemployment compensation contributions and has other State and Federal implications. Accordingly, a procedure before the Department of Labor was established by the legislature for a more comprehensive examination of the status of such workers. We conclude this is the appropriate procedure to follow. We now remand and direct the controversy be resolved in accordance with the provisions of S 39-71-415, MCA. This matter is remanded to the Workers' Compensation Court which shall vacate its order and dismiss the appeal. The Division of Workers' Compensation shall then vacate its final order and transfer the matter to the Department of Labor and Industry for disposition, in accordance with 55 39-71-415 and 39-51-1109, MCA, consistent with this opinion. W e concur: A i e f J u s t i c e ' J u s t i c e s | October 17, 1989 |
32a1f1f3-7152-406f-a8be-e71a064329f2 | BURLINGTON NORTHERN INC v MONTA | N/A | 89-170 | Montana | Montana Supreme Court | No. 8 9 - 1 7 0 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 BURLINGTON NORTHERN, I N C . and BURLINGTON NORTHERN RAILROAD COMPANY, p l a i n t i f f s , -vs- MONTANA DEPARTMENT O F REVENUE, D e f e n d a n t and R e s p o n d e n t , -vs- BURLINGTON NORTHERN RAILROAD COMPANY EMPLOYEES, Intervenor p l a i n t i f f s and A p p e l l a n t s APPEAL FROM: ~ i s t r i c t C o u r t of the ~ i r s t ~ u d i c i a l ~ i s t r i c t , I n and f o r the 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 T h o m a s C . H o n z e l , Judge presiding. COUNSEL OF RECORD: For A p p e l l a n t : arti in John ~ l i s o n , ~ a r d i n , M o n t a n a ~ i l l i a m J. P o w e l l ; P o w e l l & M o r r i s , Spokane, washington For R e s p o n d e n t : R. B r u c e M c ~ i n n i s , D e p t . of R e v e n u e , H e l e n a , M o n t a n a S t a n l e y T . K a l e c z y c ; ~ r o w n i n g , K a l e c z y c , B e r r y and H o v e n , H e l e n a , M o n t a n a S u b m i t t e d on ~ r i e f s : A u g . 3, 1 9 8 9 D e c i d e d : O c t o b e r 2 4 , 1 9 8 9 Filed: Justice John C. Sheehy delivered the Opinion of the Court. Under 49 U.S.C. S 11504(a) ( 2 ) , an interstate rail carrier is required to withhold state income tax from the pay of its employees only (1) if the employee earns from the employer more than 50 percent of his pay in the particular state or (2) if the employee is a resident of the particular state, but does not earn more than 50 percent of his pay in any one state. Under 49 U.S.C. S 11504(d), an interstate rail carrier "shall file income tax information returns and other reports only with" (1) the state of residence of the employee and (2) the state in which the withholding of income tax is required under S 11504(a) (2). We hold in this case that the Montana Department of Revenue may obtain by administrative subpoena information relating to Montana earnings from an interstate rail carrier respecting its employees although the carrier is not obliged to withhold Montana state income tax, and is not required to file Montana state income tax information returns or other reports under 49 U.S.C. S 11504. On August 25, 1988, the Department of Revenue issued an administrative subpoena to the tax manager of Burlington Northern Railroad Company, requesting Pay Report 830A for all its employees who worked in Montana for the years 1986 and 1987. Burlington Northern refused to supply informational pay reports for all such employees claiming exemption from providing tax information under 49 U.S.C. § 11504. On September 29, 1988, Burlington Northern filed an action for declaratory and injunctive relief in the District Court, ~ i r s t Judicial District, Lewis and Clark County. The Department of Revenue filed an answer to the complaint and counterclaimed for an order from the District Court directing Burlington Northern b ail road to comply with the administrative subpoena issued by the Department. On October 24, 1988, 62 ~urlington Northern employees moved to intervene. The District Court allowed intervention but limited the scope of the intervenor plaintiffs' action to the issue of whether the administrative subpoena should be quashed pursuant to 49 U.S.C. S 11504. On December 8, 1988, the District Court granted a motion for joinder of 65 additional Burlington Northern employees as intervenors. On February 22, 1989, the District Court rendered judgment, denying Burlington Northern's and the intervenors' motion to quash the administrative subpoena duces tecum, granting Department's motion for judicial enforcement of the administrative subpoena, and dismissing the complaint for declaratory and injunctive relief. From this judgment, the intervenor plaintiffs only have appealed. From the agreed facts in the pleadings, it is shown that Burlington Northern, Inc. is a corporation doing business in Montana through one or more of its wholly owned subsidiaries. Burlington Northern Railroad Company is a corporation doing a rail carrier business in interstate commerce. ~urlington Northern employees, both trainmen and maintenance persons, work both within and outside Montana. These employees are residents of various states. On August 25, 1988, the Department of Revenue issued an administrative subpoena duces tecum to Burlington Northern, directing it to produce "Pay Report 830A for 1986-1987." The subpoena was returnable on September 30, 1988. In response, Burlington Northern filed its complaint as above stated. The single issue presented for review is whether 49 U.S.C. S 11504 prohibits the state of Montana from requiring ~urlington Northern under an administrative subpoena duces tecum to provide Pay Report 830A concerning the intervenor plaintiffs, who are residents of washington, and who do not work more than 50 percent of time or track miles in Montana. ~urlington Northern employees base their argument on the Supremacy Clause, and the Commerce Clause of the united States Constitution. The state of Montana levies a state income tax upon the taxable income of its residents. Section 15-30-103, MCA. A like tax is imposed upon every person not a resident of the state on his or her net income from every business, trade, profession or occupation carried on in the state. section 15-30-105, MCA. The Montana Department of Revenue is authorized to make such rules and to require such facts and information to be reported as it may deem necessary to enforce the provisions of the state income tax laws. Section 15-30-305, MCA. On the other hand, 49 U.S.C. S 11504(a) (21, provides: A rail . . . carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission . . . shall withhold from the pay of an employee . . . only income tax required to be held by the laws of a state . . . (A) in which the employee earns more than 50 percent of the pay received by the employee from the carrier; or (B) that is the residence of the employee (as shown on the employment records of the carrier), if the employee did not earn in one state or subdivision more than 50 percent of the pay received by the employee from the carrier durlng the preceding calendar year. With respect to filing reports, 4 9 U.S.C. § 11504(d), provides : A rail . . . carrier withholding pay from an employee under [ $ 11504 (a) (2) 1 shall file income tax information returns and other reports only with-- (1) the state . . . of residence of the employee; and (2) the state . . . in which withholding of pay is required under [ $ 11504(a) (2)l. Burlington Northern employees contend that state laws or regulations permitting the issuance of an administrative subpoena to obtain state earnings information for nonresident employees are in direct conflict with the provisions of S 11504 and therefore under the Supremacy Clause of the United States Constitution, the administrative subpoena has no validity. The Supremacy Clause of the United States ~onstitution, Art. VI, Clause 2, reads: his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. When there is a conflict between federal law and the application of an otherwise valid state enactment, the Supremacy Clause requires that the federal law prevail. H a m v. City of Rock Hill (1964), 379 U.S. 306, 311-312, 85 S.Ct. 384, 389, 13 L.Ed.2d 300, 305. Burlington Northern relies on the holding in H a m and also the statement in Aloha ~irlines v. Director of axa at ion of Hawaii (1983), 464 U.S. 7, 12, 104 S.Ct. 291, 294, 78 L.Ed.2d 10, 15, where the United States Supreme Court said: [Wlhen a federal statute unambiguously forbids the States to impose a particular kind of tax on an industry affecting interstate commerce, courts need not look beyond the plain language of the federal statute to determine whether a state statute which imposes such a tax is pre-empted. Burlington Northern employees also rely on the legislative history of S 11504 when it was before Congress, con-tending that the legislative history indicates a clear intent on the part of Congress to preclude states from obtaining such tax information. There is a basic flaw in the Supremacy Clause argument posed by Burlington Northern employees in this case. It presupposes that the provisions of 5 11504 and the state income tax laws, rules and regulations are in direct conflict. That is not the case. Section 11504 directs itself to two subjects of state income taxation: when states can require interstate rail carriers to withhold taxes from their employees for application of the particular state's income tax laws; and, when the rail carrier can be required by state law to file with the state income tax information returns respecting its employees. The language of S 11504 and its legislative history clearly indicate the purpose of Congress to relieve carriers engaged in interstate commerce from the burden of withholding income taxes and providing income tax information returns to every jurisdiction over which the carrier operated regardless of the size of those earnings. Congress set out to provide, and did provide, certain minimums under which the rail carriers were not obliged to withhold income taxes for states or other governmental entities, or obliged to file income tax information returns. In setting those minimums, Congress did not intend to, and the language of the statute of S 11504 shows that it did not prohibit the states or other governmental entities from levying income taxes on earnings by employees of interstate carriers within the jurisdiction of the various governmental entities. Section 11504 directs itself only to the problem of withholding state income taxes and of filing mandatory reports by the carrier. Neither of these have a direct bearing on the power of a state or other governmental entity to levy income taxes. We hold, as did the ~istrict Court, that S 11504 does not preclude a state from obtaining payroll information through the use of a properly issued administrative subpoena. There is, therefore, no conflict to which the Supremacy Clause of the United States Constitution would apply. The intervenors also argue that enforcement of the administrative subpoena duces tecum issued by the Department of Revenue is an unreasonable burden on interstate commerce. The Commerce Clause of the united States Constitution (Art. 1, Section 8, Clause 3) provides: That Congress shall have Power . . . To regulate Commerce with foreign ~ations, and among the several States and with the Indian Tribes;. . . Again, the intervenors rely on the legislative history of 49 U.S.C. § 11504, wherein the Senate report stated that the legislation was addressed to the problem of those employees who were required by the nature of their employment to work in more than one state on a regular basis. S.Rep. No. 91-1261, 91st Cong. 2d Sess. (1970). We agree that under the Commerce Clause of the united States Constitution, a state may not enact a law or adopt procedures which unreasonably imposes a direct burden on interstate commerce or discriminates against it. Union pacific Railroad Company v. Woodahl (D. Mont. 1970), 308 F.S.upp. 1002, 1009. Senator Prouty, speaking in favor of the adolption of 5 11504 stated on the floor of the Senate on Declember 3, 1970: Nonetheless, Mr. President, the bill which you have before you, and which was agreed to in conference, is a very great step toward solving the unique tax problems of the employees of interstate common carriers and, I might add, of the carriers themselves. While it does not limit the liability of such employees, it does limit the number of - - states which may require withholding from the compensation pald to an interstate carrier employee to not more than one, and the number of states which may require the filing of information returns with respect to the compensation of such employees to not more than two. Cong. Record, December 3, 1970, at 40313. While S 11504 fixes the mandatory duties of employers engaged in interstate commerce to withhold taxes and to file reports respecting earnings in any particular state, the statute does not prohibit the furnishing of earnings information at the request of the state, or under a properly issued administrative subpoena. Since the furnishing of such information is necessary for the Department of Revenue properly to administer and apply the Montana state income tax on nonresident employees, the requirement that Burlington Northern furnish such information pursuant to the administrative subpoena cannot be an unreasonable burden on inter ce. We so hold, because for one reason, such while in Montana, enjoy the comfort and protection of Montana's civil and criminal laws, and so must share a proportionate burden of the cost of such protections. washington Rev. Dept. v. stevedoring Ass'n. (1978), 435 U.S. 734, 748, 98 S.Ct. 1388, 1398, 55 L.Ed.2d 682, 695. This Court said: The taxing power of a state is an essential power of its sovereignty (citing a case.) This power cannot be set aside or limited on weightless statements that a federal policy is being substantially frustrated. Commonwealth Edison Co., et a1 v. State of Montana (19801, 189 Mont. 191, 217, 615 P.2d 847, 861. We affirm the judgment of the District Court. | October 24, 1989 |
04ddb63d-9f7b-4d13-ba82-e325bec1c16d | MARRIAGE OF MCFATE | N/A | 89-185 | Montana | Montana Supreme Court | NO. 89-185 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF DAVID L. McFATE, petitioner and Respondent, and ROBERTA L. McFATE , Respondent and Appellant. 0 s APPEAL FROM: ~istrict Court of the ~hirteenth ~uclicial %stris, In and for the County of Yellowstone, Y J The Honorable Russell ~illner, Judge presiding. COUNSEL OF RECORD: For Appellant: Joan Meyer Nye; Nye & Meyer, Billings, Montana For Respondent : ~ e v i n T. Sweeney; Sweeney & Healow, ~ i l l i n ~ s , Montana Filed: Submitted on Briefs: Aug. 3, 1989 Decided: October 25, 1989 Justice William E. Hunt, Sr. delivered the Opinion of the Court. Appellant, Roberta L. McFate, appeals from an order of the ~hirteenth Judicial District Court, Yellowstone County, denying her motion to modify the parties' decree of dissolution to require respondent, avid R. McFate, to pay support for the parties' adult children. We affirm. The sole issue raised on appeal is as follows: When a motion for modification of child support is brought after a child turns 18 years old, does the district court have jurisdiction to modify the decree of dissolution to require child support to continue past the age of 18 if the separation agreement incorporated into the original decree provides that support shall terminate once the child reaches the age of majority or is otherwise emancipated? At the time of the dissolution of the marriage of Roberta and David McFate, the parties' twin son and daughter were 12 years old. The dissolution decree awarded custody of the two children to the mother and required the father to pay child support as follows: That petitioner [father] shall pay respondent [mother] the sum of ONE HUNDRED & N0/100THs DOLLARS ($100.00) per month per child for the support, maintenance and education of the minor children of the parties until three years from the date of this decree, at which time said amount is increased by TWENTY-FIVE DOLLARS ($25.00) per month per child. In addition to the foregoing provision for monthly support payments, the parties' separation agreement, which was incorporated into the decree, provided that support would "continu[e] until said minor children reach the age of majority or are otherwise emancipated." On November 18, 1988, the twins turned 18. Both were in high school at the time, one a senior and the other a junior. After the children's birthday, the father remitted the child support payment for November, 1988, prorating the payment through November 19, 1988. The father indicated that the prorated November payment would be his final remittance. He has not made any support payments since. On January 31, 1989, the mother filed a motion to clarify and modify child support, requesting the District Court to (a) require that the father's child support obligation for each child continue through June of each child's graduation from high school; (b) require the father to pay necessary dental work of the children; and (c) increase the amount of child support. After a hearing, the District Court denied the motion, concluding that the court lacked jurisdiction to modify the decree. The wife appealed. The statute governing modification and termination of support provides as follows: Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child . . . section 40-4-208(5), MCA. Under the statute, if provisions regarding the duration of child support are not contained in either the dissolution decree or the separation agreement, jurisdiction over child support automatically terminates when the child becomes emancipated. If, however, the separation agreement or the dissolution decree provides that child support payments shall terminate at a specific age or time, such a provision is controlling and the district court retains jurisdiction over questions of support until the terms of the agreement or decree are fulfilled. Chrestenson v. Chrestenson (1979), 180 Mont. 96, 99-100, 589 P.2d 148, 150. Once the party who owes the duty of support fulfills that obligation according to the terms of the agreement or the decree, the district court loses jurisdiction over the matter and can no longer entertain motions for modification or continuation of support. The mother points to our decision in In re the ~arriage of Bowman (1987), 226 Mont. 99, 734 P.2d 197, as authority for the proposition that the jurisdiction of the trial court continues beyond the age of majority. In Montana, the age of majority is 18. section 41-1-101, MCA. It is true that in Bowman we recognized the district court's authority to order child support to continue past the age of majority. However, such authority exists only if the district court already has jurisdiction over the matter. In Bowman, the parties executed a separation agreement providing support for the couple's youngest son. The agreement was to remain in effect until replaced by other formal legal documents. This agreement gave the trial court the jurisdiction to order the father to pay support even though the child was 18 at the time of trial. In the present case, the separation agreement incorporated into the dissolution decree did not give the District Court jurisdiction to consider questions concerning child support after the children turned 18. To the contrary, the agreement specifically provided that support payments would terminate when the twins reached the age of majority. This provision divested the ~istrict Court of jurisdiction to modify child support after the twins attained the age of 18. On appeal, the mother raises several constitutional questions, including equal protection of the law and equality of educational opportunity. his Court reserves the right to examine constitutional issues involving broad public concerns that affect the substantial rights of a litigant even if the questions are raised for the first time on appeal. Cottrill v. cottrill Sodding Serv. (Mont. 1987), 744 P.2d 895, 896, 44 St-Rep. 1762, 1763. In this case, however, we decline to address the mother's constitutional issues. We base our refusal to examine these issues on the fact that the mother merely raises the questions in a conclusory manner; she fails to argue them. It is the duty of the parties to brief and argue the issues they raise. his Court is not obligated to make their arguments for them. ~f f irmed. -+ | October 25, 1989 |
9b0719c0-ea32-4e6a-9a5d-5bc1390af12f | ZUGG v RAMAGE | N/A | 89-137 | Montana | Montana Supreme Court | No. 89-137 IN THE SUPREME COURT OF THE STATE OF MONTANA -" * . f . i 5 C ' - . CI E. NEVEN ZUGG AND SCOTT SYME, f . -- II - -1 Plaintiffs and Appellants, I I - - - -vs- . - - _ * .. , JOHN RAMAGE, M. RODNEY YOUNG, et al., $-_A Defendants, Cross-Appellants and Respondents. r A? L J 1 APPEAL FROM: ~istrict Court of the ~ineteenth ~udicial ~istrict, In and for the County of Lincoln, The Honorable Robert Keller, Judge presiding. COUNSEL OF RECORD: For Appellant: Channing J. ~artelius; ~artelius, Ferguson & Baker, Great Falls, Montana William A. Douglas; Douglas & sprinkle, ~ibby, Montana For ~espondent/Cross-Appellant: Kenneth E 0'~rien; Hash, 0'~rien & Bartlett, ~alispell, Montana Paul C. Meismer; Garlington, Lohn & ~obinson, Missoula, Montana Submitted on Briefs: June 30, 1989 Decided: September 21, 1989 Filed: Chief Justice J. A. Turnage delivered the Opinion of the Court. This suit arose out of a sale of commercial real estate in Lincoln County, Montana. In a trial in the District Court of the Nineteenth Judicial District, the jury returned a verdict against defendant John Ramage for $400,000 in compensatory damages and $300,000 in punitive damages. The court entered a directed verdict for defendant M . Rodney Young. Plaintiffs appeal from the directed verdict and denial of their motion for a new trial as to defendant Young. Ramage appeals from the judgment against him. We affirm the judgment as to defendant Ramage and reverse and remand as to defendant Young. The issues raised by plaintiffs are: 1. Did the trial court err in denying the motion for a new trial and granting a directed verdict as to defendant Young? 2. Did the trial court err in granting defendant Young's motion in limine to exclude all evidence of his resume, financial statement, bankruptcy petition and character? Defendant Ramage raises the following issues: 3 . Did the trial court err in denying Ramage's motion for a directed verdict and for a judgment notwithstanding the verdict? 4. Did the trial court err in permitting plaintiff Zugg to testify as to the 1983 value of the property? 5. Did the trial court err in permitting Jacqueline Tisher to testify concerning the 1983 value of the resort improvements and lease? 6. Did the trial court err in instructing the jury on the claim of emotional distress? 7. Is the award of punitive damages so excessive as to give rise to a presumption that they were awarded as a result of passion or prejudice? On May 4, 1984, Neven Zugg and Scott Syme entered into an agreement to purchase the Koocanusa Resort in Lincoln County, Montana, for $660,000. On December 6, 1985, they filed their complaint in this suit, alleging that in selling them the resort, the defendants had misrepresented its income and condition. Defendant John Ramage was the seller of the resort. Defendant M. Rodney Young was the realtor who made the sale. At trial, plaintiffs presented evidence that they had been misled verbally by both Ramage and Young and in a brochure prepared by Ramage to believe that the resort had grossed $150,000 in income in 1983. In contrast, Ramage1s 1983 income tax return reported gross income on the resort of only $94,762.03. The Forest Service leased land to the resort and required annual income reports on the resort. Ramage's 1983 report to the Forest Service showed gross income of only $59,847.51. The plaintiffs testified that they had originally asked to see the books of the resort for the previous year, but they signed an agreement waiving production of the books after Ramage told them that the books could not be found. Plaintiffs testified that Ramage guaranteed them that the resort would do $150,000 worth of business in 1984, but Zugg testified that it only did $96,000 worth of business that year, despite plaintiffs1 best efforts. Plaintiff Zugg also testified at trial that his purchase of the resort was only possible if he first sold a sports complex and motel he owned in Plentywood, Montana. He testified that he was induced to enter the contract to buy the resort by defendant Youngls purchase of the sports complex and motel. Young later defaulted on that contract, and the sports complex and motel were returned to Zugg. I Did the trial court err in denying the motion for a new trial and granting a directed verdict as to defendant Young? Plaintiffs argue that entry of a directed verdict as to defendant Young was improper. They cite the standard that a directed verdict should only be granted when, viewing the evidence in the light most favorable to the nonmoving party, reasonable persons could not differ as to the conclusions to be drawn from the evidence. They assert that they presented evidence that Young negligently failed to conduct a proper investigation as to certain facts about the resort, negligently misrepresented material facts, and committed constructive fraud. Zugg and Syme both testified that they relied upon Young's representations about the resort because he held himself out as an experienced and able investment analyst. It was undisputed that Young made no efforts to confirm Ramage's representations about the income of the resort. Yet plaintiffs testified that he repeatedly told them that the income figures in the brochure prepared by Ramage could be relied upon. Plaintiffs had a real estate broker testify that Young should have checked out Ramage's representations about the resort's income as part of his duty to prospective buyers. Zugg testified that Young provided them with a financial statement about himself as he prepared to purchase Zugg's Plenty- wood property, but that he did not disclose that he was borrowing money from Ramage to fund the purchase. We conclude that the plaintiffs presented sufficient evidence of Young's negligence and constructive fraud that these issues should have been presented to the jury. We therefore remand this case to the District Court for retrial as to defendant Young. I1 Did the trial court err in granting defendant Young's motion in limine to exclude all evidence of his resume, financial statement, bankruptcy petition and character? Plaintiffs maintain that the charge of fraud brings Young's character directly in issue. They argue that they should have been able to inquire into Young's character by presenting evidence of his financial condition and contrasting that with his representa- tions to them about his financial capabilities. They therefore assert that granting Young's motion in limine to exclude such evidence was error. Questions of the admissibility of evidence are left largely to the discretion of the trial court, which will be overturned only in cases of manifest abuse of that discretion. Britton v. Farmer's Ins. Group (1986), 221 Mont. 67, 86, 721 P.2d 303, 315. We refuse to disturb the District Court's ruling on this issue. We do note that counsel may wish to try to introduce some or all of this evidence on retrial. Did the trial court err in denying Ramage's motion for a directed verdict and for a judgment notwithstanding the verdict? Ramage argues that plaintiffs did not prove the following elements necessary to establish a claim of fraud: reliance, right to rely, and damages. Ramage asserts that plaintiffst lack of reliance on his representations about the income of the resort was demonstrated by Zuggfs request that his accountant be allowed to analyze the books. Ramage also notes that plaintiffs successfully bargained for Ramage's guarantee that if there was not at least a $150,000 gross income for 1984, he would grant a $14,000 refund of the purchase price. Ramage claims that the absence of a right to rely was shown by the Itred flagn of the missing books, which he says Young should have recognized. Also, he brings up the plaintiffs' failure to get financial information on the resort from the Forest Service. Finally, Ramage asserts that plaintiffs failed to submit evidence of the fair market value of the property, which was necessary to calculate damages. Both Zugg and Syme testified at length about their reliance on Ramage's representations and assurances of the income of the resort property. They both testified that Ramage strongly discouraged them from asking questions directly of Forest Service persons and told them that any questions directed to the Forest Service should go through him. The question of plaintiffst right to rely on the representations of a seller of real property about the property is, we believe, peculiarly in the province of a jury. Zugg testified as to the value of the property. This testimony is discussed below under issue IV. After reviewing the record, we conclude that there was sufficient evidence to support submitting the issue of fraud to the jury and to support the jury's verdict. IV Did the trial court err in permitting plaintiff Zugg to testify as to the 1983 value of the property? Over Ramage's objection, Zugg was allowed to give his estimate of the value of the resort. Ramage maintains that although an owner may testify as to the market value of his property, Zuggts testimony was not reasonable and should not have been allowed. This Court has recognized the right of a landowner to testify as to the value of his property. State Highway Commission v. Marsh (1974), 165 Mont. 198, 202-03, 527 P.2d 573, 575. The record indicates that Zugg based his valuation of the resort on cash flow during the time he and Syme owned it. The District Court accepted this as reasonable. Ramage was allowed to present his own testimony of the value of the resort, so that the jurors were not left with Zuggls opinion alone. We find no cause to disturb the court's ruling in permitting Zugg to testify about the resort's value. v Did the trial court err in permitting Jacqueline Tisher to testify concerning the 1983 value of the resort improvements and lease? Jacqueline Tisher, the Lincoln County appraiser, testified for plaintiffs, giving her valuation of the resort for the year 1983. Ramage argues that because her valuation was based upon 1978 and 1972 figures, it was inaccurate and should not have been allowed into evidence. Also, Ramage asserts that it was not established that Tisher was qualified to testify as an expert about the resort's value. The determination of whether a witness is qualified as an expert is within the discretion of the trial court. State v. Berg (1985), 215 Mont. 431, 433, 697 P.2d 1365, 1366-67. Jacqueline Tisher testified that she had been the appraiser for the county since 1974. Her testimony indicated that she did numerous property appraisals in Lincoln County each year. Although she testified that she used a 1978 value and a 1972 market, Tisherls estimate of market value was then calculated to reflect what the property was worth in 1983. We hold that the ~istrict Court did not err in permitting Tisher to testify. VI Did the trial court err in instructing the jury on the claim of emotional distress? Ramage argues that there was insufficient evidence to support an award of damages for emotional distress. Specifically, he claims that there was no evidence that plaintiffs' emotional distress was severe and that there was no showing of a substantial invasion of a legally-protected interest, as required to support damages. See Johnson v. Supersave Markets, Inc. (1984) , 211 Mont. 465, 686 P.2d 209. Zugg testified that he had to go to the doctor for chest pains as a result of his experience with the resort. He also testified that he had worries because of no longer being financially stable and that he had suffered a lot of sleepless nights. Syme testified that he had been forced to borrow money from his grandfather and had not been able to pay it back, transforming a Itreal goodn1 relationship into a shaky one. He also testified that he had become cranky a lot and had lost sleep over the situation. Although the amount of evidence of emotional distress is close to the line in this case, we conclude that this testimony was sufficient to support submission of the issue of emotional distress to the jury. VII Is the award of punitive damages so excessive as to give rise to a presumption that they were awarded as a result of passion or prejudice? Ramage claims that the $300,000 in punitive damages awarded by the jury is so excessive in relation to his negative net worth, of which the jury was aware, as to shock onels conscience. However, defendant I s net worth is only one of the factors to be considered in reviewing an award of punitive damages. Section 27- 1-221, MCA. In light of all the evidence presented, including that on the extent to which plaintiffs were damaged and the manner in which they were defrauded, we do not find the award of punitive damages excessive. Affirmed in part and reversed and remanded as to defendant Young . We concur: | September 21, 1989 |
2e43e078-036c-4a02-bfd8-5a19da3934fb | STATE v MIX | N/A | 88-274 | Montana | Montana Supreme Court | No. 88-274 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 STATE OF MONTANA, Plaintiff and Respondent, -VS- CODY MIX, Defendant and Appellant. APPEAL FROM: District Court of the Sixteenth Judicial gistrict, In and for the County of Rosebud, i The Honorable Alfred R . Coate, Judge presiding. COUNSEL OF RECORD: For Appellant: James G. Hunt, Helena, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Peter Funk, Asst. Atty. General, Helena Marvin Quinlan, County Attorney, Forsyth, Montana Gary A. Ryder, Deputy County Attorney, Forsyth, Montana Submitted on Briefs: July 7, 1 9 8 9 Decided: October 16, 1989 Filed: Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the Sixteenth Judicial District, Rosebud County, Montana, of a conviction of deliberate homicide, a felony, following a jury trial. The appellant appeals his sentence of 100 years for the deliberate homicide and an additional ten-year sentence for the use of a weapon in the commission of the crime. We affirm. On September 2, 1987, the body of Sarah Sloan was found on the banks of the Yellowstone River near the town of Forsyth, Montana. Investigating officers found that the victim's body had suffered numerous chest wounds. In addition they found considerable evidence around the body including a fresh tire track, a fresh shoe print, a bloody fingerprint, and drag marks which indicated that the victim's body had been dragged from a vehicle to the spot on the river bank. Because the romantic relationship between the victim and the appellant was well known in the small town of Forsyth, officers went to the appellant's residence. There they observed the tires on the appellant's car were similar to the tire tracks found by the victim's body. The officers also observed what appeared to be blood on the ground near the car. As a result of this investigation, the appellant was questioned early that afternoon. He was later released by local officials. On September 4, 1987, a search warrant was obtained for the appellant's residence and car. As a result of this search, and based upon the observations of the investigating officers, the appellant was arrested later that day and charged with deliberate homicide. Following his arrest, the appellant maintained his innocence, claiming he and the victim had been drinking at several bars, b.ut they had parted company in the early hours of September 2, 1987, following a minor argument. On September 21, 1987, counsel for the appellant filed a Notice of Intent to rely upon the defense of mental disease or defect. Thereafter the appellant was committed for psychiatric examination. After undergoing several months of pretrial psychiatric evaluation, the appellant returned for trial. He testified at trial that some time in January of 1988 he began to regain his memory. At that time, he admitted he caused the death of Sarah Sloan but claimed he acted in self-defense. The evidence indicates appellant and Sarah had visited several bars during the evening of September 1, 1987, before they returned to his address about 1 o'clock the following morning. Appellant testified that in preparing to go to bed, he was in the process of taking off his shoes when Sarah attacked him with a plastic fan base. He further testified that he went out of his bedroom and down the hall as Sarah continued to hit him about the head and neck. Appellant testified he proceeded to the kitchen where he picked up a knife from the kitchen sink and stabbed her in the chest. He further testified that after the initial stabbing, Sarah continued to attack him in the same manner, and he continued to stab her until she collapsed. At trial, Dr. K.H. Mueller, the pathologist who performed the autopsy, testified that the victim's death was caused by five stab wounds to her chest area. He testified one of the wounds was inflicted with enough force to pierce the victim's sternum and another was deep enough to penetrate her spine. In addition, Sarah had multiple blunt force facial injuries and a defensive knife wound on one hand. Appellant testified at trial that after the stabbing, he dragged Sarah out to his car, drove to an area by the Yellowstone River, dumped Sarah's body and returned to his home. He testified he then cleaned the kitchen floor, rinsed off the knife used to kill Sarah and went to bed. Various law enforcement officials who testified stated that some twelve hours after the alleged confrontation, the appellant showed no signs of having been in a life-and-death struggle and that he made no mention of Sarah's attack on the night of the crime. In addition, the appellant's home showed no signs of a violent struggle. An investigating officer testified that the plastic fan base allegedly used by Sarah in the claimed attack on the appellant did not contain her fingerprints. Appellant testified at trial that the fan base was essentially undamaged. During the trial, appellant attempted to establish that Sarah was an aggressive, domineering and impulsive woman. The State submitted rebuttal testimony to establish that the appellant had beaten Sarah in the past and that she was afraid of his propensity for violence. Five issues are presented on appeal: 1. Whether the trial court committed reversible error when it did not grant appellant's motion for mistrial based on the prosecution's opening statement. 2. Whether the trial court committed reversible error when it allowed three prosecution rebuttal witnesses to testify to an alleged prior act of appellant. 3. Whether the trial court committed reversible error when it denied the admission of certain medical records of the victim. 4. Whether the trial court committed reversible error when it denied the admission of a statement allegedly made by the victim. 5. Whether the trial court committed reversible error when it allowed the prosecution's forensic scientist to testify as an expert about the velocity and direction of blood splatters found in appellant's kitchen, and when it allowed an investigating officer to testify that the location of the victim's death evidenced a struggle. As to the first issue, the appellant alleges that three improper comments were made by the deputy county attorney, comments which were highly prejudicial, made in bad faith and each statement was so prejudicial to the appellant that a mistrial was warranted. The statements referred to, made by the deputy county attorney in his opening statement, are as follows: On September 2nd, 1987, the body of Sarah Sloan was found discarded along the banks of the Yellowstone River, west of Forsyth. That very day, the Defendant was arrested for murder and twice denied any involvement. On January 15th, 1988, for the first time, he filed a notice of self defense. This was approximately 135 days after the body of Sarah Sloan was found. To be very honest with you, I was surprised when [appellant's attorney] told the jury, during selection . . . At this point appellant's attorney objected, to which the District Judge sustained the objection and advised that "Counsel will be restricted to their opening statement as to facts that they intend to prove and not what Counsel was surprised at." The second comment cited by appellant as the basis for reversal, was also stated during the prosecution's opening statement: The man sitting at the Defendant's table, at this point, is presumed to be innocent. He has the right to a jury trial, he has a right to remain silent, he has the right to a court appointed counsel. The third statement made by the counsel for the prosecution during his opening statement, to which appellant's attorney objected and which is the final basis of claimed error, is the following: After reviewing this evidence, you will have decisions to make, whether this Defendant is mentally ill, you'll be instructed on the law in that area. Whether the Defendant was acting . . . It is appellant's contention that the first statement regarding the delayed notice of a theory of self-defense is both an improper comment on the appellant's silence and is prohibited by Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; and Chapman v. California (19671, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. It is appellant's position that any reference made to a delay of notice of filing a theory of defense; the fact that he had court appointed counsel; the defense of mental defect or disease; and finally the cumulative effect of improper statements made during trial, all necessitate a reversal of his conviction. In State v. Johnson (Mont. 1988), 760 P.2d 760, 45 St.Rep. 1653, this Court spoke to the problem of improper remarks made by counsel during trial. The Johnson opinion reviewed Griffin, supra, and a number of cases which previously discussed this problem in Montana including State v. Gladue (1984), 208 Mont. 174, 677 P.2d 1028; State v. Wilkins (Mont. 1987) 746 P.2d 588, 44 St.Rep. 1794; and State v. Gonyea (Mont. 1987), 730 P.2d 424, 44 St.Rep. 39. In those cases this Court has warned the prosecution and discussed the risk of reversal in the event the prosecution makes improper comments either in opening statements or in witness examinations. The appellant notes, and we agree, that only overwhelming direct evidence against a defendant prevents these kinds of remarks from becoming reversible error. The comments by the prosecution were improper and unnecessary to the trial of this case. While the record does not suggest any intentional comment was made regarding the change of defense or the silence of the defendant, we conclude the remarks were objectionable. In view of the compelling evidence, and with no significant contradictory evidence, we find there was no need for any comments of the nature referred to above. We again admonish counsel not to comment, even indirectly, on the silence of the accused. Having found these remarks objectionable, we must consider the Chapman rule to determine if the error was harmless beyond a reasonable doubt. The testimony evidence submitted by the State, including the extensive and unrebutted testimony of all of the witnesses, including the testimony of the appellant, clearly established the appellant's guilt. We will not address all of the evidence of this crime. The evidence clearly indicates an unprovoked attack on Sarah, and that in all probability, any one of the five stab wounds could have caused her death. We emphasize here that the evidence of appellant's guilt is overwhelming. The District Court gave numerous instructions during the course of the trial concerning the State's burden of proof. The admonition to the jury concerning the remarks made following the motion for mistrial shows the trial court's effort to impress upon the jury the right of the defendant to remain silent. We conclude that the evidence in this case was so overwhelming that the comments can be classified as harmless error beyond a reasonable doubt. In so doing we uphold the District Court's denial of a motion for mistrial. The second issue is whether the District Court erred when it allowed rebuttal witnesses to testify to an alleged prior act of appellant. As part of his defense, the appellant testified that his general character is one of a peace loving man who found it necessary to kill Sarah Sloan because she had viciously attacked him without provocation. As a result of the extreme force used by Sarah, the appellant claimed it was necessary for him, in self-defense, to pick up a knife and stab her five times to protect his own life. Anticipating this defense, the State filed a Just notice in advance of the trial, (State v. Just (1979), 184 Mont. 262, 602 P.2d 9571, and a precautionary instr.uction was given at the time of the introduction of the claimed improper evidence, and another precautionary instruction was read to the jury at the end of the trial. Testimony objected to by appellant was that of the prosecution's rebuttal witness, Lois Taylor: Q Do you recall an incident on May 20, 1987, concerning papers that she [Sarah] had drawn up? A I don't know what date it was but I know that I had -- she come into the cafe with some papers. There ' d been something happen the night before, the police had been called. So she came in and she had her three days off and she came in and she was very upset and she said, "Lois, would you -- [Defense counsel] : Objection, hearsay. Q Okay, Lois, if you could just explain what she did -- A Okay, she handed me some papers and asked if I would take -- [Defense counsel] : Obiect as hearsay. THE COURT: Anything that she said is hearsay and the objection will be sustained. Our review of the transcript shows this is the only statement, within the meaning of Rule 801, M.R.Evid., made by any of the witnesses identified by the appellant as having testified to hearsay. The testimony at issue was properly admissible as evidence of "other crimes," and was properly admissible under Rule 404(a) ( I ) , M.R.Evid., and did not include inadmissible hearsay. The objection of the defense was first apparent and contests basically what was admitted as evidence, claiming that the evidence of "other crimes" should have been excluded; second the appellant contests the evidence was hearsay and should have been excluded. This Court has long recognized the principle embodied in Rule 404(b), M.R.Evid., which provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, - however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake - or accident. (Emphasis a d d e d . ) The admissibility of such evidence is also governed by specific substantive and procedural rules. Those substantive requirements are: (1) similarity between the crime charged and the previous crime testified to; (2) nearness in time between the crimes charged and the previous crime; ( 3 ) tendency to establish one of the purposes detailed in Rule 404(h), Montana Rules of Evidence; and (4) determination that the probative value of the evidence outweighs any potential prejudice to the defendant. State v. Jensen (1969), 153 Mont. 233, 239, 455 P.2d 631, 634. The procedural requirements are: (1) notice to the defendant prior to trial that evidence of other crimes, wrongs or acts will be introduced; (2) an admonition by the judge to the jury when the evidence is introduced that it is admitted solely for one or more of the accepted purposes stated in Rule 404 (b) ; and (3) a cautionary jury instruction providing that the evidence is admitted for the purpose earlier stated and not to try and convict the defendant for prior wrongful conduct. Just, 184 Mont at 274, 602 P.2d at 963-64. Had the challenged evidence been introduced in the prosecution's case-in-chief, the above substantive and procedural requirements would strictly apply. Here, however, the appellant was accused of the deliberate homicide of Sarah Sloan, and the evidence admitted concerned an alleged assault by the appellant on Sarah within six months of the homicide. Appellant had already denied any aggressive tendencies on his part toward the victim. Such evidence on rebuttal bore out his potential intent, knowledge, and absence of mistake or accident. In addition, the evidence was extremely probative as the appellant's self-defense claim was based on his characterization of the victim as an aggressive, impulsive, domineering person. Under these circumstances, such evidence can hardly be viewed as prejudicial given the nature of the appellant's defense. Rule 404(a), M.R.Evid. While the precautionary instruction given at the time the evidence was admitted did not conform exactly to that suggested in Just, we do have both pretrial notice and a final jury instruction which are in strict compliance with all procedural requirements set forth in Just. In addition, this Court has clearly stated that any procedural irregularities occurring after the prosecution gives notice under Just will not be grounds for reversal unless objected to by a defendant. Here, no such objection was made. As previously noted, the appellant's testimony opened the door regarding his peaceful character. The prosecution had every right to delve into evidence which tended to discredit the appellant's version of the critical events and his peaceful character, even if such evidence involved "other crimes." See, State v. Austad (1982), 197 Mont. 70, 641 P.2d 1373; State v. Stroud (1984), 210 Mont. 58, 683 P.2d 459; and State v. Kutnyak (1984), 211 Mont. 155, 685 P.2d 901. In each of those cases, the defendants were charged with violent offenses and when they testified on their own behalf, they claimed, one way or another, to be generally peaceful people. In each of those cases, the prosecution, as a part of its rebuttal, presented evidence to counter such an assessment, some of which focused on each defendant's involvement in "other crimes" of a violent nature. This Court has consistently held that such evidence was not subject to the traditional Jenson-Just analysis, but rather was admissible under Rule 404 (a) (l), M.R.Evid. We note that however objectionable the testimony may have been because it was conclusory in nature, it, with the exception of the one exchange previously quoted (Lois Taylor's testimony), it is clearly not hearsay and any other objection based on its conclusory nature has been waived. See, S$ 46-20-104 (2), and 46-20-701(2), MCA. We fail to understand how these two examples of technical hearsay, which occurred during the examination of Taylor may have prejudiced the appellant. Section 46-20-701(1), MCA. The third issue raised by the appellant is whether the trial court committed reversible error when it denied the admission of the victim's medical records. The trial court refused to admit certain medical records of the victim from the Veterans' Administration Hospital of Miles City, Montana. According to the appellant, those medical records documented the violent and turbulent character of Sarah, and that her unstable personality eventually led her to attack the appellant, an attack so aggressive that it made him fear for his life. Over a period of time Sarah had been treated by the Veterans' Administration Hospital for severe asthma. This treatment period began long before the time of her death. Appellant sought to admit testimony of a psychologist regarding Sarah's treatment and the psychologist's opinion regarding the prognosis of her recovery. The trial court concluded that the offered evidence was too remote in time to be relevant to the appellant's self-defense claim. The record indicates that before the trial court made its exclusionary ruling, it conducted an in camera inspection of the medical records at issue and, in chambers, carefully detailed its findings with counsel. In addition, this same issue was raised as part of the appellant's motion for a new trial, which was filed some four days after the jury found the appellant guilty of deliberate homicide. The trial court, in its written order denying the motion, clearly detailed why it found that both instances of Sarah's treatment were too remote in time and that the subject matter was irrelevant to the defense alleged. We can find no manifest abuse of discretion in the trial court's ruling. The fourth issue is whether the court committed error in denying the admission of a statement allegedly made by Sarah. Testimony referred to is as follows: A [By appellant]: We went out that evening. I thought best to get her out of the house a little bit, maybe cheer her up if I could. I don't think we had more than two drinks, returned home. It was towards bedtime. Went in the bedroom, bent over to take my shoes off. Next thing I knew there was a -- something hit me in the back of the head and I was knocked out. I came to, went in the living room, Sarah was sitting there. I asked her what that was for. "What had I done wrong?" And she couldn't explain it. Q Did she say any more about that? A Well, she mentioned to me I was pretty lucky -- [ BY the prosecution]: Objection, hearsay. THE COURT: Sustained. The appellant argues that threats by a victim toward an accused should be allowed as an exception to the hearsay rule. He argues that his testimony would have been an attempt to establish that Sarah's statement constituted a "threat. " Under a reasonable construction of Rule 801, M.R.Evid., a portion of the testimony allowed is clearly subject to the hearsay objection. It appears no more than a recitation of a direct statement made by Sarah to which an objection could have been lodged. There is no indication in the record as to what the appellant's full answer would have been had he been allowed to continue his testimony. We note, however, that the objection appears for the first time on appeal. We have long held to the principle that an appellate court in reaching its decision will only consider material ascertainable from the record. State v. Pease (~ont. 1987), 740 P.2d 659, 661, 44 St.Rep. 1203, 1205; and State v. Dess (1984), 207 Mont. 396, 398, 674 P.2d 501, 502. Here, no offer of proof was made which would allow this Court to examine the type of hearsay exception claimed by the appellant. We find no merit in this issue. The fifth issue is whether reversible error was committed when the District Court allowed the prosecution's forensic scientist to testify concerning velocity and direction of blood splatters and when it allowed an investigating officer to testify that the location of the victim's death evidenced a struggle. The appellant argues that the prosecution's forensic scientist, Ken Konzak, was not qualified as an expert on the interpretation of blood splatters. He alleges that because Mr. Konzak testified as a lay witness on this subject, any testimony admitted was not based on the witness' personal knowledge since he was not present when the blood in question was splattered. We find this argument rather farfetched. Mr. Konzak is qualified as an expert witness in the field of forensic serology. In qualifying him as an expert, the following testimony was given at trial: Q Okay. Your occupation is a forensic scientist; is that correct? A Yeah, I specialize in the area of Forensic Serology. Q Okay. Could you explain to us what forensic serology is? A Forensic serology is the identification and typing of blood and body fluids. Determination of how those -- stains and materials are deposited and the factors that relate to those fluids, such as time of intercourse and things like that. Q Could you relate to us, have you been qualified as an expert in testimony in regard to forensic serology? A Yes, I have. Q Do you recall how many times, possibly? A 63, 64, somewhere in there. [Defense counsel] : Your Honor, we'd stipulate to the witness's credentials as a Forensic Serologist. THE COURT: Very well. He's qualified. (Emphasis added. ) It is to the following testimony that the appellant claims his theory of self-defense was greatly prejudiced by the testimony on blood disposition. Q [ B y the prosecution] : Okay. Do you see what appears to be some blood splatters in that photograph? A [By Mr. Konzak] : Yes. The photograph depicts as it was described to me, the area in which several of these blood splatters I've just analyzed were taken from the kitchen door. Q Okay. Can you -- in looking at the photograph of those blood splatters, can you tell anything about direction or force or anything like that? A We can tell -- which I'd have to see obviously closer up when the time comes, that the splatters come from lower on the -- towards the floor up at an angle, a low angle, up to roughly about thirteen to seventeen inches on the side of the door, but come from down going up, as opposed to having been dropped from above down on to the lower part of the door. Q So, is it fair to say, that would not be consistent with someone standing above the door and bleeding down upon it? A That's very true. Also, there are some smears over here which are caused as a small splatter up against it, which have been smeared by rubbing or some other means of smearing, that don't necessarily show the direction that I was mentioning before. How this testimony is unfairly prejudicial to the appellant's theory of self-defense is not understandable. Appellant testified that after he stabbed Sarah the final time, she fell to the floor directly in front of the door where the blood splatters were found. The testimony of Mr. Konzak is consistent with the opinion that the blood was deposited on the door as it traveled in an upward direction, deposited there by her body's impact with the floor. The admission of such testimony can hardly be characterized as unduly prejudicial to appellant's theory of self-defense. Appellant also claims that Detective Skillen improperly testified that a violent struggle had occurred in appellant's residence the night of Sarah's death because Detective Skillen was not qualified as an expert on such matters. A review of the record shows that the detective was, in fact, qualified as an expert on crime scene processing and investigation. Further, that Detective Skillen did not testify as to the existence of a violent struggle. In addition, the appellant specifically stated he had no objection to such a qualification. The only objection came when the detective testified to his findings, as follows: Q [By the prosecution] : In your opinion as an expert in crime scene investigator [sic], did you see anything that appeared to be a struggle at that residence? [Defense counsel] : I'm going to object. I'm not sure, I don't believe there's been a foundation laid for that question. This witness might be able to testify as to what evidence he evaluated, but to draw that kind of a concl~usion, I don't believe that the foundation can be laid and certainly has not been. THE COURT: The objection will be overruled. And if the answer is in the affirmative, then I want to go into the foundation. Q Would you answer the question. A Yes, sir. Q Okay. My q,uestion was did you see any sign of a struggle? A Yes, sir. Q What indicated to you that there was a struggle at that residence? A The pattern of blood splatters and the area of the floor that had residue that appeared to have been a heavier deposit at one time on the kitchen floor. Q Was there anything else at the defendant's residence which indicated to you that there was a struggle at that residence? A No, sir. Q You didn't see any furniture tipped over? A No, sir. Q Any objects that appeared to have been thrown through the house? A No, sir. Q Just the blood stains? A Yes, sir. We find this testimony to be admissible by an expert who has been previously qualified. The decision of the District Court is affirmed. We concur: A Justice ~ i l l i a m E. Hunt, Sr., did not participate in this opinion. I c o n c u r i n the result. | October 16, 1989 |
f8ee08d8-99c6-47d3-ad88-c1e403106beb | GIBSON v SWANSON | N/A | 89-132 | Montana | Montana Supreme Court | NO. 89-132 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 GARY ALLEN GIBSON, - Z w 0 cD plaintiff and Appellant, z A m -vs- "z 4 P 2 CHUCK SWANSON and JULIE SWANSON, w 5 C -4 l - 7 7 Z m 2 - 0 Defendants and Respondents. rno 3 z r + a m s 0 00;" ro d F ro 3 APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Joseph B. Gary, Judge presiding. COUNSEL OF RECORD: For Appellant: Gary Allen Gibson, pro se, Atlanta, ~eorgia For Respondent: ~ichard W. Heard, Columbus, Montana Douglas C. Allen, Great Falls, Montana Filed: Submitted on ~riefs: Sept. 15, 1989 Decided: October 17, 1989 3 f f Clerk Chief Justice J. A. Turnage delivered the Opinion of the Court. Gary Allen Gibson brought this suit against the Swansons for breach of contract on a thoroughbred mare they sold him. Gibson failed to appear for trial. The District Court of the Eighteenth Judicial District, Gallatin County, entered judgment for the Swansons. Gibson appeals. We affirm. Gibson states the issue as whether the District Court abused its discretion in granting judgment for the Swansons. In November 1985, Gibson agreed to purchase a nine-year-old thoroughbred mare, What-a-Hurry, from the Swansons. The purchase price, arrived at after several monthst negotiations, was $12,000. In February 1986, the mare was transported by commer- cial carrier from Whitehall, Montana, near the Swansonst farm in Gallatin Gateway, Montana, to Bohon Farm in Harrodsburg, Ken- tucky. Gibson's complaint alleged that What-a-Hurry was not sound for breeding when the Swansons sold her, although that was a condition of the sale. Gibson asked for damages including the contract price; boarding, transportation, and breeding fees for What-a-Hurry; punitive damages; and his costs and attorney fees in bringing this action. Gibson retained counsel in Bozeman, Montana, for approxi- mately six months after he filed his complaint. That attorney withdrew in September 1988, four months prior to trial. Gibson did not appear in person or by counsel at the January 1989 pretrial hearing, which had been scheduled three months in advance. At the pretrial hearing, the court entertained a written motion by Gibson to continue the trial date. The court reviewed the history of the case and ruled that ttPlaintiff has had one yearts notice of the trial setting in this matter and his request to continue the same served three (3) days before the final Pretrial Conference is not timely nor justified.It Gibson did not appear by counsel or in person at trial. Defendant Chuck Swanson testified that What-a-Hurry was in good condition and sound for breeding when transported from his farm. A. 0. Chub Askins testified that he is a horse breeder who served as Gibson's agent in fall 1985. He testified that he examined What-a-Hurry for Gibson at that time and found no problems, particularly relating to breeding. Dr. Sid Gustafson, a Bozeman veterinarian, also testified. He stated that he had treated What-a-Hurry in 1984 and 1985 and that he had discussed the mare's medical history with Gibson in November 1985, giving his opinion that the mare was sound for breeding. The court entered its findings of fact and conclusions of law, ruling that the Swansons had complied with all their legal obligations under the terms of the sale to Gibson. It awarded the Swansons $80 as their costs of suit. Gibson objects on appeal to the admission of A. 0. Askins' testimony into evidence. However, evidence is admissible unless a timely objection to its admission is raised. Rule 103, M.R.Evid. Because Gibson failed to appear for trial, he has waived any right to object to admission of evidence. Gibson next argues that the court should have found that the Swansons defrauded him. He correctly sets out the nine elements of fraud. See McGregor v . Mommer (1986), 220 Mont. 98, 105, 714 P.2d 536, 540. However, this argument fails because Gibson presented no evidence at trial to support his claim. Finally, Gibson argues that there was insufficient evidence to support that What-a-Hurry was sound for breeding at the time of the sale. The testimony of all three witnesses at trial supports the finding that What-a-Hurry was sound for breeding at the time of the sale. We note that Gibson did not produce any evidence that What-a-Hurry was not sound for breeding at the time of the sale. We hold that the District Court did not abuse its discretion in finding that What-a-Hurry was sound for breeding at the time of sale. Affirmed. We concur: | October 17, 1989 |
1d79526d-2f93-440d-a73e-cc34bc488076 | P W BERRY COMPANY INC v FREESE | N/A | 88-608 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA P.W. BERRY COMPANY, INC., Petitioner and Appellant, -vs- DEBRA FREESE, Respondent and Respondent. APPEAL FROM: District Court of the First ~udicial ~istrict: ' In and for the County of Lewis & Clark, . c b . ; The Honorable Henry Loble, Judge presiding. ir, COUNSEL OF RECORD: For Appellant: Larry W. Jones; ~arlington, Lohn & ~obinson, is sou la, Montana For Respondent: ~alerie A. Bashor; Sherwood Law Office, iss sou la, Montana Filed: Submitted on ~riefs: June 30, 1989 Decided: September 18, 1989 Mr. Justice John C. Sheehy delivered the opinion of the Court. P. W. Berry Company, Inc., appeals from a judgment of the District Court, First Judicial ~istrict, Lewis and Clark County, affirming an award of the Human Rights Commission to Debra Freese of $4,730.25 as back wages with interest at the rate of 10 percent per annum from the date the wages would have been earned. We affirm. Debra Freese charged the employer, P. W. Berry Company, Inc., with sex discrimination in her employment which resulted in her discharge. The Human Rights ~ivision issued "reasonable cause findings" in which it found there were reasonable grounds to believe that discrimination occurred. A hearing examiner appointed by the Human ~ights Commission issued suggested findings of fact and conclusions of law that were later essentially adopted by the Human Rights Commission that sex discrimination had in fact occurred, and that Freese was entitled to the loss of back wages with interest thereon. The decision of the Human Rights Commission was appealed to the District Court where, after consideration, the ~istrict Court affirmed. An appeal to this Court resulted. Berry has not appealed in this Court nor did it appeal in the District Court, from the finding of the Human Rights Commission that sex discrimination had occurred in the discharge of Freese. The attack of Berry in the ~istrict Court, and now in this Court, is that the back wages awarded to Freese were improperly calculated. Freese is a female construction laborer who at the time of her first employment by Berry was classified as an "A" general laborer by her union, with experience in the construction business dating from 1972. The Human Rights Commission found that she had been thoroughly apprenticed, had a variety of experience in construction work, grade setting, pipe laying, the use of common hand tools, and that she met the qualifications demanded by the positions of concrete pipe layer and general laborer. On ~ p r i l 24, 1984, Freese was dispatched by her union to do pipe-laying work for Berry at its request and she began work on ~ p r i l 25, 1984. She worked laying heavy concrete pipe for three days and on April 27, 1984, she was discharged and given a separation notice stating she was not a skilled concrete pipe layer, had unsatisfactory production, but was eligible for rehire for other work than back fill and pipe work. On August 21, 1984, Berry requested the union to dispatch two general laborers to the same construction project and Freese was dispatched as one of those laborers. She worked for three days as a general laborer, but including work as a pipe layer, from August 22, 1984 through August 24, 1984 when again she was terminated for "unsatisfactory work." The om mission found that both discharges were illegal, and that the first was connected to the second. It calculated that Freese was entitled to back pay for a total of 127 eight-hour working days, or $11,755.12. gain st this sum was an offset for wages Freese received at other jobs in the sum of $7,024.87. The om mission awarded her the net of $4,730.25, including prejudgment interest to the date of judgment. Berry, on appeal to the ~istrict Court, and now in this Court, attacks the award of back pay on the grounds that the testimony of one Terry Erhardt should not have been admitted by the hearings examiner, because Erhardt's name was not listed at the pre-hearing conference as a witness for Freese and that Erhardtls exhibit should also not have been admitted. Berry also contends that the hearing examiner imposed the wrong burden of proof on Berry with respect to the back wages, and that the amount of back wages was improperly calculated by the hearing examiner and by the Human Rights Commission because of the limited days for which concrete pipe work was available on the construction project. Berry contends that counsel for Freese had spoken to Ms. Erhardt a year before the hearing and was familiar with the information Ms. Erhardt had relating to her claim, but failed to identify this person as a witness until the Friday before the Monday hearing. The significance of Ms. Erhardt's testimony is that she testified as to the type of job for which Freese was called out from the union hall to work and whether Berry required pipe laying or general labor. Berry relies on Workman v. McIntyre Construction Company (1980), 190 Mont. 5, 617 P.2d 1281, wherein this Court held that a trial court abuses its discretion in admitting an exhibit when the party offering the exhibit fails to give fair notice of its intent to offer the exhibit. In brief Berry claims that its counsel did not interview Ms. Erhardt because Freese did not list her as a witness that Freese would call at the hearing to support her claim. This contention is remarkable because Ms. Erhardt had been listed by Berry as one of its own witnesses on the pre-hearing order. When counsel for Berry informed counsel for Freese that Berry did not intend to call Ms. Erhardt as a witness, counsel for Freese thereupon decided to call Erhardt as her witness. The exhibit, upon which Ms. Erhardt testified, consisted of a business record kept in the ordinary course of business in the union office which was used to corroborate testimony regarding Freese1s prior experience and job calls from the union. The objection made by Berry to the introduction of the exhibit was only that the records were repetitious. The ~istrict Court held that under those facts, Workman did not apply, as Berry could not have been surprised by the testimony of a person whom the employer had listed as one of its own witnesses. We also find no merit in this contention. The testimony of Erhardt and the exhibit were properly admitted. As to the amount of back pay awarded to Freese, Berry contends that under the record, she was entitled at most to 27 eight-hour days of employment in the total sum of $2,499.12. Berry makes this argument because it contends that the only work for which she had been called out by Berry was to do concrete pipe-laying work and that no more than eight days of such work was available to her on this construction project after her termination. The Commission, however, found through its hearing examiner, that on the second occasion she had been called out for general labor, but had been assigned to concrete pipe laying and that she was qualified both for the positions of concrete pipe layer and general laborer. The Commission therefore calculated the amount of days of availability for both types of labor and based its award of back pay on that number of days. Berry contends, however, that the Commission improperly imposed a burden of proof upon Berry with respect to back pay because the commission reasoned: In order to establish a briefer period [for an award of back pay] the respondent [Berry] has the burden of showing by clear and convincing evidence that the charging party [Freese] would not have been employed for the entire term of the project even absent the discriminatory treatment. Freese contends, and we agree, that the Montana Human Rights Act is closely modeled after federal law and that we follow federal case law interpreting federal discrimination law in applying the Kontana Human Rights Act. Martinez v. Yellowstone County Welfare Department (Mont . 1981) , 626 P. 2d 242. Under federal law, a charging party's back pay period may be reduced if he or she would have been unavailable for employment due to nondiscriminatory reasons and therefore would not have been able to earn the amounts claimed in any event. - A. Larson, - 2 Employment ~iscrimination (ed. 1988) 5 55.37 (a) (iii) . See also Albermarle Paper Company v. Moody (1975), 422 U.S. 405, 45 L.Ed.2d 280, 95 S.Ct. 2362; Dolan v. School ~istrict No. 10, Deer Lodge County (1981), 195 Mont. 340, 636 P.2d 825. In the Court of Appeals for the Ninth Circuit, it has been held that once a charging party has established a prima facie case of discrimination and established what is contended to be the damages resulting from this discrimination, the burden then shifts to the defendant to prove by clear and convincing evidence that a lesser amount is proper. Marotta v. Usery (~inth ~ i r . , 1980), 629 F.2d 615; Ostroff v. Employment Exchange Inc. (~inth ~ i r . , 19821, 683 F.2d 302; Nanty v. Barrows Co. (~inth ~ i r . , 1981), 660 F.2d 1327. Under the findings of the Commission, Freese established a prima facie case that general labor was available for 127 days and that she was eligible and capable of doing that kind of work. Once a prima facie case was established, the burden then fell upon the employer to show that nondiscriminatory reasons existed to reduce her claim of back pay. Berry's argument here is that the back pay should have been calculated only on the basis of the availability of concrete pipe-laying work. However, the Commission found that she was called out not only for concrete laying work but for general labor as well. Berry also claims that, through Ms. Erhardt, the employer could have produced testimony to show that there were 65 other laborers available through the union hall to fill the job required by Berry. However, this argument does not take into account the illegal terminations of Freese by Berry nor the fact that Ms. Erhardt was as available to Berry for such evidence as she was to Freese. The District Court properly noted in this case that the standards for judicial review of a determination by an administrative agency are set forth in 5 2-4-704, MCA; and that under Harris v. Bauer (1988), 45 St.Rep. 147, 151, 749 P.2d 1068, 1071 and Johnson v. Bozeman School District No. 7 (1987), 44 St.Rep. 531, 734 P.2d 209, findings of fact by an administrative agency are subject to the "clearly erroneous" standard of review and conclusions of law are subject to the "abuse of discretion" standard of review. On this appeal, we find no basis, applying the standard of review either for findings of fact or for conclusions of law, to reverse the amount of back pay found by the Human ~ights ~omrnission and affirmed by the ~istrict Court. We therefore affirm. We Concur: | September 18, 1989 |
0af52904-fbf7-4a03-8c47-e74542c49d99 | WASH -IDA -MONT RETIREMENT v GALL | N/A | 89-029 | Montana | Montana Supreme Court | No. 89-29 IN THE SUPREME COURT OF THE STATE OF MONTANA THE TRUSTEES OF THE WASHINGTON-IDAHO- MONTANA CARPENTERS-EMPLOYERS RETIREMENT TRUST FUND and the TRUSTEES OF THE LABORERS- A.G.C. PENSION TRUST OF MONTANA, - - Plaintiffs/Respondents and Appellants, r -vs- GALLERIA PARTNERSHIP, et al., MARBLE MOVING, STORAGE & TRANSFER, et al., Defendants/Appellants and Respondents. . . GALLERIA PARTNERSHIP, et al., Third-Party plaintiffs and Appellants, -VS- THE TRUSTEES OF THE WASHINGTON-IDAHO-MONTANA CARPENTERS-EMPLOYERS RETIREMENT TRUST FUND, et al., 1 ~hird-party Defendants and Respondents.- APPEAL FROM: ~istrict Court of the Eighth ~udicial ~istrict, In and for the County of Cascade, The Honorable Leonard Langen, Judge presiding. COUNSEL OF RECORD: For ~laintiffs/~ppellants: (Trustees) William K. Van Canagan and Christopher B. Swartley; Datsopoulos, MacDonald & ~ i n d , Missoula, Montana For Defendants/Appellants: Jardine, Stephenson, Blewett & Weaver; K. Dale Schwanke, Great Falls, Montana (~alleria) Cure, Borer & ~avis; Gregory J. Hatley, Great Falls, Montana (Estate of ice) For Respondents: Gough, Shanahan, Johnson & Waterman; Jock 0 . Anderson, Helena, Montana (Compass Group, etc) Linnell, Newhall & Martin, Great Falls, Montana (Dees) Howard Strause, Great Falls, Montana (Marbles) Graybill, Ostrem, Warner & Crotty, Great Falls, Montana (Patterson) Elizabeth Best, Great Falls, Montana (Estate of Lund) Mary Van usk kirk, Bosch, Kuhr, et al, Havre, Montana Filed: Submitted on Briefs: June 1, 1989 Decided: September 20, 1989 Mr. Justice John C. Sheehy delivered the opinion of the Court. Galleria partnership and the individual members of the partnership appeal from a final judgment entered against them in the District Court, Eighth Judicial District, Cascade County, and in favor of the Trustees of the washington-1daho-Montana Carpenters-Employers ~etirement Trust Fund and the Trustees of the Laborers AGC Pension Trust of Montana (hereafter Trustees). The judgment is for $1,505,368.35 of which the sum of $1,308,193.35 is for deficiency judgment after mortgage foreclosure, with the rest being recoverable costs and attorneys fees. The Trustees appeal from a final summary judgment entered against them in the same court and in favor of the Estate of Gordon P. Tice. It appears that other issues remain for decision by the District Court arising out of the original action, but this Court has jurisdiction by reason of direct appeal and a proper rule 54 (b) certification from the ~istrict Court. I. In this portion of the opinion we uphold the judgment of the ~istrict Court that the Trustees are entitled to deficiency judgment against ~alleria partnership, and costs and attorneys fees, but remand the amount of the deficiency judgment to the District Court for reexamination on the issue of the fair market value of the property given as security for the indebtedness at the time of the foreclosure sale. A. Propriety of a ~eficiency Judgment On March 17, 1982, in Great Falls, Montana, 16 individuals made, executed and delivered a promissory note for $1,200,000.00 payable to the Trustees on terms set out in the written note. The note was signed by the individuals not as partners of the Galleria Partnership, but in their individual capacity, except that three of the individuals also signed as partners in Great Falls Investors. Under the terms of the promissory note, the individuals undertook jointly and severally to pay the principal sum of the note and the interest accruing thereon. At or about the same time, but effective March 17, 1982, Galleria Partnership, composed of 10 of the individuals who signed the promissory note, and three additional persons comprising the Great Falls Investors made, executed and delivered to Safeco Title Insurance Company as trustee, a trust indenture and security agreement, wherein the trustees were named as beneficiaries, to secure the principal sum of $1,200,000.00 with interest thereon according to the terms of the promissory note above referred to. The real property which was the subject of the trust indenture was the location of a warehouse which had been remodeled for the purpose of leasing to various business tenants. The building had been purchased and remodeled beginning in 1982 by a prior partnership, Galleria Associates, managed by one Dan Cook. Cook had obtained a $1,950,000.00 appraisal of the building in its remodeled state so he could get a long-term loan to pay off ~alleria Associate's interim construction loan. For this purpose Cook approached third party defendant, Compass, which specializes in handling loans of union pension trust funds and then servicing those loans. Compass is a wholly owned organization of third party defendant, Old National Bancorporation. Cook was advised by Compass that Galleria Associates could not borrow from the Trustees because Cook was disqualified under the provisions of the Federal Employee Retirement Income Security Act (ERISA) statutes. 29 U.S.C., sections 1,001 et seq. Thereupon, Cook set about the formation of Galleria Partnership, to which Galleria Associates would eventually sell the building, and the Galleria Partnership would qualify as a borrower under ERISA. Cook developed a prospectus on the project, and lined up the 13 individuals and Great Falls Investors that eventually signed the trust agreement. The individuals who became partners in the Galleria Partnership held varying fractions of interest in the partnership. Compass knew that Cook was procuring such interest; the agents of Compass had no idea what representations Cook was making to the prospect of investors in Galleria Partnership, and did not ask. 9 It seems clear that Cook, himself, or through others that were acting on his information, represented to each of the persons who ultimately signed the loan documents that the loan was to be nonrecourse. At least three lawyers were among the investors, each of whom was of the view that a deficiency judgment could not be recovered on the foreclosure of a trust indenture. Cook hand-carried the loan documents, including a commitment from Compass as to the terms of the loan, which stated that security for repayment was to be a first lien on the building and thus he secured the signatures of the borrowers. Each of the borrowers was told that the loan was nonrecourse . Only one attorney read the note or trust indenture, and he found nothing in them that was contrary to his view that the loan was nonrecourse. In capsule, then, after the loan was closed, it turned out that the bulk of the tenants in the Galleria building were businesses Cook had an interest in, which had been known to Compass when the loan commitment was made. Cook ' s economic situation deteriorated, which ultimately resulted in the failure of various tenants to pay their rents in a timely basis. The Galleria Partners were using those rents to cover operating expenses and to make the monthly loan payments which were $14,916.00 each. As the tenants' rents fell into arrears, the monthly payments on the loan were made progressively later. Compass was aware of the reason for the late payments from the partnership and continued to accept the payments together with late charges. The November, 1984 loan payment had not been paid by early December of that year. There is a dispute in the evidence as to whether Compass advised appellant Bloomgren, a CPA, who was keeping the Partnership books and paying its bills, that Compass required both the November and December payments to be made together. Bloomgren denies any contact from Compass at the time. Nevertheless, on December 11, 1984, Compass sent a default notice to Bloomgren, accelerating the entire loan balance of $1,225,668.81 and demanding its payment in nine days. The default notice crossed in the mail the November, 1984 payment which Bloomgren had forwarded to Compass. When the November payment was received, Compass returned it with a letter reiterating the demand for the entire balance. Thereafter there were proposals for settlement which never reached fruition. In that period of time, Compass had the building appraised in the summer of 1985 and the appraisal came in at $1,100,000.00. The Trustees were unwilling to accept that sum as an appraisal and no settlement for deficiency was arrived at by the parties. On April 12, 1985, the Trustees filed an action in the District Court for the purpose of foreclosing on the trust indenture. After lengthy discovery and complex proceedings, the District Court on October 29, 1987, determined in a summary judgment that the trust indenture constituted a first lien upon the real property of Galleria Partnership, and issued its order of for decree of foreclosure. The order directed the Sheriff of Cascade County, Montana, to sell the real estate in one parcel at public auction under the laws governing the sale of real estate under execution upon proper notice being given; and to deliver a deed to the purchaser. The order of foreclosure reserves specifically the question of any deficiency judgment. No return of the sale by the Sheriff under the foreclosure sale can be found in the District Court file which has been forwarded to us. Under the mortgage foreclosure statutes, "if it appears from the sheriff's return that the proceeds are insufficient and a balance still remains due, judgment can then be docketed for such balance against" the defendants liable for the debt. No party before us raises any contention as to the lack of sheriff's return in the ~istrict Court file, and in view of our decision relating to the deficiency judgment it is unimportant here. It is reflected in the order of the District Court, dated October 7, 1988, when the deficiency judgment was rendered against the Galleria partnership, that the sheriff's sale took place on December 8, 1987, and that the bid price obtained there at was $565,000.00. The briefs of all parties assume that the sole bid at the Sheriff's sale was that of the Trustees. So much for the background leading up to the deficiency judgment. The Galleria Partnership raised several issues contesting the validity of the deficiency judgment which we will now take up. 1. The Chunkapura decision. The Partners contend that under ~ i r s t State Bank of Forsyth v. Chunkapura (Mont. 1987), 734 P.2d 1203, because the case before us involves a trust indenture, a deficiency judgment is improper. In Chunkapura, this Court faced for the first time the question whether a deficiency judgment could be obtained on a trust indenture where the lender chose to foreclose the indebtedness under the mortgage foreclosure statutes rather than by trustee's sale under the Small Tract Financing Act. In Chunkapura, we pointed out that prior to 1963, there was but one statutory provision for the foreclosure of mortgages, and that those statutes permitted the debtor a right of possession during the period of redemption while the debtor personally occupied the land as a home for himself and his family ( § 71-1-229, MCA), and further permitted all execution debtors a right of redemption in the same manner as permitted to debtors under execution sales ( § 71-1-228, MCA). The Small Tract Financing Act of 1963 ( S 71-1-301, -321, inclusive, MCA) permits the use of deeds of trust or trust indentures to secure the performance of obligations; provides that upon default and foreclosure, the obligee's right of occupation of the real property does not extend beyond ten days from the date of the sale ( S 71-1-319, MCA) ; makes no provision for any right of redemption; and further provides that deficiency judgments are not allowed when a trust indenture is foreclosed by advertisement and sale ( § 71-1-317, MCA). In Chunkapura, we noted that the Small Tract ~inancing Act was enacted at the instance of the banking and lending industry. They contended that the "one action rule" of mortgage foreclosure, and the attendant right of redemption and right of possession rules, hampered the financing of improvements on small tracts in Montana because banks and investors were unwilling to invest in mortgages when on default their funds would be tied up during the period of redemption. This Court noted a quid pro quo relating to the new legislation, that the lenders would give up their deficiency judgment rights on default, if the borrowers would give up their rights of possession and redemption. Chunkapura, 734 P.2d at 1205. The problem in Chunkapura arose because S 71-304(3), MCA, provides that a trust indenture executed in conformity with the Small Tract Financing Act may be foreclosed "by advertisement and sale . . . or, at the option of the beneficiary [lender], by judicial procedure as provided by law for the foreclosure of mortgages on real property." In Chunkapura, the bank opted to foreclose under the mortgage provisions of the law and insisted that it was entitled to a deficiency judgment as there authorized. Our decision in Chunkapura was to the effect that a deficiency judgment would not be allowed when trust indentures are executed in conformity with the Small Tract ~inancing Act because to allow a deficiency judgment would be inconsistent with the provisions of that Act. On rehearing, we modified that holding so that Chunkapura "is to be considered as precedent only for trust deeds related to occupied, single family residential property." 734 P.2d at 1211. Although we noted in Chunkapura that the ambiguity existing between the Small Tract ~inancing Act and the standard provisions for mortgage foreclosure created legal problems, and we recommended the attention of the legislature to the same, the legislature has met twice in regular session since Chunkapura and has undertaken no action regarding the subject. The contention of the Partners here before us on appeal is that the Chunkapura modification is too limited, has no statutory source and should be expanded by us to prevent a deficiency judgment in this case, since the Galleria development was a "business expansion," one of the reasons for the enactment of the Small Tract Financing Act. (Section 71-1-302, MCA) . We can understand the difficulty the Galleria Partnership has in accepting the Chunkapura decision as modified on rehearing. The trust indenture which they executed is in conformance with the Small Tract Financing Act and that Act provides that on foreclosure there should be no deficiency judgment. Foreclosure proceedings under mortgage laws are permitted deficiency judgments. When a lender holding a trust indenture as security chooses to foreclose under the mortgage laws, Chunkapura as modified holds that except for occupied single family residential property, lenders can obtain a deficiency judgment even on trust indentures. This result became necessary because of the penchant of the lending industry, after the passage of the Small Tract Financing Act, to use deeds of trust almost exclusively. In fact, the original Act which once was limited to tracts of three acres, was amended to 15 acres, and in 1989 to 30 acres. In Chunkapura, we could easily have held in resolving the ambiguity between the two modes of foreclosure that a foreclosure of a trust indenture under the mortgage laws was nevertheless a foreclosure "by advertisement and sale" and therefore deficiency judgments were barred under S 71-1-317, MCA. This result however would have created havoc in the loan industry. The majority in Chunkapura decided instead to limit the prohibition against deficiency judgments to trust deeds used as security for the financing of single dwelling, occupied homes (the type of financing for which the Small Tract Financing Act was argued to the legislature). The whole problem of course deserves legislative attention, but until the legislature does act, we will limit the preclusion of deficiency judgments on deeds of trust used as security instruments in accordance with Chunkapura. That, of course, excludes the Galleria Partners, who without question, executed instruments relating to a commercial loan. In First Federal Savings and Loan Association of Missoula v. Anderson, no. 89-002, decided July 25, 1989, 46 St.Rep. 1280, we upheld Chunkapura so far as it relates to single family, occupied residential property. Galleria Partnership does not qualify for the preclusion of a deficiency judgment under Chunkapura since ~alleria Partnership involves a purely commercial loan. 2. The Remedy - of - a ~eficiency Judqment -- and the Languaqe o f the Operative Documents. Under this contention, Galleria Partnership argue that under the trust indenture, there is no mention of a possible deficiency judgment, and when a trust indenture is foreclosed, the lender is entitled only to recover its costs and expenses incident to the foreclosure and a reasonable attorneys fee . Section 7.2 of the Trust Indenture in this case provides in part: . . . upon the occurrence of any default hereunder, Beneficiary shall have the option to declare all sums secured hereby immediately due and payable and foreclose this Trust Indenture in the manner provided by law for the foreclosure of mortgages on real property, and Beneficiary shall be entitled to recover in such proceedings all costs and expenses incident thereto, including a reasonable attorney's fees in such amount as shall be fixed by the court. . . We do not find that the foregoing language is a limitation upon the damages that may be recovered in a mortgage foreclosure conducted under S 71-1-222, MCA, which specifically provides for deficiency judgments if the sheriff's return shows that the proceeds are insufficient to pay the balance then due. We find no merit in the partnership's contention in this point. It is true that no reference is made in the body of the Trust Indenture in this case of the possibility of a deficiency judgment on foreclosure, as would be the case if a regular mortgage form had been used. The lack of a mention of deficiency judgment in the instruments is immaterial. As long ago as 1895, this Court in First National Bank of Butte v. Pardee, held that a deficiency judgment may properly be entered against the grantor in a deed of trust given to secure the payment of a promissory note, though there was nothing in the terms of the deed itself to warn of the possibility of a judgment for a deficiency. ~ i r s t ~ational Bank of Butte v. Pardee (1895), 16 Mont. 390, 393, 41 P. 77, 78. 3. - - Did the Trustees waive heir ~ i g h t to Accelerate the - Balance Due or Were They Estopped From ~ o i n g So? --- - Galleria Partnership contends that from the time of the execution of the note in 1982 until the notice of default in December 11, 1984, when the Trustees sent notice of default and accelerated the balance due, Galleria partnership customarily was late in making the monthly payments. Galleria partnership contends that the customary acceptance by the lender of late payments, and payments by Galleria of late charges in connection with its late payments, had the effect of lulling the Partnership into a sense of false security and because thereof the Trustees either waived their right to accelerate the remaining balance due without notice or they were estopped from doing so. This Court has held that waiver is the "voluntary and intentional relinquishment of a known right, or claim or privilege," hi el v. Johnson (1985) , 219 Mont. 271, 274, 711 P.2d 829, 831. We also held in Thiel that "waiver may be proved by expressed declarations or by a course of action and conduct so as to induce the belief that the intention and purpose was to waive." Thiel, 711 P.2d at 832. Again we turn to the trust indenture and find in paragraph S 6.5 thereof that any delay or omission by the beneficiary in the exercise of any right, power, or remedy arising out of the trust indenture shall not impair any such right power or remedy, or the right of the beneficiary to resort thereto at a later date. Further such delay shall not be construed to be a waiver of any default or event of default under the indenture. Galleria Partnership relies especially on Soltis v. Liles (Or. 1976), 551 P.2d 1297, 1300, which held that such nonwaiver provisions as are found in the trust indenture here do not prevent the promissor from waiving the conditions of the contract by his conduct. Galleria Partnership claims that the sudden notice sent by the Trustees in this case, after the long acceptance of late payments, was itself a breach of the contract, and that the Trustees, as a breaching party, cannot now call upon the other party to perform, relying on Western Media Inc. v. Merrick (Mont. 1989), 757 P.2d 1308, 1311. The partnership contends that this point is one of first impression in Montana. While we can conceive of cases in which the nonwaiver provisions of a contract should not be applied, the facts here do not warrant such a result. Not only must the evidence show a course of conduct by which one party waived the contractual obligations of the other party, but additionally, it seems to us, the evidence should show that the same party also waived any right to rely on the nonwaiver provisions of his contract. In other words, in this instance, since waiver is a known and voluntary relinquishment of a known right, those elements of waiver at least have to appear from the evidence before it can be held that the contractual right of nonwaiver has been waived. 4. - Is Deficiency Judgment Barred Because this is a Purchase Money Mortqage? Under the mortgage foreclosure laws of this State, a deficiency judgment is not allowed on the foreclosure of a purchase price mortgage. Section 71-1-232, MCA. Galleria Partnership contends in this case that because the Trustees lent the money, knowing that the proceeds of the loan would be used by the Partnership to pay off Galleria Associates, the prior partnership, for the purchase of the real property, that the arrangement in effect was that of a purchase price mortgage and so a deficiency judgment was barred under the statute. The language of the statute itself defeats the contention. It provides: Upon the foreclosure of any mortgage, executed to any vendor or real property or to his heirs, executors, administrators, or assigns for the balance of the purchase price of such real property, the mortgagee shall not be entitled to a deficiency judgment on account of such mortgage or note or obligation secured by the same. Plainly, the Trustees are not the vendor in this case, nor are they the assignee of any vendor. The language simply does not fit the Trustees so as to prevent their obtaining a deficiency judgment. Where the lender is not the vendor, nor standing in the vendor's shoes, the statute does not prevent a deficiency judgment. Aetna Life Insurance Co. v. Slack (Mont. 1988), 756 P.2d 1140, 1144. 5. Was the Loan I l l e & ? ---- The Partnership contends that under the federal ERISA laws it is illegal to utilize labor pension funds for the benefit directly or indirectly of a "party in interest." 29 U.S.C., Section 1106. The reason the prior partnership, Galleria ~ssociates, was disqualified from borrowing pension trust funds was that both Dan Cook and Robert Patterson, another partner in Galleria ~ssociates, were "parties in interest" because they were employers covered by "a plan subject to the ~etirement Income Security Act." 29 U.S.C., Section 1002(14) (c). ~alleria contends that the loan here indirectly benefited both Patterson and Cook, because as partners of the prior partnership they probably received proceeds from the loan, since the proceeds were used to purchase the interest of Galleria Associates in the building. The ~istrict Court in disposing of this issue in summary judgment, did not set forth findings of fact, and Galleria Partnership contends the court erred by failing to provide any rationale for its ruling on this issue. The Partnership contends therefore, that the loan from the pension trust funds through Compass was illegal in the first instance, and a court of equity will not enforce between the parties an illegal contract. The simple answer to this issue is that made by the Trustees in response. This was not a "disqualified transaction" because the borrower in this case was the Partnership and not Galleria Associates. We find no merit in this contention. 6. -- Did the Terms --- of the Loan Commitment -- from the Lender Bar a Deficiency Judgment? - When the loan in this case was in the making, Compass provided a letter dated December 17, 1981, addressed to the Galleria Partners, which contained terms relating to the making of the loan. This letter of commitment was used by Cook in obtaining signatures from the Partners. Among the special conditions for the loan was the requirement that the loan was to be secured by a deed of trust. The Partners contends that the use of the commitment letter, along with the alleged representations by Cook, that there would be no personal liability for the Partnership, created a reasonable belief in the minds of the potential partners that they would not be liable personally for deficiency judgment. The District Court disposed of the issue on the theory of misrepresentation, saying that if a misrepresentation was made, the other party nevertheless has a duty to use diligence with respect to any such representation made, and here, the borrowers, for the most part, did not read the loan documents; and if they had read the note they would have seen that the payments required by them were phrased in terms of personal liability. The partnership appears to concede the duty of diligence on the part of the borrowers, but contends that the District Court missed the issue of lack of consideration. The Partnership contends that no deficiency judgment was bargained for, and because in the minds of the borrowers a deed of trust secured a nonrecourse loan, there is no consideration to which the court could point for a deficiency judgment. Again the Partnership contends that the trust indenture itself specifically limited recovery in the event of default to the Trustees' attorneys fees, costs, and expenses incident to the foreclosure. Of course, all representations made by Cook were superseded by the written instruments, the promissory note, and the deed of trust. Section 28-2-904, MCA. The validity of neither the promissory note nor the trust indenture is in dispute, and there is no claim here of a mistake in those instruments or an imperfection in their writings, so extrinsic evidence may not be considered to vary the terms of those written instruments. section 28-2-905, MCA. We do not find in this case the specifications in the loan commitment to be different in essence from the promissory note and the trust indenture which eventually were executed. This Court held in Warner v. Johns (1949), 122 Mont. 283, 288, 201 P.2d 986, 988, that where the consideration expressed in the written instrument is contractual in its nature, oral evidence is inadmissible to show a different consideration because then it changes the legal effect of the instrument. That rule applies here, although the question is not one of evidence but rather a contractual interpretation. The fact that a deficiency judgment was not expressly mentioned does not change the legal effect of the instruments when executed. 7. - - id the Representation ~ Cook that the Loan Would be ---- - Nonrecourse - - Bar a ~eficiency Judqment? On this issue, the Partnership seeks to impute to the Trustees on agency grounds responsibility for the alleged misrepresentations made by Cook in securing the signatures of the borrowers to the promissory note and the trust indenture. The partnership cites numerous cases involving principals and agents to the effect that the principals are bound by the acts or representations of the agents. None of those cases is applicable here. The ~istrict Court rejected this contention saying there was no evidence of any kind that would make Cook either an actual or a ostensible agent of Compass or the Trustees in procuring the signatures. since any evidence that Cook was representing either Compass or the Trustees in procuring the signatures is totally lacking, no imputations can be made by any court that either Compass or the Trustees were responsible for the alleged misrepresentations made by Cook. A deficiency judgment cannot be barred on this contention. 8. Disposition As the foregoing discussion shows, there is no question that the Partnership members are jointly and severally liable on the promissory note which they signed individually, and that, after foreclosure of the real property given to the security obligation, the individual Partners are also liable for deficiency judgment. The size of the deficiency judgment in relation to the original note is however a matter of concern. It is uncontroverted in the evidence here that in 1981, when Dan Cook was first arranging for a loan, he obtained an appraisal of the property as remodeled at $1,950,000.00. In 1982, that appraisal had sufficient validity to justify the Trustees in extending a loan of $1,200,000.00 to the ~alleria partnership. In 1985, after the default notice had been served by the Trustees, they obtained an appraisal of the property which they did not accept, but which apparently valued the remodeled property at $1,100,000.00. At the sheriff's sale, in 1987, the Trustees, as beneficiary under the trust indenture, submitted a bid on the real property as remodeled for $565,000.00. The ~istrict Court found that the principal amount of the obligation due on November 1, 1984, was $1,185,655.49. Accrued interest, attorneys fees and recoverable costs brought the eventual deficiency judgment to $1,500,368.35. The fact that the real property was bid in at the sheriff's sale for a sum at approximately 30% of its original appraised value is the basis for what must be a catastrophic deficiency judgment for the Partners. Montana's statutes have no direct provisions under the mortgage foreclosure procedures to determine the fair market value at the time of the forced sale of the property subject to foreclosure. We pointed out in Chunkapura that several of the states surrounding us have statutory provisions which serve to protect judgment debtors when foreclosure of their property is made to satisfy the judgments. Our examination of the statutes of surrounding states, and of the interpretations of their respective courts concerning those statutes show that predominantely, a deficiency judgment is limited to the difference between the fair market value of the secured property at the time of the foreclosure sale, regardless of a lesser amount realized at the sale, and the outstanding debt for which the property was secured. We set forth in Chunkapura expressly that California, Washington, Arizona, Utah, Idaho, and Oregon, are states with such protective provisions, with Alaska being the sole exception. Chunkapura, 734 P.2d at 1207-1208. In connection with this case, we have looked at the provisions of additional states. In South Dakota, the amount realized at sheriff's sale must be the "fair market value" of the property. S.D. Codified Laws Ann. S 21-47-16 (1989). In North Dakota, there is a fair market value provision which if contested must be submitted to a jury. N.D. Cent. Code 5 32-19-06 (1987). Colorado has no statutory restrictions on deficiency judgments, as far as we can determine, but its laws provide that trust indentures are to be foreclosed by a public trustee (not private) and that all others must be foreclosed as a mortgage. In Wyoming, a mortgage is construed as a covenant for the payment of the sum secured, and unless there is specific covenant in the mortgage, on foreclosure the remedies are limited to the lands mentioned in the mortgage. Wyo. Stat. § 34-1-136 (1989). In U.S. v. Mac~enzie (9th Cir. 1975), 510 F.2d 39, 41, it was noted that the purpose of the Nevada and Arizona statutes relating to deficiency judgments is to prevent the injustice that occurs when a debtor's property is sold on foreclosure sale for a price significantly less than its fair market value. Some states surrounding us also have other provisions relating to the protection of the judgment debtor. Thus in Wyoming, the mortgagee or party to whom the debt is owed may bid in at the sheriff's sale, but his bid must be made "fairly and in good faith." Wyo. Stat. S 34-4-108 (1989). As we said, the Montana statutes are silent, both as to the right of the mortgagor to bid in to the sheriff's sale, and as to the duty of a court to determine if the sheriff's sale reflects the fair market value of the property. A mortgage foreclosure proceedings, however, is in the equity jurisdiction of the courts. This Court is enjoined by statute, in equity cases and in matters or proceedings of an equitable nature, to review all questions of fact arising on the evidence presented in the record, and to determine the same. section 3-2-204(5), MCA. Courts sitting in equity are empowered to determine all the questions involved in the case and to do complete justice; this includes the power to fashion an equitable result. Maddox v. Norman (1983), 206 Mont. 1, 14, 669 P.2d 230, 237. An equity court whose jurisdiction has been invoked for an equitable purpose, will proceed to determine any other equities existing between the parties connected with the main subject of the suit, and grant all relief necessary to the entire adjustment of the subject. iffa any v. Uhde (1950), 123 Mont. 507, 512-513, 216 P.2d 375, 378. Had the sole bid at the sheriff's sale for the property here been for $100 or $1,000, undoubtedly we would be moved by equity to inquire as to its fairness. The actual bid of $565,000.00 is only a matter of degree. In the exercise of our equity jurisdiction therefore, we deem it proper to remand to the District Court to determine the fair market value of the property at the time of the sheriff's sale. The "fair market" is the intrinsic value of the real property with its improvements at the time of sale under judicial foreclosure, without consideration of the impact of the foreclosure proceedings on the fair market value. Chunkapura, 734 P.2d at 1207. The method of determining fair market value we will leave to the District Court, though it seems appropriate that each opposing party should be allowed to present the opinion of appraisers selected by them respectively. When the fair market value of the property is determined by the District Court, that figure would be the basis for the determination of a deficiency judgment if any. 11. The Trustees appeal from a summary judgment entered by the District Court in this cause holding that the estate of Gordon P. ice is not liable to the Trustees for a deficiency judgment arising out of the instruments above described. Gordon Tice executed the promissory note and the trust indenture which is the subject of this litigation effective March 17, 1982. He died on July 16, 1984. H ~ S spouse, Mary C. ice, was appointed personal representative of the estate on January 9, 1985. ~otice to creditors is published first on January 17, 1985, with final publication occurring on January 31, 1985. The Trustees' complaint naming Gordon P. ice as a party defendant was filed ~ p r i l 12, 1985. The ~istrict Court found that service of the summons and complaint was made on May 31, 1985, which is more than four months after the publication of the first notice of creditors on January 17, 1985. Under the facts, the District Court granted the personal representative a summary judgment precluding the Trustees from any deficiency claim against the estate of Gordon P. ice. The Trustees complaint however was filed on ~ p r i l 12, 1985, within the four month period. Section 72-3-804(1), MCA, provides that a claim against an estate is deemed presented on the first to occur of a receipt of the written statement of claim by the personal representative or by the filing of a claim of the court. Section 72-3-804, MCA, also provides that a claimant may commence a proceeding against a personal representative to obtain payment of claim against the estate, but the commencement of the proceeding must occur within the time limit for presenting the claim. The Trustees contend that the term "commencement of the proceeding'' is met by the filing of the complaint, and not by the service of the summons of complaint upon the party defendant. It also appears from the record that on April 10, 1985, a copy of the Trustees' complaint was forwarded to counsel for Mary c ice, the personal representative, but said counsel also represented all of the other partnership defendants. On April 19, 1985, that attorney wrote the attorney for the Trustees, suggesting that an acknowledgment of service of blank form be sent to cover all the Partnership defendants. This was done by counsel for the Trustees on April 24, 1985. It was not, however, until May 31, 1985, two weeks after the nonclaim statutory period had expired that Mary Tice, as personal representative, of the estate of Gordon P. Tice, signed the acknowledgment of service. It appears from an examination of the statutes relating to creditors' claims against an estate that the claim of the Trustees was not properly presented. section 72-3-803(1) (a), MCA, provides that claims, including those founded on contract or other legal basis, if not barred by other statutes of limitations, are barred against the estate unless presented within four months after the date of the first publication of notice to creditors if that notice is properly given. The manner of the presentation of claims is covered in S 72-3-804, MCA, as follows: (1) The claimant shall mail to the personal representative return receipt requested a written statement of the claim indicating its basis, the name and address of the claimant, and the amount claimed or may file a written statement of the claim, in the form prescribed by rule, with a clerk of the court. The claim is deemed presented on the first to occur of receipt of the written statement of claimed by the personal representative or the filing of the claim of the court . . . Thus it appears, that a claim founded on contract, as in this case, must be presented either to the personal representative, or by filing the same with the court. The filing of a suit outside the probate proceedings, even though within the four month period, does not suffice to properly submit a claim against an estate. Hence, the claim of the Trustees against the Gordon P. ice estate is time-barred. Even so, the Trustees argue that there are due process implications which have not been met in the matter of notice that was followed in the Tice estate. The Trustees rely on Tulsa Professional Collection Services, Inc. v. Pope ~xecutrix of the Estate of H. Everett Pope, Jr. (19881, 108 S.Ct. 1340, U.S. , 99 L.Ed.2d 565. This case involved a provision of Oklahoma's probate laws requiring claims arising upon a contract to be presented to the executor of the estate within two months of the publication of notice to creditors or else be barred. The creditor, a hospital, had rendered medical services to the decedent Pope for about five months. Upon his death, the hospital, through its assignee, Tulsa Professional Collection Services, Inc., had not presented a claim to the executor of the estate within the two months period. Tulsa, relied instead on an Oklahoma statute which provided that the executrix must pay the expenses of the last illness. The Oklahoma trial court ruled that the failure to present the claim within the two month period required a denial of the claim. This result was affirmed in the Oklahoma Court of Appeals and by the Supreme Court of Oklahoma. The latter Court reasoned that the purpose of notice in probate proceedings is not to make a creditor a party to the proceedings, but rather to notify him that he may become one if he wishes. The united States Supreme Court in Tulsa reversed on due process grounds. The Supreme Court determined that the unpaid medical bill was a property interest protected by the Fourteenth Amendment and that under the Fourteenth Amendment the due process clause applied if state action were involved. The Supreme Court further found that the probate proceedings did involve state action, especially since the probate court appointed the executor, and ordered notice to be given to creditors, required that proof of publication be filed with the court, and that claims also be filed with the court within the time period. In such a case, the united States Supreme Court held that a duty of providing actual notice of the probate proceedings and of the necessity to present claims to known creditors, or reasonably ascertainable creditors, was required to satisfy due process. The decision of the United States Supreme in Tulsa is a step-out from earlier cases, Mullane v. Central Hanover Bank and Trust Co. (1950), 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865 and Mennonite Board of Missions v. Adams (1983), 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180. In Baker ~ational Bank v. Henderson (1968), 151 Mont. 526, 529, 445 P.2d 574, 576, this Court held that the Mullane doctrine was not applicable to probate proceedings. The provisions of our probate statutes relating to notice by publication to creditors against an estate may under Tulsa have due process implications as far as known creditors or reasonably ascertainable creditors are concerned, but that issue cannot be determined in this case. When the cause was before the District Court here, the issue was decided purely on the statutory provisions which were applicable under the probate code. The issue of due process was not preserved for appeal and is therefore not before us at this time. The contention of the estate of Gordon P. ice that the Trustees' appeal in this case was untimely taken is without foundation. Galleria Partnership having filed a timely notice of appeal in this case on November 8, 1988, the filing of the Trustees' notice of appeal on November 18, 1988, was timely filed. Rule 5 (a) ( 3 1 , M.R.App.P. Conclusion 1. The judgment of the District Court granting deficiency judgment to the Trustees is by the Court affirmed. The cause is remanded for a determination by the District Court of the proper amount of deficiency judgment, depending upon the fair market value of the foreclosed property at the time of the sheriff's sale. Neither Galleria Partnership nor the Trustees shall recover attorneys fees or other costs with respect to this appeal. If on remand, the fair market value is determined to be a sum more than $565,000.00 the ~istrict Court, in calculating a deficiency judgment if any, shall not allow interest from the date of the sheriff's sale to the date the new judgment is entered. The Trustees are entitled to attorneys fees and costs in the proceedings relating to the establishment of fair market value, except that each party shall pay the cost of its own appraisers. 2. With respect to the appeal of the Trustees from the judgment favoring the estate of Gordon P. ice, that judgment is affirmed. The estate is entitled to recoverable costs on appeal and to attorneys fees under the reciprocal statute. 3. his cause is remanded to the ~istrict Court for further proceedings of the court in accordance with this opinion. We Concur: Justices Mr. Justice Fred J. Weber did not participate. Justice R. C. McDonough dissents. I dissent to the remand to the District Court to determine the fair market value of the property at the time of the sheriff's sale, and the use of that value for the determination of a deficiency judgment. I concur with the balance of the majority opinion. Section 71-1-222, MCA (1987), governs as to such proceedings in foreclosure suits. The section is as follows: (1) There is but one action for the recovery of debt or the enforcement of any right secured by mortgage upon real estate, which action must be in accordance with the provisions of this part. In such action the court may, by its judgment, direct: (a) a sale of the encumbered property (or so much thereof as may be necessary); (b) the application of the proceeds of the sale; and (c) the payment of the costs of the court, the expenses of the sale, and the amount due the plaintiff. (2) If it appears from the sheriff's return that the proceeds are insufficient and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt, and it becomes a lien upon the real estate of such judgment debtor, as in other cases on which execution may be issued. (3) No person holding a conveyance from or under the mortgagor of the property mortgaged or having a lien thereon, which conveyance or lien does not appear of record in the proper office at the time of the commencement of the action, need be made a party to such action. The judgment therein rendered and the proceedings therein had are as conclusive against the party holding such unrecorded conveyance or lien as if he had been made a party to the action. It is noted in subsection (1) that the court directs the sale of the encumbered property, applies the proceeds, and directs payment of the costs. This section does not prescribe the details of the sale itself, notice thereof, etc.; these details are to be set forth in the decree or judgment of foreclosure and are governed by rules of equity. Montana has no statutory requirement of an appraisement of the property to be sold, either before or after the sale. However, in subsection (2) of said section, it does provide for a deficiency judgment in specific terms. If the proceeds of the sale are insufficient to pay the debt due, and a balance still remains, judgment can then be docketed for such balance against the defendants personally. The statute does not provide for the calculation of a deficiency judgment by applying a fair market value, as determined by the court, to the amount due. Rather, it directs that a deficiency judgment should be calculated by applying the proceeds of the sale to the amount due. This statute clearly sets forth how a deficiency is to be calculated. The statute prevails over any common law, see $ 1-1-108, MCA, and $ 1-2-103, MCA (1987) . Even if the statute did not cover the calculation of the deficiency, it would be inequitable to require such a determination on the state of this record. The defendants have never raised the issue in the lower court or in this Court, although they could have done so. They were represented by competent counsel at all stages of the suit, three of the defendants are attorneys at law, and all appear to be knowledgeable investors. If the defendants were dissatisfied with the proceeds of the sheriff's sale they could have petitioned the District Court to set aside the sale on grounds of unfairness and inadequacy, and asked to have it appraised for guidance of the court in determining whether or not to set aside the sale and order a new sheriff's sale. Other equitable options might have been available. The defendants chose not to avail themselves of any of these options. I would affirm in toto. Justice Justice L. C. dissent. | September 20, 1989 |
1535d9d3-1685-44b0-b1db-ecf725aa99fb | STATE v FELDT | N/A | 88-264 | Montana | Montana Supreme Court | N o . 88-264 I N THE SUPREME COURT OF THE STATE OF M O N T A N A 1989 STATE O F MONTANA, p l a i n t i f f and Respondent, -VS- CHARLES MATTHEW FELDT, Defendant and A p p e l l a n t . /\ C ; I I i -4 APPEAL FROM: D i s t r i c t Court o f t h e ~ i g h t h J u d i c i a l ~ i s t r i c t , I n and f o r t h e County o f Cascade, The Honorable J o e l Roth, Judge p r e s i d i n g . COUNSEL OF RECORD: F o r A p p e l l a n t : N i c h a e l R . ~ r a m e l l i , G r e a t F a l l s , Montana For Respondent: Hon. Marc ~ a c i c o t , A t t o r n e y G e n e r a l , Helena, Montana James ello ow tail, A s s t . A t t y . G e n e r a l , Helena p a t r i c k P a u l , County A t t o r n e y ; Stephen ~ u d d p e t h , Deputy, G r e a t F a l l s , Montana F i l e d : s u b m i t t e d on ~ r i e f s : J u l y 20, 1989 Decided: October 1 9 , 1989 C l e r k _. . I C ~ustice John C. Sheehy delivered the opinion of the Court. Defendant, Charles Matthew Feldt, appeals his January 12, 1988, bench conviction in the Eighth Judicial ~istrict Court, Cascade County, for burglary and theft. The Honorable Joel G. Roth sentenced Feldt to serve five years for burglary and five years for theft, with the sentences to run concurrently. The imposition of both sentences was suspended. Feldt appeals the conviction of burglary. We reverse. The issue on appeal is stated as follows: (1) Whether the trial court erred in finding that the defendant entered his employer's premises "unlawfully," thereby committing burglary under § 45-6-204(1), MCA. On the morning of April 27, 1987, the manager of T. C. Foods, a convenient store in Great Falls, Montana, was called to the store by the morning clerk. Upon arrival, the manager found a set of keys in the door, subsequently determined to have been issued to defendant, Feldt, an employee at T. C. Foods. The manager discovered $1,459 was missing from the safe. In addition, the manager found a note posted on the cash register which stated, "I know you trusted me, but I couldn't handle it at home. I am sorry. If you want, you can try and get the money out of my car or bike. Chuck." On April 28, 1987, the defendant turned himself in to the Great Falls police department. He gave the police a bag containing $1,219 at the time of his surrender. He confessed to entering the store after hours by means of his keys, taking the money and leaving the note on the cash register. At trial, the manager testified that all employees were given keys to the store and access to the store safe. The defendant testified that he was required to open and close the store and he was permitted access to the store's safe. According to both the manager and the defendant, the manager allowed employees to enter the store after business hours for any proper purposes. The evidence fails to disclose, from the State or from the defendant, that when the store key was delivered to Feldt, any limitation, written or oral, was placed upon his use of it, or upon his access to the safe. I. Whether the trial court erred in finding that the defendant entered his employer's premises "unlawfully" thereby committing the act of burglary under S 45-6-204 (1) , MCA? Section 45-6-204(1), MCA, defines burglary as follows: A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein . . . "Enters or remains unlawfully" is defined in S 45-6-201, MCA, which reads in pertinent part: A person enters or remains unlawfully . . . when he is not licensed, invited, or otherwise privileged to do so. This Court in State v. Starkweather (1931), 89 Mont. 381, 297 P. 497 held that an entry made by one who is licensed or privileged to be on the premises is not unlawful under the burglary statute. The Court in Starkweather stated: "There is no breaking in or entering a house or room and therefore, no burglary, if the person who enters has a right to do so." Starkweather, 297 P. at 498. To constitute a burglary the nature of the entry must itself be a trespass. Starkweather, 297 P. at 498. his Court in Starkweather, focused on whether there was a limitation upon the defendant's right to enter a pool hall. In Starkweather, the Court found no limitation on the defendant's right to enter the pool hall. This case turns on the same issue, that is whether there is any limitation on Feldt's right to enter T. C. Foods. The defendant Feldt was given permission to enter T. C. Foods where he was employed. As an employee of T. C. Foods, the manager gave Feldt a set of keys to enter the store and provided Feldt with access to the safe. In issuing the keys, the manager provided Feldt with authority to enter the premises at any time. The record reveals no limitations to the defendant's right to enter the store. However, the manager did testify at trial that Feldt could only enter the store after it was closed for proper purposes. Despite the manager's testimony, Feldt could enter T. C. Foods at any time day or night. Under this Court's holding in Starkweather, and §§ 45-6-204 and 45-6-201, MCA, the defendant can not be convicted of burglary. He lawfully entered the building after closing hours with keys provided by the manager of T. C. Foods. Feldt did not trespass when he entered T. C. Foods. His keys granted him authority to enter T. C. Foods after hours. The State argues that Feldt abused his privilege to enter T. C. Foods after hours, when he entered for the improper purpose to steal the money from the safe. The State further contends that Feldt's improper entry into T. C. Foods after hours transforms his original permissible entry into a trespass that can form the basis of a burglary charge. State v. Courville (Mont. 1989), 769 P.2d 44, 48. while Feldt acted improperly in taking the money from the safe, his entry into T. C. Foods was authorized by management. Feldt was properly charged and convicted for theft, but the State failed to meet the "unlawful entry" element of the burglary statute and this Court's previous holding under Starkweather. Finally, the State argues that the requirement of a trespassory entry under Starkweather is no longer accurate under the new burglary statute. We find little merit in the State's argument, since the Criminal Code Commission specifically endorsed the Court's holding in Starkweather in rewriting the burglary statute. The Criminal Law Commission specifically codified the Starkweather decision when it wrote § 45-6-204, MCA: . . . or as defined in S 94-6-201 entering or remaining unlawful. This definition is meant to exclude from burglary the servant who enters an employer's house meaning to steal silver; the shoplifter who enters the store during business to steal from the counter; the fireman who forms the intent as he breaks down the door of the burning house to steal some of the householder's belongings; and similar acts in which the defendant is lawfully on the premises. Where breaking is not required, there has been a tendency to hold that guilt may be established by proof that the prescribed intent was secretly entertained in the mind of the entrant although apart from the secret intent, the entrance at that time and place would have been authorized. For example, in People v. Brittain, 142 Cal. 8, 75 P. 314, it was held that one could be convicted of burglary for entering a store with larcenists intent. The Commission rejects this view and approves the decision on State v. Starkweather, 89 Mont. 381, 297 P. 181 (1931) as a more practical result. Criminal Law Comm. Comments at 236-237. The defendant had access to T. C. Foods and did not "enter or remain unlawfully" as defined in 5 45-6-201, MCA. Since there was no unlawful entry, the defendant's actions do not constitute a burglary as defined in § 45-6-204, MCA. We reverse the burglary conviction. The theft conviction was not appealed. The sentence imposed upon Feldt for the ~ i s t r i c t Court is modified to strike therefrom the penalty assessed for burglary, and as modified, the sentence is affirmed. We Concur: J u s t i c e s Justice L. C. Gulbrandson, dissenting. I respectfully dissent. The trial judge, in Finding of Fact Number 6 found: T.C. Foods store was closed for business when the defendant entered said store and took the money. Defendant did not have permission to enter the store at that time and he did not have permission to take the money. In my view, there is sufficient evidence in the record to affirm the conviction for burglary. The manager of T.C. Foods store had personally hired the defendant and knew the defendant's work schedule. At trial, the manager testified as follows: Q. Now, the Defendant, Charles Matthew Feldt, even though he is an employee of your store, did he have your permission to enter the store after hours? A. No. Q. And, if the Defendant was not working a shift on Sunday night before you arrive at the store Monday morning, then technically, isn't it correct, if at all, that an employee in his position would not have permission to go back and turn the coffee off or anything like that? A. Right. Q. Because he wouldn't have been working that shift, isn't that my understanding? A. Yes. Q. So, he really can't have any permission at all to go into the T.C. Foods between the times you closed on Sunday and you opened on Monday, isn't that my understanding of it? A. Yes. Q. He didn't have permission to go into the store for any purpose such as turning the alarm on, or turning the coffee off, maybe to lock a door, things like that. Isn't that my understanding of the situation? A. Yes. Testimony at trial established that the defendant had not worked on the Sunday preceding the incident, and he was not scheduled to work Monday, the day of the incident. The defendant testified personally as follows: Q. Now, you had nobody's permission to go into the store at that time; isn't that correct? A. Not at that time. The foregoing testimony, in my view, supports the trial judge's finding that defendant did not have permission to enter the store at that time. The record as a whole supports the trial judge's verdict that the defendant was guilty of burglary. The majority opinion, in my view, has disregarded State v. Courville (Mont. 1989), 769 P.2d 44, 46 St.Rep. 338, wherein this Court stated: A verdict of acquittal may be directed in favor of the defendant only if no evidence exists upon which to base a guilty verdict. See State v. Matson (Mont. 1987), 736 P.2d 971, 44 St.Rep. 874; State v. Whitewater (Mont. 1981), 634 P.2d 636, 38 St.Rep. 1664; and § 46-16-403, MCA. The foregoing testimony of T. B. regarding Courville's entry was sufficient for the case to go to the jury. . . Even had the jury found that T. B. may have invited Courville to sleep downstairs on her couch, that invitation certainly did not include going up to her bedroom in order to choke and sexually assault her. Such conduct exceeds any reasonable privilege and the trial court properly let the burglary charge go to the jury for determination. See also State v. Manthie (1982), 197 Mont. 56, 641 P.2d 491; State v. Watkins (1974), 163 Mont. 491, 518 P.2d 259 ("when a person exceeds the limits of his privilege . . . he thereby transforms his original invited presence into a trespass that can form the basis of a burglary charge. " ) Courville, 769 P.2d at 47-48. See also State v. Christofferson (Mont. 1989), 775 P.2d 690, 46 St.Rep. 1049. I would affirm. \ Justice R. C. McDonough: I concur in the foregoing dissent. Justice Chief Justice J. A. Turnage: I concur in the dissent of Justice Gulbrandson. It is unfortunate that prosecuting attorneys persist in filing bur- glary charges when, as in this case, there are facts that clearly establish a separate felony and no useful purpose is served in the administration of justice in filing an additional charge of burglary. 9 | October 19, 1989 |
18ede6ee-3d4f-4e4c-ae03-dda7d59fe287 | STATE v ROGERS | N/A | 89-167 | Montana | Montana Supreme Court | No. 89-167 I N THE SUPREME C O U R T OF THE STATE O F MONTANA 1989 STATE O F MONTANA, P l a i n t i f f and Respondent, -vs- I - RONALD RQGERS rC . . -J i- , 1-1 Defendant and Appellant. - - f 1- J APPEAL,/$ROM:' ~ i s t r i c t Court of t h e ~ h i r t e e n t h ~ u d i c i a l ~ i s t r i c t , P-.-, : " I n and f o r t h e County of Yellowstone, k * - . The Honorable Robert Holmstrom, Judge p r e s i d i n g . COUNSEL OF RECORD: For Appellant: Gary E. Wilcox, B i l l i n g s , Montana For Respondent: Hon. Marc ~ a c i c o t , Attorney General, Helena, Montana Kathy Seeley, A s s t . Atty. General, Helena Harold Hanser, County Attorney; avid Hoefer, Deputy, E i l l i n g s , Montana F i l e d : submitted on ~ r i e f s : June 3 0 , 1989 Decided: September 2 7 , 1989 a Clerk Justice William E. Hunt, Sr. delivered the Opinion of the Court. Defendant, Ronald Rogers, appeals the decision of the District Court for the Thirteenth Judicial ~istrict, Yellowstone County, revoking his suspended sentence that was entered on June 26, 1987 and ordering instead that he serve ten years in the Montana State Prison with only six years suspended. We affirm. The County Attorney of Yellowstone County, Montana filed an information on December 17, 1986, charging Ronald Rogers, the defendant, with two felony counts of sexual assault and one misdemeanor count of indecent exposure. Rogers pled guilty on June 5, 1987 to all three counts. On June 26, 1987, the District Court for the Thirteenth Judicial ~istrict, Yellowstone County, sentenced Rogers to ten years imprisonment for each count of sexual assault, the sentences to run concurrently with all but thirty days suspended for each count. The District Court also sentenced Rogers to six months for indecent exposure and suspended this sentence in its entirety. The conditions of Rogers1 suspended sentence included: 1. The defendant shall not frequent any place where intoxicating liquor or beer is the chief item of sale nor shall he use intoxicants or beer; nor shall he purchase, use, possess, give, sell or administer any narcotic or dangerous drugs or have in his possession same without proper prescription by a doctor. 9. The defendant shall continue with mental health counseling, at his own expense, as approved and monitored by the Adult probation and Parole ~ i e l d Services. Rogers subsequently signed an acknowledgement of acceptance of terms and conditions of probation which stated, in part: The conditions of said probation have been read by the undersigned and are fully understood, and the undersigned does hereby covenant that he will strictly carry out and follow the terms of said probation. The Deputy County Attorney filed a petition on December 5, 1988 for revocation of the order suspending Rogers' sentence. The ~istrict Court held a hearing on the petition to revoke on January 31, 1989 and subsequently revoked Rogers' suspended sentence and ordered that he serve ten years in the Montana State Prison with only six years suspended. The sole issue on appeal is whether the ~istrict Court abused its discretion when it revoked Rogers' suspended sentence and imposed a four year sentence of incarceration. Rogers argues that he substantially complied with the terms and conditions of his probation and that his violations were only technical and were therefore not sufficient grounds for revocation of his suspended sentence. The record reveals that Rogers violated the terms and conditions of his suspended sentence by drinking alcohol and smoking marijuana. Rogers was also terminated from the sexual offender treatment program because he was diagnosed by his counselor as too dangerous to be treated on an outpatient basis. Under S S 46-18-201(1) (b) and 46-18-202, MCA, a district court has the power to suspend a sentence and impose conditions for probation and other conditions it considers necessary to obtain the objectives of rehabilitation and the protection of society. A district court also has the discretion, under 5 46-18-203(1), MCA, to revoke a suspended sentence. This section provides: (1) A judge, magistrate, or justice of the peace who has suspended the execution of a sentence or deferred the imposition of a sentence of imprisonment under 46-18-201 or his successor is authorized in his discretion to revoke the suspension or impose sentence and order the person committed. He may also, in his discretion, order the prisoner placed under the jurisdiction of the department of institutions as provided by law or retain such jurisdiction with his court. A district court's decision to revoke a suspended sentence cancels a prior act of grace and is within the court's discretion. State v. Kern (1984), 212 Mont. 385, 388, 695 P.2d 1300, 1301; State v. ~obinson (19801, 190 Mont. 145, 149, 619 P.2d 813, 815. In Robinson, we stated that when a district court revokes a suspended sentence all that is required is that the district court must be reasonably satisfied that the probationer's conduct has not been what he agreed upon when he was given the suspended sentence. We further stated that the probationer was expected to walk the "straight and narrow" and conduct himself in a manner which would justify a district court's leniency. ~obinson, 190 Mont. at 148-49, 619 P.2d at 815. On review, this Court's role is to determine whether the District Court abused its discretion when it revoked Rogers' suspended sentence. The record clearly demonstrates, and Rogers does not deny, that he did violate the conditions of his suspended sentence by drinking alcohol and smoking marijuana. Although Rogers argues that these violations were merely technical violations, we nonetheless agree with the ~yoming Supreme Court's statement that " En] o violation of a probation agreement is minor . . . ." ~ollins v. State (Wyo. 1 9 8 6 ) , 712 P.2d 368, 371. Therefore, in light of the record, the ~istrict Court did not abuse its discretion when it revoked Rogers' suspended sentence. A Af firmed. w@;L .- Justices | September 27, 1989 |
d81c7c8e-4b3e-48e1-8650-738217f475a2 | MATTER OF B J | N/A | 89-052 | Montana | Montana Supreme Court | No. 89-052 I N THE S U P R E M E COURT O F THE STATE O F M O N T A N A 1989 I N THE MATTER O F B . J . , a Youth Under t h e Age of Eighteen. APPEAL F R O M : D i s t r i c t Court of t h e Twentieth J u d i c i a l ~ i s t r i c t , I n and f o r t h e County of Lake, The Honorable C. B. ~ c ~ e i l , Judge presiding. COUNSEL O F RECORD: For Appellant: Timothy J. Lape, Polson, Montana For Respondent: Hon. Marc ~ a c i c o t , Attorney General, Helena, Montana Paul D. Johnson, A s s t . Atty. General, Helena Larry N i s t l e r , County Attorney; Robert Anderson, Deputy, Polson, Montana Submitted on Briefs: J u l y 2 0 , 1989 C- c r Decided: October 17, 1989 0 e Filed- 2 0 - I ULrl = gE (U" = - & - rC -f -- Q L'z, i ; r; , , Justice William E. Hunt, Sr. delivered the opinion of the Court. B. J., a youth under the age of eighteen, appeals from the transfer of jurisdiction over his robbery charge under 5 45-5-401 (1) (b) , MCA, and his felony assault charge under S 45-5-202 (2) (b) , MCA, from Youth Court to the District Court of the Twentieth Judicial District, Lake County, pursuant to 5 41-5-206, MCA. We affirm. The issue raised on appeal is whether substantial credible evidence supported the District Court's order transferring jurisdiction from Youth Court to District Court. On December 6, 1988, B.J. and two accomplices were alleged to have robbed the Holt family at gunpoint in violation of 5 45-5-202(2) (b), MCA, and S 45-5-401(1) (b), MCA. Youth Court petitions were filed on December 7, 1988, and January 4, 1989, which charged B.J. with the offenses. Also on January 4, 1989, the State filed a motion to transfer the cause to District Court under 5 41-5-206, MCA. A hearing on the motion was held on January 23, 1989. ~estimony and evidence detailing the events of December 6, 1988, were presented at the hearing. Holt, the robbery and assault victim, testified that on December 6, 1988, three men approached his home by driving a vehicle up his driveway, across his lawn, and up to his back door. Holt testified that his home was without lights due to a power outage that evening. Holt walked out of his home to investigate and was greeted by a man, he later identified as B.J., who placed a shotgun to Holt's head. Holt then testified that he inquired as to the seriousness of the situation to which B.J. replied, "God damn serious," and that they were going to kill Holt. The three men then ordered Holt to tell his wife to open the door to the Holt residence or they would kill her. The Holts' two young children were also in the home. The men entered the darkened home, tore the telephone off the wall and demanded "drugs, money, and the keys to your car." Holt testified that he gave the men his wallet, told them that he did not have any drugs, and told them that the keys to his car were in the ignition. Holt started his car for the three men, who drove off in it leaving their original vehicle behind. Holt stated that during the entire ordeal, he was held at gunpoint and repeatedly threatened with his life. Sheriff's detective Michael Walrod testified at the hearing that he arrived at the Holt residence at approximately 12:30 a.m. shortly after the three men departed. He ran a check on the vehicle abandoned by the threesome and discovered that it was registered to B.J.'s mother. A sheath knife and a club was found therein. Sanders County Sheriff Bill Alexander testified that on December 7, 1988, he stopped the stolen Holt vehicle after receiving a dispatch report of an armed robbery. He then arrested the occupants. A search of the vehicle revealed a military sheath knife, a sheath knife, 20 gauge shotgun shells, a .22 caliber pistol, and a shotgun. The weapons found in the vehicle were introduced as the State's exhibits during the transfer hearing. The chief juvenile probation officer for Lake County, David McDougall, testified as to his current file on B. J., stating that B.J. was seventeen years old at the time of the offense; that in 1983, B.J. was on juvenile probation for burglary; that B.J. was charged repeatedly with theft in 1986; that B.J. was placed unsuccessfully in youth homes from October 1986 through February 1988; that B.J. was expelled from high school in 1987; and, that in January 1988, B.J. was charged with intimidation and other minor offenses for which he was adjudged delinquent by the Youth Court in March of 1988. McDougall further testified that B.J. was ordered to pine Hills School for boys for a 45 day psychological evaluation, which resulted in a negative report. McDougall stated that in his opinion, B.J. would not be an appropriate candidate for the Pine Hills School because he was too advanced in age, his criminal record was too serious, and he was too mature for the programs offered at the facility. The deputy superintendent for program group living at pine ~ills, Don Lee, also testified at the hearing. He stated that given the serious nature of B.J.'s criminal record, he would oppose B.J.'s placement in pine ills School and, that the only institution suitable for placement of R.J. would be the state prison. Upon consideration of the testimony and the evidence submitted, the court granted the State's motion to transfer to District Court. B.J. argues that the motion was improperly granted because it was not predicated on substantial credible evidence. We disagree. Section 41-5-206, MCA, sets forth, in part, the requirements which must be met before a Youth Court case can be transferred to District Court as follows: (1) After a petition has been filed alleging delinquency, the court may, upon motion of the county attorney, before hearing the petition on its merits, transfer the mztter of prosecution to the district court if: (a) (ii) the youth charged was 16 years of or more at the time of the conduct alleged to be unlawful and the unlawful act is . . . (C) aggravated or felony assault as defined in 45-5-202; (D) robbery as defined in 45-5-401; (dl the court finds upon the hearing of all relevant evidence that there is probable - cause to believe that: (i) The youth committed the delinquent act alleged; (ii) the seriousness -- of the offense and protection of the communitv reauire treatment of the vouth beyond that affordedA by juvenile facilities and (iii) the alleged offense was committed in an agqressive, -- violent, or premeditated manner. (Emphasis ours. ) The statute also provides that the court may consider the sophistication and maturity of the youth as well as his record and previous history. Here, the statutory requirements of 5 41-5-206, MCA, were met. B. J. is seventeen years old, is alleged to have committed both felony assault and robbery, and the court found that the evidence presented at B.J.'s hearing was sufficient to establish probable cause as required under the statute. The court's findings of fact provided the following: The seriousness of the offenses alleged and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities. The finding was supported by the court's comments as reflected in the transcript. The court stated that the seriousness of the offenses were beyond treatment available in juvenile facilities of the state and that the only alternative to being placed in the state prison would be to place B.J. on probation, which has proved to fail in the past. substantial credible evidence supported the court's findings. At the transfer hearing, testimony and evidence was presented. As previously noted, Holt, the robbery and assault victim, testified as to the events of December 6, 1988, and identified B.J. as one of the perpetrators; a. sheriff's detective testified as to his investigation of the crime in which weapons were found in the perpetrator's abandoned vehicle; the Sanders County sheriff testified as to the arrest of B.J. and his accomplices; the subsequent search of Holtls stolen vehicle revealed various weapons (the weapons were introduced as the State's evidence during the transfer hearing) ; the chief juvenile probation officer for Lake County testified as to B. J. Is criminal history and to the negative test results of B.J.'s psychological evaluation; and the deputy superintendent for program living at pine Hills testified that he would oppose B.J.'s placement at the facility. We hold that the testimony and evidence submitted during the transfer hearing was substantial and credible. The transfer of jurisdiction from Youth Court to District Court was proper. Affirmed. | October 17, 1989 |
ecfe1a14-ac2b-40fd-a675-10e2d83a8ccf | CORDIER v STETSON-ROSS INC | N/A | 14659 | Montana | Montana Supreme Court | No. 14659 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 JOSEPH CORDIER and JO CORDIER, husband and wife, Plaintiff, -vs- STETSON-ROSS, INC., a Washington Corporation, Defendant. and STETSON-ROSS, INC., a Washington Corporation, Defendant and Third-Party Plaintiff, -vs- CHAMPION INTERNATIONAL CORPORATION, a corporation, Third-Party Defendant. ORIGINAL PROCEEDING: Counsel of Record: For Plaintff: Williams Law Firm, Missoula, Montana Richard Ranney argued, Missoula, Montana For Respondent: Garlington, Lohn and Robinson, Missoula, Montana Larry Riley argued, Missoula, Montana McClelland Law Office, Missoula, Montana Goldman Law Firm, Missoula, Montana Submitted: June 14, 1979 Decided: flOV 2 8 im - Filed:. ju i Y 1979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. The Hon. Russell E. Smith, United States District Judge for the District of Montana, has certified to us for decision three questions, the adjudication of which by the Montana Supreme Court would materially advance ultimate termination of federal litigation: "1. Does a third party, sued by an injured employee, have any right to indemnity or contribution from a negligent employer if the employer and the employee are covered by the Montana Workers' Compensation Act? "2. If the third party has a right in indemnity or contribution against the employer, may the employer insist that the total verdict, of which he must pay all or part, be reduced by the compensation payments? "3. If the employer is not liable by way of indemnity or contribution to a third party, may he, even though himself negligent, recover from the third person through the employee under the sub- rogation rights created by law? In short, is there a conflict between R.C.M. 1947, S92-204.2, and R.C.M. 1947, 858-607.2?" The plaintiff in the federal court action, Joseph Cordier, was an employee of Champion International Corporation (hereafter Champion.) He was injured in an industrial accident which was covered under the Montana Workers' Compen- sation law and received compensation. Cordier has now brought against Stetson-Ross, Inc. an action under section 92-204.1, R.C.M. 1947, now section 39-71-412, MCA. In his complaint in the federal court, Cordier claimed that he was injured as the result of the negligence of Stetson-Ross, Inc. in connection with machinery sold by Stetson-Ross, Inc. to Champion. Joseph Cordier is joined in his suit against Stetson- Ross, Inc., by his wife, who as a co-plaintiff seeks damages for loss of consortium. Stetson-Ross, Inc. answered the complaint of Joseph Cordier and Jo Cordier by way of general denial, by alleging affirmative defenses of contributory negligence and assumption of risk, and by alleging that the negligence of Champion in failing to properly instruct Cordier in the operation of the gang saw, in failing to maintain the saw and equipment properly, and in failing to provide adequate safety procedures, proximately caused the plaintiff's accident. Stetson-Ross, Inc. in the same federal action also filed a third-party complaint against Champion alleging again in essence that Champion failed properly to supervise, instruct, and warn its employees as to the operation of the gang saw, failed to set up and install the saw properly and to maintain it, and failed to carry out and enforce safety procedures with respect to the operation of the gang saw. In its third-party complaint Stetson-Ross, Inc. prays for judgment against Champion either for the full amount of plaintiff's damages by way of indemnity or for a proportional amount, based on the percentages of negligence attributable to Champion and to Stetson-Ross, Inc. Stetson-Ross, Inc.'s claim is therefore based on (1) indemnity, or (2) contribution under our comparative negligence statute. We look first at the contribution issue. In Consolidated Freightways Corporation of Delaware v. June Osier and Margaret Collins (1979), Mont. I P.2d , 36 St.Rep. 1810, we held that except in those cases covered by our comparative negligence statute, there is no substantive right to contribution between joint tortfeasors under Montana law. In its answer in the federal court to the complaint of co-plaintiffs Joseph Cordier and Jo Cordier, Stetson-Ross, Inc. alleges that the contributory negligence of Joseph Cordier was the proximate cause of the injuries for which he claims damages. This allegation brings into play the provisions of section 27-1-702, MCA, our comparative negligence statute. Under that statute, if the plaintiff were negligent but in an amount not greater than the negligence of Stetson- ROSS, Inc., any damages allowed are required to be diminished in the proportion that the amount of negligence is attributable to the person recovering. However, we further held in Consolidated Freightways, supra, that the right of contribution granted in section 27-1-703, MCA, applicable to comparative negligence cases, does not apply or give a riqht to one tortfeasor to bring into the action another alleged tortfeasor by means of third-party practice. We said: "We further hold that even in comparative negligence cases, the right of contribution granted in section 27-1-703, MCA, applies only to defendants against whom judgment has been recovered by the plaintiff. The terms of the statute itself appear to command that result. It speaks of contribution in paragraph (1) where "'recovery is allowed against more than one party', and in paragraph (2) "provides what occurs if contribution cannot be obtained 'from a party liable for contribution.' "That language is not an invitation to engage in third party practice under Rule 14, M0nt.R.Civ.P. One reason is that Rule 14 is a procedural rule, and is not intended to alter, expand or abridge substantive rights. Moore's Federal Practice Sec. 14.03[1]. There was no substantive right to contribution in 1975 or 1977, when the com- parative negligence statutes were adopted in Montana. Another reason is that there is no indication of legislative intent, unless legislative intent can be found by implication, to change the substantive rule against contribution among joint tortfeasors." Consolidated Freightways (1979), Mont . I P.2d , 36 St.Rep. 1810, 1813. Consolidated Freightways teaches that contribution in Montana between joint tortfeasors is allowed only in comparative negligence cases, and then only as to tortfeasors actually sued by the plaintiff. The reasons are fully set forth in that opinion. The question certified to us by Judge Smith however in effect asks us to assume that there are no other roadblocks to Stetson-Ross, Inc.'s claim to contribution but the provisions of the Montana Workers' Compensation Act. In that light, we are brought immediately to consider the effect of section 92-204.1, R.C.M. 1947, now section 39-71-411,-412, MCA. The pertinent language of the past and present sections are: "For all employments covered under the Workers' Compensation Act. . . the provisions of the act are exclusive . . . [aln employer is not subject to any liability whatever for the death or personal injury to any employees covered by the . . . Act. The Workers' Compensation Act binds the employee himself, and in case of death binds his personal representative and all persons having any right or claim to compensation for his injury or death, as well as the employer and the servants and employees of such employer,. . . The right to compensation, and medical benefits as provided by this act is not affected by the fact that the injury,. . . or death is caused by the negligence of a third party other than the employer, or the servants or employees of the employer.. . . Whenever such event . . . is caused by the act or omission of some persons or corporations other than his employer . . . the employee . . . shall, in addition to the right to receive compensation under this act, have a right to prosecute any cause of action he may have for damages against such persons or corpora- tions.. . ." The following section 92-204.2, R.C.M. 1947, now section 39-71-414, MCA provides that if the injured worker sues a third party for his injuries, as here, the employer is subrogated either for the full amount of benefits or an amount up to 50 percent of the compensation benefits paid to the employee out of any recovery made by the injured employee from the responsible third party. We are commanded by the legislature to construe the Workers' Compensation Act liberally, section 39-71-104, MCA, in favor of the claimant, Grief v. Industrial Accident Fund (1939), 108 Mont. 519, 526, 93 P.2d 961, 963. It is plainly the intent of the Act that if an employee is injured in the course of his employment, through the negligence of one other than his employer or his employer's servants, the injured employee may sue, recover and keep the full amount of his common law recovery from the responsible third party, plus one-half of his costs or 50 percent of the benefits he received from the employer under the Act. The amount kept by the employee depends on whether the employer agrees to share costs. This intent is important as we shall later show. Note again that under section 92-204.1, R.C.M. 1947, now section 39-71-411, MCA, the "employer is not subject to any liability whatever" (emphasis added) to an injured employee except under the Act. A majority of states in compensation cases hold that there is no right of contribution vested in a third party, responsible for the injuries the employee received, against the employer who may also have been concurrently negligent to bring about the injuries. This result is reached for a variety of reasons as discussed by 2A Larson, Workmen's Compensation Law, 876.21, et seq. One reason given to deny contribution is that an employer under such a statute as section 39-71-411, MCA, cannot be jointly liable to the employee; therefore, the employer is not a joint tortfeasor. Larson, supra, 876.21, p. 14-298. Another is that in those states which have adopted the Uniform Contribution Between Joint Tortfeasors Act, as amended, both parties must be liable to the employee, and compensation statutes usually free the employer from liability to his injured employee. Another is that -6- the claim of the employee against the employer is solely for statutory benefits, while his claim against the third party is for damages; therefore, there is no common liability between the employer and the responsible third party. Cases which have adopted the minority rule that contribution from an employer is allowable under compensation acts, do so for reasons not pertinent or applicable to the case at bar. For example, contribution for one-half of the benefits was allowed by the United States Supreme Court in Weyerhaeuser Steamship Company v. United States (1963), 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1, even though the Federal Employees Compensation Act, which covered the employer was indicated as the exclusive remedy against the employer. However, the Supreme Court was led to this result by the traditional admiralty rule dividing all damages equally in cases of "mutual fault" between vessels. Yet, in United Airlines, Inc. v. Wiener (9th Cir. 1964), 335 F.2d 379, the Ninth Circuit Court of Appeals distinguished Weyerhaeuser and refused employer contribution to a third party where the indemnitor (employer) was not liable to the injured employee. It is our opinion that the broad provisions of section 92-204.1, R.C.M. 1947, now section 39-71-411, MCA, require us to hold that the provisions of the Workers' Compensation Act are exclusive as to the liability of the employer for damages sustained by the injured employee whether they are sought by the employee directly, or by a third party under contribution. Our statute rules out "any liability whatever" even before it goes on to state that the employee and those under him are limited to such recovery as the Act allows against the employer. The language "any liability whatever" would be surplusage unless it is read to mean liability not only to the employee and those claiming under him, but also any other party attempting to claim liability against the employer -7- for the same incident. In fact, this case provides an example: the spouse of Cordier has also sued Stetson-Ross, Inc. for her loss of consortium arising out of the industrial accident. Such an action by the spouse against the employer is barred by the same section of the Act, section 92-204.1, R.C.M. 1947, now section 39-71-411, MCA. To allow Stetson-Ross, Inc. to claim indemnity from the employer for the spouse's damages would accomplish indirectly what could not be done directly by a spouse. On full consideration, we deem the wise course is to hold that the language of section 39-71-411, MCA, means what it says when it excludes "any liability whatever" as to a covered employer, and to follow the majority rule. Therefore, even if the question certified to us involves a case of comparative negligence, as between Cordier and Stetson-Ross, Inc., prevail the provisions of section 39-71-411, and and a third party may not claim contribution from a covered employer for damages for the injuries an employee receives in the course of his employment. Any claim of Stetson-Ross, Inc. against Champion for contribution in this case is therefore barred. This applies also to any claim for contribution as to the spouse's loss of consortium. We also hold that the same reasoning applies to Stetson- Ross, Inc.'s claim for indemnity against Champion. However, because indemnity is an all-or-nothing proposition, and proceeds from a different legal basis than contribution, we are required to give it some special discussion. In Consolidated Freightways, supra, we held that in Montana there is no right between multiple tortfeasors who are in pari delicto to indemnity as a matter of substantive law. In so doing we affirmed the holdings in American Home Assur. Co. v. Cessna Aircraft Co. (10th Cir. 1977), 551 F.2d 804, 808, and Panasuk v. Seaton (D. Mont. 19681, 277 F.Supp. 979. We did approve in Consolidated Freightways the right of a third party to indemnity when the parties were not in pari delicto, where the injury results from the negligence of one party as primary and where the other party is not negligent, or his negligence is remote, passive and secondary but he is nevertheless exposed to liability by the negligence of the first party. Such situations were exemplified in Great Northern Railway Company v . United States (D. Mont. 1960), 187 F.Supp. 690, 693 and Crosby v . ~illings Deaconess Hospital (1967), 149 Mont. 314, 426 P.2d 217. As we said in Fletcher v. City of Helena (1973), 163 Mont. 337, 346, 517 "Indemnification requires the would-be indemnitee be free from any active negligence contributing to the injury causing accident." But even if Stetson-Ross, Inc.'s indemnity claim were otherwise allowable under Montana law, the exclusivity of the Workers' Compensation Act would still operate to bar that claim of indemnity against the employer Champion. That is the majority rule in these matters, which we choose to follow. Larson, supra, section 76.44, points out that a leading case for the majority rule is that of Slattery v. Marra Bros. (2d Cir. 1951), 186 F.2d 134, 138, authored by Judge Learned Hand. In that case, Marra Brothers, as defendant, had charged that Spencer Company was liable because of the primary fault and neglect of Spencer Company, and this primary fault entitled Marra Brothers not to contribution but to full indemnity. The District Court dismissed this claim and Judge Hand affirming for the Court of Appeals, said: ". . . We are therefore to assume that Slattery's contract of employment with the Spencer Company was a 'surrender . . . of . . . any other method, form or amount of compensation' for any injuries which he might receive 'in the course of his employ- ment'; and the Spencer Company was under no liability to him of any kind. Therefore, the right of Marra Bros. Inc., to indemnity from the Spencer Company cannot rest upon any liability of that company to Slattery; and, if it exists at all, it is hard to see how it can arise in the absence of some legal transaction between the two corporations, other than that of joint tortfeasors: . . . ". . . However that may be, we shall assume that, when the indemnitor and indemnitee are both liable to the injured person, it is the law of New Jersey that, regardless of any other relation between them, the difference in gravity of their faults may be great enough to throw the whole loss upon one. We cannot, however, agree that that result is rationally possible except upon the assumption that both parties are liable to the same person for the joint wrong. If so, when one of the two is not so liable, the right of the other to indemnity must be found in rights and liabilities arising out of some other legal transaction between the two.. . . ". . . So far as we can see therefore there is nobody of sure authority for saying that differences in the degrees of fault between two tortfeasors will without more strip one of them, if he is an employer, of the protection of a compensation act; and we are at a loss to see any tenable principle which can support such a result. . ." 186 F.2d at 138, 139. Montana has previously ruled on the difference created by "some other legal transaction between the two." In DeShaw v. Johnson (1970), 155 Mont. 355, 472 P.2d 298, we permitted a claim of indemnity against an employer even though the injury occurred under the Workers' Compensation Act, because there existed between the indemnitor and indemnitee a written save-harmless agreement. We saw there on the part of the employer an obligation separate and apart from any obligation owed through the injury to the employee. In Holly Sugar Corp. v. Union Supply Co. (Colo. 1977), 572 P.2d 148, employee Pust proceeded against Union on various products liability theories. Union responded by joining employer Holly as a third party defendant, seeking indemnity for any liability which Union might incur. The Colorado Supreme Court, in examining the situation, determined that the Montana compensation statutes and the Colorado statutes were similar with respect to the exclusivity provision, and that since there was no guidance under then existing Montana law, it would assume that Montana would hold as Colorado had, that the Colorado act prohibited a common law indemnity action by a third party against an employer in a compensation-covered case. Following this decision, Judge William D. Murray decided in Ambo v . Duff-Norton Company v. Jelco, Inc., (No. C\I-77-41-BU, D. Mont. 19781, 35 St.Rep. 660, that this Court would hold that an employer who had paid an employee under the Montana Workers' Compensation Act was immune from any third party indemnity claim arising out of the same incident. Larson, supra, in discussing injuries from the use of products purchased from a manufacturer, poses the question and result logically enough: ". . . But when a purchaser buys a product, does he make an implied contract with the manufacturer to use the goods in such a way as not to bring liability upon the manufacturer? This would be stretching the concept of contract out of all relation to reality. The court's approach to the matter assumed that the employer's duty to the manufacturer, if any, would have to be one based on its relative negligence, and on that basis could not survive the exclusive- liability clause.. . ." 2A Larson, Workman's Com~ensation Law. S76.44. D. 14-402. Stetson-Ross, Inc. relies on a contrary result reached by the New York Court of Appeals in Dole v. Dow Chemical Company (1972), 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S. 382, and upon Westchester Lighting Co. v. Westchester Co. S. E. Corp. (1938), 278 N.Y. 175, 15 N.E.2d 567, 5 N.Y.S.2d. In Westchester, however, as Judge Learned Hand had pointed out in his opinion we have quoted previously (186 F.2d at 138), the liability of the indemnitor was actually founded upon a breach of tort duty by the indemnitor to the indemnitee. in The decision /Dole -- is not logically explainable although Larson states that the result itself may have been a fair compromise. Nevertheless, its logic is described by Larson as "superficial". Section 76.44, at 14-405. Once again, the very broad wording of the exclusivity clause in our Workers' Compensation Act is a factor in our decision. The language "any liability whatever" necessarily includes a noncontractual indemnity claim where the liability of the putative indemnitor arises out of an incident covered by Workers' Compensation-covered injuries. As to the second question certified by Judge Smith to us, since we hold that in this case there is no right of indemnity or contribution against the employer, we do not need to consider whether the employer may insist that the total verdict against him be reduced by the compensation payments. We reserve our decision on that point to such time as we may be faced with a claim based upon contractual indemnity or on some legal obligation not based on a joint tortfeasor relationship. The third problem certified to us by the federal court poses the problem of a negligent employer, not liable by way of indemnity or contribution to a third party, nevertheless recovering from the third party through the employee under subrogation rights created by law. The federal judge asks if there is a conflict between section 92-204.2, R.C.M. 1947, now section 39-71-414, MCA, and section 58-607.2, R.C.M. 1947, now section 27-1-703, MCA. We limit this discussion to the facts of this case, where an employee is suing a third party on tort liability for an incident covered by the Workers' Compensation Act. Section 39-71-414, MCA, is the statute providing sub- rogation to an employer who has paid compensation and benefits to the employee under the Act. Section 27-1-703, MCA, is the contribution statute applicable in a comparative negligence case when recovery is allowed against more than one party. This question was posed and certified to us by the federal court before we entered our opinion in Consolidated Freightways, supra. Therefore the Federal District Court did not have before it at the time the question was certified the discussion set forth in Consolidated Freightways, which is pertinent to the question of conflict between such statutes. We said in Consolidated Freightways that the right of contribution granted in section 27-1-703, MCA, applies only to defendants against whom judgment has been recovered by the plaintiff. As we have already demonstrated in the foregoing discussion, it is not possible in Montana for an employer who has paid Workers' Compensation benefits to an employee to be liable as a joint tortfeasor either for indemnity or for contribution to a third party found responsible for the employees injuries. Section 27-1-703, MCA, provides a right of contribution only as to defendants against whom judgment has been recovered by a plaintiff in a comparative negligence case. Under Consolidated Freightways, contribution accrues only between defendants who have actually been sued by the plaintiff. Outside the comparative negligence action, there is no right of contribution, and an unsued tortfeasor is not liable in contribution to a tortfeasor against whom recovery has been allowed in a comparative negligence case. Since section 27-1-703, MCA, cannot give rise to liability against an employer, there can be no conflict between it and section 39-71-414, MCA, the subrogation statute in the Workers' Compensation Act. This result indicates at least some wisdom in the position we took as to unsued tortfeasors in Consolidated Freightways. Even though there is no conflict between section 27-1- 703, MCA, and section 39-71-414, MCA, nevertheless, the question certified to us poses the problem of the fairness of a "negligent employer" profiting from the employee's suit by getting reimbursement for the compensation expenditures through subrogation. -13- Subrogation provisions in Workers' Compensation Acts vary from state to state and with each quirk and special provision to be found therein, it may safely be said that there are almost 50 different approaches to the right of subrogation among the various states. We must look at the subrogation rights provided by the Montana Act from the viewpoint that the employer has accepted liability without fault to the employee; that the employee's recovery against the employer is limited to the benefits under the Act; that the employer has given up its common law defenses if it does not come under the Act; and that the special provisions of the Act with respect to subrogation are designed to provide an incentive to the employee to seek reimbursement for his damages from a responsible party so that the employer may be reimbursed in whole or in part out of any recovery made by the employee. The statutory scheme is evident. The employer or his insurer is granted a right of subrogation for all compensation and benefits paid under the Workers' Compensation Act. Section 39-71-414, MCA. This right is a "first lien" on the claim, judgment, or recovery of the employee. Section 39- 71-414, MCA. If the employer at the employee's request agrees to pay a part of the costs of the action, the employer's first lien allows recovery for all of the benefits paid under the Act by the employer or his insurer. If the employer or the insurer does not elect to participate in the costs of the employee's action, then the insurer or the employer waives 50 percent of its subrogation rights, and that portion of the benefits may be kept by the employee over and above his recovery from the responsible party. Section 39-71-413, MCA, states that the employee, "in addition to the right to receive compensation" has a right to prosecute any cause of action he may have for damages against the persons or corporations causing the injury. -14- It is the intent and purpose of the Workers' Compensation Act that the right of action against a responsible third party belongs -- to the employee. Consequently, iti5 uniformly held that the employer's contributory negligence may not be used as a defense in an action by the injured employee against the responsible party. See Froysland v. Leef Bros., Inc. (1972), 293 Minn. 201, 197 N.W.2d 656. Therefore, under the Montana scheme, the negligence, if any, of the employer (but not of the employee himself) never becomes an issue in the injured employee's action against a responsible third party. His right to recover damages is determined without reference to his employer's negligence. If contributory negligence is involved, it is only the contributory negligence of the injured employee himself which serves to reduce his right of recovery under comparative negligence. Under the statutory scheme in Montana, the negligence of the employer or of the employee's fellow servants does not serve to reduce the recovery to which the injured employee is entitled. Under section 39-71-414, MCA, the employer is not a necessary party to the injured employee's action. The employer has only a "first lien" upon any recovery made by the employee. While this may result in a "negligent" employer profiting through subrogation, the employee's cause of action cannot be split. In choosing between two possible injustices, allowing a negligent employer to profit, or reducing the recovery allowed to an injured employee, the Montana legis- lature has opted in favor of the employee by providing him full recovery. Any reduction of the employer's right to subrogation by virtue of the employer's negligence would have to be found within the four corners of the Workers' Compensation Act. There is no such provision, and we cannot provide one. We agree with Larson's comment on the matter: ". . . On the other hand, it is admittedly rather an odd spectacle to see a negligent employer reimbursing himself at the expense of a third party; and several courts have barred the employer's recovery on these facts. There is, however, one oversight in most of the latter cases: They have a tendency to speak of the 'employer's' negligence when what they really mean is the negligence of some co-employee of the injured employee. Once this is held firmly in mind, the picture changes in two ways. First, one's moral indignation evaporates, since one no longer has the prospect of a personally guilty plaintiff claiming damages. Second, it becomes even legally inaccurate to speak of the 'employer's' negligence in such circumstances, since the employer who assumes compensation coverage is in law not liable for the negligent harms wrought by one employee upon another. It is incorrect to say that the negligence of a co-employee is the employer's negligence, when the injured person is also an employee; the principle of vicarious liability simply does not apply . . ." - - 2A Larson, workmanis compensation Law, 5 75.23, p. 14-269 to 14-272. Stetson-Ross, Inc. points to the California case of Associated Const. v . Workers' Compensation (1978), 150 Cal.Rptr. 888, 587 P.2d 684, as a case supporting their position that we should reduce the subrogation recovery rights of an employer who has been negligent. While that case is authority for what Stetson-Ross, Inc. contends, an examination of the background of the California cases leading up to this result will demonstrate why the adoption of Associated Const. holding would be unwise here. First of all, California has no comparative negligence statute. The contributory negligence of a plaintiff in the slightest degree operated to defeat a plaintiff's claim in California until Li v. Yellow Cab Co. (1975), 119 Cal.Rptr. 858, 532 P.2d 1226. In Li, - the California Supreme Court abolished the rule of contributory negligence, and adopted a rule of "pure" comparative negligence, thereby abolishing the doctrines of last clear chance, and assumption of risk (as a variant of contributory negligence) which were subsumed under the general process of assessing liability in proportion to the negligence between the parties. By "pure" comparative negligence, the California Supreme Court meant that the negligence, if any, of a plaintiff would be assessed by the trier of fact, and any reward recoverable by the plaintiff would be proportionally reduced by the amount of his negligence. Thus, in theory, a plaintiff, guilty of negligence in any percentage as a causative factor in bringing about his injuries could nevertheless recover an amount diminished by the percentage that his negligence bore to the total amount of the damages he sustained. Before - Li, a statutory development existed with respect to joint tortfeasors. The California legislature had adopted in 1957 provisions whereby joint tortfeasors were given a right of contribution, prorata as against other joint tortfeasors against whom a judgment had been rendered. The joint and several liability of each tortfeasor to the plaintiff was kept in force. Civil Code, sections875, 876. As late as 1977, the California courts were holding that as a condition to contribution, the money judgment had to be rendered jointly against two or more defendants in the same action. Sanders v. Atchison, Topeka, and Sante Fe Railway Company (1977), 135 Cal.Rptr. 555. The statutes further protected releases, or covenants not to sue, by providing that if one tortfeasor settled with the plaintiff, that amount of settlement reduced the plaintiff's claim against the other tortfeasors, but the settling tortfeasor was not liable for any greater amount under contribution than was paid under the agreement of release or covenant not to sue. Civil Code, section 877. Li involved one plaintiff and one defendant. The - problem of multiple tortfeasors was not handled until the case of American Motorcycle Ass'n v. Superior Court (1978), 146 Cal.Rptr. 182, 578 P.2d 899. There the California court, again in the absence of legislative action, made several departures from its established law. First it held that the adoption of comparative negligence in - Li did not -17- abolish the rule of joint and several liability as between joint tortfeasors. Therefore, each tortfeasor whose negligence was a proximate cause of an indivisible injury received by a plaintiff was liable for the full amount of the plaintiff's recovery, irrespective of the comparative or proportional negligence of that individual tortfeasor as to the other tort- feasors or as to the plaintiff. Next, it abolished the "equitable indemnity" rule of recovery (to be compared with our rule under Crosby v. Billings Deaconess Hospital (1967), 149 Mont. 314, 426 P.2d 217) and held that partial indemnity, as a species of contribution, was to be considered in assessing the overall comparative negligence as between the joint tortfeasors. This development the court called an evolving common law right of comparative indemnity. 578 P.2d at 902. Finally, it determined that a named defendant was authorized to file a cross-complaint against any other person whether sued or unsued, as to whom the named defendant sought to obtain total or partial indemnity. This latter development was, of course an abrupt departure from the provisions of Civil Code sections 875 and 876, which limited the right of contribution to sued tortfeasors against whom a judgment had been recovered. Even while the California Supreme Court was taking this course in American Motorcycle Ass'n, with respect to bringing in unnamed defendants, it recognized that there would be a number of significant exceptions to the rule, one of which it listed as employers under the Workers' Compensation Act. Note 9, 578 P.2d at 917 of the court's opinion indicates that because of the provisions of the Labor Code, section 3864, which was its exclusivity provision, a concurrently negligent employer could not be sued. Notwithstanding the statement in the footnote in American Motorcycle Ass'n, supra, nevertheless, when the California Code came to consider the case of Associated Const., supra 587 P.2d at 683, it then decided that comparative fault among joint tortfeasors was applicable --- as to an employer in spite of the exclusivity clause of the Workers' Compensation Act. In that case, the Court takes a further broad step: not only could a court decide the comparative fault of the employer and any concurrently negligent tortfeasor, but if the matter were before the administrative board, handling Workers' Compensation cases, the problem of such comparative fault could be determined by that Board. From the foregoing, it should be apparent that this is not the time for Montana to follow the lead of California or indeed of New York (see Dole v. Dow Chemical Company (N.Y. 1972), 282 N.E.2d 288) to adopt the broad judicial jumps that have occurred there without the springboard of legislation. Several distinctions that apply to Montana come to mind. First, our comparative negligence statute is a "fifty percent statute" in that the plaintiff recovers if his negligence is not greater than the negligence of the person against whom recovery is sought. Section 58-607.1, R.C.M. 1947, now section 27-1-702, MCA. Moreover, if the plaintiff under Montana's comparative negligence statute sues more than one defendant, he may not recover against any such defendant as to whom plaintiff's negligence is greater. This is significantly different from California's "pure" comparative negligence system. As an example, in California, if a plaintiff is thirty percent negligent, one defendant sixty percent negligent, and another ten percent negligent, under the California rule of pure comparative negligence and joint and several liability, the plaintiff who is thirty percent negligent may recover seventy percent of his damages both against the sixty percent negligent defendant and the ten percent negligent defendant. In California it is the rule that the plaintiff's comparative -19- negligence is weighed against the combined negligence of the defendants, whereas in Montana, under section 58-607.1, R.C.M. 1947, now section 27-1-702, MCA, (we have not speci- fically held this yet) it appears that the ten percent negligent defendant would not be liable for any amount to the plaintiff. California justifies its departures from established rules and statutes as a part of the evolution of the common law (Li, - supra, 532 P.2d at 1238), a euphemism for the adoption of uncommon law. In any event, the result in Workers' Compensation cases has been to inject the concept of fault of the employer into its decisions, regardless of the exclusivity clause. What California has really done through these decisions, is to open the door for liability insurers to scurry around for prospective cross defendants with whom to divide the risk. Third party practice now is one of the factors clogging the progress of litigation in the courts, even in Montana with our limited indemnity doctrine. The resulting burden on a plaintiff is enormous. Perhaps in California, where a plaintiff with as much as ninety percent of the blame for his injuries may yet in theory recover something, the cause is worthwhile; but in Montana, under our "fifty percent" statute, the cost could be disastrous. While our trial courts have power to bifurcate issues and causes, and thus confine the proceedings, still trial courts are nearly powerless to control the paper blizzard that ensues when the professional discoverers go to work under our liberal discovery procedures. When unnamed defendants are brought into the action by other tortfeasors, the plaintiff is on his mettle to attend all the depositions and other discovery, or else face a possible summary judgment against him. We think the "time-worn" rules are also time-proved. For now, the wiser course for -20- is us/to follow the traditional tenets of tort law, leaving it to the legislature to chart new concepts, whether of evolution or devolution. Accordingly, we reject the idea that an employer can be called to account for his negligence in determining his subrogation rights in Workers' Compensation cases. We therefore answer the questions certified to us as follows : 1. Does a third party, sued by an injured employee have any right to indemnity or contribution from a negligent employer if the employer and the employee are covered by the Montana Workers' Compensation Act? Answer: No, unless it arises out of some other legal transaction between employer and third party. 2 . If the third party has a right in indemnity or contribution against the employer, may the employer insist that the total verdict, of which he must pay all or part, be reduced by the compensation payments? Answer: Not applicable. 3. If the employer is not liable by way of indemnity or contribution to a third party, may he, even though himself negligent recover from the third person through the employee under the subrogation rights created by law? Answer: Yes. In short, is there a conflict between section 92-204.2, R.C.M. 1947, and section 58-607.2, R.C.M. 1947? Answer: No. We Concur: a Chief Justice Justice ---- --__-______________------ (Ci, Justices -21- Mr. Chief Justice Frank I. Haswell, specially concurring: I concur in the answers of the majority to the certified questions, but not in all the discussion, reasoning and statements in the foregoing opinion. Chief Justice I concur with Chief Justice ------------- | November 28, 1979 |
52ec3815-2ee0-4a6c-a7aa-4638df631985 | STATE v HIBBS | N/A | 89-093 | Montana | Montana Supreme Court | NO. 8 9 - 9 3 I N THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, p l a i n t i f f and R e s p o n d e n t , -vs- WILLIAM MARTIN HIBBS, D e f e n d a n t and A p p e l l a n t . I . 3 . . APPEAL FROM: ~ i s t r i c t C o u r t of t h e Second ~ u d i c i a l ~ i s t s i c t , , r ~ I n and for t h e C o u n t y of S i l v e r Bow, -- ( ; 3 T h e H o n o r a b l e A r n o l d O l s e n , Judge presiding-, COUNSEL OF RECORD: F o r A p p e l l a n t : D e i r d r e C a u g h l a n ; D u n l a p & C a u g h l a n , B u t t e , 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 ~ 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 K a t h y Seeley, A s s t . A t t y . G e n e r a l , H e l e n a R o b e r t M. M c C a r t h y , C o u n t y A t t o r n e y , B u t t e , M o n t a n a B r a d Newman, D e p u t y C o u n t y A t t y . , B u t t e S u b m i t t e d on ~ r i e f s : A u g . 1 0 , 1 9 8 9 ~ e c i d e d : S e p t e m b e r 2 6 , 1989 e ~ustice William E. Hunt, Sr., delivered the Opinion of the Court. A jury empaneled in the ~istrict Court of the Second Judicial District, Silver Bow County, found William Martin ~ibbs, defendant, guilty under 5 45-5-502(1) and (3), MCA, of three counts of sexual assault. The ~istrict Court sentenced Hibbs to twenty years in the Montana State Prison on each count to be served consecutively. He was also found to be a persistent felony offender under 5 46-18-501 (1) and (2) , MCA, and was sentenced to fifteen years in the Montana State Prison to be served consecutively with the term imposed on count three. Hibbs appeals. We affirm. The following issues are raised on appeal: 1. Whether the District Court abused its discretion when it offered and admitted an exhibit on its own motion. 2. Whether the District Court properly allowed the prosecution to use leading questions with two child witnesses, ages six and seven, on direct examination. 3. Whether the District Court erred in allowing three prosecution witnesses to testify to out-of-court statements made to them by four child witnesses. On July 13, 1988, a six-year-old girl, referred to as Misty, told her mother that she, her sister, referred to as April, age ten, and two neighbor girls, referred to as Carol, age six, and Carol's sister, referred to as Crystal, age seven, had been sexually assaulted the previous day at the Hibbs' residence. April's mother reported the incident to the police. On July 14, 1988, a social worker, employed by the Department of Family Services, Butte, Montana, interviewed the four girls in which the girls claimed that Hibbs forced them to touch his penis with their hands and mouths and that he touched their vaginas with his hands. The four girls also claimed that Hibbs prevented them from leaving his residence by wedging knives into his door which prevented it from being opened. The four girls stated that Hibbs gave them some change after sexual contact had ceased. Two of the girls claimed that Hibbs warned them not to tell their parents about the contact or the girls would go to jail. Another girl claimed that Hibbs threatened to kill her if she told her parents about the contact. Also, on July 14, 1988, a Butte police detective took a voluntary, recorded statement from Hibbs after Hibbs was advised of his Miranda rights and after he signed and initialed a waiver form acknowledging his rights. Hibbs stated that he was 58 years old. He further stated that while he did have sexual contact with several juvenile girls from the neighborhood, it was the girls who initiated the contact by unzipping his pants and then fondling and sucking his penis. Hibbs claimed that this occurred while he was asleep and incapacitated by alcohol. At trial, Hibbs testified that as soon as he became aware of what was happening, he ran into the bathroom and Crystal followed him and demanded money. On August 4, 1988, Hibbs was charged by information with four counts of sexual assault committed against four juveniles in violation of S 45-5-502(1) and (3), MCA. On January 3, 1989, a jury trial commenced. witnesses for the prosecution included the four girls, ~pril, Misty, Crystal and Carol, their mothers, and ~ e r r i Waldorf, a social worker who interviewed the children following the reported assaults. On January 4, 1989, the jury found Hibbs guilty on three of the four counts of sexual assault. On February 3, 1989, Hibbs was sentenced to twenty years in the Montana State Prison on each count to be served consecutively and fifteeen years in the Montana State prison as a persistent felony offender to be served consecutively with count three. Hibbs was designated a dangerous offender for purposes of parole eligibility under S 46-18-404, MCA, and was given credit for time served. The first issue raised on appeal is whether the District Court abused its discretion when it offered and admitted an exhibit on its own motion. Specifically, the court ordered the Miranda waiver form admitted into evidence after the prosecution had fully cross-examined Hibbs on the document. The prosecutor stated that he did not intend to enter the form into evidence. Hibbs argues that by ordering the admission of the form into evidence, the court, in effect, was commenting on the evidence in violation of Rule 614(b), M.R.Evid., which provides : The court may interrogate witnesses, whether called by itself or a party; provided, however, that in trials before a jury, the court's questioning must be cautiously guarded so as not to constitute express or implied comment. It is true that under the rule, the court may examine witnesses to fully elicit or clarify facts. See State v. arti in (Mont. 1987), 736 P.2d 477, 44 St.Rep. 804; State v. Bier (1979), 181 Mont. 27, 591 P.2d 1115. The authority for the court to call or examine witnesses is discretionary and will not be disturbed absent a showing of abuse of discretion or manifest prejudice. State v. Hart (1981), 625 P.2d 21. Nonetheless, the issue raised is not the examination of witnesses but the actual admission of an exhibit by the court's own order. There is no provision under Rule 614, M.R.Evid., nor anywhere in Montana law, that directly permits the court to offer its own exhibits into evidence. Here, the exhibit had been read into evidence in full to the jury. It could hardly constitute eror. If it were error, it was harmless. Section 46-20-701, MCA, provides in part: No cause shall be reversed by reason of any error committed by the trial court against the appellant unless the record shows that the error was prejudicial. Under State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266, we stated: The test of prejudicial error requiring reversal is whether there is a reasonable possibility the inadmissible evidence might have contributed to the conviction. (Citations omitted.) The next issue raised on appeal is whether the District Court properly allowed the prosecution to use leading questions with two child witnesses, ages six and seven, on direct examination. Rule 611 (c) , M. R.Evid., provides in pertinent part: Leading questions should not be used on the direct examination of a witness except as necessary to develop his testimony. ~ i b b s objected to the leading nature of the prosecution's direct examination of two child victims and argues that the prosecution failed to establish that leading questions were necessary to develop the witnesses' testimony. However, in ~ailey v. Bailey (1979), 184 Mont. 418, 603 P.2d 259, 261, this Court set forth an exception to the general rule against leading questions on direct examination where a child witness is involved. The rationale behind the exception is that questioning a child is a difficult task. See State v. Eiler (Mont. 1988), 762 P.2d 210, 45 St.Rep. 1710; State v. Howie (Mont. 1987), 744 P.2d 156, 44 St.Rep. 1711. As this Court stated in Eiler, 762 P.2d at 215 whether or not leading questions will be allowed is a matter for the trial court's discretion. See also Bailey, 603 P.2d at 261. The District Court need not make express findings that leading questions are necessary. We hold that the questioning was proper. The last issue raised on appeal is whether the ~istrict Court erred in allowing three prosecution witnesses to testify as to out-of-court statements made to them by four child witnesses. In this case, after the victims testified, the prosecution called three witnesses, Chrystal's mother, April and Misty's mother and a social worker, to testify. The three witnesses testified as to what the children had told them concerning their activities with Hibbs. The testimony of the three witnesses was consistent with the testimony of the four girls. Hibbs objected to the testimony as hearsay. Rule 801(d) (1) (B) , M.R.Evid., provides in part: A statement is not hearsay if: . . . consistent with [the witnesses] testimony and is offered to rebut an express or implied charge against him of subsequent fabrication, improper influence or motive. ~ i b b s asserts that because the credibility of the child witnesses was never attacked at trial, the rule is inapplicable. However, as the prosecution notes, defense counsel placed the credibility of the child victim's in issue during opening by stating: The issue . . . is one of truthfulness. It is one of credibility . . . [the prosecution] has told you that he will call certain witnesses . . . [that] may have some ulterior motives of testifying against Bill Hibbs. . . . Be sure . . . [the children] know the difference between truth and fantasy; between the truth and a lie. (~mphasis ours. ) Further, during cross-examination, defense counsel questioned the children repeatedly over whether they knew what a lie was and whether they had ever lied. In asking such questions, defense counsel placed the credibility of the child witnesses in issue. In State v. Mackie (19811, 622 P.2d 673, 676, where similar statements were allowed into evidence, we held: These circumstances clearly qualify the counselor's testimony as nonhearsay under Rule 801 (d) (1) (B) . . . . The quoted declarant (rape victim) testified at trial, she was subject to cross-examination concerning her statement, the counselor's statement is consistent with the victim's testimony, and it rebuts an implied charge of fabrication. See also State v. Anderson (1984), 211 Mont. 272, 289-290, 686 P.2d 193, 202-203. Here, it was proper for the prosecution to rebut the attack on the credibility of the children under Rule 801(d)(l)(B), M.R.Evid., by calling witnesses to testify as to prior consistent statements of the children. Affirmed. / | September 26, 1989 |
d390b616-e23e-4ba4-9ad5-bfa8383fa916 | MARTINEZ v MONTANA POWER COMPANY | N/A | 89-050 | Montana | Montana Supreme Court | No. 89-50 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 KIMBERLY A. MARTINEZ, Claimant and Respondent, r c r I - ' - -vs- - 1 1- MONTANA POWER COMPANY, --. " , Employer/Defendant and Appellant. ;- APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Robert T. O'Leary and Patrick Fleming, Montana Power Co., Butte, Montana For Respondent: Tom L. Lewis and John Seidlitz, Jr., Great Falls, Montana Filed: Submitted on Briefs: Aug. 17, 1 9 8 9 Decided: September 21, 1 9 8 9 0 * - , d Clerk Justice R. C. McDonough delivered the Opinion of the Court. This appeal involves an award of attorneys1 fees in a workers' compensation case. Defendant Montana Power Company (MPC) appeals the judgement of the Workers1 Compensation Court awarding claimant Kimberly R. Martinez attorneys' fees for the wrongful termination of her temporary total disability benefits and conversion to permanent partial disability benefits. MPC failed to make a timely objection or rehearing request, and after filing a motion to reconsider the award still pending before the Workers1 Compensation Court, now appeals the judgment to this Court. We affirm. Appellant MPC raises a sole issue on appeal: Did the Workers1 Compensation Court err in awarding attorneys1 fees computed on the basis of 114.71 weeks of temporary total disability when MPC had paid permanent partial disability benefits during the disputed period? Respondent Martinez raises a separate issue on appeal: Did MPC waive its right to appeal the order awarding attorneys1 fees by failing to request an evidentiary hearing on attorneys' fees before the Workers1 Compensation Court? Claimant Martinez was injured on March 25, 1985 in the course and scope of her employment with MPC. As a result of her injury, Martinez received temporary total disability benefits paid biweekly by MPC, a plan I self-insurer. On August 20, 1986, MPC unilaterally determined that Martinez was capable of less strenuous employment and unilaterally reduced her temporary total benefits of $286 per week to permanent partial disability benefits of $143 per week. MPC reduced these benefits without giving Martinez the benefit of proper written notice as required by § 39-71-609, MCA, and with no medical evidence that Martinez had reached maximum healing or was capable of gainful employment. Martinez filed a petition for hearing with the Workers' Compensation Court on June 10, 1987, alleging MPC had wrongfully terminated her biweekly temporary total disability benefits. The case was tried on October 15, 1987, and the Workers' Compensation Co,urt entered its Findings of Fact, Conclusions of Law, and Judgment on October 31, 1988. The court found that the claimant had not reached maximum healing and was entitled to receive temporary total disability benefits retroactive to August 20, 1986, to continue for so long as she remained temporarily totally disabled. The court also ordered MPC to pay Martinez all contested medical, hospital, and related expenses incurred due to her injury and assessed MPC with a twenty percent (20%) penalty, in addition to reasonable costs and attorneys' fees pursuant to § 39-71-611 MCA. The judgment ordered Martinez' counsel to submit within twenty (20) days a proposed order and supporting documentation specifying the amount of attorneys' fees claimed. The court's Judgment provided MPC with thirty (30) days to request an evidentiary hearing if MPC contested the reasonableness of the proposed attorneys' fees, such motion was to be accompanied by an affidavit and a statement of the grounds by which MPC asserted that the award was unreasonable. Martinez' attorney submitted the proposed order and supporting statement on November 18, 1988, serving copies of both on MPC. The statement of attorneys' fees noted that the attorneys' fee agreement between claimant and counsel provided for a contingent fee of thirty-three percent (33%) of the amount of compensation payments claimant received by order of the Workers' Compensation Court. The temporary total disability benefits Martinez was awarded were computed by multiplying Martinez' temporary total disability rate of $286 by 114.71 weeks, the period of retroactive temporary total disability, for a total of $32,807.06 retroactive benefits. A twenty percent (20%) penalty was assessed to this sum resulting in a total award of $39,368.47. The attorneys' fee awarded was calculated by multiplying this total by the contingent fee percentage of thirty-three percent (33%) , resulting in an attorneys ' fees award of $12,991.60. The court's Judgment of October 31 did not specifically provide MPC with a credit for the permanent partial disability benefits of $143 per week MPC paid biweekly during the 114.71 weeks in question. Likewise, the statement of attorneys' fees disregarded these payments made by MPC. MPC did not request an evidentiary hearing to contest the attorneys' fee award within the thirty (30) day period as provided for in the court's Judgment of October 31, 1988. Nor did MPC object at any time to the amount of the retroactive benefits awarded, the penalty assessed, or the proposed order awarding attorneys' fees and costs. The Worker's Compensation Court awarded Martinez attorneys' fees of $12,991.60 on January 3, 1989 in accordance with the Proposed Order. On January 24, 1989, fifty-five (55) days after the deadline to request an evidentiary hearing and twenty-two (22) days after entry of the Order awarding attorneys' fees, MPC filed a Request for Reconsideration of the Order awarding attorneys' fees and costs. No affidavit was filed stating the grounds on which MPC contested the award and no evidentiary hearing was requested as required by the court's October 31 Judgment. Because the time for appeal was nearly exhausted, MPC filed its Notice of Appeal on January 31, 1989, before a hearing was held on its Request for Reconsideration. MPC has made a cash payment to Martinez of $16,403.53, the equivalent of $143 per week multiplied by 114.71 weeks, apparently crediting itself for the permanent partial disability benefits already paid during the period in question. The time for appeal of the compensation award having expired, MPC has not appealed the calculation of the underlying compensation award nor the penalty assessed to it. Only the issue of the attorneys' fee computation is now before this Court. First, we acknowledge that counsel for MPC presents a strong argument that the amo,unt of attorneys' fees awarded was calculated improperly. MPC's argument also indicates that there may be some error in the underlying compensation award, however, that issue is not before this Court as MPC did not appeal the original Judgment, the thirty day limit to file a Notice of Appeal having expired with respect to the that Judgment. Second, although MPC makes a strong argument that the attorneys' fee award is incorrect, we note that MPC failed to request an evidentiary hearing as specified or raise a timely objection to the proposed award at any time during the course of the proceedings below. It is a long established principle that only the issues properly raised and protected at the trial court level will be reviewed on appeal. Greger v. United Presstress, Inc. (1979), 180 Mont. 348, 590 P.2d 1121. Furthermore, this Court has held that issues not raised at the trial level before the Workers' Compensation Court will not be reviewed on appeal. McDanold v. B.N. Transport Inc. (Mont. 1981), 634 P.2d 175, 38 St.Rep. 1466. We will not hold a lower court in error for a procedure in which the appellant acquiesced at trial and to which he had not timely objected. In Re Marriage of West (Mont. 1988), 758 P.2d 282, 45 St.Rep. 1281. Because MPC failed to either timely object or request an evidentiary hearing contesting the Proposed Order awarding attorneys' fees, we are precluded from reviewing the correctness of the computation of that award. MPC contends that they are not barred from appeal because the Workers' Compensation Court abused its discretion in awarding the attorneys' fees without crediting MPC for payments already made. MPC relies on two cases, Simkins-Hallin Lumber Co. v. Simonson (1984), 214 Mont. 36, 692 P.2d 424, and Wagner v. Empire Development Corp. (Mont. 1987), 743 P.2d 586, 44 St.Rep. 1606, in contending that this Court may always review an award of attorneys' fees by the lower court to determine whether or not there has been an abuse of discretion. This is an incorrect statement of the law. This Court will use the abuse of discretion standard when reviewing an award of attorneys' fees, Simkins-Hallin, 692 P.2d at 427, Wagner, 743 P.2d at 587, provided that the usual requirements of preserving the issue at the trial court level are met before the issue of attorneys' fees is raised on appeal. MPC also contends that this Court may review the award of attorneys' fees regardless of their failure to object under the "plain error" doctrine. Under this doctrine, a trial or appellate court may take notice of plain errors affecting substantial rights although they were not brought to the Court's attention. Halldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169. The doctrine is used most frequently in criminal cases, where the fundamental rights of life and liberty are often at stake. It is used in civil litigation only in exceptional cases. Zimmerman v. Bozeman Products Assoc. (Mont. 1988), 759 P.2d 166, 45 St.Rep. 1387, Reno v. Erickstein (1984), 209 Mont. 36, 679 P.2d 1204. Furthermore, the plain error exception will not be applied where failure or refusal to raise an issue in trial court is conscious and intentional on the part of trial counsel. Halldorson, 175 Mont. at 174, 573 P.2d at 172. In its request for reconsideration, MPC's counsel stated: Attempts to resolve this particular issue (attorney fees) informally with Claimant's counsel have been unsuccessful. It is, therefore, necessary to request a reconsideration of the Claimant's attorney fee issue. . . If MPC did attempt to settle the fee dispute with Martinez' counsel then MPC was aware of the alleged error and consciously chose to resolve the matter informally instead of preserving the issue with a formal objection. The "plain error" doctrine is clearly inapplicable in this case. This case presents a conflict between the concepts of substantial justice and the requirements of timeliness. While the requirements of timeliness may act to the detriment of one party, they are necessary so that substantial justice may be afforded the other. MPC has presented a credible argument that the award of attorneys' fees was incorrect, yet MPC's failure to properly preserve the issue for appeal precludes us from disturbing the award. We cannot randomly except certain litigants from the requirements necessary for appeal when, through their own fault, they have failed to meet them. We affirm the Workers' Compensation Court. , 9 ' We Concur: | September 21, 1989 |
f9b9b565-a09c-4202-87f4-f202bd560cf4 | MARKS v FIRST JUD DIST COURT C | N/A | 89-256 | Montana | Montana Supreme Court | No. 8 9 - 2 5 6 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 DONALD C. MARKS, R e l a t o r , -vs- THE F I R S T J U D I C I A L DISTRICT COURT OF THE STATE OF MONTANA, I N AND FOR THE COUNTY OF RROADWATER, THE HONORABLE HENRY LOBLE, PRESIDING, R e s p o n d e n t . ORIGINAL PROCEEDING: COUNSEL OF RECORD: F o r R e l a t o r : T e d J. D o n e y ; D o n e y & T h o r s o n , H e l e n a , Montana F o r 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 , Montana 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 John T . Flynn, C o u n t y A t t o r n e y , T o w n s e n d , Montana R i c h a r d F e i s t h a m e l , Water C o m m i s s i o n e r , T o w n s e n d , M o n t a n a S u b m i t t e d on B r i e f s : A u g . 1 7 , 1 9 8 9 D e c i d e d : O c t o b e r 1 9 , 1 9 8 9 F i l e d : Justice Fred J. Weber delivered the Opinion of the Court. Relator applies for a writ of certiorari to set aside a contempt of court order from the First Judicial District Court of Montana, Broadwater County. We deny the writ. The issues are: 1. Did the District Court err in finding that defendant was in contempt of court? 2. Did the District Court err in denying defendant's motion for a continuance? 3. Did the District Court err in denying defendant's motion for substitution of judge? On October 7, 1988, Judge Loble, sitting as water court judge in place of Judge Lessley, held a show cause hearing, ordering Mr. Marks to show cause why he should not be held in contempt for failing to obey the orders and directives of the Water Commissioner. This hearing was scheduled based upon an affidavit by Mr. Feisthamel, the Water Commissioner for Confederate Creek, Broadwater County, Montana. In substance, this affidavit stated that on September 23, 1988, the Water Commissioner turned off water at Mr. Marks' diversion point, but that Mr. Marks turned the water back on without authority on September 25, 1988. On that same day the Water Commis- sioner turned the water off a second time, whereupon Mr. Marks totally removed the headgate from the diversion point on September 26, 1988. The Water Commissioner also swore that on September 26 he told Mr. Marks to shut off the water, but that Mr. Marks refused. The affidavit further stated that when told that he was being placed under arrest, Mr. Marks told the Water Commissioner to "get lost" and then entered his residence. Prior to the hearing, Mr. Marks obtained counsel. On October 3, 1988 counsel for Mr. Marks sent a letter to the court requesting a continuance because he had a prior commit- ment on October 7. Counsel also requested a substitution of judge. On October 6, Mr. Marks' counsel received a letter from the court denying these requests. On the day of the hearing, October 7, Mr. Marks appeared before the court without counsel. The court found him in contempt of court for failing to obey an order of the Water Commissioner. He was ordered to pay a $250 fine or spend two days in the county jail. From this order Mr. Marks appeals. I Did the District Court err in finding that defendant was in contempt of court? In reviewing a contempt appeal, this Court's standard of review is whether substantial evidence supports the judgment of contempt. Matter of Graveley (1980), 188 Mont. 546, 555, 614 P.2d 1033, 1039. This Court has also stated: On reviewing a contempt citation by writ of certiorari, we are limited to the following consid- erations: whether the lower court had jurisdiction to issue the order and secondly, whether there is evidence supporting the same. State ex rel., Foss v. District Court (1985), 216 Mont. 327, 331, 701 P.2d 342, 345. This case involves interference with the actions of a water commissioner's distribution of water and is governed by § 85-5-406, MCA, which states: Interference with actions of commissioner. Any person opening or closing a headgate after being set by such commissioner or who in any manner interferes with such commissioner in the discharge of his duties shall be deemed guilty of contempt of court and may be proceeded against for contempt of court as provided in contempt cases. M r . Marks contends t h a t t h e contempt charge i n t h i s case was criminal i n nature, t r i g g e r i n g a requirement t h a t t h e c o u r t f i n d he acted "knowingly o r purposely" when he v i o l a t e d t h e o r d e r s of t h e Water Commissioner. He contends t h a t t h e evidence i s i n s u f f i c i e n t t o prove t h a t he consciously d i s r e - garded any orders. I n Matter of Graveley, w e s t a t e d t h a t "contempts a r e n e i t h e r wholly c i v i l nor a l t o g e t h e r c r i m i n a l , " c i t i n g United S t a t e s v. Montgomery (D.Mont. 1957), 155 F.Supp. 633. Matter of Graveley, 6 1 4 P.2d a t 1039. Further, t h e p r e s e n t case - involves c o n s t r u c t i v e contempt s i n c e t h e conduct occurred o u t s i d e t h e presence of t h e court. I n Matter of Graveley, t h e Court s t a t e d : In a c o n s t r u c t i v e contempt, t h e essence of whether t h e c o u r t ' s order has been abused i s whether t h e p a r t y accused had knowledge of t h e order. (Cita- t i o n omitted.) Matter of Gravelev, 614 P.2d a t 1039. I n Matter of Graveley, two county a t t o r n e y s were verbal- l y ordered by a d i s t r i c t c o u r t t o t r a n s p o r t two defendants t o Warm Springs Hospital f o r mental evaluation. Instead, t h e a t t o r n e y s took them t o Malta where they had charges pending. O n t h e i s s u e of whether t h e a t t o r n e y s had knowledge of t h e c o u r t ' s o r a l o r d e r , t h e d i s t r i c t c o u r t found it s u f f i c i e n t t h a t t h e a t t o r n e y s were present i n c o u r t when t h e order was made. See g e n e r a l l y , Matter of Graveley. I n t h e p r e s e n t case, a t t h e hearing on t h e order t o show cause, t h e Water Commissioner t e s t i f i e d t h a t he turned o f f M r . Marks' water on September 23, 1988 because M r . Marks was not i n compliance with r e g u l a t i o n s t o have water a t t h a t t i m e . He s t a t e d t h a t he d i d not c o n t a c t M r . Marks a t t h a t time. However, two days l a t e r while moving d e b r i s o u t of t h e stream, M r . Feisthamel noticed t h a t M r . Marks' headgate was again open. The Water Commissioner then testified that on the 26th of September, the headgate was completely removed. Mr. Feisthamel testified that he went to Mr. Marks and told him he was "in trouble" for opening his own headgate, and then removing it entirely, and that he was not in compliance with the law. Mr. Feisthamel stated that after an argument, he informed Mr. Marks that he had authority to arrest him and he could consider himself under arrest. He stated that Mr. Marks told him to "get lost," and entered his residence. This testimony by Mr. Feisthamel was sufficient to establish that Mr. Marks had knowledge of the Water Commissioner's directives and consciously disregarded them. The testimony further established that Mr. Marks resisted arrest and acted contemptuously toward the Water Commissioner. In its order finding Mr. Marks guilty of contempt the court reviewed the history of Mr. Marks' disputes with water commissioners and water courts. The court stated: Water user Marks has been a participant in many of the controversies brought before the undersigned judge since he assumed jurisdiction in this case many years ago. Sometimes Marks has been repre- sented by counsel and sometimes he has appeared pro se. In 1983 Marks sought the removal of water - commissioner Hensley and objected to paying his charges. In 1984 he contested Hensley' s reap- pointment and proposed another person for commis- sioner. In 1985 he again contested the reappointment of Hensley. In 1986 he filed a complaint against Hensley. In 1987 a hearing was held concerning Marks' failure to pay water comrnis- sioner fees. . . In 1988 Marks has been in an almost constant and defiant dispute with water commissioner Feisthamel. On June 7, 1988, Marks, through his counsel, recog- nized that the undersigned was presiding judge in this case by filing a Section 85-5-301, MCA com- plaint before him and at the same time proc.uring an order setting the complaint down for hearing. The hearing was held on June 10, 1988, and Marks ap- peared and participated therein with counsel Doney. In addition, Marks, acting - - pro se, filed a state- ment which contended that the water commissioner owed him $632.32 for moving a beaver dam. The Court subsequently and after hearing found in its order of July 15, 1988, that Marks' purpose in filing this statement was "to harass and embarrass an officer of this Court, i.e., the water commis- sioner, Richard Feisthamel." Marks was directed to pay water commissioner fees in the amount of $149.68, and if he failed to do so the commissioner was directed not to deliver any water to Marks. These extensive findings show Mr. Marks' continuing refusal to abide by the water commissioners' directives, and demon- strates Mr. Marks' prior knowledge of the procedures involved with water commissioners and water courts. In view of this history we conclude that there is no basis in fact for Mr. Marks' contention that the court failed to find he acted "knowingly and purposely." We conclude that there was substantial evidence from which the lower court could find that Mr. Marks had knowledge of the Water Commissioner's orders and directives. We affirm the District Court's determination that Mr. Marks was in contempt of court. I1 Did the District Court err in denying defendant's motion for a continuance? On September 27, 1988, the court issued an order to Mr. Marks to appear on October 7, 1988, to show cause why he sho.uld not be held in contempt of court. On October 3, counsel for Mr. Marks sent a letter notifying the court that his schedule would prevent him from appearing at the hearing, and requesting a continuance. The day before the hearing Mr. Marks' co,unsel received notice from the court denying this request. Mr. Marks appeared at the hearing without counsel, and did not present any evidence on his own behalf. Mr. Marks contends that the present charge is criminal in nature, and that he had a constitutional right to counsel which he was denied. As previously stated, a contempt pro- ceeding may be quasi-criminal in nature. Additionally, since the present case involves constructive, rather than direct contempt, some due process is required. This was explained in Lilienthal v. District Court, Etc. (1982), 200 Mont. 236, 242, 650 P.2d 779, 782, as follows: Unless the act constituting contempt occurs in open court where immediate punishment is necessary to prevent demoralization of the court's authority, due process requires: ". . . that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his be- half, either by way of defense or explana- tion." In Re Green (1962), 359 [369] U.S. 689 691-92, 82 S.Ct. 1114, 1116, 8 L.Ed.2d 198, 200. (Citation omitted.) The right to counsel however, has generally been held to mean that one charged with contempt of court is entitled to a "reasonable opportunity to employ counsel in contempt pro- ceedings." See, Annot. 52 ALR 3d 1002, 1005, 5 2(a). In arguing that he was denied counsel, Mr. Marks relies on Lilienthal. In that case the defendant received notice on Thursday, April 2, to show cause at 10:OO a.m. Monday, April 6. Mr. Lilienthal appeared at the hearing without counsel and informed the court that he had been unable to reach his attorney on the previous Friday. The court held the hearing, nevertheless. On appeal, this Court determined that Mr. Lilienthal only had one working day on which to obtain coun- sel, which was not reasonable opportunity. In the present case Mr. Marks had over a week to obtain counsel. He received notice of the charge on September 29, 1988, and the hearing was not held until October 7, 1988. Five days was held to be adequate opportunity to obtain counsel for contempt proceedings in Ungar v. Sarafite (19641, 376 U . S . 575, 590, 84 S.Ct. 841, 850, 11 L.Ed.2d 921, 931. See also Nilva v. United States (1957), 352 U.S. 385, 395, 77 S.Ct. 431, 437, 1 L.Ed.2d 415, 423 (four days notice suffi- cient) . We conclude that Mr. Marks had reasonable opportu- nity to secure counsel. We also conclude that the court properly denied the continuance. The District Court has broad discretion in whether to grant a continuance. In re Marriage of Robbins (1985), 219 Mont. 130, 711 P.2d 1347, (affirming trial court's denial of a continuance in a proceeding involving contempt charges) ; Sloan v. State (Mont. 19891, 768 P.2d 1365, 46 St.Rep. 214, (court has broad discretion to grant continuance in criminal proceedings). In its order denying the continuance the court stated its reasons for denial. Mr. Marks requested that the hearing be continued until November 4th or 18th, approximately a month after the scheduled hear- ing. The court's letter of October 5, denying the continu- ance explained that "[glrantinq the motion for continuance would have left Marks in sole possession and use of - all the waters of the creek for over a month at a time when very little remained on the 1988 irrigation season." We affirm the court's denial of the motion to continue. I11 Did the District Court err in denying defendant's motion for substitution of judge? On October 3, 1988, Mr. Marks filed a motion for sustitution of judge. This request was not granted. The show cause hearing was held and judgment was entered against Mr. Marks. The court however, granted a stay of judgment to allow Mr. Marks' counsel an opportunity to brief the issue of whether the substitution should have been allowed. After considering Mr. Marks' contentions, the court denied the motion. In its order the court found that Mr. Marks' motion was not timely, that he was not legally entitled to a substi- tution of judge, and further noted that where diversion of water is involved, justice co.uld be flouted if one were allowed to delay proceedings by motions of this type. Mr. Marks contends that the motion should have been granted pursuant to S 3-1-804(l), MCA, which provides for substitution of district judges. This statute, however, does not apply to water judges. See Final Order on Rules for Disqualification and Substitution of Judges (Mont. 1988) , 45 St.Rep. 1685, 1688. Rather, the disqualification of a water judge is governed by S 3-7-402, MCA, which requires a showing of cause. Mr. Marks argues, however, that the District Court was not sitting as water judge. He urges that the transfer of jurisdiction from Judge Lessley to Judge Loble was not effec- tive because the requirements of S 3-7-213, MCA, were not met. That statute provides: Designation of alternate judge. The water judge may designate a district judge, retired district judge, or another water judge to preside in his absence on his behalf as water judge for the imme- diate enforcement of an existing decree or the immediate granting of extraordinary relief as may be provided for by law upon an allegation of irrep- arable harm. Mr. Marks contends that unless the water judge was absent and there was a need to grant immediate relief, no valid transfer of jurisdiction was made. This Court has previously rejected this construction of 5 3-7-213, MCA, in Granite Ditch Co. v. Anderson (1983), 204 Mont. 10, 16, 662 P.2d 1312, 1316. In that case we stated: The provisions of section 3-7-213, MCA, governing designation of an alternate judge, must be inter- preted in conjunction with the provisions of sec- tion 3-7-501. When the two sections are integrated we find that the intent of the legislature was to provide that a district judge, sitting as a water judge, could not serve beyond the boundaries of his division absent the showing required by section 3-7-213, MCA. We conclude that Judge Loble was properly sitting as water judge, and properly denied Mr. Marks' request. We further note that the court's rationale was eminently reason- able given the circumstances. We affirm the District Court's denial of the motion for substitution of judge. - Chief Justice / | October 19, 1989 |
ce0c190b-e7e8-4bf5-ba15-8b3e3cb5b3b1 | STATE v SCHAEFFER | N/A | 89-280 | Montana | Montana Supreme Court | No. 89-280 I N T H E SUPREME COURT O F T H E STATE O F M O N T A N A STATE O F M O N T A N A , P l a i n t i f f and Appellant, -vs- HERB SCHAEFFER, Defendant and Respondent. APPEAL FROM: The D i s t r i c t Court of t h e Ninth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f G l a c i e r , The Honorable R.D. McPhillips, Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: Hon. Marc Racicot, Attorney General, Helena, Montana James C . Nelson, County Attorney, Cut Bank, Montana For Respondent : David F. S t u f f t ; F r i s b e e , Moore, S t u f f t & Olson, Cut Bank, Montana F i l e d : Submitted on B r i e f s : J u l y 20, 1989 Decided: October 19, 1989 Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the District Court of the Ninth Judicial District, Glacier County, Montana, wherein the District Court granted the defendant's motion to dismiss based on lack of jurisdiction because the matter occurred within the exterior boundaries of the Blackfeet Indian Reservation. We reverse. Defendant/respondent Herb Schaefer, a non-Indian, was charged in the Glacier County Justice Court on March 16, 1988, with violations of Montana pawnbroker laws, including the charging of excessive interest rates as a pawnbroker in violation of S S 31-1-401 and 31-1-407, MCA; and in failing to keep a pawnbroker's register in violation of 85 31-1-402 and 31-1-407, MCA. The three misdemeanor offenses filed against Schaefer in justice court included these two offenses: COUNT ONE [Tlhe above named Defendant committed the offense of CHARGING [Garnet Bear Child] EXCESSIVE INTEREST AS A PAWNBROKER, a MISDEMEANOR, in violation of Section 31-1-401 & 31-1-407 MCA. COUNT TWO [Tlhe above named Defendant committed the offense of CHARGING [Margaret Wippert] EXCESSIVE INTEREST AS A PAWNBROKER, a MISDEMEANOR in violation of Sections 31-1-401 & 31-1-407 MCA. It is of interest to note that the officer who brought these charges in the justice court is an enrolled member of the Blackfeet Indian Tribe, employed by the Bureau of Indian Affairs and was not employed by any State agency or the Glacier County Sheriff's Department. During the investigation by this officer, there was, at that time, no ordinance under which charges co,uld be brought against Schaefer in the Blackfeet Tribal Court. Consequently, charges were sought in justice court. Schaefer moved to dismiss the complaint in the justice court on the ground that the State did not have jurisdiction to criminally prosecute him since the alleged offenses occurred within the exterior boundaries of the Blackfeet Indian Reservation and because the persons involved in the transactions with which he was charged were Indians. The justice court rejected Schaefer's motion to dismiss and, after a bench trial, Schaefer was fo.und guilty of Counts I and 11, charging excessive interest rates, misdemeanors, and not guilty of failing to keep a pawnbroker's register. Schaefer was imposed with a $100 fine each on Counts I and 11. Schaefer appealed to the District Court and renewed his jurisdictional objection by filing on March 9, 1989, a motion to dismiss. After the filing of briefs and oral argument the District Court, on April 11, 1989, granted defendant's motion to dismiss on the ground that the State lacked jurisdiction. The State now appeals the District Court's order granting defendant's motion to dismiss and raises the following issue on appeal: Does the State of Montana have jurisdiction to criminally prosecute a non-Indian defendant for violation of the Montana pawnbroker statutes where the alleged offenses occur within the exterior boundaries of an Indian reservation and involve transactions with Indians? Garnet Bear Child and Margaret Wippert are enrolled members of the Blackfeet Tribe who live and reside on the Blackfeet Indian Reservation. Schaefer, as previously noted, is a non-Indian and his place of business is located within the exterior boundaries of the Blackfeet Indian Reservation in Browning, Montana. Concerning the loans which were the basis of Schaefer's charges, the State contends Schaefer's conduct, charging Bear Child and Wippert an interest rate of 1228% and 869% per annum, is neither a "small matter" nor "merely an overcharge." Additionally, the State claims that the federal government, whether or not it has jurisdiction, has neither the time, money, nor staff to supervise, regulate and control reservation pawnshops. Schaefer argues that by virtue of Blackfeet Tribal Resolution No. 5-89, he is authorized and regulated by the Tribe to do business as a pawnbroker. However, Resolution No. 5-89 was procured from the Tribal Council by Schaefer and his attorneys in preparation for the trial in justice court. The Resolution was adopted by the Blackfeet Tribal Business Council on October 6, 1988, some nine months after Schaefer's commission of the offenses and two working days before Schaefer's case was scheduled for trial. The District Court, in granting Schaefer's motion to dismiss, held that State v. Greenwalt (1983), 204 Mont. 196, 663 P.2d 1178, is controlling. We do not agree. In Greenwalt, the District Court held that the State lacked jurisdiction to prosecute the defendants for crimes committed against Tribal members on an Indian reservation. Neither Tribal law nor Federal law had provided against such misdemeanor offenses. In the case at bar, unless the State had brought these charges against Schaefer, Bear Child and Wippert, Indian citizens of Montana, would be without the State's protection for offenses committed on an Indian reservation by a non-Indian. In two recent cases, State v. Thomas (Mont. 1988), 760 P.2d 96, 45 St.Rep. 1627; and Brown v. District Court of the Seventeenth Judicial District (Mont. 1989) , 777 P.2d 877, 46 St.Rep. 1242, this Court assured the Indian citizens of this State the protection of its laws where neither the Tribal Court nor the Federal government provided such protection. While Brown involved the regulation of the sale of liquor and the licensing of the same on an Indian reservation by Indians, this Court held that the State did have the power to prosecute, in State court, violations of State liquor laws which occur within the borders of an Indian reservation by Indian people. In Thomas, this Court held that our State courts have jurisdiction over non-Indians charged with violations of the accident reporting law, S 61-7-108, MCA. There, the defendant, a non-Indian, was charged with violating this provision after his vehicle struck a calf owned by an Indian family. We held that even though the accident occurred on a reservation, and the property damaged belonged to an Indian family, the State nonetheless had jurisdiction to prosecute the defendant under the State statute. In Thomas, it was irrelevant to our conclusion that the calf was owned by an Indian family. It is equally irrelevant to the conclusion we reach here that the victims of Schaefer's violations were members of the Blackfeet Tribe. Two elements are to be considered here, those elements expressed in this Court's recent opinion in Thomas on "victimless crimes," and the rights of Indian citizens of this State to be protected by our laws. Bonnet v. Seekins (1952), 126 Mont. 24, 243 P.2d 317; and State ex rel. Kennerly v. District Court (1970), 154 Mont. 488, 466 P.2d 85. Here, as in Thomas, Schaefer failed to discharge a reporting duty. In Thomas the defendant failed to report a traffic accident. In the case at bar Schaefer failed to obtain a county pawnbroker license. While so doing Schaefer created victims by charging outrageously high interest rates, as well as violating the laws of this State. This Court, in State ex rel. Kennerly, 154 Mont. at 493, 466 P.2d at 88, noted: The jurisdiction problem arising from civil and criminal legal relationships between Indians and non-Indians has been before the courts of this state since statehood. With some 25,000 Indian citizens living on or near one of some seven reservations in the state, it is understandable that the problem is not new however, because of the duality of the Indian's legal status each case must be considered in light of both state and federal relationships. Indians resident in Montana, whether they be full blood or partial blood, allotted or unallotted, domiciled on the reservation or off of it, of one tribe or another, or whatever their status, are citizens of the State of Montana. They are entitled to the protection of our laws and are responsible to our laws. . . Montana's constitution provides to all citizens, Indian and non-Indian alike, equal protection of its laws. The Indian citizens of this State are entitled to the protection of the laws which license and regulate pawnbrokers. Montana has a substantial and important interest in protecting all of its citizens from dishonest pawnbrokers. This purpose is effectuated by requiring accurate and detailed records of transactions in the event authorities need to trace stolen merchandise. The records of transactions also prevent the charging of excessive rates of interest. Regardless of where the pawnshop i.s located, whether on or off the reservation, the business is open to the entire public. The State has a substantial interest in protecting all citizens against such violations. The decision of the District Court is reversed and remanded. We concur: /-9 Jutices Justice Fred J. Weber dissents as follows: The State of Montana does not have jurisdiction over a criminal offense by a non-Indian against an Indian, committed within the exterior boundaries of the reservation. This was the holding in Greenwalt, wherein this Court affirmed the District Court's dismissal of criminal charges against a non-Indian based on lack of State jurisdiction. In Greenwalt, two non-Indians stole five calves on an Indian reservation. One of these calves belonged to an Indian. The charges against the Greenwalts, relating to the theft of this calf were dismissed on the grounds that the State lacked authority to prosecute. In Greenwalt we affirmed the dismissal, holding that the State did not have jurisdiction. In Greenwalt, this Court stated: In Williams v. United States (1946), 327 U.S. 711, 714, 66 S.Ct. 778, 780, 90 L.Ed. 962, 964, the United States Supreme Court stated: "While the laws and courts of the State of Arizona may have jurisdiction over offenses committed on this reservation between persons who are not Indians, the laws and courts of the United States, rather than those of Arizona, have jurisdiction over offenses committed there, as in this case, b~ -- one who is not an Indian against one who is an - - - - - - - Indian. " The 1982 edition of Felix S. Cohen's Handbook of Federal Indian Law, states at page 353, relying upon Williams: "Criminal offenses by non-Indians against Indians or their property are subject to the Indian Country Crimes Act [18 U.S.C. 5 131. The Supreme Court has stated that federal court jurisdiction under this Act is exclusive of state court jurisdiction." See, American Indian Lawyer Training Program, Inc., - Justice in Indian Country (1980) 32, and Manual of Indian Criminal Jurisdiction (1978 Supp.) 73a; Getches, Rosenfelt and Wilkinson, Federal Indian Law (1979), 388 ("c. Crimes by a Non-Indian Against an Indian : State courts cannot have jurisdiction.") Greenwalt, 663 P.2d at 1182-83. In Greenwalt the remaining charges were later dismissed for insufficient evidence. However, that is irrelevant to the issue of jurisdiction in the present case because those charges did not involve a crime against an Indian. I conclude that the facts of Greenwalt are not distinguishable and the holding should control the present case. We further note that the majority can find no comfort in the language quoted from State ex rel. Kennerly, since that case involved a civil dispute. Concurrent State and federal jurisdiction may lie where the crime is "victimless." See, Cohen, Felix S., Handbook of - Federal Indian Law, 353, n.4 (1982); State v. Flint (Ariz.App. 1988), 756 P.2d 324. The majority opinion analogizes to Thomas in concluding that the present case involves a victimless crime. In Thomas we determined that the crime was "the failure to discharge a reporting duty, not infliction of damage upon property belonging to an Indian." We concluded that the crime was therefore victimless for purposes of determining jurisdiction. In the present case, I fail to see how charging interest of 869% to 1228% is a victimless crime. Examples of victimless crimes include possession of illegal drugs, pornography, violation of motorcycle helmet laws, gambling or tax evasion. The Indians doing business at Mr. Schaefer's pawn shop, who were being charged interest in excess of 800%, certainly must be classed as victims. The opinion states that the Indian citizens of our State are entitled to the protection of laws regulating pawnbrokers, yet concludes that the crime is victimless. This is inconsistent. While I understand the desire of this Court to provide a means by which this defendant may be punished, I simply cannot agree that this is a victimless crime or that the State has jurisdiction. Our desire to see justice done stems from the fact that there - are victims in the present case. I would affirm the District Court. Justice William E. Hunt, Sr., concurs in the foregoing dissent. Justice | October 19, 1989 |
c7a55d12-d65d-4d2a-876a-2dea3c156de8 | V K PUTNUM INC v McFARLANE | N/A | 89-208 | Montana | Montana Supreme Court | No. 89-208 IN THE SUPREME COURT OF THE STATE OF MONTANA-- C ' 1989 .- Petitioner and Appellant, -vs- JUDITH McFARLANE and STATE OF MONTANA, DEPARTMENT OF LABOR & INDUSTRY, EMPLOYMENT RELATIONS DIVISION, Respondents. APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Joseph B. Gary, Judge presiding. COUNSEL OF RECORD: For Appellant: Lyman H. Bennett, 111; Morrow, Sedivy & Bennett, Bozeman, Montana For Respondent: Melanie A. Syrnons, Dept. of Labor & Industry, Helena, Montana Filed: Submitted on Briefs: Aug. 31, 1989 Decided: September 21, 1989 , , - I ' Clerk Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from an action seeking an award of unpaid overtime wages and statutory penalty pursuant to S 39-3-205, MCA, and 5 39-3-206, MCA. Petitioner, V.K. Putman, Inc. (Putman), appeals from the judgment of the District Court of the Eighteenth Judicial District, Gallatin County, confirming the Labor Commission's determination in favor of Respondent, Judith McFarlane (McFarlane). We affirm. The sole issue on appeal is: Whether Judith McFarlane was an employee who was subject to the jurisdictional authority of the Secretary of Transportation pursuant to the provisions of 49 U.S.C. 5 304 [3102(b) 1, which exempts certain employees from state and federal overtime wage requirements. The facts of this case are not in dispute. Judith McFarlane was hired by Putman, a trucking company, on June 19, 1985, as a dispatcher. During her period of employment, she often worked extra hours on Saturdays and through her lunch hours. She was never paid overtime wages for these extra hours. In early August 1987, McFarlane terminated her employment with Putman. Subsequently, she filed a claim with the Department of Labor and Industry, seeking overtime compensation for the hours worked on Saturdays and during her lunch time. A Hearing Examiner, appointed by the Department of Labor, conducted an administrative hearing on the claim. The examiner found in her favor and awarded McFarlane $742.80 for the overtime hours she worked. The Hearing Examiner also found that Putman was subject to a statutory penalty which doubled McFarlane's recovery to $1,485.60. Putman appealed this decision to the District Court for the Eighteenth Judicial District, claiming that the Hearing Examiner abused his authority in making the awards. After submission of briefs the District Court issued an order affirming the award, and later the judgment was entered. This appeal followed. The standard to be .used by the court when reviewing a final agency decision in a contested case is set forth in S 2-4-704, MCA. This statute dictates that a court may not substitute its judgment for that of the agency on questions of fact. Section 2-4-704(2), MCA. Moreover, reversal or modification of an agency interpretation of law is only justified if substantial rights of the appellant have been prejudiced because the administrative conclusion or decision is "arbitrary or capricious or characterized by abuse of discretion . . . " Section 2-4-704 (2) (f) , MCA. Because the facts were stipulated the only conclusion on review is the Department's interpretation of law. This review only requires that we determine whether its findings and ultimate decision were an abuse of discretion. City of Billings v. Billings Firefighters Local No. 521 (1982), 200 Mont. 421, 432, 651 P.2d 627, 632. Resolution of the issue in this case requires us to examine Montana statutory law and its relationship to federal law governing the Secretary of Transportation's authority over certain employees involved in interstate commerce. Under S 39-3-405 (I), MCA, employers are required to pay overtime when employees work longer than forty hours a week. Certain employees are excluded from this requirement. Putman claims that under the exclusion provided by § 39-3-406(2) (a), MCA, it was not required to pay McFarlane overtime compensation, because she was governed by the Federal Motor Carrier Safety Act. Section 39-3-406(2) (a), MCA, states that the overtime provisions of § 39-3-405, MCA, do not apply to employees "with respect to whom the United States Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of 49 U.S.C. § 304." (Motor Carrier Safety Act) 49 U.S.C. S 304 has been repealed and has been replaced by 49 U.S.C. S 3102(b). This repeal and subsequent reenactment, however, did not change either the purpose or the substance of the Motor Carrier Safety Act. Detailed Explanation Prepared by the Office of the Law Revision - - - - - Council, 128 Cong. Record 9543 (1982). Therefore, it is proper for this Court to look to case law interpreting 49 U.S.C. r; 304, in determining S 3102(b)'s applicability to state overtime wage requirements. Section 3102 (b) states: The Secretary of Transportation may prescribe requirements for (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operations. Putman maintains that all of its employees are subject to the authority of the Secretary of Transportation's maximum hours requirement and that therefore they do not need to pay any of their employees overtime. Putman bases this argument on its interpretation of the definition of "motor carrier." Federal regulations found at 49 C.F.R. S 391.3(a) define the term "motor carrier" to include its "employees . . ., who are responsible for the hiring, supervision, training, assignment or dispatching of drivers. " Section 3102 (b) , gives the Secretary of Transportation the power to "prescribe the qualifications of maximum hours of service of . . . a motor carrier. " Because a "dispatcher" is included within the definition of "motor carrier," Putman maintains that the Secretary has the power to set maximum hour requirements for employees responsible for the dispatching of drivers. This in turn, leads to the conclusion that a dispatcher is exempt from overtime wage requirements pursuant to $ 39-3-406(2) (a), MCA. Putman's strained interpretation of the statute, however, ignores United States Supreme Court decisions which hold that only those employees whose work is related to motor carrier safety are exempt from overtime compensation. In United States v. American Trucking ~ssociations (1940), 310 U.S. 531, 60 S.Ct. 1059, 84 L.Ed. 1345, the Supreme Court made an extensive investigation into the history of the legislation leading up to the passage of the Motor Carrier Act, as codified at 49 U.S.C. S 304. Its investigation led it to the concl.usion that the Act only affected those employees whose activities affected the safety of operation of a motor carrier. The Secretary of Transportation was held to not have jurisdiction to regulate the hours of service of those employees whose duties did not affect safety. Therefore, federal maximum hour requirements do not extend to all employees of a motor carrier as asserted by Putman. Putman further argues, however, that even if the Secretary's jurisdiction does not extend to all employees of a motor carrier, this Court should determine that dispatchers substantially affect the safety of motor carrier operations, and that therefore they are exempted from overtime compensation under $ 39-3-406 (2) (a), MCA. We find little validity to this argument. In making this argument, Putman points out that a dispatcher is responsible for day to day contact with the drivers. It is contended that if a dispatcher, through error of judgment, permits a vehicle to depart when the roads are icy or calls a driver to duty when he is sick or fatigued, an accident may result. While this may be true, it is clear that such an error would not be the proximate cause of the accident. In an opinion made in response to the question now before us, the Interstate Commerce Commission found that a dispatcher does not engage in any activities that directly affect the safety of operation of motor vehicles. In the - - Matter of Maximum Hours of Service of Motor Carrier Employees - - - Ex parte No. MC 2, 28 M.C.C. 125. In this case this Court - - will not disagree with a federal agency's own determination of the extent of its jurisdiction. To do otherwise would leave employees like McFarlane in limbo relative to wage and hour regulation in violation of the policy of our statute and Constitution. See Art. XII, Sec. 2, Mont.Cont. Therefore, we find that dispatchers are not subject to the regulations of the Secretary of Transportation concerning maximum hours. Accordingly, they are not exempted from overtime requirements contained in 5 39-3-405, F I C A . We find that the Department of Labor's findings that Judith McFarlane, in her duties as a dispatcher, was entitled to overtime wages was not an abuse of discretion. Therefore, the District Co,urt's judgment is affirmed. | September 21, 1989 |
e9adc3f5-0e12-4197-8e94-cbf9995454a5 | DODD v CHAMPION INTERNATIONAL CORP | N/A | 89-101 | Montana | Montana Supreme Court | No. 89-101 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 HERBERT A. DODD, SR., claimant and Appellant, -VS- CHAMPION INTERNATIONAL CORPORATION, Employer and Defendant. APPEAL FROM: The Workers compensation Court, The Honorable ~imothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Roger M. Sullivan; McGarvey, ~eberling, Sullivan & McGarvey, ~alispell, Montana For Respondent: Paul C. Meismer; Garlington, Lohn & ~obinson, iss sou la, Montana Submitted on Briefs: June 30, 1989 Decided: September 20, 1989 . Mr. Justice John C. Sheehy delivered the Opinion of the Court. We reverse the Workers' Compensation Court which upheld the decision of the Workers' Compensation Division that denied the request of Herbert A. Dodd, Sr., to extend his time for filing a Workers' Compensation claim pursuant to S 39-71-601 ( 2 ) , MCA. We glean the following facts from the findings made by the hearing examiner when this cause was before the Workers' Compensation Division. Herbert A. Dodd, Sr. filed a claim for compensation on September 24, 1987, listing his dates of injuries as January, February, March and April of 1986. He began his employment with the defendant employer on January 7, 1977, and ended with a medical leave by his employer on June 6, 1986. For several years prior to 1986 he had suffered from arthritis. Medical reports have substantiated the diagnosis of arthritis. During the spring of 1986 he suffered increased pain in his back, hands, and ankle and received treatment from Dr. Hufman. On May 13, 1986, the employer requested another examination and the completion of a Health Assessment Physical Activity Evaluation form. The form was filled out by Dr. Hufman, and indicated a number of restrictions placed on the working ability of Dodd. c is difficulties were the result of arthritis of the back, hands, and ankles. On June 11, 1986, Dodd went to the employer's personnel office to apply for benefits. He received a claim form from the personnel officer which would provide payments from the health and welfare fund of the Timber Operator's Council (TOC) rather than a claim for workers' compensation form. Eventually benefits were paid for the maximum length of time (26 weeks) from the TOC health and welfare fund. The claimant's deposition indicated to the hearing examiner that Dodd was aware of his osteoarthritic condition for many years prior to the filing of the claim for compensation. On the TOC form he stated he had not filed for Workers' Compensation and did not intend to file. On that basis the hearings examiner determined that Dodd's deposition reflects his knowledge of the difference between filing for TOC or for Workers' Compensation. Dodd also testified in that deposition that he had been under a doctor's care for a long time and "for all I knew, it was an illness." The hearings examiner also found that Marilee Brown, the personnel clerk for Champion International, did not have a specific recollection of conversations with Dodd "about this particular incident." Based upon the foregoing findings of fact, the hearings examiner proposed as a conclusion of law that under 5 39-71-601, MCA, Dodd was not entitled to a waiver of the 12-month requirement for filing his compensation claim for up to an additional 24 months, on the ground that he had failed to show that he lacked knowledge of a disability. On June 27, 1988, the Workers' Compensation Division, through its administrator, Robert J. ~obinson, adopted the findings and conclusions of the hearings examiner and ordered that since Herbert A. Dodd had failed to show he lacked knowledge of his disability, his request to waive the claim filing requirement of 5 39-71-601, MCA, was denied. This Court has had to determine the legal effect of S 39-71-601, MCA, on several occasions, and particularly its subdivision ( 2 ) which was enacted by the legislature in 1973. That subdivision extended to the Workers' Compensation ~ivision the power to waive the time for filing a claim for Workers' compensation up to an additional 24 months. In ~illiams v. Wellman-Power Gas, Inc. (1977), 174 Mont. 387, 389, 571 P.2d 90, 92, we noted that the amendment was passed to alleviate a condition that was directly contrary to the stated purposes and policy of the Workers' Compensation Act, because prior to July 1, 1973, the worker was required to file a claim within 12 months of the date of the accident regardless of the circumstances, or be denied compensation. In Bowerman v. State Compensation Insurance Fund (1983), 207 Mont. 314, 318-319, 673 P.2d 476, 478, we noted that the provisions of the statute as amended were of a broad and equitable nature: It is not exclusively evident that in enacting Subsection (2) of Section 39-71-601, MCA, the legislature was acting only with respect to latent injuries unsuspected by the claimant. The language of Subsection (2) is broad and could encompass any number of situations where in equity the Division would be moved to extend the time for filing the notice of claim up to the 24 months provided. In Bowerman, this Court established a three-part analysis to determine whether the one year statute had been tolled and the time for filing should be extended by the Division: ~irst, did the claimant recognize the nature of his injuries? Secondly, did the claimant recognize the seriousness of his injury? Thirdly, did the claimant recognize the probable, compensable character of his injury? Bowerman, 673 P.2d at 479. As recently as March 30, 1989, this Court decided the case of Hando v. PPG ~ndustries, Inc. (Mont. 1989), 771 ~ . 2 d 956, 962. In that case we held: The facts of the present case indicate that although Hando was very much aware of those continuing physical, emotional, and mental ailments she suffered after her exposure to the paint, she did not know the cause of those injuries until May of 1984. Prior to that time, she and SCCC suspected that her ongoing ailments stemmed from her exposure to the paint manufactured by PPG. She even filed a Workers' Compensation claim in May of 1982 based upon this belief. However, the veracity of her belief was not known until May of 1984. Medical tests done in Chicago at that time provided Hando with a medical diagnosis that her continuing problems were due to a "sensitivity to petrochemicals," a sensitivity most likely triggered by exposure to the PPG paint by working for SCCC in 1981-82. Hando's failure to learn the cause of her ongoing injuries was not due to a lack of diligence on her part. Between 1982 and 1984, Hando saw numerous physicians, including physicians at the renowned Mayo Clinic in Minnesota, to determine the cause of her ongoing problems. No physician who examined Hando during this period attributed her continuing ailments to exposure to the PPG paint. The findings of the hearings examiner when this cause was before the Workers' Compensation Division made no reference to the Bowerman test nor as to whether Dodd's case came within the Bowerman requirements. Particularly the findings of the hearing examiner made no reference to the claim form submitted by Dodd to Champion, to which form we will advert hereafter. Dodd sought review in the Workers' Compensation Court of the decision by the Division denying his request for an extension of time. In addition, Dodd requested the Workers' Compensation Court to find that the employer was barred by equitable estoppel from claiming the benefit of the 12-month filing requirement; to determine that the 12-month statute had been tolled during the time that the claimant had received TOC nonoccupational disability benefits; to determine that the information which the claimant originally set forth on the TOC claim form transmitted to the employer gave the employer in writing sufficient information to accomplish the notice requirement of S 39-71-601, MCA, and for attorney fees and a penalty. The order of the Workers' Compensation Court, which is the subject of the appeal to this Court, made no specific findings of fact, but set forth a limited discussion of background facts. The order stated that Dodd had been an employee of Champion since 1977. The Workers' Compensation Court noted that some time prior to 1986 claimant began experiencing joint stiffness and pain which was diagnosed in 1980 and osteoarthritis. H ~ S malady was marked by a progressive sequence of worsening of his condition. In the spring of 1986, the claimant's physical condition was such that the employer requested that Dodd be examined by a physician to assess his restrictions. In June he applied for and received disability compensation under the TOC plan. This policy paid $160.00 a month in benefits. Dodd left work in June of 1986. "He did not identify or notify the employer that he had been involved in an industrial accident when he left work." Based on those facts, the Workers' compensation Court determined that his workers' compensation claim filed on September 20, 1987, was barred by the 12-month statute of limitations. The Workers' compensation Court made no other findings respecting estoppel or the tolling of the limitations statute. The Workers' Compensation Court ignored, as did the hearing examiner before the Workers' compensation ~ivision, any discussion relating to the TOC form which Dodd submitted to champion, and the attendant circumstances which are undisputed respecting his tender of that form. For the first four and half years of his employment at the defendant's mill, the claimant worked at a job which consisted of feeding waste wood into a chipper. From 1982 until June 6, 1986, his primary job at the mill consisted of feeding green plywood veneer sheets into the veneer dryer. This process required repetitive twisting, bending and lifting while moving from side to side on a mobile platform in order to feed the green sheets of veneer into the dryer. In the years preceding 1986, Dodd had experienced discomfort, apparently from arthritis, which was noted by his attending physician. In the spring of 1986 he experienced increasinq difficulties which were a concern to him and his wife. He could no longer keep up with the dryers. He went to his family doctor, Dr. Hufman, who diagnosed his problem as osteoarthritis, and sent for delivery to Dodd's employer a prescription form which stated that "Mr. Dodd has osteoarthritis and needs to get on a job with less strain on ankle, knee, and hand joints." This document was delivered. to Dodd's foreman with a request to be placed on a lighter duty job. A copy of the document was also transmitted to the manager of the plywood plant, John Luger. Nonetheless, Dodd was kept on at the veneer dryer in the succeeding days. On May 5, 1986, Luger sent a memo to Dodd requesting him to have Dr. Hufman fill out a Health Assessment Physical Activity Evaluation form and return it to his foreman. Dr. Hufman filled it out, and it was returned to the employer, with a notation from Dr. Hufman that Dodd could not perform repetitive movements with his affected joints, nor perform repetitive side to side motions, lifting, grasping, pushing, pulling, twisting, climbing, or stooping. Dr. Hufman reported the nature of the illness or injury as "osteoarthritis of back, hands, and ankle." After receipt of the form from the doctor, on June 6, 1986, Luger informed Dodd that the employer had no job for him consistent with his physical limitations and for that reason he was laid off. On June 11, 1986, Dodd went to the personnel office and requested a disability claim form from Marilee Brown, the personnel clerk for Champion. He did not request a specific type of claim form from Ms. Brown. She gave him the TOC form. Because of his limited education, Dodd took the form home where his wife filled out what he told her to put on the form . There he reported that his disability was "osteoarthritis of hands, back, and ankle." He reported that it happened "around about May 10, 1986"; that it had happened at work, and not at home; and as to how it happened he reported "working with wet plywood, feeding into dryer." In response to the question was it caused by your work he answered "yes." When he delivered the form to Ms. Brown, she informed him he could not state that it happened at work. He went out to the automobile to his wife, who with a pen crossed out the words to which he had answered the questions, and inserted the word "unknown," so that the answer to the question how did it happen was "unknown," and the answer to whether it was caused at work was "unknown." The other answers remained the same. Thereafter, Ms. Brown completed the employer's report, and the doctor completed the medical report which described his condition as arthritis. Based on the submission of the form, TOC plan paid Dodd the sum of $160.00 per week for 26 weeks, at which time his payments ended. When Dodd learned from his attorney that he may have had a compensable injury, he then filed his claim for Workers' compensation in September, 1987, one year and four months after the last incident he reported that aggravated his arthritis. Ms. Brown, in her deposition respecting this, stated she did not remember anything relating to the compensation form and what she had told Dodd about it. The testimony, therefore, of Dodd on the subject remains uncontradicted, and the testimony of Ms. Brown does not contradict the positive testimony of the claimant. Harmon v. Deaconess Hospital (Mont. 1981), 623 P.2d 1372, 1374. We turn now to the language of S 39-71-601(2), MCA, to the effect that the Division may, "upon a reasonable showing by the claimant of lack of knowledge of disability" waive the time requirement up to an additional 24 months. Under the tri-part Bowerman test, here ( 1 ) claimant recognized the nature of his injuries, and ( 2 ) recognized the seriousness of his injury. The evidence here is clear that he did not recognize, under the third part of the test, the probable compensable character of his injury. Under Bowerman, supra, and Hando, Dodd was entitled to an extension of time from the ~ivision up to 24 months, a time more than sufficient to bring his claim within the statute of limitations. Since we determine that under our decisions as to the effects of § 39-71-601, MCA, he was entitled to an extension of time, it is not necessary for us to consider whether Champion is equitably estopped from relying on the statute of limitations nor whether the statute was otherwise tolled by Champion's actions or the payments received from TOC. We determine also that Dodd is entitled to attorney fees both in this appeal and the earlier proceedings. Whether a penalty should attach to it we leave to a future determination of the Workers' compensation Court on remand. We make no determination at this stage as to whether Dodd suffered a compensable injury. That will depend eventually on whether there is evidence before the Workers' Compensation Court, including medical testimony, sufficient to establish compensability. What we have determined here is that the time period for the filing of Dodd's notice of claim did not begin to run until he as a reasonable man recognized the nature, seriousness and probable compensable character of his latent condition. Bowerman, supra. We reverse and remand to the Workers' Compensation Court for further proceedings. | September 20, 1989 |
9294beca-f7a3-4e55-aa7d-057913a1f69d | TUCKER v TROTTER TREADMILLS INC | N/A | 89-321 | Montana | Montana Supreme Court | No. 89-321 IN THE SUPREME COURT OF THE STATE OF MONTANA DAWNA R. TUCKER, Plaintiff and Appellant, -vs- TROTTER TREADMILLS, INC., Defendant and Respondent. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Douglas Harkin, Judge presiding. COUNSEL OF RECORD: For Appellant: Morgan Modine, Missoula, Montana For Respondent: Worden, Thane & Haines; Stacey Weldele-Wade, Missoula, Montana Filed: Submitted on Briefs: Aug. 31, 1989 Decided: September 19, 1989 Justice John Conway Harrison delivered the Opinion of the Court. Dawna R. Tucker (Tucker) filed a negligence action against Trotter Treadmill, Inc. (Trotter) because of an accident she had on an allegedly defective exercise treadmill manufactured by Trotter. The District Court of the Fourth Judicial District, Missoula County, granted summary judgment in favor of Trotter finding that Tucker presented insufficient evidence upon which to sustain her negligence action. Tucker appeals. We affirm. Appellant presents one issue on appeal: Did the District Court err in granting summary judgment in respondent's favor when the record raises genuine issues of material fact? On April 9, 1984, at about 7:00 a.m., Tucker went to The Courthouse, a health club in Missoula, Montana, to exercise. At some point in her workout, she decided to use one of the motorized exercise treadmills. She stepped onto the treadmill belt and turned the machine on. The moving belt immediately caused her to fall injuring her shoulder. The record, which consists of the pleadings, interrogatories and Tucker's deposition, discloses the following undisputed facts. Tucker joined The Courthouse in 1978 and belonged to The Courthouse for approximately one to one and one-half years. She rejoined in December of 1983 or January 1984 and worked-out several times a week. When Tucker first joined The Courthouse she received instruction on how to use the facility's equipment. When she rejoined The Courthouse she neither received nor asked for any reinstruction on the equipment. Tucker had used a manual treadmill prior to her accident, but she had never before used a motorized treadmill. Even though she had not been instructed on how to use the motorized treadmill, she thought she could operate one because she had seen others using them. No warnings or instructions were displayed on the treadmill itself. However, three posted instructions and warnings were displayed on the wall directly behind the motorized treadmill. These instructions and warnings would have been clearly visible to anyone approaching the treadmill. But, Tucker did not notice the posted instructions and warnings and therefore did not read them. Although Tucker claims the treadmill belt started at a high speed, she does not know at what specific speed the treadmill was set when she started it. She assumed it was set on high because she fell. In her complaint against Trotter, Tucker alleged that Trotter failed to properly instruct users of the treadmill. Further, she alleged that the treadmill was defective because it was not equipped with a safety device which would prevent the treadmill from starting at a high rate of speed. After reviewing the record, the District Court found that appellant had not presented sufficient evidence to raise a genuine issue of material fact as to whether Trotter had breached its duty to warn and instruct treadmill users. Further, according to the District Court, appellant's evidence did not indicate either directly or circumstantially that the treadmill was in a defective condition, unreasonably dangerous. We agree. Summary judgment is proper only if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Cereck v. Albertson's Inc. (1981), 195 Mont. 409, 637 P.2d 509. Once the moving party had met its burden, the burden shifts to the opposing party to present material and substantial evidence that raises a genuine issue of material fact. Conclusory or speculative statements are insufficient to raise a genuine issue of fact. B.M. By Berger v. State (1985), 215 Mont. 175, 179, 698 P.2d 399, 401. Parties cannot rely merely on allegations contained in their pleadings. Further, the trial judge is not required to anticipate possible proof at trial when ruling on a summary judgment motion. Larry C. Iverson, Inc. v. Bouma (1981), 195 Mont. 351, 374, 639 P.2d 47, 59. Appellant's evidence consists essentially of her deposition testimony. As the District Court correctly surmised, appellant's testimony is conclusory and speculative in nature. No statements of fact appear in her testimony upon which to base an inference that Trotter was negligent in posting instructions and warnings on the wall behind the treadmill. No facts were presented to support an inference that the machine started on high speed. As well, appellant presented no other evidence to solidify or flesh out her own speculations regarding either the propriety of Trotter's warnings and instruction or the actual speed of the treadmill. Appellant's briefs abound with promises of proof at trial. However, appellant's burden of proof required her to establish that the record before the District Court raised genuine issues of fact. The District Court correctly concluded that appellant failed to present evidence to support an action under a negligence theory. We affirm the District Court. We concur: | September 19, 1989 |
1439d588-4747-47fb-b3fa-319c3364d569 | CHAMPION INTERNATIONAL CORPORATION | N/A | 89-091 | Montana | Montana Supreme Court | No. 89-91 IN THE SUPREME COURT OF THE STATE OF MONTANA CHAMPION INTERNATIONAL CORPORATION, Petitioner and Respondent, -vs- H. L. McCHESNEY, Respondent and Appellant. APPEAL FROM: The Workers' Compensation Co-urt, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: H. L. McChesney; McChesney, Grenfell & Ogg, Missoula Montana For Respondent: Bradley J. Luck; Garlington, Lohn & Robinson, Missoula, Montana Submitted on briefs: Auq. 10, 1989 Filed: Decided: September 21, 1989 0 Justice Fred J. Weber delivered the Opinion of the Court. Mr. McChesney appeals from an order of the Workers' Compensation Court, ordering him to reimburse Champion Inter- national Corporation (Champion) for an overpayment of attor- ney fees. Mr. McChesney appeals this order. We affirm. The issue presented for our review is restated as follows: Did the Workers' Compensation Court err in ordering repayment of attorney fees to the insurer where claimant received an overpayment of benefits, and attorney fees were based on a percentage of benefits received by the claimant? Mr. McChesney undertook legal representation of a work- ers' compensation claimant, Mr. Keith Eastman, on October 6, 1982. Mr. Eastman had suffered an injury to his knee on March 20, 1981, while working for Champion International Corporation, a self-insured employer under Plan 1 of the Workers' Compensation Act. Mr. McChesney and Mr. Eastman signed a fee arrangement whereby Mr. McChesney would receive 33% of benefits in the event the case necessitated a hearing before the Workers' Compensation Court. At the time of injury, Champion, the insurer, began payment of temporary total benefits and medical benefits. In March 1982 claimant's temporary total benefits were reduced to permanent partial. This reduction was based partly on claimant's refusal to have surgery on his knee. Claimant disputed the reduction and a hearing resulted in a judgment in claimant's favor on May 7, 1984. This judgment allowed Mr. McChesney to obtain attorney fees pursuant to 5 39-71-611, MCA, which, according to the fee arrangement, was a net award of 33% of the benefits. Mr. McChesney was award- ed a lump sum amount of attorney fees for the back-payment of temporary total benefits. From the date of the order forward, Mr. McChesney received one-third the amount of each biweekly check sent to Mr. Eastman. At the hearing on May 7, 1984, the medical evidence indicated that the claimant should have knee surgery; howev- er, claimant had previously refused to have the surgery. The judgment of May 7 specifically ordered claimant to submit to a physical examination to determine whether knee surgery sho.uld be performed and to notify the court whether he was willing to have the surgery performed. At a hearing in July 1984 regarding new medical evi- dence, claimant agreed to have the knee surgery performed and to schedule it immediately. The Workers' Compensation Court ordered payment of total disability benefits until after the surgery and after consideration of claimant's post-surgery condition. The order further noted that if claimant did not have the surgery the insurer was entitled to a credit for benefits paid after maximum healing. On August 9, 1984, claimant refused to have knee sur- gery. A year and a half later the case was reopened by the insurer. At the hearing on the petition the court found that claimant had reached maximum healing in January of 1984, but that his entitlement to total disability benefits ended on August 9, 1984, the date that he refused to have surgery. In an order dated April 1, 1987, Mr. Eastman was granted 200 weeks of partial disability payments, offset against the total disability payments he had received after August 9, 1984. The net result of this order was that the claimant had been overpaid $7446.00. Mr. Eastman was ordered to repay this amount to the insurer, Champion. On October 27, 1988, Champion filed a petition with the Workers' Compensation Court, seeking to recover the attorney fees paid to Mr. McChesney, which had been based on the overpayment to Mr. Eastman of $7446.00. Mr. McChesney had received checks totalling one-third of this amount, or $2,479.51. The Workers' Compensation Court ordered Mr. McChesney to repay this amount to Champion. Mr. McChesney argues that res judicata bars the Workers' Compensation Court from ordering repayment at this point. He contends that the order of April 1, 1987, directing the claimant to repay benefits, did not mention a repayment of attorney fees. He contends that the employer should have asserted the issue of reimbursement of attorney fees at that point, rather than a year and a half later. Initially, we conclude that the present action is not barred by res judicata in that the elements of that defense are not satisfied. In Phelan v. Lee Blaine Enterprises (1986), 220 Mont. 296, 299, 716 P.2d 601, 603, we set out the elements of res judicata as follows: (1) the parties or their privies must be the same; ( 2 ) the subject-matter of the action must be the same; (3) the issues must be the same, and must relate to the same subject-matter; and (4) the capacities of the persons must be the same in reference to the subject-matter and to the issues between them. We conclude that the Workers' Compensation Court was correct in holding that the action is not barred by res judicata. The subject matter and the issues in the two actions are not the same. The first suit involved the enti- tlement to disability benefits and the amount of such bene- fits. The second suit involved the entitlement to attornev fees. Different theories and considerations apply to each. In Phelan, we stated: [Ulnless it clearly appears that the precise ques- tion involved in the second case was raised and determined in the former, the judgment is no bar to the second action. Phelan, 716 P.2d at 603. We conclude that the April 1, 1987 order is not a bar to the present action. We further conclude that the Workers' Compensation Court was correct in ordering the repayment of attorney fees. Mr. McChesneyts fees were based solely on a percentage of bene- fits paid to his client. On May 7, 1984 temporary total benefits were awarded to Mr. Eastman contingent upon his agreement to have surgery on his knee. It was specifically stated in the order that the insurer would be credited any overpayment if claimant failed to comply. Although Mr. Eastman represented to the court in July of 1984 that he would undergo surgery, he never did have the knee surgery performed. Clearly the insurer was entitled to a credit. Logically it follows that the attorney fees which were based on the overpayment must also be returned. While it is unfor- tunate that claimant did not meet the conditions for his total disability award, the attorney was aware of the condi- tions attached to the benefits, and the possibility that some benefits might have to be reimbursed to the insurer. The facts of the present case are analogous to Transamerica Ins. Group. v. Adams (0r.App. 1983), 661 P.2d 937. In that case a workerst compensation claimant settled with the insurer. The attorney was entitled to 25% of the settlement, which he received. The settlement however, was subject to administrative review, and the attorney was aware of this condition. When the Workerst Compensation Board invalidated the settlement, both the claimant and the attor- ney were required to return the amounts each had received. Similarly, in the present case, Mr. McChesney was aware that the insurer was due a credit in the event that certain condi- tions were not met. His fees, based as they were, on bene- fits received by the claimant, must be reimbursed. We conclude that the Workers' Compensation Court did not err in ordering a repayment of attorney fees. We affirm the holding of the Workers' Compensation Court. | September 21, 1989 |
daae8a83-116c-4710-a09f-a8ddf284785d | STATE v HAWKINS | N/A | 88-436 | Montana | Montana Supreme Court | No. 88-436 IN THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA, 5 c n c n -': ) - . 7 Plaintiff and Respondent, t -I i -vs- SHERMAN HAWKINS, Defendant and Appellant. APPEAL FROM: ~istrict Court of the ~hirteenth ~udicial ~istrict, In and for the County of Yellowstone, The Honorable G. Todd Baugh, Judge presiding. COUNSEL OF RECORD: For Appellant: Allen Beck, ~illings, Montana For Respondent : Hon. Marc ~acicot, Attorney General, Helena, Montana Robert F.W. Smith, Asst. Atty. General, Helena Harold Hanser, County Attorney; Donna ~effington, Deputy County Atty., ~illings, Montana Filed: Submitted on Briefs: Aug. 24, 1989 Decided: October 19, 1989 Chief Justice J. A. Turnage delivered the Opinion of the Court. Following trial in the Thirteenth Judicial District, Yellow- stone County, the jury found Sherman Hawkins guilty of felony assault. The court designated Hawkins a persistent felony offender and a dangerous offender. Hawkins appeals all three decisions. We affirm. ISSUES The appellant raises the following issues: 1 . Whether the trial court had jurisdiction to designate the defendant a persistent felony offender. 2. Whether the trial court properly designated the defendant a dangerous offender. 3. Whether res judicata and double jeopardy should have precluded the defendant's second trial. 4. Whether the former prosecution should have precluded the defendant's second trial. 5. Whether the trial court should have suppressed the fruits of the parole officer's search of the defendant's vehicle. FACTS On February 5, 1987, LaVon Bretz called the Billings Police Department to report that Sherman Hawkins had threatened to kill Bretz, Hawkins' ex-wife Francis Kunz, and himself. Responding officers learned from the appellant's parole officer that Hawkins was on a work release furlough from a first degree murder convic- tion, that he might be armed and dangerous, and that he was to be arrested if he was carrying any weapons. While patroling the area of the Kunz home, Deputy Sheriff Dostal spotted Hawkins' pickup truck heading in the direction of the Kunz home and began follow- ing. Hawkins accelerated to between 80 and 85 miles per hour and the officer concluded that Hawkins was either intoxicated or trying to elude him. When Hawkins stopped in the Kunz driveway, the police conducted a felony stop. A pat-down search produced a small pen knife and a set of brass knuckles. The officers arrested Hawkins for carrying a concealed weapon and for parole violation. Hawkins denied the officers permission to search his vehicle, but while removing the keys from the truck, one of the officers spotted the handle of a pistol on the floor. Hawkins' parole officer conducted a warrantless search of the pickup and seized a .38 caliber pistol, five cans of beer, and 1.2 pounds of marijuana. During processing at the Yellowstone County Sheriff's Office, Hawkins allegedly attacked and attempted to strangle attending Officer Dostal. Hawkins escaped, but was later captured in Arizona. He returned to Montana to face charges of felony assault, carrying a concealed weapon, possession of dangerous drugs, and felony escape. The jury found Hawkins guilty of felony drug possession and misdemeanor escape, but returned a hung verdict on the assault and weapon charges. The court designated Hawkins a persistent felony of fender. Following retrial on the felony assault charge, the jury found Hawkins guilty. The court added another persistent felony offender designation and also designated Hawkins a dangerous offender . I . Persistent Felony Offender Status The appellant argues that the District Court did not gain jurisdiction to designate him a persistent felony offender because the prosecution failed to provide timely notice. The appellant correctly points out that written notice must be given before the case is called for trial, 1 46-18-503(1), MCA, and that the requirement is jurisdictional, State v. Madera (1983), 206 Mont. 140, 155, 670 P.2d 552, 560. The appellant fails to note that a second, procedural notice is also required prior to sentencing. § 46-18-503(3), MCA; Madera, 206 Mont. at 155, 670 P.2d at 560. The record in this case clearly shows that the State gave appropriate notice in both prosecutions. In the first case, jurisdictional notice was given on September 3, 1987, and trial began on April 12, 1988. The prosecution gave the second, procedural notice on May 11, 1988, and sentencing took place on May 24, 1988. In the second case, jurisdictional notice was given on September 1, 1988, and trial began on October 11, 1988. The prosecution gave the second, procedural notice on October 17, 1988, and sentencing took place on October 25, 1988. The appellant raises a second objection. Without elaborating on his argument or citing any authority, the appellant asserts that the District Court erred in its second designation of Hawkins as a persistent felony offender because both underlying convictions arose from a single transaction. The fact that both crimes arose out of the same transaction does not in itself bar application of the persistent felony offender designation. A persistent felony offender is defined as, an offender who has previously been convicted of a felony and who is presently being sen- tenced for a second felony committed on a different occasion than the first. 46-18-501, MCA. The statute requires that the offender has committed at least two felonies. The test of whether more than one crime results from the same transaction is whether the elements of each charged offense require proof of a fact which the others do not. State v. Gray (1983), 207 Mont. 261, 269, 673 P.2d 1262, 1267. The first jury found Hawkins guilty of felony drug possession which requires the prosecution to prove that the defendant knowingly, purposely, or negligently possessed more than sixty grams of marijuana. 5 45- 9-102 (2), (4), MCA; 5 45-2-103 (I), MCA. The second jury found Hawkins guilty of felony assault which required proof that he knowingly and purposely caused bodily injury to a peace officer who was responsible for his custody. 1 45-5-202 (2) (c) , MCA. Clearly, these are separate crimes. The statute also requires that the offender must have commit- ted the felonies on different occasions. We have not yet con- sidered what constitutes different occasions for the purposes of the persistent felony offender statute. In interpreting its version of the statute, the Arizona Supreme Court stated, We know of no all-encompassing test to deter- mine whether different crimes fall within the same occasionw limitation of the statute. Any analysis of the question must have refer- ence to the time, place, number of victims, and distinct nature of the defendant I s acts. In general, however, when different crimes, even though unrelated in nature, are committed at the same place, on the same victim or group of victims, and at the same time or as part of a continuous series of criminal acts, they should be considered as having been committed on the "same occasion1I for purposes of sen- tence enhancement. State v. Henry (Ariz. 1987), 734 P.2d 93, 97. (Citation omitted.) We apply a similar analysis here and hold that Hawkins1 two felony crimes occurred on different occasions. The drug possession charge is a crime against the state which occurred prior to Hawkinst arrest in the Kunz driveway. The assault against Deputy Dostal occurred some hours later in the Yellowstone County Court- house. Though the assault during escape was a result of Hawkins1 drug-related arrest, the crimes are sufficiently disparate in time, place, and victim that they cannot be said to have occurred on the same occasion. The second persistent felony offender designation was appropriate. 11. Danserous Offender Status The appellant argues that the record does not contain substan- tial credible evidence to support dangerous offender status. He correctly points out that the trial court must articulate reasons based on substantial credible evidence and may not simply recite the statute. See In the Matter of McFadden (1980), 185 Mont. 220, 222, 605 P.2d 599, 600. The District Court has amply satisfied the McFadden require- ments. Among other factors, the court considered the presentence report, the appellant's prior criminal history, the inability of the appellant to live in the community for more than three years without being convicted of felony drug possession and felony assault, and the violence of the crime and danger to the victim. 111. Res Judicata and Double Jeopardy Again with little elaboration and no authority, the appellant asserts that in convicting him of misdemeanor escape and not of felony assault, the first jury determined that Hawkins did not assault Officer Dostal and, therefore, he cannot be tried again on the same factual issue. The question of double jeopardy is easily settled; it does not arise when the state charges the defendant with felony escape and felony assault. State v. Thornton (1985), 218 Mont. 317, 325, 708 P.2d 273, 278-79. The issue of res judicata is more complex. In Sealfon v. United States, the United States Supreme Court held that res judicata may be a defense to a criminal prosecution. The doctrine "operates to conclude those matters in issue which the [previous] verdict determined though the offenses be different." Sealfon v. United States (1948), 332 U . S . 575, 578, 92 L.Ed. 180, 184, 68 S.Ct. 237, 239. Similarly, this Court stated in a criminal case, that "a final judgment on the merits by a court of competent jurisdiction is conclusive as to . . . issues thereby litigated . . . . Coleman v. State (Mont. 1981), 633 P.2d 624, 629, 38 St.Rep. 1352, 1357-58. The pivotal question in the case sub judice is what issues the jury decided in the first trial. If the jury decided that Hawkins did not assault Officer Dostal, res judicata would bar re-litiga- tion of that issue. Faced with a similar problem in Sealfon, the United States Supreme Court looked to the facts necessarily adduced at trial and the jury instructions. Sealfon, 332 U.S. at 578-79, 92 L.Ed. at 184, 68 S.Ct. at 239. The Hawkins court instructed the jury that to find the defendant guilty of felony assault, they would have to conclude that he attempted to strangle Officer Dostal. On the issue of escape, the court instructed the jury to first consider the crime of felony escape, which also required a finding that Hawkins attempted to strangle Officer Dostal. The court further instruct- ed, "In the event you cannot find the defendant guilty of . . . ESCAPE (FELONY), you must consider the lesser included offense of ESCAPE (MISDEMEANOR) . . . . I' The jury returned a verdict of guilty of misdemeanor escape, but hung on the assault charge. Contrary to appellant's assertion, it is apparent that the jury did not conclude that Hawkins did not assault Officer Dostal. They explicitly failed to come to any conclusion on that issue by entering no verdict on the assault charge. Since the jury could not decide if Hawkins assaulted Officer Dostal, they could not find him guilty of felony escape, but could, and did, find him guilty of misdemeanor escape. Because the first jury never decided the issue of assault, it was a proper subject of the second trial and not blocked by the doctrine of res judicata. IV. Lesser Included Offense The appellant asserts without explanation that since Hawkins was not convicted of felony escape, he cannot be charged with the lesser included offense of felony assault. We have previously held that felony escape and felony assault are not inclusive, State v. Thornton (1985), 218 Mont. 317, 325, 708 P.2d 273, 278-79, and find no merit in the appellant's argument. V. Search and Seizure The appellant lastly argues that the trial court erred in not suppressing the marijuana evidence found in Hawkins' truck because the evidence was the result of a warrantless search by parole officers. The appellant apparently contends that evidence dis- covered during a parole officerls search of a parolee should be restricted to parole revocation proceedings. We disagree. The search in this case is controlled by our holding in State v. Burke. In that case we followed the United States Supreme Court in holding that a probation officer may search a probationer's vehicle without a warrant as long as the officer has reasonable cause. Burke (Mont. 1988), 766 P.2d 254, 256, 45 St.Rep. 2278, 2280. Reasonable cause existed in the present case. While on furlough from a first degree murder sentence, Hawkins threatened to kill LaVon Bretz and Francis Kunz. Arresting officers found brass knuckles in his pocket and his erratic driving indicated that Hawkins may have been intoxicated. The parole officer was thereby given reasonable cause to search Hawkins1 vehicle for alcohol and weapons. The marijuana was a fortuitous discovery pursuant to a lawful search. The conduct of the police officers is also controlled by our holding in Burke. In Burke, we noted that probation officers are not always available in Montana, and we encouraged police and probation officers to cooperate and communicate in the effective administration of the probation system. Burke, 766 P.2d at 257, 45 St.Rep. at 2283. Parole officers were available in this case, and the cooperation and communication were appropriate. Hawkins1 parole officer was notified early in the incident and the informa- tion he provided insured an uneventful arrest. The police waited for the parole officer to make the decision to conduct a search of the vehicle. The parole officer determined that he had reasonable cause and that no warrant was necessary. We take note of the apparent contradiction between Hawkins' adamant refusal to allow the police to search his vehicle and the officers1 testimony that Hawkins paradoxically gave them permission to secure the pickup truck by removing the keys. Hawkins testified that he never authorized removal of the keys. The District Court, as the finder of fact in the suppression hearing, chose to believe the police officers rather than Hawkins. Without more evidence, we hold that the court did not abuse its discretion. The appellant argues that Hawkins1 parole officer acted as a mere "pawnn of the police in searching Hawkins' vehicle. In Burke we stated that probationers should not be afforded a fortuitous opportunity to escape punishment for probation violations simply because probation officers were not present during observation or arrest. Burke, 766 P.2d at 257, 45 St.Rep. at 2282-83. We will also not give parolees carte blanche to avoid punishment for criminal acts simply because a police arrest led to a lawful search by parole officers. We find the appellant's assertions without merit. Affirmed. W e concur: (ices - | October 19, 1989 |
5c6ff0ee-023e-43d8-b579-07bf6f9c9613 | MATTER OF H R B | N/A | 89-277 | Montana | Montana Supreme Court | No. 89-277 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN THE MATTER OF H.R.B. And K.R.B., Youths in Need of Care. 4 APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Jeffrey Sherlock, Judge presiding. COUNSEL OF RECORD: For Appellant: J. Mayo Ashley, Helena, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Dorothy McCarter, Asst. Atty. General, Helena Mike McGrath, County Attorney; Leo Gallagher and Carolyn Clemens, Deputy Co. Attys., Helena, Montana Submitted on Briefs: Sept. 27, 1989 Decided: October 17, 1989 d Filed: "Clerk Justice John Conway Harrison delivered the opinion of the Court. This is an appeal from a ruling of the First Judicial District, Lewis and Clark County, terminating the mother's legal custodial rights to H.R. and K.R.B. and transferring legal custody of the children to the State. The mother retained the right to supervised visitation with her children. We affirm. Appellant presents a single issue for review: Did the District Court err in terminating the mother's legal custodial rights to H.R. and K.R.R. and in transferring legal custody to the State? On October 13, 1987, Lewis and Clark County Family Services personnel removed H.R. and K.R.B. from their mother's care and placed them at Shodair Hospital for evaluation. Both children had exhibited symptoms of emotional disturbance at school. The District Court subsequently issued an order for temporary investigative authority and protective services. During the investigative portion of these proceedings, Family Services discovered at least 32 referrals of the mother for abuse or neglect to Human Service agencies in Washington and Oregon. These agencies had intervened in the family and in 1981 the State of Washington removed the children from their mother for an extended time. The mother has been evaluated by a number of mental health professionals since 1981 and all concur that the mother suffers from long-standing emotional problems that adversely affect her ability to parent. The children were evaluated at Shodair and both were found to be severely emotionally disturbed as a result of their mother's extensive abuse and neglect. Prominent in the children's history are incidents of sexual and physical abuse by the mother's male friends and also their uncle. As a result of Shodair's recommendations, H.R. was placed in a foster home and K.R.B. was placed at the Deaconess Home where she will remain for at least two years. Both children will require extensive therapy. The District Court adjudicated these children as youths in need of care on February 23, 1988. A treatment plan was formulated and approved by the District Court on April 13, 1988. The treatment plan outlined a two phase program, Phase I of which carried a 180-day timetable. On November 17, 1988, the Lewis and Clark County Attorney petitioned for permanent custody of the children to be awarded to the State (Montana Department of Family Services). The December 28, 1988 permanent custody hearing transcript reveals that the State held itself to the standard of proof required to terminate parental rights pursuant to S 41-3-609, MCA, even though it did not seek termination of all parental rights. The District Court utilized S 41-3-609 criteria in reaching its decision. In relation to children adjudged youths in need of care, S 41-3-609, MCA, sets forth the following criteria for termination of parental rights: 41-3-609 (1) (c) the child is an adjudicated youth in need of care and both of the following exist: (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. Because the parents' right to custody is a fundamental interest, the State must show by clear and convincing evidence that the statutory criteria have been met. Matter of J.L.S. (Mont. 1988), 761 P.2d 838, 840, 44 St.Rep. 1842, 1845. 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. Matter of A.H. (Mont. 1989), 769 P.2d 1245, 1247, 45 St.Rep. 395, 397. The District Court found that the mother had not complied with the treatment plan and that the treatment plan had not been successful. Further, the District Court found that the mother's conduct was unlikely to change within a reasonable time. Appellant contends that the District Court erred because the State did not present evidence that she failed to comply with the treatment plan. As well, appellant argues that the evidence does not support the conclusion that her behavior would not change within a reasonable time. We disagree. At the hearing, the District Court heard evidence from the social worker supervising the treatment plan, one of H.R.B.'s foster parents, the four mental health professionals involved in the case, and the mother. At best, the testimony reveals that the mother had partially complied with the treatment plan. The District Court's findings acknowledge that some progress had been made toward achieving the objectives of Phase I of the treatment plan. However, contrary to appellant's apparent contention, partial compliance is not the same as the statutory criteria of compliance set forth in S 41-3-609 (1) (c) (i) , MCA. Also, appellant does not appear to challenge the District Court's finding that the treatment plan was not successful which is an alternative choice under $ 41-3-609(1) (c) (i), MCA. Instances of the mother's noncompliance with the treatment plan appear in the record as well as instances of compliance. The record contains no evidence that the mother complied with the treatment plan in its entirety. Thus, the record supports the District Court's finding that the mother had not complied with the treatment plan and that the treatment plan was unsuccessful. Appellant next attacks the finding that the mother's conduct is unlikely to change within a reasonable time, the second prong of the termination criteria in § 41-3-609(1) (c), MCA . In support of her argument, appellant cites her treating therapist's testimony that she could "turn her(se1f) around" in eight months to a year, a reasonable time she contends. However, appellant mischaracterizes the therapist's testimony. Although the therapist did testify that appellant might be able to change her conduct in eight to twelve months, the therapist's prognosis was extremely guarded. He testified that the chances of the mother being able to take the children back sometime in the future were "not wonderful." Also appellant's assertion that eight to twelve months is a reasonable time ignores the mandate of S 41-3-609 ( 3 ) , MCA . That mandate instructs the court to give primary consideration to the needs of the children when evaluating whether a parent's conduct is likely to change within a reasonable time. Thus the inquiry really focuses on the mental and physical health of the children and the urgency of their needs. Similar to the child in Matter of D.S.N. (1986), 222 Mont. 312, 722 P.2d 614, experts in this case testified that H.R. and K.R.B. need stability and predictability in their lives now if they are ever to become emotionally healthy. As with D.S.N., experts testified that further delay in providing H.R. and K.R.B. with that stability and predictability would be highly detrimental to them. The testimony regarding the immediacy of the children's needs and the extremely guarded prognosis regarding the likelihood that the mother's conduct will change provided substantial credible evidence for the District Court's decision. In summary, the District Court found that the State met its burden of proof under § 41-3-609(1)(c), MCA. Substantial credible evidence in the record supports that decision. Thus, the District Court's decision to transfer legal custody to the State was not an abuse of discretion. We affirm the District Court. We concur: ./ | October 17, 1989 |
2dd9076f-0b82-4848-8c2f-d48cb4c923ab | ALLEE v ALUMINUM PRODUCTS ALPIN | N/A | 89-147 | Montana | Montana Supreme Court | NO. 89-147 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 RUSSELL M. ALLEE, Claimant and Appellant, -vs- ALUMINUM PRODUCTS AND ALPINE GLASS, INC., Employer, and STATE COMPENSATION INSURANCE FUND, Defendant and Respondent. APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: John H. Bothe; Bothe & ~auridsen, Columbia Falls, Montana For Respondent: W. D. Hutchison, Agency Legal Services, Helena, Montana Submitted on ~riefs: Aug. 10, 1989 ~ecided: September 20, 1989 Justice Fred J. Weber delivered the Opinion of the Court. The claimant, Mr. Allee, sought recovery of additional permanent partial disability benefits in the Workers' Compen- sation Court, and requested such benefits to be paid in a lump sum. The court found Mr. Allee suffered a 20% permanent partial disability and awarded him a total of 44 weeks of benefits. From this decision, Mr. Allee appeals. We remand for further findings of fact and conclusions of law. The issues are: 1. Is the lower court's finding of 20% disability supported by substantial credible evidence? 2. Do the findings of fact and conclusions of law support the lower court's judgment that Mr. Allee is entitled to 44 weeks of permanent partial disability benefits? Mr. Allee has worked as a ranch hand, an oil field laborer, an oil field large engine mechanic, a backhoe opera- tor, a small truck driver, and a glazier. He first worked as a glazier for Powder Basin Glass in Gillette, Wyoming, in 1983. He became employed by the defendant, Aluminum Products and Alpine Glass, Inc. (Aluminum Products) of Kalispell, Montana as a glazier in June of 1985. His duties included the fabrication and installation of frames for glass and the installation of glass. He has worked as a glazier since 1983. Mr. Allee left high school in the eleventh grade. He is right-handed. On January 9, 1986, while working on a window frame, 26 year-old Mr. Allee scratched his left hand with a six inch piece of aluminum. The next day, when his hand swelled and he noticed red streaks going up his arm, he went to the hospital emergency room where he received penicillin and tetanus shots. The infection worsened and subsequently required surgical drainage. The surgery was performed by Dr. Paul Ruttle, an orthopedic surgeon located in Kalispell, Montana. Mr. Allee was hospitalized for eight days. Alumin,um Products is enrolled under Compensation Plan No. 3 of the Workers' Compensation Act and is insured by the State Compensation Insurance Fund. Mr. Allee filed his claim for compensation and received temporary total disability from Aluminum Products for the period of time he was off work due to the injury. He returned to work with Aluminum Products on February 11, 1986. Dr. Ruttle remained as Mr. Allee's treating physician from the time of surgery on January 10, 1986, until September 21, 1987. Initially, he released Mr. Allee to return to light duty work, and released him to full duty work on Janu- ary 21, 1987. As evidenced by Dr. Ruttle's office note on that date, Mr. Allee had "full range of motion of all fingers and thumb" and was "doing well. " Dr. Ruttle's notes of September 1, 1987, stated that the strength of Mr. Allee's left hand was approximately 75% of the right, and rated Mr. Allee as "approximately 10% permanent [ly] partial [ly] impair [ed] of the left upper ex- tremity." This was the only medical impairment rating as- signed to Mr. Allee. Aluminum Products paid Mr. Allee an impairment liability award of $146.50 per week for 20 weeks (10% of 200 weeks). That was Dr. Ruttle's last examination of Mr. Allee. Dr. Ruttle was unavailable to testify in this matter, and there was no other medical expert testimony. Dr. Ruttle's office notes were stipulated into evidence. The lower court's findings are summarized as follows: Since returning to work, Mr. Allee has been unable to tightly grip and carry thin objects, such as sheets of glass. He has had a loss of strength in his left upper extremity, including a loss of grip strength and finger pincer strength, a loss of coordination and dexterity in the left hand, a loss of feel- ing in the left index finger, constant puffiness and swelling of the hand, contraction of the first web space on the left hand, and pain associated with the web space contraction. Because of the loss of strength in his left upper arm, his performance as a glazier has been limited. His left hand hurts him when he carries things, and it is easily fatigued. For lifting and carrying, he now requires the use of a suc- tion cup. However, he has continued to work as a glazier since the accident. Due to a seasonal slowdown, he left Aluminum Products in January 1987 and went to work for his present employer, again as a glazier. Mr. Allee testified that he is able to perform all of the job requirements of his present employer. He receives fifty cents per hour more with his current employer than he did prior to the accident. I Is the lower court's finding of 20% disability supported by substantial credible evidence? The lower court made the following pertinent findings of fact and conclusions of law: Findinas of Fact 13. Claimant has had a loss of strenath in his - - - - left upper extremity, including a 1 0 ; s of grip strength and of finqer pincer strenqth, a loss of coordination and dexterity in the left hand, a loss of feeling in the left index finger, constant puffiness and swelling of the hand, contraction of the first web space on the left hand, and pain associated with the web space contraction. 14. Because of the loss of strength in his left - - --- upper arm, it has limited the claimant in perform- ing hirjob as a glazier. He experiences pain in his left hand when he is required to carry framing boxes and he easily fatigues with use of his left hand. He now requires the use of a suction cup and relies more on his right hand for lifting and carrying. Conclusions of Law 2. Claimant is permanently partially disabled - as - a result -- of the injury to his left hand on January 9, ---- 1986, and entitled to 56 weeks of benefits at $146.50 per week for possible loss o f future earn- ing capacity under Sections 39-71-705 through 708. Defendant will receive credit for such benefits previously paid. The factors considered by the Court in deter- mining the percentage of disability include claim- ant's age, 29, and the fact that he has not gone beyond eleventh grade in school. His work history incudes heavy manual labor, which is still possible after his injury. His primary work as a full-time glazier since 1983 continues to be his choice of employment and by all indications he can continue in his employment without loss of income. The facts of each permanent partial disability case are different and each must be decided on their own merits. Considering - the - 10 percent impairment rating -- of his upper left extremity, his loss of strength, limitation of his first web space in his left hand, - the Court finds the claimant-has suffered - a - 20 percent disability -- of the upper left extremitv. Based on the schedule in Section A 39-71-705, MCA, one hand between the wrist and elbow, he is entitled to 220 weeks of permanent partial disability benefits, times 20 percent equals 44 weeks of permanent partial disability benefits. This, times his permanent partial rate of $146.50, equals $6,446.00, less permanent par- tial benefits previously paid. (Emphasis added. ) Mr. Allee contends the lower court "ignored" his physi- cal inability to return to oil field work and failed to consider the effects of his permanent loss of physical strength on his future earning capacity. He asserts that what he asked the court to consider was his prospective loss of earning capacity. Therefore, the lower court's conclusion that he could return to oil field work had an unfair and significant effect on his entitlement to permanent partial disability benefits. Section 39-71-116 (12) , MCA (1985) , defines "permanent partial disability" as follows: "Permanent partial disability" means a condi- tion resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capability less than total that exists after the injured workers is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence. The purpose of workers' compensation is to protect the worker against economic loss. Hafer v. Anaconda Aluminum Co. (1984), 211 Mont. 345, 348, 684 P.2d 1114, 1116. It is a well established rule in Montana that a "claimant's age, education, work experience, pain and disability, actual wage loss, and -- loss of future earning capacity" determine perma- nent partial disability. (Emphasis added.) Holton v. F.H. Stoltze Land and Lumber Co. (1981), 195 Mont. 263, 266, 637 P.2d 10, 12. The lower court properly applied this rule. In reaching the determination of 20% permanent partial disability, the record established that the lower court considered Mr. Allee's age of 29, his departure from high school in the eleventh grade, work history, medical evalua- tions, post-injury employment and his post-injury earnings. However, the lower court's conclusions of law manifest con- flicting findings. Throughout its findings of fact and conclusions of law, the court repeatedly referred to Mr. Allee's 10% impairment rating of the upper left extremity. However, the court, without explanation, found 20% disability of the upper left extremity. Mr. Allee contends that glaziers usually leave that occupation in their mid-thirties, hence his past work experience and his alleged "inability" to do 50% of his past occupations anymore, directly effect his future earning capacity. Mr. Allee's testimony that glaziers only work into their mid-thirties before changing occupations is uncorroborated. In fact, he contradicted himself when refer- ring to glaziers in the Billings area: "90 percent of them was between 25, 26 and 30, 40's." Similarly he testified "the oldest person in our shop is probably around his 40's." Mr. Allee had the burden of proof to establish a loss of future earning capacity. Metzger v. Chemetron Corp. (1984), 212 Mont. 351, 687 P.2d 1033. He correctly notes the burden shifts to the employer after the claimant affirmatively shows that he cannot return to a job in his normal labor market. He argues that he is physically unable to return to work in the oil fields. He was a mechanic, a truck driver, and a backhoe operator in the oil fields. He testified he might be limited in doing backhoe work and that he had "started on the backhoes because [he] wanted out of the oil field." We agree with the lower court that the record does not support his argument. However, based on the inconsistency of the lower court's findings, we remand this issue for further findings of fact and conclusions of law to determine the percentage of disability. I1 Do the findings of fact and conclusions of law support the lower court's judgment that Mr. Allee is entitled to 44 weeks of permanent partial disability benefits? The parties dispute the maximum number of weeks under the schedule of benefits to which Mr. Allee is entitled under 5 39-71-705, MCA. Mr. Allee argues that he is entitled to a maximum of 280 weeks for "loss of an arm at or near the shoulder" because the impairment rating was made concerning his left upper extremity. Aluminum Products contends Mr. his left upper extremity. Aluminum Products contends Mr. Allee's injury is limited to his left hand, limiting his entitlement to a maximum of 220 weeks. The relevant statute is S 39-71-705, MCA (1985), which follows in pertinent part: Compensation for loss of certain body members or loss of hearing. (1) In addition to temporary total disability benefits allowed in this chapter, indemnity benefits for loss of a member shall be paid at the weekly rate provided in 39-71-703 and shall be paid for the following periods: one arm at or near shoulder . . . . . . . 280 weeks one arm at the elbow . . . . . . . . . . 240 weeks one arm between wrist and elbow . . . . . 220 weeks onehand. . . . . . . . . . . . . . . . 200 weeks It is Mr. Allee's contention that the court recognized that he has had a loss of strength in his "upper left extrem- ity" but failed to correctly find that he was entitled to 280 weeks of permanent partial benefits under $ 39-71-705, MCA (1985). Aluminum Products argues that because injury was to the hand, and the "residual impacts" of the injury are to the hand, the court's conclusion was logical and supported by substantial credible evidence. In its conclusions of law, the lower court repeatedly stated that Mr. Allee was entitled to "44 weeks of benefits." At one point it said "56 weeks." Mr. Allee contends that the combination of the references to the "upper left extremity" and "56 weeks" indicates that the court erroneously concluded that he receive only "44 weeks" of benefits. We agree. Throughout its findings of fact and conclusions of law, the court repeatedly referred to Mr. Allee's injury to the "left upper extremity" and "left upper arm." Although 5 39-71-703, MCA, allows 280 weeks for such an injury, the lower court concluded that Mr. Allee was entitled to only 220 weeks, which is the compensation allowed for "one arm between wrist and elbow." This is inconsistent. Furthermore, in its conclusions of law the court's first reference to the period of benefits, stated Mr. Allee was "entitled to 56 weeks of benefits." This corresponds with the court's findings of injury to the "left upper extremity." But then, without explanation, the court changed to "44 weeks." We hold that the findings of fact and conclusions of law are conflicting within, and remand this issue to the Workers' Compensation Court for further findings and conclusions as to the weeks of permanent partial disability allowed. Remanded. L We concur: A | September 20, 1989 |
f33e3bbd-4295-459d-b5b0-3f265f9a999d | STATE v KIM | N/A | 89-046 | Montana | Montana Supreme Court | No. 89-46 I N T H E SUPREME C O U R T O F T H E STATE O F MONTANA 1989 STATE O F M O N T A N A , P l a i n t i f f and Respondent, -vs- KYONG CHA K I M , Defendant and Appellant. APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l ~ i s t r i c t , I n and f o r t h e County o f Missoula, The Honorable Jack L. Green, Judge p r e s i d i n q . COUNSEL O F RECORD: For Appellant: Joseph M. Goldman and Michael F. Bailey; Goldman Law O f f i c e s , Missoula, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Kathy Seeley, A s s t . Atty. General, Helena Robert L. Deschamps, 111, County Attorney, Missoula, Montana F i l e d : Submitted on B r i e f s : June 3 0 , 1989 Decided: September 18, 1989 Justice Fred J. Weber delivered the Opinion of the Court. Kyong Cha Kim was convicted by jury of prostitution, a misdemeanor, and promoting prostitution, a misdemeanor, in the Fourth Judicial District Court, Missoula, Montana. Ms. Kim was sentenced to six months on each count, to be served in the Missoula County Jail, the sentences to be served consecutively. Both sentences were suspended. Ms. Kim was also fined $500 on each count. From these convictions, Ms. Kim appeals. We affirm. 1. Did the District Court err in denying defendant's motion to dismiss based on entrapment? 2. Did the District Court err in denying defendant's motion to suppress certain evidence obtained through a con- sent to search warrant? In the fall of 1987, Ms. Kim moved to Missoula, Mon- tana, where she opened a sauna massage business named the Crossroads Sauna. Shortly after the business opened the Missoula County Attorney's office began receiving complaints about prostitution at the business. In October 1987, the county attorney's office began an investigation into the activities of the Crossroads Sauna. Initially, on October 21, 1987, two detectives, posing as truck drivers, went to the sauna. A female employee of the sauna showed them the facilities and explained that the sauna offered a $40, $60 and $100 massage. Both officers testified that when they asked what the $100 massage included, they were told it included "everything." The detectives did not request a massage during that visit. They returned on Novem- ber 10, 1987, and on this visit they spoke directly to Ms. Kim who told them only the $100 massage was available. However, when the officers refused to pay $100, Ms. Kim said they could receive the $40 massage. Both detectives were then asked to sign a form acknowledging that they would not give anything of value for any sexual conduct. The detec- tives testified that the $ 4 0 massage consisted of a sauna, a shower, and a back rub by Ms. Kim and another employee. During that same visit the two detectives asked Ms. Kim about holding a bachelor party for a friend at the Crossroads Sauna. Ms. Kim agreed to the party. She stated, however, that each member of the party must receive the $ 1 0 0 massage. When the detectives asked her what this included she said it included "everything," and that she would teach the groom how to make love to his new wife. On November 19, 1987, six deputies and a deputy county attorney arrived at the Crossroads Sauna for the purported bachelor party. They brought beer with them and on the way there each had consumed a beer or less in order to appear to be partying. One officer carried a gun. Ms. Kim and two female employees admitted the officers. A fourth woman was on the premises but never became involved with the party. The men were escorted to a room where the groom was given a bottle of champagne, and seated on a chair. The officers testified that the two employees sat on his lap and began to unbutton his shirt and take off his belt. An offi- cer and the deputy county attorney then began talking to Ms. Kim outside the room. Conflicting testimony was presented as to who initiated conversation about sexual intercourse, however, the officers testified that when they asked Ms. Kim about protection, she assured the officers that she had "rubbers." The negotiations ended with an agreement that for the $ 1 0 0 each, the groom would have sex with all three women, and the other members of the party would each have sex once. The officers testified that this conversation was carried on in a quiet and businesslike manner. After this conversation, Ms. Kim was arrested and handcuffed, as were the two employees. They were given Miranda rights. While one employee became very upset and had to be physically subdued, the officers testified that Ms. Kim and the other employee were cooperative and composed. Ms. Kim was asked if she would sign a consent form, allowing the officers to search the premises. She agreed to sign the form and a search was conducted. During the search Ms. Kim showed the officers where boxes of condoms were stored in her freez- er. A later count revealed that this supply included 334 condoms. Ms. Kim entered pleas of not guilty to prostitution and promoting prostitution. Ms. Kim was tried by jury in Justice Court on May 26, 1988, and a verdict of guilty was returned on both counts. Ms. Kim then appealed to District Court. She moved for dismissal, alleging the affirmative defense of entrapment. She also moved to suppress the evidence seized during the search. The hearing on these motions was held on September 29-30, 1988, and the court denied both motions. Ms. Kim was tried by jury on October 26-28, 1988, and the jury returned a verdict of guilty on each count. I Did the District Court err in denying defendant's motion to dismiss based on entrapment? As a pretrial motion, Ms. Kim moved to dismiss the charges against her based on the affirmative defense of entrapment. The court's hearing on this motion included testimony from numerous witnesses, including Ms. Kim and her employees, and witnesses for the State. The court denied this motion. Initially, the State contends that the defense of entrapment is not available to a defendant who denies committing the acts for which she is charged, citing State v. Kamrud (1980), 188 Mont. 100, 103-04, 611 P.2d 188, 190. See also State v. O'Donnell (1960), 138 Mont. 123, 354 P.2d 1105; State v. Parr (1955), 129 Mont. 175, 283 P.2d 1086. In the present case, Ms. Kim pled not guilty to both the charge of prostitution and the charge of promoting prostitution. Thus, the State contends that Ms. Kim was not entitled to assert this defense. However, because the District Court heard testimony on this motion we will review the defense on its merits. Entrapment is an affirmative defense available to a criminal defendant, and is codified in S 45-2-213, MCA, as follows: A person is not guilty of an offense if his conduct is incited or induced by a public servant or his agent for the purpose of obtaining evidence for the prosecution of such person. However, this section is inapplicable if a public servant or his agent merely affords to such person the opportunity or facility for committing an offense in furtherance of criminal purpose which such person has originated. The elements of this defense were further explained by this Court in State v. Hanley (1980), 186 Mont. 410, 414, 608 P.2d 104, 106, wherein we enumerated the elements of entrap- ment as follows: (1) criminal intent or design originating in the mind of the police officer or informer; (2) absence of criminal intent or design originating in the mind of the accused; (3) luring or inducing the accused into committing a crime he had no intention of committinq. See State v. Grenfell (1977), 172 ~ o n t . 345, 564 ~ z d 171: State ex rel. Hamlin -- v. District Court (1973), 163 Mont. 16, 515 P.2d 74; State v. Karathanos, supra. - The burden of establishing entrapment rests on the defendant. A court may determine that entrapment exists as a matter of law. Kamrud, 611 P.2d at 191; State v. Grenfell (1977), 172 Mont. 345, 564 P.2d 171. However, if there are conflicting facts, the issue is properly submitted to a jury. State v. McClure (1983), 659 P.2d 278, 280, 202 Mont. 500, 503. Additionally, in reviewing the denial of a motion to dismiss based on entrapment, this Court will view the evi- dence and inferences in a light most favorable to the State. State v. Merrill (Wash.App. 1979), 597 P.2d 446. Ms. Kim contends that entrapment was established as a matter of law, requiring dismissal of the charges. Ms. Kim contends that the criminal intent originated in the minds of the law enforcement officers, that she had no intent herself to commit the crime, and that she was induced to commit the crime. Ms. Kim relies on the cases of Kamrud and Grenfell in support of her contention. Having reviewed the evidence and the elements of this defense, we conclude that entrapment did not exist as a matter of law. At the hearing, the officers testified that on the evening of the party, two of the women employees sat on the lap of the "groom," and began to unbutton his shirt and undo his belt buckle. No testimony suggested that these women were induced to begin these actions. Additionally, the testimony by law enforcement personnel indicated that Ms. Kim did not have to be induced to participate in discussions about sexual intercourse for pay. Instead, their testimony emphasized that Ms. Kim was totally agreeable to negotiations regarding sex, and that she was prepared to supply "protec- tion" in the form of condoms. In response, Ms. Kim denied that she agreed to provide sex. She testified that she was supposed to "tease" the "groom," and that any references to sexual acts was all a part of the joke. This evidence regarding the defense of entrapment was properly submitted to the jury. Ms. Kim relies on this Court's decisions in Kamrud and Grenfell to support her contention that the court should have found entrapment as a matter of law. These cases are distin- guishable in several respects, however. In Grenfell an informant became a friend of the defen- dant over a period of six months and "persistently requested" help from the defendant in procuring drugs. In concluding that entrapment had occurred, this Court stated, "The record shows Grenfell was not predisposed to commit this offense." Grenfell. 564 P.2d at 173. In Kamrud, law enforcement officers induced the defen- dant to obtain drugs for them. As inducement to commit the crime, the officers used marijuana themselves in the presence of defendant, they became friendly and held parties to ingra- tiate themselves with defendant. There was no evidence that Mr. Kamrud had sold drugs in the past, or that the idea of selling the drugs originated with Mr. Kamrud. In Kamrud the officers violated the law themselves by using and giving away marijuana. In concluding that entrapment was established as a matter of law, this Court stated: "In short, there is a controlling distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of a criminal design of his own conception . . .I' State v. Karathanos (1972), 158 Mont. 461, 493 P.2d 326, 331. . ." Kamrud, 611 P.2d at 191. Comparing the present case to the facts of Kamrud and Grenfell, this controlling distinction is apparent. This is not a case where there was no suggestion of criminal activity prior to the investigation. The investigation was initiated because of citizen complaints. In the present case the law enforcement officers set a trap. However, the evidence, including the testimony of the officers, and the large supply of condoms, indicated that Ms. Kim did not have to be induced to participate in discussions about sexual intercourse. There was substantial credible evidence to support a finding that criminal intent originated with Ms. Kim. Understand- ably, the District Court refused to find that as a matter of law Ms. Kim lacked criminal intent, or was induced to commit the crime. These determinations were properly left for the jury. We affirm the District Court's denial of Ms. Kim's motion to dismiss. 11. Did the District Court err in denying defendant's motion to suppress certain evidence obtained through a con- sent to search warrant? Immediately following her arrest, Ms. Kim signed a consent to search which allowed the officers to search the Crossroads Sauna. Ms. Kim claims that her consent was not voluntary under the totality of the circumstances, citing Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. She contends that the court erred in denying her motion to suppress evidence obtained as a result of this search. At the hearing on this motion the District Court heard testimony about how the consent was obtained, and other relevant evidence. The court denied Ms. Kim's motion to suppress. The right to be free of an unreasonable search and seizure is guaranteed by the Fourth Amendment to the United States Constitution, and is made applicable to the states through the Fourteenth Amendment. One may however, consent to a search as long as that consent is proved by clear and convincing testimony and as long as it is established that the consent was not coerced. The State has the burden of showing that the consent was voluntary. Voluntariness is a factual issue and is determined from the totality of the circumstances. Schneckloth, 412 U.S. at 248-49. On appeal, our standard of review when considering a court's ruling on a motion to suppress, is whether the record contains substantial credible evidence to support the dis- trict court's findings, and whether those findings were applied correctly as a matter of law. State v. Beach (1985), 217 Mont. 132, 147, 705 P.2d 94, 103. "The credibility of the witnesses at a suppression hearing is properly determined by the trial court that heard testimony and observed the witnesses." The trial court is the finder of fact in a suppression hearing. State v. Kirkaldie (1978), 179 Mont. 283, 289-90, 587 P.2d 1298, 1302-03. Ms. Kim urges that her consent was not voluntary for the following reasons. She emphasizes that she was hand- cuffed and in the custody of seven male law enforcement officers. She notes that she is only five feet tall, and weighs only 100 pounds. She alleges that she was intimidated because one of her employees had to be physically subdued. Ms. Kim alleges that the officers threatened to "tear the place apart" if she did not sign the consent form. She alleges that one of the officers pointed a gun at one of her employees. Ms. Kim also claims her Korean descent and lack of familiarity with American processes made her vulnerable to the officers' requests. Ms. Kim signed the form approximately twenty-five minutes after she was arrested and approximately fifteen minutes after she witnessed the scuffle with her employee. At the time she signed, her handcuffs had been removed, and she was seated, drinking a pop and smoking. The officers testified that they read the form to Ms. Kim twice and that she also read it herself. The officers denied making any threats about "tearing the place apart." Only one officer was carrying a gun, and he testified that he held the gun at his side for less than a minute while the arrests were being made, then put it away. He testified that he never pointed it at anyone. While custody is a factor in the totality of the cir- cumstances test, it does not necessarily negate consent. State ex rel. Kotwicki v. District Court (1975), 166 Mont. 335, 344, 532 P.2d 694, 699. Additionally, Ms. Kim's back- ground belies her contention that she lacked understanding of the proceedings. Testimony at the hearing established that Ms. Kim is an American citizen who has owned several busi- nesses in America. In the past she has worked with sheriff and police departments as an interpreter. She has also worked as an interpreter in courtrooms and in jails. The court had the opportunity to hear the witnesses, judge credibility, and weigh the evidence. The court deter- mined that under the totality of the circumstances, the State's evidence was clear and convincing that Ms. Kim's consent was obtained voluntarily. Ms. Kim also contends that the scope of the search exceeded the scope of the consent. She claims that the kitchen and office were not included in her consent. There is no merit to this claim because the consent form clearly authorized a search of Ms. Kim's "Premise Business located at Crossroads Sauna/Wye.If Additionally, one officer testified at the hearing that he explained to Ms. Kim that "every room in the entire establishment would be searched." Ms. Kim herself then directed the officers to the kitchen and showed them where the condoms were stored. We affirm the District Court's denial of Ms. Kim's motion to suppress. Affirmed. We C ncur: C ief Justice Justices Mr. Justice John C. Sheehy, dissenting: In my opinion, this case involves an entrapment and therefore the convictions ought not to stand. On October 21, 1987, a captain of the Missoula County Sheriff's Department directed two of his officers to visit Kim's business premises and to investigate any possible illegal activities being conducted thereon. The officers went to the business in the guise of truck drivers, and were then given a tour by the defendant of her business premises. The men left the business, saying they would return at a later date. They reported to the Captain that they observed nothing while on the premises to indicate any illegal or immoral activity being conducted by the defendant or her employees. While they were at the premises on October 21, 1987, they discussed with Kim the services available at her business. She explained to them there were three types of services, for $40, $60 and $100, based on the length and thoroughness of the massage and sauna. Kim explained that the $100 massage and sauna included "everything." What "everything" means is apparently in the ear of the beholder. To Kim it meant everything related to massage and sauna. To the officers, "everything" meant some sort of sexual favors, although no discussion of sexual favors occurred at that time . On October 22, 1987, the Captain initiated a thorough investigation of Kim's background. The Captain spoke to a Missoulian reporter who reported that he and a newspaper photographer had gone undercover to Kim's business in search of a possible story, and had both purchased and received massages. Neither of them had been offered sex by the defendant in exchange for compensation nor had either observed any immoral or illegal activity. On October 22, 1987, the Captain telephoned officers in Seattle, Washington. Here it was reported to the Captain that there was no record of the defendant having ever been suspected of the charges of any offense during the years she resided and worked in the Seattle area. The Captain checked the licensing authorities in the state to determine whether she had a proper business license. He found nothing in discord. He also requested of the Federal Immigration and Naturalization Service a thorough search of the records and status of all Koreans in the state of Montana with special emphasis on the defendant's records and status. That report came back negative. He inquired of the owners of the premises that she was leasing. They advised that they had investigated her reputation and found nothing against her. The Captain investigated her motor vehicle records and found nothing in connection of her operation of an automobile. On November 10, 1987, the Captain required his two undercover officers again to visit ~im's premises. They were instructed to pay for a $40 massage and sauna. The massages were administered only after each officer signed an acknowledgement that no sex would be offered or demanded. After the massages, the officers returned to the front of the business establishment and talked to Kim. There they told her that they wanted to have a bachelor party for seven or eight friends at her place of business. She agreed to reserve the premises for their bachelor party. Her understanding was that the purpose was to tease the prospective groom as a part of the bachelor party. Thus the idea for the bachelor party originated in the minds of the investigating officers. The proposal was not one that would be a part of Kim's regular business. Following the second account, the officers again reported to their Captain that they had observed no illegal or immoral activity being conducted on Kim's premises. On November 19, 1987, six Missoula County Deputy Sheriffs and one Deputy County Attorney, arrived at the premises for the pre-arranged bachelor party. They had consumed alcohol prior to entering "to give the appearance of being on a party." They all engaged in teasing the groom about his upcoming marriage. The only activity that hints of sexuality is that one of the woman unbuttoned the groom's shirt and attempted to remove his belt. while it was the officers who were saying to the prospective groom that they were going to have him "laid" before his marriage, it was then that the officers took ~ i m aside, and negotiated a proposal for sexual favors. She was placed under arrest. No money changed hands. No sexual activity of any kind ensued. Under State v. Kamrud (1980), 188 Mont. 100, 611 P.2d 188, this was entrapment pure and simple. 1. The criminal design to solicit (this is a solicitation case) sexual activity did not originate with ~ i m but with the undercover officers. 2. The officers did more than merely afford Kim with the opportunity to commit the offense, they first committed the offense themselves. 3. They set up the situation by first ingratiating themselves with her even though they found no evidence of any criminal activity in connection with her business. 4. The investigation of her background and the undercover investigations gave no evidence that she was predisposed to commit any offense or that the idea originated with her. There is no evidence that when on the second visit they proposed a bachelor party that the bachelor party would include prostitution. If that had occurred, they would have so reported to their supervising officer. The whole mess is a dirty business, but it originated in the Sheriff's Department. Mr. Justice William E. Hunt concurs with the dissent of Mr. Justice John C. Sheehy. Justice Mr. Justice R. C. McDonough concurs with the foregoing dissent. | September 18, 1989 |
04a9d5bf-2189-42a5-88db-9d5423ad2fb0 | MARRIAGE OF MCFARLAND | N/A | 89-103 | Montana | Montana Supreme Court | No. 89-103 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF LINDA WINSTON McFARLAND, Petitioner and Appellant, and WILLIS LEE McFARLAND, Respondent and Respondent. APPEAL FROM: ~istrict Court of the ~ i n t h ~udicial ~istrict, In and for the County of Pondera, The Honorable R. D. ~ c ~ h i l l i p s , Judge presiding. COUNSEL OF RECORD: For Appellant: Ralph T. Randono, Great Falls, Montana For Respondent: Richard L. Beatty; Anderson, Beatty & Buyske, Shelby, Montana submitted on ~riefs: Oct. 13, 1989 Decided: December 8, 1989 Filed: ~ustice William E. Hunt, Sr., delivered the Opinion of the Court. ~ i n d a McFarland, petitioner and appellant, appeals from the property division and award of child support mandated in the judgment entered by the District Court of the Ninth Judicial District, Pondera County. We affirm in part and reverse and remand in part for a modification of child support and equitable division of stock consistent with this Opinion. The issues raised on appeal are: 1. Whether the ~istrict Court properly excluded husband's share of McFarland and Sons stock as a marital asset. 2. Whether the District Court properly divided West Star stock between the parties. 3. Whether the District Court properly ruled that husband had complied with the full disclosure of his finan- cial situation. 4. Whether the District Court properly assessed child support amounts in accordance with the uniform ~istrict Court Guidelines on Child Support. Linda and Willis McFarland were married on April 21, 1979. Two children were born of the marriage, ages six and eight. Willis adopted Linda's daughter from a former mar-- riage, age seventeen. Prior to the marriage, Linda was work- ing as a registered nurse. Also prior to the marriage, Willis was gifted 121 percent of stock on his parents' family farm. The farm was incorporated under the name of McFarland and Sons with the parents retaining 51 percent of the stock a n c l gifting 124 percent to each of four sons. Until 1986 when the corporation was restructured, McFarland and Sons provided Willis with a furnished ho.use, food, utilities, vehicles, gasoline, insurance, and paid him a salary of $700 per month. Linda also worked for McFarland and Sons and was paid accordingly. The parties separated in March of 1986. At about the same time, McFarland and Sons restructured the corporation. As a consequence of the restructuring, willis formed a corporation under the name of West Star Farm, Incorporated. Willis owned 100 percent of the stock of West Star and he and his accountant comprised the board of directors. West Star borrowed in excess of $115,000 to finance the newly organized corporation. with the loan, West Star purchased machinery, summer fallow, the farm home that he and Linda lived in, and approximately twenty acres of land from McFarland and Sons. Also, West Star rented a portion of land from McFarland and Sons under a cash payment which, at the time of the hearing, was in excess of $54,000 per year to be negotiated yearly. Since West Star's incorporation, willis is no longer an employee of McFarland and Sons. West Star now provides willis housing, groceries, utilities, vehicles, gasoline, insurance, various other living expenses, and pays him a salary of $400 per month. The net effect of willis's salary and benefits is approximately $17,280 per year. Linda is working as a surgical nurse with an income of $21,000 to $22,000 per year. She resides, with the three children, in a rented home. A dissolution hearing was held on July 5, 1988. The District Court entered its findings of fact and conclusions of law on September 2, 1988, and its j-udgment on September 14, 1988. During the hearing, Willis submitted the balance sheets of McFarland and Sons which reflected his financial situation with the corporation. Linda objected to the balance sheets as insufficient and argued a lack of full disclosure because financial statements were not produced. The ~istrict Court ordered that Willis pay child sup- port in the amount of $400 per month total for the three children and that Linda was entitled to claim the children as tax deductions. It also found that the McFarland and Sons stock vrould not be included in the marital estate since Linda did not contribute to the facilitation or maintenance of the stock during the marriage. The court ordered that Linda receive $2,500 as her share of stockholder equity in West Star and that willis retain the West Star stock. Stockholder equity in West Star was valued at $31,600, subject to yearly fluctuations. The first issue raised on appeal is whether the w is- trict Court properly excluded husband's share of P Y I c F a r l a n i i and Sons stock from the marital estate. In the mid-701s, Willis acquired 12i percent stock in McFarland and Sons, as did his three brothers, by virtue of a gift from his parents. while Willis's parents gifted each son 12i percent stock, only two sons, including Willis, worked the farm and were compensated for their services. willis's parents retained controlling stock in the corporation. During the parties' marriage, Linda worked for McFarland and Sons and was duly compensated. Linda brought no assets into the marriage. She argues that willis's interest in McFarland and Sons should have been included in the marital estate and that the ~istrict Court erred in not including it. We disagree. Under 5 40-4-202 (1) (b) , MCA, the District Court shall consider the contributions of the non-acquiring spouse and the extent that the contributions facilitated the maintenance of the property. Under In re the ~arriage of Herron (1980) , 186 Mont. 396, 404, 608 P.2d 97, 101, we stated that the District Court must consider all property, including that received by gift, but that: If none of the value of the property is a product of contribution from the marital effort, the ~istrict Court can justifiably find that the non-acquiring spouse has no interest in the property. Here, the District Court specifically found that the value of the stock decreased during the last few years of the marriage and that ~ i n d a did nothing to contribute to the facilitation or maintenance of the stock during the marriage. In fact, ~ i n d a was monetarily compensated for any work performed for McFarland and Sons. Where a spouse does not contribute, the ~istrict Court may exclude the asset from the marital estate. See In re the Marriage of ~ u i s i (~ont. 1988), 756 P.2d 456, 458, 45 St.Rep. 1023, 1025. The District Court exercised proper discretion in excluding the stock from the marital estate. The second issue raised on appeal is whether the District Court properly divided West Star stock between Linda and FJillis. Here, the District Court awarded ~ i n d a $2,500 as her share of stockholder equity in West Star and ordered that Willis retain the stock. Stockholder equity was valued at approximately $31,600, subject to yearly fluctuations. Linda argues that the division is inequitable. We agree. The standard of review to be applied in a distribution case is that where the District Court based its distribution of marital assets on substantial credible evidence, it will not be overturned absent a clear abuse of discretion. In re the Marriage of Johns (Mont. 1989), 776 P.2d 839, 840, 46 St.Rep. 1249, 1251. See also In re the ~arriage of Stewart (Mont. 1988), 757 P.2d 765, 767, 45 St.Rep. 850, 852; In re the ~arriage of Watson (Mont. 1987), 739 P.2d 951, 954, 44 St.Rep. 1167, 1170. We will reverse the District Co.urt upon a showing of abuse of discretion. Johns, 776 P.2d at 840. In this case, willis incorporated West Star Farm at approximately the same time the parties separated. West Star accumulated approximately $31,600 in equity. The court in its findings stated that Linda did contribute to West Star and that her nonmonetary contributions as a homemaker did facilitate the maintenance and operation of the corporation. Th-us, Linda was entitled under 5 40-4-202(1) (b), MCA, to a share of the corporate equity. In light of the above facts, the District Court did abuse its discretion in awarding Linda a mere $2,500. We reverse on this issue and remand to the District Court for an equitable distribution of the stock as valued at the time of the ~istrict Court's decree to be consistent with this Opinion. The third issue raised on appeal is whether the District Court properly ruled that Willis had complied with the full disclosure of his financial situation. In Fautsch v. Fautsch (1975), 166 Mont. 98, 102-103, 530 P.2d 1172, 1175, we stated that the parties must completely disclose money and assets accumulated during the marriage. In the present case, ~ i n d a claims that willis failed to disclose financial information regarding McFarland and Sons stock beca.use he did not provide her with the books of the corporation. The record, however, indicates that willis did provide her with the balance sheets of the corporation. The District Court relied on the balance sheets to determine McFarland and Sons stock value. We hold that the balance sheets provided sufficient financial information regarding McFarland and Sons stock. The last issue raised on appeal is whether the District Court properly based child support amounts in accordance with the Uniform District Court Guidelines on Child Support. The court ordered that Willis pay Linda $400 per month child support for their three minor children. Linda argues that the court abused its discretion in setting the amount because the guideline amount she offered established that an amount of $263 a month per child or a total of $789 a month. Willis did not submit a guideline form. An award of child support is governed by S 40-4-204, MCA, which presently provides in pertinent part and applies to this modification as: (b) the financial resources of the custodial - - parent; ( 3 ) (a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applyin the standards -- in this section and the uniform chilz -- support quidelines adopted by the department of social and rehabilitation services ~ursuant to A . 40-5-209, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case. (b) If the court does not apply these standards -- . - and guidelines to determine chlld support, it shall state its reasons for finding that the application of such standards and guidelines is unjust to the child or a party or is inappropriate in that particular case. (Emphasis added.) The ~istrict Court will be reversed on appeal only where there has been a "clear abuse of discretion resulting in substantial injustice." In re the Marriage of Hoffmaster (Mont. 1989), 780 P.2d 177, 46 St.Rep. 1531. See also In re the Marriage of Alt (1985), 218 Mont. 327, 333, 708 P.2d 258, 261. As the court stated in its findings, w ill is's living arrangement gave him a monthly imputed income of $1,040 plus a monthly salary of $400 for a total yearly annualized income of $17,280. In the court's conclusions of law it notes, his amount [$400] is reasonable as determined according to the Supreme Court child Support ~uidelines." The amount of child support awarded, when taking Willis's annualized income into consideration, results in substantial injustice. ~ffirmed in part and reversed and remanded for a modification of child support and equitable division of stock consistent with this Opinion. We Concur: A | December 8, 1989 |
2a6c85b2-1d8d-4b1d-8de9-0a19d2cdf56d | LAVE v MT DEPT OF LABOR INDUS | N/A | 89-284 | Montana | Montana Supreme Court | No. 89-284 IN THE SUPREME COURT OF THE STATE OF MONTANA PIERRE A. LAVE, Petitioner and Appellant, -vs- MONTANA STATE DEPARTMENT OF LABOR AND INDUSTRY, BOARD OF LABOR APPEALS; and SUBARU OF BILLINGS, Respondents and Respondents. --. APPEAL FROM: District Court of the Thirteenth ~udicial ~istrict, In and for the County of Yellowstone, C - C I The Honorable ~illiam Speare, Judge presid$ng. t? ---3 COUNSEL OF RECORD: - a For Appellant: Michael G. ~iselein; Lynaugh, ~itzgerald & ~iselein, ~illings, Montana For Respondent: Charles K. ail, Dept. of Labor & Industry, Helena, Montana Laura Mitchell; Crowley, Haughey, Hanson, Toole & ~ietrich, ~illings, Montana submitted on ~riefs: Aug. 17, 1989 Decided: September 28, 1989 Filed: - Clerk .. .. 5 Justice William E. Hunt, Sr., delivered the Opinion of the Court. Pierre LaVe, petitioner, appeals from an order of the District Court of the ~hirteenth Judicial District, Yellowstone County, affirming the Board of Labor Appeals decision denying his unemployment compensation benefits, pursuant to § 39-51-2410(5), MCA. We reverse. The issue raised on appeal is whether the District Court erred in finding that a negligent failure to replace oil in the crankcase of a customer's automobile constituted "misconduct" within the meaning of the Montana Unemployment Compensation Insurance statutes and, based on that conclusion, erred in affirming the Board of Labor Appeals denial of unemployment benefits. LaVe was employed by Subaru of ~illings as an automobile mechanic for approximately two years. On March 11, 1988, LaVe was assigned to service a customer's vehicle which included changing the oil and filter. LaVe drained the oil and changed the filter. The next step in the process would have been to replace the oil but Lave's attention was diverted from the task when his supervisor directed him to work on another vehicle belonging to a "rush customer." LaVe drove the car he was servicing outside and proceeded to work on the rush order. The original customer returned for his vehicle and drove it a short distance when the engine seized due to lack of oil. Approximately $2,300 worth of damage resulted. LaVe offered to pay for the damage. On March 12, 1988, LaVe was terminated for "misconduct" by Subaru of ~illings as a consequence of the incident. LaVe applied for unemployment benefits but the local Job Service representative and redetermination deputy denied the application on the grounds that LaVe was terminated for "misconduct." On May 12, 1988, a telephone hearing was held before an appeals referee who upheld the decision of the Job Service representative. On June 17, 1988, a hearing was held before the Board of Labor Appeals. The Board affirmed the decision of the appeals referee and adopted, as its own, the referee's findings of fact. LaVe then petitioned the District Court for review of the Board's decision. On March 27, 1989, the District Court entered its order affirming the decision of the Board and dismissing the petition for review based on the conclusion that LaVe was terminated for "misconduct." From this order LaVe appeals. The issue raised on appeal is whether the District Court erred in finding that a negligent failure to replace oil in the crankcase of a customer's automobile constituted "misconduct" within the meaning of the Montana Unemployment Compensation Insurance statutes and, based on that conclusion, erred in affirming the Board of Labor Appeal's denial of unemployment benefits. The standard of review utilized in Department of Labor and Industry disputes is set forth in part under § 39-51-2410 (5), MCA, as follows: In any judicial proceeding under 39-51-2406 through 39-51-2410, the findinss of the board as to the facts, if supported b~ evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law. (Emphasis ours. ) In Zimmer-Jackson Associates, Inc., v. Department of Labor and Industry (Mont. 1988), 752 P.2d 1095, 1097, 45 St.Rep. 679, 681, we stated that, upon review of a decision of the Department of Labor and Industry, the ~istrict Court, as well as this Court, must "treat the findings of the Board as conclusive if they are supported & substantial evidence and are absent fraud. " (Emphasis ours. ) Also, in Zimmer-Jackson, 752 P.2d at 1097, we stated that it is for this Court to determine whether the District Court committed an abuse of discretion. In the present case, the District Court found that, "Petitioner here did not have a bad purpose in not replacing the oil nor did he desire the injury sustained." However, the court still found that Lave's inadvertent failure to replace oil in a customer's automobile constituted statutory "misconduct," which precluded unemployment benefits under S 39-51-2303(l), MCA. We disagree with the District Court's finding. Section 39-51-2303(1), MCA, provides in part: An individual shall be disqualified for benefits after being discharged: . . . for misconduct connected with the individual's work or affecting the individual's employment until the individual has performed services, other than self-employment, for which remuneration is received equal to or in excess of eight times the individual's weekly benefit amount subsequent to the week in which the act causing the disqualification occurred. While the definition of "misconduct" is not set forth in the above statute, it is provided for under S 24.11.418, A.R.M., in part as follows: (1 This rule defines and interprets disqualification for discharge due to a claimant's misconduct or misconduct affecting his employment as set forth in M.C.A. 39-51-2303. ( 2 ) "Misconduct" defined: Conduct on the part of the employee evincing such wilful or wanton disreqard of an employer's interest as isfound in - - deliberate violations or disregard of standards of behavior which the employer has the right to expect - - of his employee, or in carelessness - or neslisence of such degree or recurrence as to manifest equal -- - - culpability, wrongful intent or evil design, or to -- show an intentional or substantial disregard of the employer-'s interest or of the employee's duties and - - obligations to his employer. Mere inefficiency, - unsatisfactory conduct, failure - ~n good performance as the result of inabilit - or incapacity, ~ n a d v x e n c e s or ordinary negl?igen~e . - in isolated instances, or good faith errors in judgment, or discretion ---- are not to be deemed "mi~onduct" within the meaning -- of the statute. (6) The statutory term misconduct shall not be literally applied so as to operate as a forfeiture except in clear instances of wilful or wanton misconduct by the claimant which affects the employer's interest. (Emphasis ours.) Further, this Court has had the opportunity to define "misconduct" on several occasions. See Ashland oil, Inc., v. Department of Labor and Industry (Mont. 1988), 765 ~ . 2 d 727, 45 St.Rep. 2169 (misconduct found where employee wrote several non-sufficient fund checks to employer) ; Connolly v. Montana Board of Labor Appeals (Mont. 1987), 734 ~ . 2 d 1211, 44 St.Rep. 587 (misconduct found where employee refused to follow his supervisor's instructions, falsified records, refused to assist a patient in distress, and harassed and played games with his subordinates); Gaunce v. Board of Labor Appeals (1974), 164 Mont. 445, 524 P.2d 1108 (misconduct found where employee refused to work overtime and train new employees). In each of these cases, an intentional disregard of the employer's expectation was committed by the employee. In the present case, however, Lave was discharged for a negligent, not an intentional, act. In Gaunce, 524 P.2d at 1110, this Court specifically defined misconduct as: [A] deliberate, wilful, or wanton disregard of an employer's interest or of the standards of behavior which he has a right to expect of his employee, or . . . carelessness or negligence of such a degree or recurrence as to manifest equal culpability, wrongful intent, or evil design. Citing Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 296 N.W. 636, as summarized in the Annot., 26 A.L.R.3d 1356, 1359. Here, a single incident of negligence was the basis for Lave's discharge. The evidence supports the fact that his inadvertence to replace oil in a customer's automobile was nothing more than an incident of negligence. The act was not wilful, wanton, deliberate, intentional, done with wrongful intent, evil design, nor was it a deliberate disregard of the employer's interest as required to support a finding of "misconduct." In fact, LaVe offered to pay for the damage that resulted from his inadvertence. In light of the evidence, Lave's conduct did not constitute "misconduct" as statutorily defined. Lave ' s unemployment compensation benefits were improperly denied and the District Court abused its discretion in affirming the decision of the Board of Labor Appeals. The ~istrict Court's order is reversed and remanded for a reconsideration of Lave's petition consistent with this CORRECTION Date / D I /a ~ / 8 9 EDITORIAL DEPARTMENT West Publishing Co., P.O. Box 3526, St. Paul, MN 55165 first column, line top 1733 In second jrom bottom. \ 3 1 Ov\ MaLI / a . l q z $ - She r e - f e r e e s T - r 7 3 ? XnUn+ov\ cab L. \,. E I f u b ~ c &/ . I . s , A L . R ~ A Signed 6 s z - 1 I -L The expense of making changes is such that we cannot undertake it for changes. in typographical style or spacing. West Publishing Co. NlBZd | September 28, 1989 |
ba88298e-a037-4391-8c31-379d30e64eef | STATE v OTTWELL | N/A | 89-130 | Montana | Montana Supreme Court | No. 89-130 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 STATE OF MONTANA, Plaintiff and Respondent, -vs- TONI LEA OTTWELL, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Gordon Bennett, Judge presiding. COUNSEL OF RECORD: For Appellant: Michael Donahoe, Helena, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana James Yellowtail, Asst. Atty. General, Helena C - ~ i k e McGrath, County Attorney; Carolyn A. Clemens, Deputy County Attorney, Helena, Montana Filed: " . * Submitted on Briefs: July 7, 1 9 8 9 Decided: September 14, 1 9 8 9 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. The jury empaneled in the District Court for the First Judicial District, Lewis and Clark County, found Toni Lea Ottwell, the defendant, guilty of felony assault pursuant to § 45-5-202 (2) (b) , MCA. The District Court sentenced the defendant to ten years at the Montana State Prison and suspended the sentence in its entirety subject to conditions. Defendant appeals. We affirm. The issues raised on appeal are: 1. Whether the exclusionary rule bars admission of evidence of a person's criminal conduct which occurred in response to a Fourth Amendment violation. 2. Whether a defendant who knowingly or purposely causes reasonable apprehension of serious bodily injury by use of a weapon is properly charged with felony assault pursuant to $ 45-5-202 (2) (b) , MCA. 3. Whether the District Court erred by instructing the jury as to the definition of the term "knowingly," as set forth in § 45-2-101(33), MCA, when a defendant is charged under 5 45-5-202, MCA, with felony assault. 4. Whether the defendant was denied a fair trial under the doctrine of "cumulative error." In December, 1987, Toni Lea Ottwell, the defendant, was a resident at the Mountain View School, a girls' correctional facility located north of Helena, Montana. Ottwell and four other residents of the school escaped from the facility on December 24, 1987. Two of the girls were apprehended the following day in Helena. The remaining escapees, including Ottwell, obtained a .44 magnum caliber handgun from a residence in Clancy, Montana, returned to Helena and rented a room at a local hotel. On December 26, 1987, two members of the Mountain View School staff, William Unger, Superintendent, and Don Thompson, Social Worker, discovered that the girls were at the hotel. Unger and Thompson went to the hotel, confirmed with the hotel manager that the girls were in the hotel, and were given a key to the girls' room by the manager. After Unger knocked on the door of the girls' room and identified Ottwell's voice, he used the key to open the door and both men entered the room. Unger told the girls to get ready, that he was taking them back with him. Shortly thereafter Ottwell picked up the loaded handgun and pointed it at the two men. She told Thompson to close the door and stated that the gun was loaded and that she wasn't afraid to use it. Thompson refused to close the door but after a few minutes of trying to persuade Ottwell to put down the gun, Unger and Thompson left the room. Ottwell and the other two girls escaped through the hotel window and were apprehended by the police later that evening. Ottwell, a minor, was charged as an adult with the offense of felony assault by an Information filed in the District Court for the First Judicial District, Lewis and Clark County. A jury trial commenced on May 31, 1988 and on June 1, 1988, the jury returned a verdict of guilty. On October 25, 1988, final judgment and sentence was entered. Ottwell was sentenced to ten years at the Montana State Prison. The District Court suspended Ottwell's sentence in its entirety subject to conditions. Ottwell appeals. The first issue raised on appeal is whether the exclusionary rule bars admission of evidence of a person's criminal conduct which occurred in response to a Fourth Amendment violation. Ottwell argues that the entry of her hotel room by Unger and Thompson was unconstitutional and that evidence of all events subsequent thereto, including her felonious assault, should have been suppressed. The facts are undisputed that Unger and Thompson, state employees from the girls' correctional facility, entered Ottwell's hotel room without permission or without a warrant. Nonetheless, assuming arguendo that an illegal entry occurred, we uphold the District Court's decision to deny Ottwell's motion to suppress evidence of her criminal conduct which occurred in response to a Fourth Amendment violation. The Fourth Amendment of the United States Constitution and Article 11, 5 11 of the Montana Constitution affords all persons the freedom from unreasonable governmental searches and seizures. Thus, absent exigent circumstances, police officers and other government officials must obtain a search warrant based upon probable cause before entering a home or making an arrest. Payton v. New York (1980), 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653; State v. O'Neill (1984), 208 Mont. 386, 393, 679 P.2d 760, 763-64. The exclusionary rule, which bars evidence obtained as a result of an unconstitutional search or seizure, is the primary vehicle which helps to ensure protection from an unreasonable governmental search or seizure. Wonq Sun v. United States (1963), 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453. However, courts have refused to extend the exclusionary rule to suppress evidence of a person's independent criminal conduct which occurred in response to an unconstitutional search or seizure. See, e.g., People v. Klimek (I11.App. 1981), 427 N.E.2d 598; State v. Boilard (Me. 1985), 488 A.2d 1380; State v. Burger (0r.Ct.App. 1982), 639 P.2d 706; State v. Kittleson (Minn. 1981), 305 N.W.2d 787; Commonwealth v. Saia (Mass. 19771, 360 N.E.2d 329. Likewise, under the facts of this case, we refuse to extend the exclusionary rule to suppress evidence of a person's assaultive conduct towards a state employee who committed a Fourth Amendment violation. Such evidence does not constitute the "fruit of the poisonous tree" and thus the purpose of the exclusionary rule--to protect a person from unreasonable searches or seizures through suppression of evidence--would not be accomplished by its application in such a situation. On the contrary, to allow a person whose Fourth Amendment rights were violated to respond with unlimited violence towards the violator and then to grant the person immunity via the exclusionary rule, would create intolerable results. Such a ruling would allow, and possibly even encourage, more violence. We therefore uphold the District Court's decision to deny Ottwell's motion to suppress evidence of Ottwell's independent criminal conduct which occurred as a response to a Fourth Amendment violation. The second issue raised on appeal is whether a defendant who knowingly or purposely causes reasonable apprehension of serious bodily injury by use of a weapon is properly charged with felony assault pursuant to § 45-5-202(2) (b), MCA. Ottwe11 argues that the District Court erred by not granting her motion to dismiss on the ground that the Information, by its terms, only alleged misdemeanor assault as defined in $ 45-5-201(1)(d), MCA. This statute provides in pertinent part that (1) A person commits the offense of assault if he: (dl purposely or knowingly causes reasonable apprehension of bodily injury in another. The purpose to cause reasonable apprehension or the knowledge that reasonable apprehension would he caused shall be presumed in any case in which a person knowingly points a firearm at or in the direction of another . . . Specifically, Ottwell attempts to argue that the language of this misdemeanor statute--"shall be presumed in any case in which a person knowingly points a firearm at or in the direction of anotherM--is a conclusive presumption that prevents the State from charging a defendant with felony assault once the State proves that the defendant pointed a gun towards another. We disagree. Ottwell fails to acknowledge the difference in proof between the misdemeanor assault statute, § 45-5-201, MCA, and the felony assault statute, $ 45-5-202, MCA. The felony assault statute provides in pertinent part that (2) A person commits the offense of felony assault if he purposely or knowingly causes: (b) reasonable apprehension of serious bodily injury in another by use of a weapon . . . (~mphasis added.) Section 45-5-202(2) (b) , MCA. The felony assault statute addresses the reasonable apprehension of serious bodily injury and the misdemeanor assault statute addresses the reasonable apprehension of bodily injury. The statutory definitions of "serious bodily injury" and "bodily injury" are drastically different and thus require a different degree of proof. See, 5 45-2-101 (5) and (59) , MCA. Merely because the misdemeanor statute contains a presumption regarding a person who knowingly points a firearm at or in the direction of another, does not make the statute the exclusive vehicle for prosecution when such a conduct occurs. State v. Crabb (Mont. 1988), 756 P.2d 1120, 1124, 45 St.Rep. 966, 971. A county attorney has the discretion to charge a defendant under either § 45-5-201, MCA or § 45-5-202, MCA, and a subsequent conviction will stand if the evidence supports the conviction. On March 29, 1988, the County Attorney for Lewis and Clark County filed an Information alleging that Ottwell "purposely or knowingly caused reasonable apprehension of serious bodily injury in Bill Unger and Don Thompson . . . by pointing a gun at them and threatening to shoot them . . ." The facts of this case supports the proposition that Ottwell knowingly or purposely used a weapon to cause reasonable apprehension of serious bodily injury. The District Court therefore properly denied Ottwell's motion to dismiss. The third issue raised on appeal is whether the District Court erred by instructing the jury as to the complete definition of the term "knowingly," as set forth in § 45-2-101(33), MCA, when a defendant is charged with felony assault under 5 45-5-202, MCA. The definition of "knowingly" is set forth in § 45-2-101(33), MCA, as follows: "Knowingly"--a person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct. or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as "knowing" or "with knowledge" have the same meaning. The jury was instructed, with respect to the term "knowingly," as follows: A person acts knowingly: (1) when he is aware of his conduct; or (2) when he is aware under the circumstances, that his conduct constitutes a crime; or (3) when he is aware there exists the high probability that his conduct will cause a specific result; or (4) with respect to a specific fact, when he is aware of a high probability of that fact's existence. Ottwell attempts to argue that not all of the definitions contained in § 45-2-101(33), MCA, apply to every alleged criminal violation and therefore the District Court erred in giving the entire definition when a person is charged with one specific crime. Ottwell argues that if charged under S 45-5-202 (2) (b) , MCA, the only part of the definition that is applicable is whether an actor purposely or knowingly caused a specific result, namely, the apprehension of serious bodily injury, which is found in subsection 3 of the instruction. We disagree. In Montana, a person does not need to "form the intent to commit a specific crime or intend the result that occurred to be found guilty of knowingly committing a crime." State v. Blalock (Mont. 1988), 756 P.2d 454, 456, 45 St.Rep. 1008, 1010. Conviction for the offense of felony assault thus does not require proof of specific intent. On the contrary, an instruction suggesting that specific intent to commit a felony assault is required would be erroneous. However, the District Court properly gave the jury the entire definition for "knowingly." Previously, when the requisite intent was "knowledge" or "purpose," this Court has held that the jury was entitled to a complete definition of "knowledge" as set out in the statute. State v. Larson (1978), 175 Mont. 395, 402, 574 P.2d 266, 270. We therefore uphold the District Court's decision in instructing the jury on the entire definition for "knowingly." The last issue raised on appeal is whether the defendant was denied a fair trial under the doctrine of "cumulative error. " The doctrine of cumulative error "refers to a number of errors which prejudice defendant's right to a fair trial." State v. Close (Mont. 1981), 623 P.2d 940, 948, 38 St.Rep. 177, 187-88. Ottwell argues that five alleged errors prejudiced her right to a fair trial and therefore invoked the cumulative error doctrine. The first alleged error is that the District Court admitted, over Ottwell's objection, the State's Exhibit Number 1, a letter from Unger to Thompson. On appeal, Ottwell fails to argue the basis of her objection and then merely argues that the letter was not furnished by the State in discovery as a statement of a witness. The record demonstrates otherwise. The letter was read into the record by the District Court in the presence of Ottwell and her counsel on May 18, 1988, two weeks prior to the trial. In light of the record, Ottwell's argument on this alleged error lacks merit. The second alleged error is that the District Court admitted part of a written report prepared by Unger and given to a police officer. Specifically, Ottwell argues that a proper foundation was not laid for the admission of the recorded recollection. In light of the record, this assertion by Ottwell also lacks merit. At trial, Unger testified on cross-examination that he did not recall the exact statements Ottwell made during the hotel room incident. He also testified that he had previously given a statement to the police regarding Ottwell's statements at a time when his recollection was more accurate. He identified a copy of his statement on redirect examination and was then allowed to read the relevant portion into the record. The statement in question therefore constitutes an exception to the hearsay rule under Rule 803(5), M.R.Evid. Determination of whether a proper foundation has been laid lies in the discretion of the District Court and may not be overturned absent a clear abuse of discretion. State v. McKenzie (1978), 177 Mont. 280, 303, 581 P.2d 1205, 1219. The record indicates that the proper foundational evidence was before the District Court at the time admission of the statement was requested and thus we find that the District Court did not abuse its discretion. The third alleged error raised by Ottwell is that the District Court admitted evidence of additional assaultive behavior. Ottwell first attempts to argue that it was error to allow Unger to testify that, in his belief, Ottwell was capable of shooting him. Ottwell failed to object to this testimony at trial. The matter is therefore deemed waived under § 46-20-104(2), MCA. In addition, Ottwell asserts that Thompson was improperly allowed to testify that she pointed a gun at Thompson outside of the hotel room. Ottwell fails to state the reason for her objection to the foregoing testimony. We decline to provide a possible reason or explanation for Ottwell's unfounded assertions. We therefore find that no error resulted under these allegations. The fourth alleged error is that a statement made by Ottwell was improperly admitted into evidence. Another escapee testified that Ottwell stated that she should have shot her victims. Ottwell argues that this statement was hearsay and not relevant. We disagree. The statement is clearly a relevant indication of Ottwell's state of mind and awareness of her actions. Further, the statement was made by Ottwell, a party to the case, and is therefore not within the definition of hearsay. See, Rule 801(d) (2) (A), M.R.Evid. Ottwe11 also alleges that the District Court erred by admitting "other crimes" evidence in violation of State v. Just (1979), 184 Mont. 262, 602 P.2d 957. On appeal, Ottwell fails to identify the objectionable evidence and cites no authority. We therefore find that the District Court did not err on this issue. In light of finding no errors on the part of the District Court, we find that the cumulative error doctrine is not applicable in this case. Affirmed. We concur: A Justices Mr. Justice John C. Sheehy, dissenting: Years ago, the Congress enacted a "no-knock" provision empowering federal agents (notably the FBI) to burst into rooms or apartments occupied by persons whom the agents suspected of crime. This patently unconstitutional law passed the U.S. Senate with but one dissenting vote. That dissenting vote, we can be proud to state, was cast by the Senator from Montana, the Honorable Lee Metcalf. The rest of the Senate bowed to what it perceived to be public pressure and forsook the Constitution. Two years later an embarrassed Senate rescinded and revoked its erroneous actions. This is a "no-knock" case and I dissent. Mr. Justice William E. Hunt, Sr.: I join in the dissent of Justice Sheehy. | September 14, 1989 |
c5174574-f729-4924-971f-2f014967b994 | APPLICATION FOR PRODUCTION OF POLIC | N/A | 89-153 | Montana | Montana Supreme Court | No. 89-153 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE APPLICATION FOR PRODUCTION OF POLICE RECORDS RE: MICHAEL LACY. ALLSTATE INSURANCE CO., "-, CITY OF ~JLLINGS, c - b r : Respondent. -. APPEAL F R ~ M : District Court of the Thirteenth Judicial District, .- 7 In and for the County of Yellowstone, I " I h e Honorable Robert Holmstrom, Judge presiding. COUNSEL OF RECORD: For Appellant: Janice L. Rehberg; Crowley, Haughey, Hanson, Toole and Dietrich, Billings, Montana For Respondent: Paul Luwe, City Attorney's Office, Billings, Montana Filed: Submitted on Briefs: Aug. 10, 1989 Decided: September 27, 1989 Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from an order denying appellant, Allstate Insurance Company's (Allstate) application for an order directing the Billings Police Department (Department) to release to Allstate copies of its records relating to Michael Lacy, Allstate's insured. We reverse and remand. The sole issue in this case is: Whether the District Court erred in denying Allstate ' s application for the production of police records pertaining to the Billings Police Department's investigation into the death of Allstate's insured, Michael Lacy, for use during the insurance company investigation of policy coverage. On January 11, 1988, Michael Lacy (Lacy) submitted an application to Allstate for a $130,000 life insurance policy. In the application, Lacy responded negatively to questions concerning prior use of illegal drugs, treatment for Acquired Immune Deficiency Syndrome (AIDS) and the presence of any mental or physical disorders. Based upon these representations, a policy was issued covering the life of Lacy. The policy was to be owned by and payable to Donn Cornelia. Lacy died on September 5, 1988, at the War Bonnet Inn in Billings, Montana. The police were called to investigate his death. Upon arriving at the scene, the police found used syringes, quantities of white powder and other substances believed to be illegal drugs. The coroner's report revealed that Lacy was a frequent drug user, that there was evidence of "recent and old" intravenous drug use, and that Lacy tested positive for HIV (the AIDS vir,us). The report determined that Lacy died of an intravenous drug overdose. Because there was inconclusive evidence to support a finding of suicide, the coroner termed Lacy's death accidental. Allstate believes, however, that further investigation may reveal that the death was, in fact, suicidal. Acting upon this belief and the circumstances surrounding the death, Allstate made a request to the Billings Police Department, to allow it access to files prepared during investigation of the incident. Allstate believes that the records may assist it in determining whether Lacy made misrepresentations in his application which would preclude the beneficiary from recovering any of the proceeds. In order to comply with the Department's interpretation of the Montana Criminal Justice Information Act, Allstate filed an application with the District Court seeking production of police records concerning the death of Michael Lacy. The Department objected to the general release of its records and requested the court to conduct an in camera review in order to decide which evidence should properly be released to Allstate. The Department also sought a protective order to limit further dissemination of any information released to Allstate. Allstate did not object to any of these conditions, and in fact drafted a proposed protective order. The District Court, however, denied Allstate's application. It held that Allstate was not authorized by law to receive the documents and was not, therefore, entitled to their production under the Criminal Justice Information Act. Allstate appealed the lower court's ruling. In any free society there is tension between competing rights allocated among the citizens. This tension is apparent when the right of personal privacy collides with society's right to know relative to governmental operation. Because these two rights have been constitutionalized, this dilemma has been intensified in Montana. The 1972 Montana Constitution elevated the right to privacy and the right to know to constitutional status. The right to privacy is found at Article 11, Section 10, which provides : The right of individual privacy is essential to the well being of a free society and shall not be infringed without the showing of a compelling state interest. The right to know is found at Article 11, Section 9, which states: No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure. As the language of the right to know provision indicates, the tension between these two guarantees is aggravated by the fact that they are textually interdependent. In general, all citizens have an absolute right to observe and examine the operation of agencies within government. Curtailment of this right is only justified "in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure." An easy solution which would provide concrete and uniform guidance in the balancing of these two guarantees has evaded both the courts and the legislature. The legislature has attempted to more clearly define and set the boundaries of the two rights. Of interest to this case is the Criminal Justice Information Act, which governs the dissemination of confidential criminal justice information. See, § 44-5-101, MCA, et seq. Section 44-5-103(3), MCA, defines confidential criminal information as: a) criminal investigative information b) criminal intelligence information c) fingerprints and photographs d) criminal justice information or records made confidential by law, and e) any other criminal justice information not clearly defined as public criminal justice information. One of the purposes of the act is to "establish effective protection of individual privacy in confidential and nonconfidential criminal justice information collection, storage and dissemination." Section 44-5-102, MCA. Obviously in certain situations investigatory material must be shielded from public review. Victims of sex crimes, for example, may have a legitimate expectation of privacy. On the other hand, suspects may have such an expectation in certain circumstances because criminal investigations occasionally result in the designation of the innocent as suspects, particularly in the early stages of investigation. See 42 Op.Attly Gen. No. 119 at 7 (1988). The legislature, therefore, in balancing the right of society to know of the existence and treatment of crime and the individ.ua1 ' s right to privacy, provided guidelines which dictate when this information would be subject to dissemination. Section 44-5-303, MCA, provides that "dissemination of confidential criminal justice information is restricted to criminal justice agencies or to those authorized -- by law to receive it." (~mphasis added.) The trial court interpreted this statute to mean that in order to be "authorized by law," one must be specifically authorized by statute to receive criminal justice information. Because Allstate could not point to any statute which authorized insurance companies to receive criminal justice records, it was precluded from obtaining them. This interpretation does not take into consideration basic tenants of our constitutional system of qovernment and statutory construction. The office of ultimately interpreting the Constitution lies exclusively in the judiciary. State v. Toomey (1959), 135 Mont. 35, 44, 335 P.2d at 1051, 1056. The trial court's opinion requiring statutory authorization for release of confidential criminal justice information effectively delegates to the legislature the authority to place binding construction upon the State Constitution. However, its provisions control the legislature, not vice versa. While the legislature is free to pass laws implementing constitutional provisions, its interpretations and restrictions will not be elevated over the protections found within the Constitution. As we stated earlier the dissemination of confidential criminal justice information is restricted to criminal justice agencies or to those authorized by law to receive it. - Section 44-5-303, MCA, (~mphasis added.) The trial court held that in order to be "authorized by law," one must be specifically authorized by statute. We find that this reading of § 44-5-303, MCA, is too narrow. Words utilized in a statute are to be given their natural, plain, ordinary and commonly understood meaning. State v. Perez (1952), 126 Mont. 15, 22, 243 P.2d 309, 312. Under its commonly understood meaning the word "law" includes constitutional as well as statutory law. See §§ 1-1-101 and -102, MCA, State ex rel. Burns v. Lachlen (1955), 129 Mont. 243, 284 P.2d 998. Accordingly, one is "authorized by law" to receive criminal justice information by the Right to Know provision of the Constitution. The only limitation on the right to receive this information is the constitutional right to privacy. This conclusion is further bolstered by our finding that the "Right to Know" as contained in Article 11, Section 9 of the Montana Constitution, is a self executing provision. A provision of a constitution is self executing when legislation is not required to give it effect. State ex rel. Stafford v. Fox-Great Falls Theater Corp. (1942), 114 Mont. 52, 74, 132 P.2d 689, 700. The clear language contained within Article 11, Section 9, indicates that there was no intent on the part of the drafters to require any legislative action in order to effectuate its terms. The legislature does not have the power to provide through the passage of statute who can exercise this right unless it finds that such curtailment is necessary to protect the right of individual privacy. Accordingly, any interpretation of S 44-5-303, MCA, which requires specific legislative authorization to review criminal justice information would render the statute unconstitutional. In determining the meaning of a statute, this Court will construe its terms in a manner which will preserve its constitutionality. Parker v. Yellowstone County (1962), 140 Mont. 538, 543, 374 P.2d 328, 330. Because the judiciary has authority over the interpretation of the Constitution, it is the courts' duty to balance the competing rights at issue in order to determine what, if any information, should be given to a party requesting information from the government. In view of the policies behind the Criminal Justice Information Act, it is incumbent upon a party to make a proper showing in order to be eligible to receive such specific confidential information. It appears Allstate has met this initial burden. Therefore, on remand the District Court shall conduct an in camera inspection of the documents at issue in order to determine what material could properly be released to Allstate. In making this examination, the court shall take into account and shall balance the competing interests of those involved. Allstate should be accorded the widest breadth of information possible. However, its request should be reviewed with deference towards the privacy rights of those named in the police records. Any release of information, of co.urse, can be conditioned upon limits contained within a protective order. This case is remanded and the trial court is instructed to conduct proceedings consistent with this opinion. We Concur: 4 | September 27, 1989 |
424f220b-fdf2-44bd-9925-460ccdc62d86 | STATE v UNGARETTI | N/A | 88-333 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA, Plaintiff and Respondent, -vs- LILLIAN UNGARETTI, Defendant and Appellant. - , APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of iss sou la, The Honorable James Wheelis, Judge presiding. COUNSEL OF RECORD: For Appellant: Gregory A. Jackson; Jackson & w ice, Helena, Montana For Respondent: Hon. Marc ~acicot, Attorney General, Helena, Montana Elizabeth S. Baker, Asst. Atty. General, Helena Robert Deschamps, 111, County Attorney, Missoula, Montana; Craig Friedenauer, Deputy Co. Atty., Missoula Submitted on Briefs: Aug. 31, 1989 Decided: September 27, 1989 Chief Justice J. A. Turnage delivered the Opinion of the Court. This is an appeal from a felony conviction in the District Court of the Fourth Judicial ~istrict, Missoula County, Montana. Appellant Lillian Ungaretti appeals her conviction on one count of possession with intent to sell a dangerous drug. We affirm. Appellant raises the following issues for review: 1 . Whether the District Court erred in denying appellant's motion for a directed verdict on the grounds that there was insufficient corroboration of the accomplice testimony? 2. Whether the ~istrict Court erred in admitting prejudicial evidence of other crimes? 3 . Whether the District Court erred by inadequately providing cautionary instructions to the jury on the introduction of "other crimesn evidence? Appellant Lillian (Topsy) Ungaretti was charged in Missoula County, along with her daughter Mia Grenfell and son Darrell Grenfell, with felony possession with intent to sell a dangerous drug. Appellant and Mia were arrested in Las Vegas, Nevada, in December of 1986 for the attempted sale of nearly three pounds of marijuana to undercover police officers. After their arrests, a Las Vegas police officer notified Missoula County law enforcement officials that the appellant had informed them she had a marijuana farm in the basement of a Missoula residence. She gave the officers a street address and a specific description of this residence which was owned by Forest (Pappy) Tupper. Based upon this information, Missoula officers checked the address and compared the description given, then obtained and executed a search warrant at the Tupper residence. Tupper, a seventy-two-year-old retired University employee, expected the officers when they arrived and led them to the basement where the marijuana was growing. The officers discovered in the Tupper residence a large and sophisticated marijuana growing operation. The basement was divided into three rooms, each containing marijuana plants in certain stages of development. In all, 108 marijuana plants and various plastic and paper sacks containing marijuana leaves and stems were seized. The operation was equipped with special grow lights, heaters, carbon dioxide tanks, and a marijuana growers handbook. Numerous fertilizers and soils were also in the basement. Found on the wall of the basement were handwritten instructions for the daily and weekly care and harvesting of the plants. Additionally, the wiring to the electricity meter had been altered in order to hide the large amount of electricity being consumed by the grow operation. At trial, Tupper testified that he originally found two sickly marijuana plants on his property near Lolo, Montana, and that he attempted to revive them. One plant survived and seeds from that plant were used to grow other plants. Appellant's son, Darrell Grenfell, was acquainted with Tupper from the University and spent much time at his house. Tupper claimed it was Darrell who confirmed that the original plants were in fact marijuana and from whom he received assistance in growing the plants. Tupper further testified that appellant became involved in the operation and expanded it in size with seeds she claimed were from Hawaii. Tupper stated that appellant, Darrell and Mia would spend much time together working in the basement. He claimed that while he was involved in growing the marijuana, his involvement was limited to operating the lights and fans and watering the plants at the appellant's instructions. He claimed it was not his operation, and he never received any money from the marijuana. Issue No. 1 Did the District Court err when it denied appellant's motion for a directed verdict on the grounds that there was insufficient corroboration of the accomplice testimony? Section 46-16-213, MCA, provides: A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evi- dence which in itself and without the aid of the testimony of the one responsible or legal- ly accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not suffi- cient if it merely shows the commission of the offense or the circumstances thereof. Appellant contends there was no corroborating evidence to support the testimony of accomplice Tupper. We disagree. Officer Cordell Pearson of the Las Vegas police department testified at trial that, while undercover, he met with the appellant inside the Sahara Hotel on December 29, 1986. According to Pearson's tes- timony, appellant represented to him that ' I s h e had a marijuana farm with a friend of hers in Missoula, Montana . . . that she had excellent marijuana, that she did not spray it with any type of chemicals, that it was all THC . . . that she made several trips from Missoula to Phoenix, Arizona, where she transported marijuana in gutted out TV sets . . . [and] that her marijuana was Maui." Pearson was introduced to appellant in Las Vegas by a "confidential informant1' whom appellant knew from Missoula. This informant brought the appellant and Pearson together in the Sahara Hotel, where they discussed the sale of marijuana. Pearson stated that the appellant told him the marijuana belonged to her and her daughter, who was in the car with it. They then arranged to meet in the parking lot of the hotel. Pearson testified that he and another officer drove to the appellant 's car and were there greeted by appellant and Mia. The appellant and Mia got into his vehicle with three wrapped packages which contained nearly three pounds of marijuana . Pearson testified that he arrested the two women after he paid $7,000 to the appellant for the marijuana. He further stated that he and other officers questioned the appellant about the drugs and were told by her that the marijuana "came from her connection in Missoula, Montana, a person by the name of Forest Tupper." Appellant gave Pearson the address of Tupper and described the house as "a light colored house,It that "there was some TV's on the porch and there was also a light colored vehicle parked in front." Pearson relayed this information to Missoula County deputy sheriff Terry Lambert, who confirmed after investigation that the descrip- tion given by the appellant was accurate. Whether evidence is sufficient to corroborate the testimony of an accomplice is a question of law. The evidence must do more than show the crime was committed or the circumstances of its commission. It must raise more than a suspicion concerning defendant's involvement in the crime. However, it need not be sufficient, by itself, to support a prima facia case against the defendant. The independent evidence need not extend to every fact to which the accomplice testifies. State v. Price (Mont. 1988), 762 P.2d 232, 45 St.Rep. 1798; State v. Miller (Mont. 1988), 757 P.2d 1275, 45 St.Rep. 790. Further, the evidence may be circum- stantial and it may come from the defendant or his witness. State v. Cain (1986), 221 Mont. 318, 718 P.2d 654. Tupper claimed that appellant was the owner of the marijuana, that she expanded the entire operation and purchased much of the equipment in Spokane, Washington. He stated that appellant, Darrell and Mia would come and go as they pleased, at all hours of the day. He further claimed that even though he was expecting the police officers after the appellant was arrested, he chose not to dispose of the marijuana because he considered it belonged to appellant. We conclude that appellant's statements to the Las Vegas authorities sufficiently corroborate the testimony of Tupper. The District Court properly exercised its discretion when it denied appellant's motion for directed verdict. Issue No. 2 Did the District Court err when it allowed introduction of evidence of other crimes? Appellant argues the District Court committed reversible error when it allowed the State to introduce evidence at trial relating to the charges against her in Nevada. Appellant claims Rule 404(b), M.R.Evid., prohibited the introduction of any evidence at trial relative to her arrest in Las Vegas. Rule 404 (b) , M. R. Evid. , states: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of notice, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. [Emphasis added.] Appellant argues that the introduction of her arrest and charges against her in Nevada were unfairly prejudicial and require that her conviction be reversed. Appellant further claims that this ''other crimes1I evidence also violated the requirement of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, because she received no notice that this evidence would be introduced and no cautionary instructions were given to the jury before the introduction of the evidence. However, appellant's attorney made no objection at trial to the introduction of this evidence. The State argues that, even though objection to introduction of this evidence has been waived by a failure of counsel to state an objection at trial, it was nonetheless properly submitted as part of the corpus delicti. We agree. Rule 404 (b) , M.R.Evid., provides that evidence of other crimes may be admitted for other purposes. One purpose accepted by this Court has been when the other crimes, wrongs or acts introduced are inextricably or inseparably related to the crime charged. State v. Gillham (1983), 206 Mont. 169, 670 P.2d 544. In such a case, "other crimest1 evidence does not apply. State v. Romero (1986), 224 Mont. 431, 730 P.2d 1157; State v . Riley (1982), 199 Mont. 413, 649 P.2d 1273. We conclude there is no question but that the activities of the appellant which resulted in her arrest in Nevada were inseparable and formed much of the basis of the crime charged here. It is not disputed that the marijuana which appellant attempted to sell to the undercover officer was the same as that grown in Tupperls basement. It was the appellantvs statement to Pearson, whom she believed to be a potential buyer of the marijuana, that she grew the marijuana with a friend in a residence in Missoula. It additionally was appellantfs claim after her arrest that the marijuana was grown in Missoula, and that her connection was Forest Tupper . In Gillham and Riley, supra, this Court held that the State is entitled to "present the entire corpus delicti of the charged offense including matters closely related to the offense and explanatory of it." The events which took place in Nevada sup- ported and explained the State's position at trial: that appellant had constructive possession of the marijuana while she was in Montana. Additionally, appellant used these events to support her theory of defense to the charge: that she was unknowingly given the marijuana by Tupper as a ~hristmas gift to deliver to his grandson in Arizona, and that when the grandson was not to be found, Tupper told her to unload the marijuana in Las Vegas. We conclude that the "other crimesw evidence was introduced merely as part of the corpus delicti and thus did not constitute reversible error. Issue No. 3 Did the District Court err by inadequately providing caution- ary instructions to the jury on the introduction of "other crimes" evidence? In light of our conclusion that the evidence of the events and charges in Nevada were part of the corpus delicti, and were not subject to the Just requirement that cautionary instructions be given to the jury, we will only briefly comment on this issue. In Gillham, we stated: Although the District Court did not violate Just, we encourage trial courts to apply the safeguards of Just liberally. Even though the procedures of Just may not be required in a given case, their use may be proper and wise. Especially in close cases, use of the Just procedures would assure fairness to defendants. The procedural safeguards were designed to protect those accused of crime from unfair surprise or double punishment. They should be liberally applied to that end. Gillham, 206 Mont. at 179, 670 P.2d at 440. During the trial of this case, the District Court orally warned the jury, although after introduction of evidence of certain of the events in Las Vegas, that they should not consider that testimony as evidence of the crime charged here. Additionally, at the close of the defendantst case, the court read the following instruction to the jury: Testimony has been offered as to statements and acts of the Defendants with witnesses in Nevada. You are not to be concerned with whether the Defendants committed a crime in Nevada. You are not to convict them of the crime charged here because you conclude they are guilty of a crime committed elsewhere. You are to consider this testimony, only as to whether it tends to show guilt or innocence of the crime to be considered by YOU. The District Court's warning and instruction to the jury protected the appellant from any unfair inferences the jury might have made with respect to the introduction of the Nevada charges. We commend the court for the care exercised and encourage other courts to follow our recommendation in Gillham. The judgment of the District Court is affirmed. We concur: / Justices \ 1 ' | September 27, 1989 |
40b2e713-51df-4a86-8f09-7ed5b52e2775 | THOMAS v STATE DEPT OF REVENUE | N/A | 89-047 | Montana | Montana Supreme Court | NO. 89-047 1 1 7 THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 JUDY THOMAS a/k/a JUDY BEEMAN, Plaintiff and Appellant, -vs- STATE OF MONTANA, DEPARTMENT OF REVENUE, Defendant and Respondent. APPEAL FROM: ~istrict Court of the Thirteenth ~udicial ~istrict, In and for the County of Yellowstone, The Honorable Diane G. Barz, Judge presiding. COUNSEL OF RECORD: For Appellant: Jerome J. Cate; Cate Law ~ i r m , ~illings, Montana For Respondent : Matthew F. Heffron, Agency Legal services, Helena, Montana avid W. Woodgerd, Dept. of Revenue, Helena, Montana John H. Maynard, Tort claims ~ i v . , Helena, Montana Submitted on Briefs: June 8, 1 9 8 9 Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal by plaintiff/appellant Judy Thomas a/k/a Judy Beeman (hereinafter referred to as the plaintiff) from the District Court of the Thirteenth Judicial District, Yellowstone County, Montana. Plaintiff appeals the District Court's denial of her "Motion for Leave to File Amended Complaint." We reverse. This action was commenced on August 1, 1985, wherein the plaintiff sought to recover damages from the State of Montana, Department of Revenue (hereinafter referred to as the State). Plaintiff's original complaint alleged that the State was liable for passive negligence. The original complaint filed on August 5, 1986, alleged the following facts. On or about November 8, 1983, the plaintiff was walking past a State Liquor Store retail outlet in Billings, Montana. On that day, an employee of the liquor store, while washing the store's windows, negligently left window cleaning equipment, including a broomstick type device and pail, lying on the sidewalk. As she walked past the store, on a public walkway, she fell over the broomstick type device and pail, lost her balance, and fell to the ground injuring herself. Paragraph I11 of the original complaint read: That on or about the 8th day of November, 1983, an employee of the Defendant, DEPARTMENT OF REVENUE, or someone on its behalf, was in the process of cleaning windows on the aforesaid premises and had negligently left some of the window cleaning equipment, including a broomstick type devise [sic] and pail laying [sic] across the sidewalk. The Plaintiff, in walking on the public walk way [sic], fell over the broomstick and pail and as a result thereof incurred personal injury, including injury to her face, head, right arm and knees with a result of cervical myofacitis [sic] and lumbosacral myalgia and neurological injuries. The original complaint further alleged that as a result of the State's negligence, the plaintiff has incurred medical expenses, pain and suffering, and will continue to to incur medical expenses as a direct result of her injuries from the incident. Plaintiff requested judgment against the State for special and general damages, costs and other relief the District Court deemed just and proper. On June 2, 1988, the State filed its motion for summary judgment and brief in support thereof, based upon the following grounds: 1. That there is no genuine issue as to any material fact upon the issue of the State's liability in this action, and that the defendant State of Montana is entitled to judgment as a matter of law; 2. The State of Montana breached no legal duty owed to plaintiff; 3. Plaintiff's own comparative negligence caused her fall[.] On June 27, 1988, plaintiff filed her brief in opposition to the State's motion for summary judgment, to which the State on July 5, 1988, filed its reply brief in support of the motion for summary judgment. The District Court, in its order filed October 31, 1988, granted the State's motion for summary judgment and dismissed plaintiff's action, subject to the filing of an amended complaint within ten days which would allege a new theory of negligence. In accordance with that order, plaintiff filed on November 4, 1988 her motion for leave to file an amended complaint. The State filed its brief in opposition to plaintiff's motion on November 21, 1988. Plaintiff alleged in her affidavit, amended complaint, and now on appeal to this Court, that the employee who was washing the windows placed the handle of a squeege mop between her legs and tripped her. Paragraph I11 of plaintiff's amended complaint reads as follows: On or about November 8, 1983, the Plaintiff was passing in front of Defendant's store on a public walk way [sic] and was negligently tripped by an employee of Defendant causing the Plaintiff to fall incurring personal injury including injury to her face, head, right arm and knee resulting in cervical myofacitis [sic] and lumbosacral myalgia and neurological injuries. On November 30, 1988, the District Court denied the plaintiff's motion for leave to file an amended complaint. The court denied the plaintiff's motion because the amended complaint alleged new facts, i.e., that the State's employee acted affirmatively rather than passively. The District Court in its memorandum which accompanied the November 30, 1988 order stated in part: Had Plaintiff's new theory of negligence set forth in her amended complaint arisen out of the same conduct, transaction or occurrence as the claim set forth in her original complaint, justice would have required that the court grant Plaintiff's motion for leave to file amended complaint. . . Plaintiff's claim in her amended complaint is barred by the statute of limitations and her motion must be denied. Plaintiff's sole issue on appeal is whether the District Court erred in denying plaintiff's motion for leave to file an amended complaint. Paragraph I11 of the original complaint and paragraph I11 of the amended complaint both allege the same time, same place, same persons, essentially the same activities, and essentially the same tort. The original complaint stated that the State had negligently left equipment on the sidewalk and the plaintiff fell over the equipment. In contrast, the amended complaint stated that the plaintiff was negligently tripped by an employee of the State. We conclude that is essentially the same conduct, transaction and occurrence and that the basis of the amended claim is the same as the previous claim. We conclude that plaintiff's original complaint stated an adequate claim and the amended complaint clearly meets the requirement of Rule 8 (a), M.R.Civ.P., that the averments of pleadings be simple, concise and direct. See, Brothers v. Surplus Tractor Parts Corporation (1973), 161 Mont. 412, 506 P.2d 1362; Butte Country C1. v. Metropolitan San. & S. S. D. No. 1 (1974), 164 Mont. 74, 519 P.2d 408. We hold that the District Court erred in denying leave to file the amended complaint and in granting summary judgment resulting therefrom. See, Flanigan v. Prudential Federal Sav. & Loan (1986), 221 Mont. 419, 720 P.2d 257; Sooy v. Petrolane Steel Gas, Inc. (1985), 218 Mont. 418, 708 P.2d 1014; Lien v. Murphy Corp. (1982), 201 Mont. 488, 656 P.2d 804; and Rozan v. Rosen (1967), 150 Mont. 121, 431 P.2d 870. We reverse and direct the District Court to allow the plaintiff to file her amended complaint. We concur: / | August 30, 1989 |
c35fb18f-698e-4df7-8c75-1e25d57bf64c | STATE v SORENSON | N/A | 14392 | Montana | Montana Supreme Court | No. 14392 I N THE SUPREME COURT OF THE S T A T E OF' MONTANA 1978 THE s ' l R I " I ' QF MONTANA, Plaintiff and Respondent, -VS- HCbARD NEIL SORENSON, Defendant and Appellant. Appeal from: D i s t r i c t Court of the Fourth Judicial District, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: mrales, Volinkaty & Harr, Missoula, Montana A. Bruce H a r r argued, Missoula, bbntana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Douglas G. Harkin, County Attorney, Hamilton, Montana Peggy Toner argued, Deputy County Attorney, Hamilton, Pbntana Suhitted: November 1 4 , 1978 m i d & : JAN 3 1979 ~il*: J A N 3 1979 Mr. Justice John C. Sheehy delivered the Opinion of the Court. Defendant, Howard Neil Sorenson, appeals from a con- viction of misdemeanor possession of dangerous drugs, namely marijuana, following a trial by jury in District Court, Ravalli County. Sometime prior to April 22, 1977, defendant and his wife went to California for a vacation. The couple lived in a rural area near Hamilton, Montana, so before the trip, defendant asked Steve Burnham, a youth he had known for approximately one month, to care for his houseplants and animals during his absence. Defendant went to Steve's home, which is approxiniately one mile from defendant's residence, the night before he left for the vacation and gave Steve a key. While defendant was there, Steve's mother, Laurie Burnham, informed defendant that she would make sure the tasks were performed, either by Steve or herself. Defendant understood Mrs. Burnham as saying she would make sure Steve took care of the house. He made no reply to her statement. On April 22, 1977, Steve Burnham's parents were advised of an incident that had taken place at the high school that day. Steve had taken a pornographic magazine into the school building and when asked by the principal to hand it over, had thrown it in the principal's face. According to Mrs. Burnham, Steve came home from school very upset. He went upstairs, grabbed a rifle and told his mother he was "going to get" the high school principal. Mrs. Burnham persuaded Steve to give her the rifle and she calmed him down. He left the home approximately one-half hour later, headed in the direction of town. Fred Burnham, Steve's father, notified the Ravalli County Sheriff and the sheriff, in turn, notified the high school principal about the threats. The principal was asked to make himself unavail- able. -2- Sometime later, the sheriff, a deputy and Steve's father arrived at the Burnham residence. Mr. Burnham recalled that Steve had a rifle, used for shooting gophers, that possibly was at the defendant's residence. It was decided that Steve may have gone to the defendant's residence, so the sheriff, deputy and Laurie Burnham went to the house in search of Steve. Upon their arrival at defendant's residence, the peace officers made a cursory search of the outbuildings. They were unable to detect any movement or other indication that anyone was in the residence. Previously the sheriff had questioned Mrs. Burnham concerning who was taking care of the house. She stated that Steve had been asked to, but she had assured the defendant the job would be done. The sheriff did not question Mrs. Burnham as to the extent of her authority to enter the house. With Mrs. Burnham leading the way, the officers entered defendant's hcuse through an unlocked sliding glass door. As she opened the door, Mrs. Burnham told the officers she thought "it might not be quite right to enter the house." Two rifles were observed leaning against a couch. Mrs. Burnham identified one of the rifles, but under the circum- stances, it was decided that both should be confiscated. The trio was in the house for approximately fifteen minutes. While searching for Steve in the basement and other available rooms, the sheriff noticed a large "hooka- type" pipe in the bedroom, three pipes on a buffet and a jar of marijuana seeds on top of some contained garbage. In the living room, small marijuana plants were disccvered growing among the houseplants and others were found in individual containers. On May 3, 1977, eleven days after the search for Steve had been conducted, a search warrant was issued based on the -3- the sheriff's earlier observations. The contraband was seized and defendant was charged with misdemeanor possession of dangerous drugs, namely marijuana. A jury trial was set for October 6, 1977. Before the trial, the District Court heard testimony regarding defendant's motion to suppress evidence. Defendant contended that his constitutional right to be free from unreasonable searches and seizures, as guaranteed by the Fourth Amendment of the United States Constitution, had been violated. The District Court denied the motion, finding that Mrs. Burnham had authority to enter the house. Defendant was found guilty and sentenced to one year in the Ravalli County jail, such sentence being suspended on various conditions. For the reasons expressed herein, we need only consider defendant's primary issue on appeal. Did circumstances exist which suspended the Fourth Amendment's warrant requirement and justified the peace officers' search of defendant's residence on April 22, 1977? It is well established that under certain circumstances, peace officers may seize evidence in plain view without a warrant. Coolidge v . New Hampshire (1971), 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 reh.den. 404 U.S. 874, 30 L.Ed.2d 120, 92 S.Ct. 26. The "plain view" doctrine may be relied on if two threshold requirements are met: the officer must have a prior justification for the intrusion and the incrim- inating evidence must be discovered inadvertently in the course of the justified intrusion. 403 U.S. at 466. The officers' initial intrusion in the instant case was not accomplished under the authority of a search warrant. Therefore, the intrusion must be justified under one of the recognized exceptions to the Fourth Amendment's warrant requirement. This "prior justification" must be established before we can determine whether the officers' plain view observations were properly used as probable cause for the issuance of the search warrant on May 3, 1977. "Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per -- se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States (1967), 389 U.S. 347, 357, 19 L.Ed.2d. 576, 88 S.Ct. 507. "The exceptions are jealously -- and care- fully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative. The burden is on those seeking the exemption to show the need for it." Coolidge, 403 U.S. at 455 (emphasis added). The State conrends that, although the circumstances presented to the officers in this case do not fit into any single category of cases excepted from the warrant require- ment, they nevertheless contain integral elements from various categories, which taken as a whole, reveal the reasonableness of the officers' intrusion. In view of the restrictive nature of the exceptions and their limited application, it cannot be said that the United States Supreme Court contemplated law enforcement officers relying on elements of various exceptions to justify their intrusion. We will not blend the well-delineated exceptions into one that will fit the facts of this case. Peace officers in "hot pursuit" of a fleeing felon may enter premises without a warrant if the exigencies of the situation make that course imperative. Vale v . Louisiana (1969), 399 U.S. 30, 26 L.Ed.2d 409, 90 S.Ct. 1969; Warden, Maryland Penitentiary v. Hayden (1967), 387 U.S. 294, 18 L.Ed.2d 782, 87 S.Ct. 1642. In Hayden, police officers, -5- informed that an armed robbery had just occurred and that the suspect had entered a house minutes before their arrival, entered, searched the house and arrested the suspect. The Supreme Court, speaking through Mr. Justice Brennan, stated: ". . . The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape." 387 U.S. at 298. The State contends a variation of the "hot pursuit" doctrine should be applied to this case because the officers were searching for an angry youth who had recently threatened violence against another and who had ready access to a weapon. This simply is not a "hot pursuit" case. The doctrine is unavailable to peace officers until a felony has been committed and the suspect is fleeing. Another of the carefully defined exceptions to the Fourth Amendment's warrant requirement involves situations where officers have probable cause that they will find the instrumentality of a crime or evidence related to the crime. Dyke v. Taylor Implement Mfg. Co. (1968), 391 U.S. 216, 20 L.Ed.2d 538, 88 S.Ct. 1472. Again, exigent circumstances must exist, making it impracticable to obtain a warrant. Coolidge, 403 U.S. at 460. If we assume that the officers entered defendant's residence under the reasonable belief that they would find the youth or a weapon and thereby prevent the commission of a violent crime, we cannot say that an emergency situation existed that would justify violating the privacy of defendant's home. As stated by Mr. Justice Douglas in McDonald v . United States (1948), 335 U.S. 451, 455, 93 L.Ed. 153, 69 S.Ct. 191: "We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was dcne so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative." Precautionary measures had been taken to insure the safety of the high school principal. The youth had left his home a half hour after his mother had calmed him down. He headed in the direction of town, away from defendant's residence. Defendant's residence was in a rural area, far from any possible scene of violence. The State concedes that an emergency situation did not exist at defendant's residence. In fact, the youth's mother was the first to enter the residence. Other courses of conduct were available to the officers. The State has failed to meet its burden., The exigencies of the situation did not make entry imperative. Finally, the State contends defendant's constitutional rights were waived by a third party, namely Laurie Burnham, the youth's mother. A search which is conducted pursuant to the consent of the party being searched meets the Fourth Amendment's standard of reasonableness, Davis V. United States (1946), 328 U.S. 582, 90 L.Ed. 1453, 66 S.Ct. 1256; reh.den. 329 U.S. 824, 91 L.Ed. 700, 67 S.Ct. 107; Zap v . United States (1946), 328 U . S . 624, 90 L.Ed. 1477, 66 S.Ct. 1277, vacated on rehearing on others grounds 330 U.S. 800, 91 L.Ed. 1259, 67 S.Ct. 857. Additionally, ". . . when-the pr~secu~tion seeks to justify a warrantless search by proof of a voluntary consent, it is not limited to proof that consent was given by the defendant, but may shcw that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock (1974), 415 U.S. 164, 171, 39 L.Ed.2d 242, 94 S.Ct. 988. The District Court determined that Laurie Burnham had authority to enter defendant's home. But did she have authority to consent to the officer's entry? Did she possess "common authority" over the home or have some other "sufficient relationship" with the home that would enable her to allow the officers inside? "Common authority" was defined in Matlock, 415 U.S. at 171, n. 7: "7. Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third- party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v . United.States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v . California, 376 U . S . 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (night hotel clerk could not validly consent to search of customer's room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co- inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Laurie Burnham was nct a co-inhabitant of the home. She could not permit an inspection in her own right. Therefore, her consent was valid only if it can be shown that she possessed some other "sufficient relationship" with the home. The defendant asked the youth, Steve Burnham, to care for his houseplants and animals while he was away, nothing more. He did not ask Laurie Burnham to care for his house. The key had been given to Steve, thereby giving him, not Laurie Burnham, constructive possession of the house. Laurie Burnham merely gratuitously guaranteed that her son would perform the tasks. Even assuming she obtained implicit permission to enter the house because the defendant did not respcnd to her offer, her authority was limited to enter to perform the requested tasks. She did not possess a "sufficient relationship" with the residence which would give her authority to consent to a search. We conclude that the evidence should have been su~pressed because of the unlawful entry. Reversed for disposition in accordance with this opinion. / Justice 1 We Concur: L ' %A 8 . ~~4 Chief Justice | January 3, 1979 |
a33518a3-3da0-45de-892c-56a3eb495e29 | STATE v KINGERY | N/A | 89-210 | Montana | Montana Supreme Court | No. 89-210 I N THE S U P R E M E COURT O F THE STATE O F MONTANA STATE O F MONTANA, 1 s1 P l a i n t i f f and Respondent, " 7 DONALD DALE KINGERY, c .-A Defendant and Appellant. . , APPEAL F R O M : D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , I n and f o r t h e County of Missoula, The Honorable Douglas Harkin, Judge presiding. C O U N S E L O F RECORD: For Appellant: Donald Kingery, pro set Missoula, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Dorothy McCarter, A s s t . Atty. General, Helena Robert Deschamps, 111, County Attorney; Betty Wing, Deputy, Missoula, Montana Filed: Submitted on Briefs: Aug. 1 0 , 1989 Decided: September 1 4 , 1989 Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the District Court of the Fourth Judicial District, Missoula County, State of Montana. The District Court revoked defendant's prior suspended sentence and sentenced defendant to ten years in the Montana State Prison at Deer Lodge. Defendant appeals and alleges that he was deprived of his constitutional right to due process. We affirm. The issues in this case are: 1. Did the State violate defendant's constitutional rights of due process during arraignment and extradition proceedings? 2. Did the State violate defendant's constitutional right of due process during probation revocation proceedings? On October 19, 1987, the defendant, Donald Dale Kingery, entered into a plea bargain agreement. In return for pleading guilty to forgery, the defendant received probation and a ten year suspended sentence subject to certain conditions. Under the conditions the defendant was to check in weekly with a probation officer, make restitution and not be in bars or consume alcohol and not change residence without first obtaining permission. Judgment on the forgery charge was entered against the defendant on January 18, 1988. The State filed a petition to revoke the suspended sentence on July 12, 1988, citing several violations by the defendant of the terms and conditions of the judgment. That same day a bench warrant issued for the arrest of defendant. The defendant was eventually located and arrested in Clackamas County, Oregon. On October 17, 1988, Oregon sent notice to Missoula District Court that the defendant had been arraigned and refused to waive extradition. The Missoula County Attorney then applied to the Governor to request the defendant's extradition from Oregon and the Montana Governor's office issued the request on October 27, 1988. The defendant was returned to Montana on November 18, 1988, and had his initial appearance in Missoula County District Court on November 22, 1988, at which time counsel was appointed. On December 5, 1988, the defendant denied all allegations in the petition to revoke and a hearing was set. Hearing on the petition was held January 23, 1989, and ultimately the District Court did revoke defendant's suspended sentence. Defendant appeals from the judgment revoking the suspended sentence. Mr. Kingery, although having benefit of the counsel of a public defender at all prior stages, has now chosen to proceed pro se. I. Did the State violate Kingery's constitutional rights of due process during arraignment and extradition proceedings? Defendant asserts that he was deprived of his constitutional rights of due process as a result of the State's failure to follow procedural guidelines set forth in Montana law and the Federal Rules of Criminal Procedure regarding his arraignment and subsequent extradition. However, the arraignment and extradition proceedings took place in Oregon and therefore are susceptible to Oregon law, not Montana law. The general rule regarding challenge of extradition proceedings is that: In interstate extradition proceedings, the prisoner is held under the extradition process only until such time as he reaches the jurisdiction of the demanding state, and is thenceforth held under the process issued out of the courts of that state. Consequently, the regularity of extradition proceedings may be attacked only in the asylum state; after an alleged fugitive has been delivered into the jurisdiction of the demanding state, the proceedings may not be challenged. (Citations omitted. ) State v. Flint (W.Va. 1983), 301 S.E.2d 765, 772, quoting 31 Am.Jur.2d Extradition S 74 (1967). Under the Uniform Criminal Extradition Act, codified in Montana at § 46-30-101, MCA, et seq., the remedy for a fugitive arrested in another state who opposes extradition is to apply for a writ of habeas corpus in the asylum state. Section 46-30-217 (2), MCA. Not having opposed the extradition proceedings in Oregon, defendant may not now attempt to do so in Montana. See Michigan v. Doran (1978), 439 U.S. 282, 290, 99 S.Ct. 530, 536, 58 L.Ed.2d 521, 528. Additionally, a subsequent conviction is not invalidated by irregularities or improprieties in the extradition proceedings. Brown v. Nutsch (8th Cir. 1980), 619 F.2d 758, 762. We hold that the defendant's challenge to extradition proceedings is not properly before this Court and in no way affects the validity of the District Court's order revoking defendant's probation. 11. Did the State violate defendant's constitutional rights of due process during revocation proceedings? The basis of defendant's argument seems to be (1) that he did not have sufficient notice of the charges against him and the purpose of the preliminary hearing, and (2) that erroneous information was employed by the prosecutor and probation officer during the revocation hearing. We will first address defendant's claim he had insufficient notice of the charges and of the purpose of the preliminary hearing. This Court previously held that the purpose of the preliminary hearing on a petition to revoke probation is "to determine whether there is probable cause to believe that the accused committed a probation violation." State v. Swan (1986), 220 Mont. 162, 166, 713 P.2d 1003, 1006. Additionally, concern for promptness mandates the preliminary hearing. - Id. Montana's statutory provision for dealing with probation violations is found in 88 46-23-1012 and -1013, MCA. Section 46-23-1012(1), MCA, provides: At any time during probation or suspension of sentence a court may issue a warrant for the arrest of the defendant for violation of any of the conditions of release or a notice to appear to answer a charge o ' T violation. Such notice shall be personally served upon the defendant. (Emphasis added. ) Only notice to appear, if the State chooses that route, requires personal service. The State in this case, however, chose to issue a warrant for the defendant's arrest rather than notice to appear. Personal service, therefore, is not necessary. Section 46-23-1012 (2) , MCA, further requires notice of probation violations be given when a warrantless arrest of one who breaks probation is made. This was not a warrantless arrest. Oregon authorities arrested defendant pursuant to a bench warrant issued by the State of Montana. Contrary to defendant's belief, notice of probation violations did not have to be given defendant at this juncture because this arrest was pursuant to a warrant. Section 46-23-1013, MCA , provides post-arrest procedures. Section 46-23-1013 (1) , MCA, requires the arrested probationer be brought before the court with jurisdiction over the prisoner "without unnecessary delay for a hearing on the violation charged." Defendant was arrested on October 13, 1988 and timely arraigned on or before October 17, 1988 in Oregon where he refused to waive extradition. Extradition proceedings were begun immediately. Four days after his arrival in Montana, defendant made his initial appearance. At this initial appearance, defendant received a copy of the petition to revoke his suspended sentence which contained charges of specific probation violations. Any delay defendant suffered as to notice of the specific allegations against him and of the purpose for the preliminary hearing was due to his refusal to waive extradition. As noted in State v. Oppelt (1979), 184 Mont. 48, 56, 601 P.2d 394, 399, any determination of unnecessary delay depends on the facts of the particular case. In Oppelt, as here, the defendant caused the delay and did not assert his right to hearing without delay. We hold defendant's claim that he suffered a delay of notice as to the allegations against him, thus depriving him of his right to due process, to be without merit. It should be noted that: The revocation hearing is not a criminal trial but a summary hearing to establish a violation of the conditions of the prisoner's probation. The probationer already stands convicted of a crime no matter what the grounds for the revocation may be, whether it is the commission of another crime or unauthorized travel. Petition of Meidinger (1975), 168 Mont. 7, 15, 539 P.2d 1185, 1190. This is not to say that petitioner has no rights at a revocation proceeding, but the hearing is less formal. In a probation revocation hearing the due process requirements are: a) written notice of the violations; b) disclosure of evidence against the probationer; c) opportunity to be heard in person and to present witnesses and evidence; d) a neutral tribunal; e) a written statement by the factfinder as to the evidence relied on and the reasons for revoking; f) the right to cross-examine witnesses unless the hearing body finds good cause for disallowing confrontation; and g) the right to counsel in some circumstances. State v. Lange (Mont. 1987), 733 P.2d 846, 848, 44 St.Rep. 418, 420, (citing Black v. Romano (1985), 471 U.S. 606, 611-12) and Swan, 220 Mont. at 165, 713 P.2d at 1005-1006. From the record it is clear that all of these requirements have been met in the instant case. Defendant's constitutional rights have been upheld. Defendant next argues that the State, through its prosecutor and probation officer, used "erroneous information" to obtain revocation of his suspended sentence. Specifically, defendant alleges that 1) the prosecutor erroneously led the district judge presiding at the January 23, 1989 hearing on a motion to dismiss, to believe defendant had been arraigned on the bench warrant;" 2) the prosecutor led the probation officer and the probation officer supplied false information regarding a report made by a Troy, Montana police officer, and the State did not subpoena the Troy police officer or the Libby probation officer whose reports were referred to in the hearing in revocation of probation, i.e., the State improperly relied on hearsay to make its case. Defendant's argument that the judge was erroneously led to believe defendant had been arraigned in Oregon does not stand up to scrutiny. The bench warrant for defendant's arrest was issued on July 12, 1989. Defendant was arrested on October 13, 1988 in Oregon. An Oregon court document, dated October 17, 1988, clearly states that defendant "has been arraigned on the fugitive complaint" and "has refused to waive extradition." Defendant appears to be arguing that he was arraigned on a fugitive complaint only rather than on a bench warrant and fugitive complaint, and therefore, procedural due process was lacking. Whether defendant was arraigned in Oregon on the fugitive complaint only makes no difference. The fugitive complaint contains information adequate to apprise the fugitive of the reasons he is being detained. Additionally, defendant appeared in Missoula District Court shortly after he arrived in Montana following his extradition from Oregon. At this initial appearance, defendant received a copy of the petition to revoke his suspended sentence which contained allegations of the specific violations of probation conditions committed by him. On December 5, 1988, defendant again appeared in District Court and denied all allegations in the petition. Finally, a full hearing on the revocation petition was held in January, 1989 and testimony was presented. Defendant did not testify or offer evidence to rebut claims of probation violations alleged in the petition. Defendant's claims that the State through the testimony of Probation Officer Michael McCarty submitted erroneous testimony to the court and relied on reports from individuals who could easily have been subpoenaed, are also without merit. Defendant asserts that Probation Officer McCarty perjured himself in his Report of Violation submitted to the District Court in which Mr. McCarty wrote the defendant "was observed drinking a beer by Bill Denton of the Troy Police Department." At the revocation hearing Mr. McCarty also indicated that Officer Denton had observed defendant consuming alcohol in Troy. Police Officer Denton's Investigation Crime Report, which was admitted into evidence at the revocation hearing, actually stated that the defendant "was found at the bar with a glass of beer in front of him." Defendant further argues that both Officer Denton and Libby Probation Officer Edward Duelfer, whose reports chronicling defendant's probation violations in Lincoln County were admitted into evidence, could have been subpoenaed and use of their reports constitutes hearsay. At a probation revocation hearing the standard required is "fundamental fairness.'' Meidinger, 168 Mont. at 15, 539 P.2d at 1190. The events of defendant's multiple hearings indicate he received fundamental fairness. Mr. McCartyls paraphrasing of the Investigation of Crime Report does not constitute perjury. Defendant's counsel cross-examined Mr. McCarty at the hearing and had opportunity to rebut any testimony presented by Mr. McCarty. Furthermore, drinking intoxicants was only one of the several violations of probation conditions for which defendant's probation and suspended sentence are being revoked. The hearing to revoke defendant's probation therefore met the fundamental fairness requirement. As to the charge that reports from the Troy police officer and Libby probation officer were improperly admitted over objection by counsel that testimony as to their content would constitute hearsay, it must be remembered the revocation hearing is not a criminal trial. The defendant has already been convicted of a crime and the hearing is only to establish violations of the prisoner's probation. - Id. For those reasons, less process is due the prisoner, and "that process must be flexible enough to allow the court to consider documentary evidence that may not meet usual evidentiary requirements. " U.S. v. Simrns (9th Cir. 1987) , 812 F.2d 561, 564. The admission into evidence of the officers' reports was not error in the probation revocation hearing. We hold that defendant's constitutional right to due process was not violated during the proceedings to revoke probation and suspended sentence. We affirm. We concur: - 3 C v e f Justice 4. < & + | September 14, 1989 |
e9e8b448-32ce-429a-b9c0-f78cfd24fdca | DORAN v CITY COURT OF WHITEFISH MO | N/A | 89-059 | Montana | Montana Supreme Court | No. 89-59 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 GARY G. DORAN, Petitioner and Appellant, -vs- THE CITY COURT OF WHITEFISH, MONTANA, and THE HONORABLE BRADLEY I ? . JOHNSON, a Judge thereof, Respondent. APPEAL FROM: District Court of the Eleventh Judicial ~istrict, In and for the County of Flathead, The Honorable Michael Keedy, Judge presiding. COUNSEL OF RECORD: For Appellant: James D. Moore; Moore & Doran, ~alispell, Montana For Respondent: Bradley F. Johnson, whitefish city Judge, whitefish, Montana Filed: submitted on ~riefs: May 18, 1989 Decided: September 7, 1989 a Mr. Justice William E. Hunt, Sr., delivered the opinion of the Court. The District Court of the Eleventh Judicial District, Flathead County, granted a writ of certiorari and supervisory control to review the propriety of sanctions and contempt imposed upon Petitioner, Gary G. Doran, by the City Court of Whitefish. After the ~istrict Court affirmed the City Court without a hearing, Petitioner moved to alter or amend the judgment. ~ollowing a hearing, the District Court denied the motion. petitioner appeals. We reverse and remand. The sole issue raised on appeal is whether the District Court erred in upholding the city Court's imposition of sanctions and contempt. petitioner is an attorney at law, practicing in the ~alispell area. On February 9, 1988, he agreed to defend Anthony Conces against a charge of driving while under the influence, pending in the Whitefish City Court. Conces had been charged with the offense on November 23, 1987, and, prior to obtaining petitioner's services, had represented himself in the matter. Apparently, during the period Conces represented himself, he was granted a series of continuances by the City Court, and therefore was not arraigned until January 19, 1988. On the same day he agreed to represent Conces, Petitioner called the City Court to verify the trial date and was informed that a jury trial was scheduled for February 24, 1988. On February 16, 1988, petitioner began a district court jury trial, State v. Beggio. sometime after the trial began, the Honorable ~ichael H. Keedy, judge for the Eleventh ~udicial ~istrict Court, scheduled an emergency child custody hearing for Wednesday, February 24, 1988, at 9:30 a.m., a time that directly conflicted with the Conces trial in City Court. petitioner, as representative of the child, was required to attend the hearing. Petitioner's office received notice of the custody hearing on Thursday, February 18, 1988, while Petitioner was still involved in the ~eggio trial. Because of the continuing nature of the Beggio trial, Petitioner did not return to his office until Friday, February 19, 1988, and did not receive actual notice of the conflict with the Conces trial until after 5 p.m. on that day. On Monday, February 22, 1988, closing arguments in State v. ~eggio were made; the trial was completed at approximately 12:30 p.m. That afternoon, Petitioner represented defendants in two separate proceedings, a felony arraignment and a felony sentencing. He instructed his secretary to contact the whitefish City Court to advise it of the conflict of February 24. Petitioner's secretary called the City Court two times during the afternoon of February 22 and was advised by the city Court clerk that it was unlikely that a continuance would be granted. On the morning of Tuesday, February 23, 1988, after attending a probation revocation hearing before the District Court, petitioner called the City Court. He was advised by the City Court clerk that the Judge was busy and that no continuance had been granted. He was told to call back in 15 minutes, which he did, only to be informed that the Judge had left for the day without granting a continuance. Petitioner then called the City Judge's home phone and left a message on the Judge's answering machine. The City Judge disputes ever having received such a message, maintaining that the recording device on his answering machine was not operating on February 23. petitioner then prepared a written motion to continue, which his law partner delivered to the whitefish Police Department, located next to the City Court, at about 3:30 p.m. on February 23. The motion was left with the police department because it appeared that no one was present at City Court. The motion was accompanied by a letter signed by ~istrict Court Judge Keedy, stating that the Conces trial directly conflicted with a district court hearing. The City Judge did not receive the motion to continue until the following morning, February 24, 1988, the day set for the Conces trial. At 10 a.m. that day, a jury panel was assembled, and the city Court was brought into session. When the Conces case was called, neither the defendant nor anyone on his behalf appeared. Due to the absence of the defense, the City Court granted a continuance. The court then proceeded with its calendar, hearing the case of City v. Ross, in which the defendant was found guilty and assessed a portion of the jury costs. Later that day, the City Judge wrote a letter to petitioner, advising him: [Ylou have a duty and obligation to this Court which has no less dignity than that accorded District Court. This Court will not allow you to simply dictate and announce your course of dealing on matters currently pending and then escape the obvious and foreseeable consequences of your actions. The Judge imposed financial sanctions against petitioner in the amount of $132, the cost of summoning the jury, to be paid by March 10, 1988. When petitioner failed to pay the sanctions, the city Court directed him to appear on March 21, 1988, to show cause why he should not be held in contempt. On March 18, 1988, Petitioner moved the court to reset the hearing due to conflicts with previously scheduled District Court hearings. On March 24, 1988, petitioner forwarded a letter to the City Judge, stating that he felt that imposition of sanctions was unreasonable. He enclosed an affidavit detailing the circumstances leading to the February 24, 1988, sanctions. In response, the court set a final due date of April 8, 1988, for settlement of the sanctions. When Petitioner again failed to pay the sanctions, the court set another show cause hearing for April 20, 1988. petitioner appeared on that date, refused to pay the sanctions, was found in contempt and fined $25. At that time, he served the City Judge with a writ of certiorari and supervisory control issued by the District Court. On September 12, 1988, the District Court issued a memorandum and order upholding the City Court's contempt citation. petitioner moved the Court to alter or amend the judgment. After a hearing, the ~istrict Court denied the motion. From this order, petitioner appeals. Although a contempt of court citation is not an appealable order, a higher court may review the citation by way of a writ of certiorari. section 3-1-523, MCA. On review, the higher court determines whether the tribunal issuing the contempt order acted within its jurisdiction, and whether substantial evidence supports the finding of contempt. In re the Contempt of Graveley (1980), 188 Mont. 546, 555, 614 P.2d 1033, 1039. By statute, a city court may punish an individual for contempt when that individual disobeys or resists the "execution of a lawful order or process made or issued by the judge." Section 3-11-303, MCA (emphasis added). We must therefore determine whether the imposition of sanctions by the City Court for Petitioner's failure to appear on the day of trial after repeatedly requesting a continuance constituted a lawful order. If the order was not lawful, the City Court exceeded its jurisdiction when it cited Petitioner for contempt. A city court, like any other court, has the power to "provide for the orderly conduct of proceedings before it or its officers." Section 3 - 1 - 1 1 (3) , MCA. This power, however, may not be exercised arbitrarily. While we commend the City Court for its efforts to provide for the orderly conduct of proceedings before it, we nevertheless hold that, in this case, the court acted arbitrarily when it imposed sanctions against Petitioner. Petitioner had no choice but to attend the district court hearing. It was impossible for him to be in two places at one time. Furthermore, petitioner excercised due diligence in attempting to alert the City Court of the conflict. In addition to making several phone calls to the City Court, petitioner delivered to the Whitefish police Department a letter signed by District Court Judge Keedy, stating that the conflict existed. The City Court had this letter in its possession on the morning of the day set for trial. In addition, the City Court acted arbitrarily in imposing jury costs as a sanction against petitioner. The record shows that the jury mustered for the Conces trial was used in another trial heard in City Court that very same day. In the other trial, City v. Ross, the defendant was found guilty and assessed jury costs. Thus, the sanction of jury costs against Petitioner amounted to double recovery. Because the City Court acted arbitrarily, the imposition of sanctions did not constitute a lawful order. Therefore, the City Court exceeded its jurisdiction when it cited petitioner for contempt for failing to pay the sanctions. Reversed and remanded for entry of an order dismissing the contempt citation and sanctions imposed against petitioner. / | September 7, 1989 |
92c51cb8-3ac8-4561-95f1-ce096a61d54c | ZEKE S DISTRIBUTING v BROWN-FORMAN | N/A | 88-532 | Montana | Montana Supreme Court | No. 88-532 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ZEKE'S DISTRIBUTING COMPANY, Plaintiff and Appellant, -vs- BROWN-FORMAN CORPORATION, I I I Defendant and Respondent. I . . ' r -. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Gordon Bennett, Judge presiding. COUNSEL OF RECORD: For Appellant: Charles A. Smith, Helena, Montana Robert T. Curnrnins, Helena, Montana For Respondent: Stuart L. Kellner; Hughes, Kellner, Sullivan & Alke, Helena, Montana Filed: Submitted on Briefs: Auq. 3, 1989 Decided: September 21, 1989 Clerk Justice R. C. McDonough delivered the Opinion of the Court. This appeal involves a motion for new trial in an action for breach of contract and the implied covenant of good faith and fair dealing. Plaintiff Zeke's Distributing Company (Zeke's) appeals the ruling of the District Court of the First Judicial District, Lewis and Clark County, granting defendant Brown-Forman Corporation's (Brown-Forman) motion for new trial. The District Court granted the motion on the grounds that the court erred in receiving over Brown-Forman's proper objection certain exhibits and testimony prejudicial to Brown-Forman's case. We affirm. Plaintiff Zeke's frames two issues for determination on appeal. First, did the District Court abuse its discretion in setting aside a jury verdict and ordering a new trial because of alleged prejudicial error committed in allowing certain evidence to be admitted. And alternatively, if this Court upholds the District Court's Order Granting New Trial, did the District Court err in refusing to allow Zeke's to present evidence of projected lost profits as part of the tort element of damages. Defendant Brown-Forman also raises an issue for appeal: Did the District Court err in denying Brown-Forman's motions for directed verdicts and judgment notwithstanding the verdict with respect to the issues of its breach of the implied covenant of good faith and its liability for punitive damages? Zeke's, a Montana corporation, is a beer and wine distributor licensed by the State of Montana to sell and distribute beer and wine to retail outlets in the Helena area. Brown-Forman is a national distributor of alcohol and distilled spirits doing business in the State of Montana. Pursuant to a written agreement entered April 20, 1984, and assigned to Brown-Forman by a California corporation called "California Cooler," Zeke's was granted an exclusive distributorship of California Cooler beverages throughout Lewis and Clark, Broadwater, the southeast half of Powell, and the northern half of Jefferson counties. The agreement was terminable by either party with or without cause on thirty days1 written notice. Brown-Forman terminated the agreement by letter on February 13, 1987. Zeke's protested the termination in a letter dated February 17, 1987, setting forth the difficulties that would be caused by the termination and stating that the matter would be t.urned over to Zeke's attorney. By letter of February 26, 1987, Leon R. Timmons, Brown-Forman's assistant secretary and senior attorney, requested Zekels to direct all future correspondence concerning the distributorship to him. No other response was ever made to Zeke's initial protest letter. On March 27, 1987, Timmons wrote a letter instructing Zeke's to "disregard" the termination letter and advising Zeke's the termination would be effective on October 1, 1987. This advise was given at a time when Timmons believed that 1) Zeke's did not have a written contract of distributorship, 2) the verbal contract was non-exclusive, and 3) Montana law required reasonable notice before termination of a non-written contract for distributorship. Timmons' belief was incorrect as to the first two factual premises. Zeke's did not inquire further into its status after the letter of March 27 and Brown-Forman supplied no further information on the matter. On February 12, 1987, four days before receipt of the original notice of termination by Zeke's, Brown-Forman wrote Clausen's Distributing Company of Helena (Clausen's) a letter making continuation of Clausen's distributorship of Brown-Forman's other products contingent on its acceptance of a California Cooler distributorship. Between March and October of 1987, Brown-Forman supplied California Cooler to both Zeke's and Clausen's on a non-exclusive basis. During this time Brown-Forman ceased supplying Zeke's with the sales "backup" it previously had supplied while supplying Clausen's with this backup. After April 16, 1987, Zeke's made no further orders for California Cooler from Brown-Forman. Zeke's filed suit against Brown-Forman and Clausen's in the District Court of the First Judicial District on June 30, 1987. The District Court dismissed Clausen's as a defendant and Zeke's subsequently amended its complaint to allege three causes of action against Brown-Forman: 1) breach of contract, 2) breach of the implied covenant of good faith and fair dealing, and 3) a cause of action for punitive damages based on willful breach, fraud, malice, and oppression. During trial and over Brown-Forman's objection Zeke's introduced plaintiff's exhibit #21, the letter to Clausen's requiring Clausen's to distribute California Cooler or possibly lose its distributorship of other Brown-Forman products. Brown-Forman also objected to the admissibility of testimony elicited from its agent Timrnons on cross-examination concerning other lawsuits arising from Brown-Forman's efforts to consolidate its distributorships. After trial, a jury awarded Zeke's $8,623.70 in compensatory damages and $143,000 in punitive damages. Brown-Forman moved the District Court for a new trial. The District Court granted Brown-Forman's motion and Zeke's now appeals that order. Zeke's first contention on appeal is that the District Court abused its discretion by granting Brown-Forman a new trial on the grounds that the admission of exhibit #21 and the testimony of Timmons concerning other lawsuits were irrelevant and prejudicial to Brown-Forman's case. Relevant evidence is evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 401, M.R.Evid. Evidence which is not relevant is not admissible. Rule 402, M.R.Evid. The court ruled and the jury was properly instructed (Instruction 9) that Brown-Forman properly terminated the written distributor agreement upon 30 days notice. The only contract existing between the parties was an implied contract based on the letter. Thus, there were no issues to be determined arising out of the termination of the written agreement or any implied obligation attendant to it. (Instruction 9.) The only contract existing between the parties was an implied contract based on Tirnrnons' letter of March 27, 1987, instructing Zeke's to disregard the termination notice given earlier and extending Zeke's distributorship until October 1, 1987. Exhibit #21 only relates to the existence of a contractual relationship between Clausen's and Brown-Forman, it did not tend to make more or less probable the existence of an implied contract between Zeke's and Brown-Forman. Nor does evidence of other lawsuits against Brown-Forman tend to make the existence of an implied contract between the parties more or less probable. Further, there were factual issues at trial as to whether the implied contract between the parties gave Zeke's an exclusive or non-exclusive distributorship, and based on this determination, whether Brown-Forman breached the implied contract. It is clear that evidence of other lawsuits is not relevant toward these issues. Exhibit #21, the February 12 letter to Clausen's, was written prior to Timrnons' "disregard" letter of March 27, at a time when Brown-Forman was in the process of lawfully terminating the written agreement. At the time, the implied contract on which Zeke's case is based did not exist. If the letter is relevant toward breach of this contract, it tends to establish that Brown-Forman intended that the implied contract with Zeke's be non-exclusive, because Brown-Forman was already employing Clausen's as a distributor. More importantly, the letter also tends to show the aggressive or "heavy-handed" tactics Brown-Forman used in consolidating its distributorships. However, the nature of these tactics is not only irrelevant toward breach of the implied contract between Zeke's and Brown-Forman, it is also highly prejudicial to Brown-Formants case. Thus, while the letter may have been relevant regarding non-exclusivity and materially favorable to Brown-Forman, introduction of the letter by Zeke's clearly prejudiced Brown-Forman. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule 403, M.R.Evid. This determination of admissibility is within the discretion of the trial judge and will not be disturbed unless there is manifest abuse of discretion. Welnel v. Hall (1985), 215 Mont. 78, 694 P.2d 1346, Kimes v. Herrin (1985), 217 Mont. 330, 705 P.2d 108, Dahlin v. Holmquist, (Mont. 1988), 766 P.2d 239, 46 St.Rep. 2127. The trial judge did not abuse his discretion by granting a new trial on the grounds that admission of this evidence prejudiced Brown-Forman. Zeke's also argues that the evidence is relevant toward the issue of good faith and fair dealing. Prior to the introduction of evidence concerning other lawsuits involving Brown-Forman on cross-examination of Timmons, the court had properly sustained objections by Brown-Forman that this evidence was irrelevant toward the issue of good faith and fair dealing. The court correctly noted that while the testimony tended to establish Brown-Forman's policy of consolidating distribution of its products, the testimony did not establish whether the other terminations were made in good faith or bad faith and thus were not relevant to that issue. The court should have sustained a similar objection to this testimony when it was elicited from Timmons on cross-examination. Zeke's also argues that exhibit #21 is relevant toward the issue of good faith and fair dealing because its effect was to coerce Clausen's into accepting a California Cooler distributorship at a time when Brown-Forman had an exclusive agreement with Zeke's. There is no other evidence in the record which tends to demonstrate bad faith on the part of Brown-Forman. Moreover, the exhibit tends to establish possible misbehavior by Brown-Forman toward Clausen's rather than demonstrating such misbehavior toward Zeke's. Even if exhibit #21 has some attenuated relevance toward breach of the implied covenant of good faith and fair dealing, the letter should have been excluded because it was prejudicial to Brown-Formants case. Zeke's argues that admission of this evidence constituted harmless error and thus granting a new trial based on its admission was an abuse of discretion. For error to be the basis for a new trial, it must be so significant as to materially affect the substantial rights of the complaining party. Rule 61, M.R.Civ.P., Giles v. Flint Valley Forest Products (1979), 179 Mont. 382, 588 P.2d 535. Considering the result arrived at by the jury in this case, the error cannot be characterized as harmless; admitting the evidence clearly was prejudicial and misleading and materially affected the substantial rights of Brown-Forman to a fair trial. The decision to grant a new trial is within the sound discretion of the trial court, and will not be overturned absent a showing of manifest abuse of discretion. Tope v. Taylor (Mont. 1988) 768 P.2d 845, 45 St.Rep. 2242; Walter v. Evans Products Co. (1983), 207 Mont. 26, 672 P.2d 613; Giles, 588 P.2d 535. Upon Brown-Forman's motion for new trial, it was within the District Court's discretion to determine if the probative value of the evidence was outweighed by the prejudice to Brown-Forman. We find no abuse of discretion. Zeke's second contention is that the trial court erred in refusing to allow evidence of lost profits as part of the tort element of damages. As part of its damages claimed for Brown-Forman's alleged breach of the implied covenant of good faith and fair dealing, Zeke's offered to prove damages for lost profits beyond the period ending September 30, 1987, the extension date of the contract. Pursuant to Brown-Forman's motion in limine, granted prior to trial, the District Court excluded this evidence and gave the jury the usual instruction for tort damage, limiting Zeke's lost profits to the extension period of the contract. Zeke's relies on this Court's decision in State Bank of Townsend v. Maryann's, Inc. (1983), 204 Mont. 21, 664 P.2d 295. In that case Maryann's claimed that the bank's negligent misrepresentation with respect to a loan made to Maryann's prevented it from continuing to operate a store it reasonably could have expected to operate into the future. This Court held that the trial court had not erred in admitting evidence of future lost profits. However, the present case is distinguishable on its facts. Under the implied contract arising out of the March 27 letter, Zeke's distribution of California Cooler was expressly limited to the period ending September 30, 1987. This limitation not only applied to Zeke's compensatory damages for breach of contract, it also applied to compensatory damages for breach of the implied covenant of good faith and fair dealing. Thiel v . Johnson (1985), 219 Mont. 271, 711 P.2d 829. Zeke's could not reasonably expect to distribute California Cooler beyond the extension date, thus the District Court did not err in limiting Zekels proof of future lost profits based on breach of the implied covenant to the extension period of the contract. Finally, we address the issue raised by Brown-Forman in its appeal: Did the District Court err in denying Brown-Forman's motions for directed verdicts and judgment notwithstanding the verdict with respect to the issues of its breach of the implied covenant of good faith and fair dealing and its liability for punitive damages? The implied covenant of good faith and fair dealing is based on the "reasonable expectations" of the parties that the other will not act "arbitrarily, capriciously, or unreasonably." Nicholson v. United Pacific Ins. Co. (1985), 219 Mont. 32, 710 P.2d 1342. Under the statute applicable when this cause of action arose, punitive damages can be awarded in a tort action for breach of the implied covenant of good faith and fair dealing only if the breach amounts to oppression, malice, or fraud. Section 27-1-221,MCA (1985). Brown-Forman argues that there was not enough evidence of malice to submit the issue of punitive damages for breach of the implied covenant to the jury, thus the District Court erred by denying its motions for directed verdict and judgment notwithstanding the verdict on this issue. We need not determine the sufficiency of the evidence to support the jury's verdict in this case. A grant of a new trial by the trial court is a re-examination of issues of fact, 5 25-11-101 MCA; it must be commenced fresh or anew. Town Pump v. Dist. Ct. (1979), 180 Mont. 358, 590 P.2d 1126; Waite v. Waite (1964), 143 Mont. 248, 389 P.2d 181. In as much as the case will be retried de novo, Brown-Forman will have an opportunity to raise the issue of the sufficiency of the evidence supporting punitive damages at the appropriate time. We affirm the District Court. We Concur: A g@gtclT'A* Chief Justice | September 21, 1989 |
f025f1a0-ab3f-4d22-94da-e2d51a2a9ac2 | HILLCREST HOMEOWNERS ASSOCIATION v | N/A | 89-023 | Montana | Montana Supreme Court | No. 89-23 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 HILLCREST HOMEOWNERS ASSOCIATION, a Montana corporation, Plaintiff and Appellant, -vs- A. G. WILEY and KANCHANA WILEY, Defendants and Respondents. 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: Thomas R. Bostock; Warden, Christiansen, Johnson and Berg, Kalispell, Montana For Respondent: H. James Oleson; Oleson Law Firm, Kalispell, Montana Submitted on Briefs: June 30, 1989 Decided: August 31, 1989 Justice L. C. Gulbrandson delivered the Opinion of the Court. Plaintiff, the Hillcrest Homeowners Association, filed a complaint in the District Court for the Eleventh Judicial District, Flathead County, alleging that the defendants, A.G. Wiley and Kanchana Wiley, now deceased, violated a restrictive covenant by building a garage on their lot in Hillcrest Estates subdivision, Flathead County. The District Court entered summary judgment in favor of the defendants. Plaintiffs appeal. We reverse and remand. Hillcrest Estates is a residential subdivision located in Flathead County. In 1969, the owners of Hillcrest Estates adopted restrictive convenants that were then duly recorded in the Clerk and Recorder's office in Flathead County. These covenants provide in pertinent part: RESIDENTIAL AREA COVENANTS. - 1. LAND USE AND BUILDING TYPE. No lot shall be used except for single family residential purposes, only one residence per lot and no lot shall be subdivided. 2. IMPROVEMENTS. (a) All homes must be of new construction and have a minimum of 1600 square feet of living area on the ground level. (b) Exterior of improvements must be completed within one year after start of construction. (c) No temporary buildings of any nature will be allowed during or after construction, including trailer homes. In 1979, A. G. Wiley and Kanchana Wiley purchased lot 3 in the Hillcrest Estates subdivision. In late 1980, or early 1981, they completed construction of a steel sided garage on their property. The Wileys built this garage as part of their original plan to build a single family residence with a detached garage. Kanchana Wiley died in May, 1983, and the actual residence was never built. A. G. Wiley eventually moved to Utah. In April, 1987, the Hillcrest Homeowners Association filed a complaint in the District Court for the Eleventh Judicial District, Flathead County, alleging that the garage violated the restrictive covenants. The Hillcrest Homeowners Association appeal the District Court's finding, which stated that the garage built on lot 3 is permanent, complete, and does not violate the restrictive covenants. The only issue Hillcrest raises on appeal is whether the District Court erred in determining that the garage did not violate the restrictive covenants. Hillcrest argues that the garage violates the "residential purposes" language of the restrictive covenant. In particular, Hillcrest argues that while a garage, in conjunction with a residence, is consistent with "residential purposes," a garage by itself, absent the development of a residence, is not consistent with "residential purposes." Hillcrest therefore argues that the Wileys violated the restrictive covenant that is applicable to the Hillcrest Estates. We agree. Restrictive covenants are generally valid "if they tend to maintain or enhance the character of a particular residential subdivision.'' Town & Country Estates Ass'n (Mont. 1987), 740 P.2d 668, 671, 44 St.Rep. 1257, 1260. When interpreting a restrictive covenant, this Court applies the same rules as those applicable to contract interpretation. Gosnay v. Big Sky Owners Ass'n (1983), 205 Mont. 221, 227, 666 P.2d 1247, 1250. Therefore, this Court must, if reasonably practical, read the restrictive covenant as a whole so as to give meaning to every part of the covenant. See 28-3-202, MCA. In addition, the language of the covenant is to be understood in its ordinary and popular sense, see S 28-3-501, MCA, and the language will govern the covenant's interpretation when the words are plain and unambiguous. Gosnay, 205 Mont. at 227, 666 P.2d at 1250. When interpreting the covenant in this case, this Court must ascertain the meaning of "residential purposes." Webster's Dictionary defines "residential" as "used as a residence or by residents." "Residence" is then defined as "the act or fact of dwelling in a place for some time." Webster' s Ninth New Collegiate Dictionary 1003 (1986) . Consistent with these definitions, courts have held that a garage built on a lot without a dwelling house on the same lot violates a restrictive covenant when the covenant specifically limits a lot's use to "residential purposes." In particular, the Washington Court of Appeals in Sandy Point Improvement Co. v. Huber (Wash. 1980), 613 P.2d 160, recited: A private garage is a proper appurtenance necessary to the enjoyment of a dwelling house and does not violate a "for residence purposes only" covenant [cites omitted]. However, if the garage is placed on an adjoining lot, it is no longer deemed to be appurtenant and does violate such a restriction even though used in connection with a residence on an adjoining lot [cites omitted]. Sandy Point Improvement Co., 613 P.2d at 163. In light of the ordinary and popular use of the word "residential," we agree with the Washington Court of Appeals1 interpretation of "residential purposes." In the present case, Wiley's garage was built on lot 3 in the Hillcrest Estates subdivision approximately seven years before the complaint was filed. The restrictive covenant clearly provides that the Hillcrest lots shall be used only for "single family residential purposes." Reading the covenant as a whole and in light of the popular and ordinary meaning of "residential," a garage, by itself, is not consistent with "single family residential purposes" when the garage is not used in conjunction with a residential dwelling. Therefore, we hold that Wiley violated the restrictive covenant when he built the garage on lot 3 in the Hillcrest Estates subdivision and did not, within a reasonable time, build a residential dwelling to accompany the garage. We therefore reverse the District Court and remand this case to allow the District Court to determine the proper relief warranted under the facts of this case. /' Reverse and remanded. We Concur: Justices I do not concur with the findings of the majority. | August 31, 1989 |
eded2b21-9821-41eb-9a0c-939c4e4c0bad | TRESCH v NORWEST BANK OF LEWISTOWN | N/A | 89-053 | Montana | Montana Supreme Court | No. 89-053 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 JULIUS R. TRESCH and JOAN TRESCH, Husband and Wife, Plaintiffs and Appellants, -vs- NORWEST BANK OF LEWISTOWN, N.A., JOHN DOE CORPORATION, I through V, and JOHN DOE 1 through 10, Defendants and Respondents. APPEAL FROM: District Court of the Tenth Judicial District, In and for the County of Fergus, The Honorable Peter Rapkoch, Judge presiding. COUNSEL OF RECORD: For Appellant: Torger S. Oaas, Lewistown, Montana For Respondent: Donald C. Robinson and Mark W. Mattioli; Poore, Roth and Robinson, Butte, Montana Filed: :-- c . . . , - 4 - . Submitted on Briefs: Aug. 3, 1989 Decided: August 25, 1989 Justice R. C. McDonough delivered the Opinion of the Court. Julius Tresch and Joan Tresch (Tresch) appeal from an order of the Tenth Judicial District, Fergus County, granting summary judgment to respondent Norwest Bank of Lewistown, N.A. (Norwest). We affirm. The issues in this case are: 1. Whether Norwest breached the implied covenant of good faith and fair dealing when it denied a $3,100.00 loan requested by Tresch. 2. Whether Norwest breached a fiduciary duty owed Tresch when it denied the $3,100.00 loan. Julius and Joan Tresch have owned and operated a dairy farm near Lewistown, Montana since 1966. For over three decades, they have done their banking business with Norwest. In 1983, Tresch increased his operating loan at Norwest to the amount of approximately $147,000.00. This note was to be paid in monthly installments and was secured by an assignment of proceeds from the dairy, and other collateral. One of the terms of this financing agreement provided that Tresch could not make any capital purchase in excess of $500.00 without the express consent of Norwest. Shortly after receiving this loan, Tresch used advanced funds to upgrade the equipment in his dairy. This upgrading included the purchase of new milking machines. Tresch quickly became dissatisfied with these machines, because he believed that they were responsible for an outbreak of "mastitis" in his dairy herd. Mastitis is defined as an inflammation of the mammary glands in dairy cattle. It is caused and spread by toxic microorganisms. The disease is endemic to the entire dairy industry and its presence can lead to contaminated milk and the destruction of a dairy herd. Although its cause is subject to debate, it is generally agreed that it can be caused by malfunctioning equipment, unsanitary conditions within the cows' environment, or improper milking procedures. Because Tresch believed that the new milking machines were the cause of the mastitis, he approached Norwest in March of 1984, for a three thousand one hundred dollar ($3,100.00) loan which would enable him to replace the machines. Norwest doubted that this purchase would cure the mastitis problem because, as it noted, the disease had existed in his dairy herd for a number of years prior to the acquisition of the new machines. It also doubted that the purchase of new milkers would generate sufficient additional income to repay the loan. In order to confirm this supposition, Norwest contacted the local implement dealer and the dairy extension service at Montana State University to determine if the new machines were needed. This investigation supported Norwest's original beliefs. During this inquiry, it was learned that although milking machines can cause mastitis, the primary causes are improper hygiene and sanitation, and improper milking procedures. Moreover, because the disease had been present in the herd prior to the installation of the milking machines it was doubtful that they were the cause of Tresch's problem. Consequently, the loan was denied. Eventually Tresch obtained funds from another source, which allowed him to purchase new milking machines. Unfortunately, the mastitis problem continued and the resulting loss of production nearly forced Tresch into foreclosure in late 1986. Because Tresch believed these problems were caused by Norwest's refusal to advance him the money he filed suit seeking compensatory and punitive damages for breach of the implied covenant of good faith and fair dealing and for breach of fiduciary duty. Norwest moved for summary judgment. On October 13, 1988, this motion was granted. This appeal followed. I Tresch maintains that Norwest breached the implied covenant of good faith and fair dealing by refusing to loan him the funds necessary to purchase new milking machines. We disagree. At the outset we note that this is an appeal from an order granting summary judgment. Summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56 (c) , M.R.Civ.P. : The party moving for summary judgment has the burden of establishing the absence of any genuine issue of material fact and then the party opposing the motion must come forward with evidence supporting the existence of a genuine fact issue. Pretty on Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60. However, when reviewing such an order, this Court must review the evidence in a light which is most favorable to the non-moving party. Nitschke v. Blue Cross of Montana (1988), 751 P.2d 175, 176, 45 St.Rep. 473, 475. Therefore, we must review the facts of this case in a light most favorable to Tresch in order to determine the propriety of the court's order. Even if this Court was to assume that the implied covenant of good faith and fair dealing applies to a lending arrangement of the nature presented in this case, the facts presented do not indicate that there was any violation of this duty. In making this determination, we look to prior decisions for guidance. In Nicholson v. United Pacific Ins. Co. (1985), 219 Mont. 32, 710 P.2d 1342, we held that: The nature and extent of an implied covenant of good faith and fair dealing is measured in a particular contract by the justifiable 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 other's culpable conduct. Nicholson, 710 P.2d at 1348. Therefore, in order to prove that Norwest breached the covenant, Tresch must show that its decision not to advance the $3,100.00 was arbitrary, capricious or unreasonable. Under the agreed upon facts Tresch does not meet this burden. Tresch maintains that he needed the loan in order to buy new milking machines. It was his theory, upon applying for the loan, that new machines would cure the chronic mastitis that had plagued his herd for years. Norwest doubted that this purchase would cure the problem. Norwest based its conclusion upon inquires made with an agricultural scientist at Montana State University and a local dealer who sold milking machines. Inquiry also led Norwest to believe that the new machines would not generate sufficient additional income to repay the loan. The uncontested facts clearly establish that Norwest's refusal to advance the funds was based upon solid business reasons. It then became incumbent upon Tresch to come forward with evidence of his own that would tend to dispute this conclusion. Barich v. Ottenstrong (1976), 170 Mont. 38, 550 P.2d 395; Mayer Bros. v Daniel Richards Jewlers Inc., (1986), 223 Mont. 397, 726 P.2d 815. Tresch did not meet this burden, nor did he come forward with any other issue of material fact. In fact, as noted by the trial court, Tresch admitted in his deposition that he did not think that Norwest acted out of motives or for reasons other than those stated. Therefore, the order granting summary judgment must be affirmed. I1 Tresch also maintains that Norwest breached its fiduciary duty by denying the loan. Again, we disagree. With respect to this argument, the following provision in the loan agreement is: "4. Borrowers shall make no capital purchases in excess of $500.00 without prior consent of the Bank. " Tresch maintains that under this clause, Norwest had the ability to exercise "absolute managerial" control over the dairy operation by retaining the power to determine which expenditures could be made. He further states because Norwest took "complete charge" over the finances of the Tresch Dairy, it had a duty to place the interests of Tresch on par with its own interest. Assuming arguendo that such a clause leads to the creation of a fiduciary duty, we fail to find that Norwest acted unreasonably or unfairly towards Tresch. As stated earlier, Norwest's refusal was based upon solid business grounds and there are no facts to refute it. Accordingly, Norwest's refusal was not a breach of any fiduciary duty which may have been owed to Tresch. We affirm. H z L Justice Chief Justice | August 25, 1989 |
1be27fde-7ab7-4bba-955f-93facc553681 | SPERRY v MONTANA STATE UNIVERSITY | N/A | 89-157 | Montana | Montana Supreme Court | No. 89-157 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 RAY T. SPERRY, plaintiff and Appellant, -vs- MONTANA STATE UNIVERSITY, Defendant and Respondent. APPEAL FROM: ~istrict Court of the ~ighteenth ~udicial ~istrict, In and for the County of all at in, The Honorable Thomas Olson, Judge presiding. COUNSEL OF RECORD: For Appellant: Lineberger & ~arris; Douglas D. ~arris, Bozeman, Montana For Respondent: Dorothy L. Brownlow; Moore, OIConnell, ~efling and Moon, Bozeman, Montana Submitted on ~riefs: Aug. 3, 1989 Decided: August 30, 1989 Justice Fred J. Weber delivered the Opinion of the Court. The plaintiff, Ray V. Sperry, brought this action to recover "conversion compensation" allegedly due him as a result of a contract conversion that took place in 1967 at Montana State University. After a bench trial, the District Court for the Eighteenth Judicial District, Gallatin County, entered judgment for Montana State University. From this judgment, Mr. Sperry appeals. We affirm. The issues are: 1. Did the District Court err in concluding that the retirement agreement entered into between MSU and Mr. Sperry constituted a complete waiver and release of all claims he is now asserting? 2. Is Mr. Sperry's claim barred by the doctrine of laches? Mr. Sperry was employed at Montana State University (MSU) from 1965 through March 31, 1986, retiring as Director of Continuing Education. At the commencement of his employ- ment with MSU, and for the next two years, the terms of a written contract known as the "Montana 12 Contract" governed his employment. The Montana 12 Contracts allowed employees to take an eighth quarter leave with pay for research, travel or any other reason approved by the Board of Regents. Em- ployees were required to work seven quarters before eligibil- ity for eighth quarter leave accrued. They were also allowed to accumulate two quarters, a total of six months. In 1967, the Board of Regents ordered MSU to terminate the Montana 12 Contract and convert to a one-year contract. Mr. Sperry's contract was converted to a fiscal year con- tract. At that time his annual salary was increased by $1000, from $7800 to $8800, which constituted a 13% increase in pay. Mr. Sperry signed an agreement acknowledging and accepting the change from a Montana 12 Contract to a fiscal contract which stated that "all accumulated eighth quarter leave" had been taken, and he waived claim to any future eighth quarter leave. From 1967 until retirement in 1986, Mr. Sperry signed nineteen individual annual employment contracts with MSU, all of which stated the term of the employment and the agreed salary for that year. None of these contracts mentioned any conversion compensation due. Conversion compensation arose from the replacement of Montana 12 Contracts with the annual contracts as compensation for the additional time worked without leave. Mr. Sperry now contends he reached an oral agreement with MSU entitling him to conversion compensation amounting to an additional 10% increase in pay. In April, 1983, Mr. Sperry wrote a letter to Michael F. Malone, Dean of Graduate Studies, to discuss possibilities of early retirement and requesting a salary adjustment for the last three years. The essence of his proposal stated: Before seriously considering an early retire- ment, it is imperative that my final average three year salary be increased significantly. As you know, according to Regents guidelines, my current salary is below their guidelines. . . [Tlhe total cost to the University for my proposal would be insignificant. The first year savings to MSU would be $7,708.00. Reflecting a total cost of between $5,000.00 and $6,000.00 for the three contract periods. . . [I] propose the following salary schedule: 1983-84 -- $37,000.00 (actual cost to MSU - $29,393.00) 1985-86 -- $43,000.00 (9 month contract, July 1, 1985-March 30, 1986) He wrote a follow-up letter in December, 1986 which stated: My original correspondence requested a three year salary adjustment beginning the current academic year. The primary reason was to increase my last three years salary for early retirement purposes. MSU rejected his original offer, so Mr. Sperry submitted the following request and schedule in his letter: 1) Fiscal year 84-85, I receive a Regents con- tract with my raise equal to the average MSU faculty raise for this period. 2) Beginning July 1, 1985, I receive a Regents contract to the end of March 30, 1986 (9 months) . During this period the contract would include an average faculty increase. I also receive an additional 4 years contract salary based upon the current contract. Succinctly, I receive 14 times my contracted salary paid to me in 9 months instead of 12 months. During this period, I would continue to earn sick leave and vacation time. 3) In the event a universally applied incentive is offered, all MSU employees opting for early retirement, the above agreement would not prejudice me. In the conclusion of his letter, he stated: If a satisfactory arrangement is reached between the University and myself, I will offer a statement agreeing not to pursue - a - past - wage greivance. [sic] (~mfisisadded. ) In a third letter, Mr. Sperry wrote a revised proposal, changing only the second provision's term of "1/2 year" to "1/3" and "1 1/2" to "1 1/3If. He restated his agreement "not to pursue a past wage grievance" if "the [proposed] agreement is reached." After an agreement was reached, Mr. Sperrlr wrote a formal resignation letter on February 9, 1984, to he effective as of March 31, 1986. These letters of correspon- dence comprise the "retirement agreement," which is central to this dispute. One year after agreement on the terms of retirement, Mr. Sperry for the first time sought conversion compensation from MSU in a letter to the Vice President for Academic Affairs, Dr. Stuart Knapp. He contended that at the time of the 1967 conversion, he was offered a 23% salary increase, received a 13% increase, and 10% is still due and owing as conversion compensation. Applied retroactively, this amounts to nearly $30,000 of conversion compensation. I Did the District Court err in concluding that the re- tirement agreement entered into between MSU and Mr. Sperry constituted a complete waiver and release of all claims he is now asserting? The District Court made the following pertinent findings of fact and conclusions of law: Findina of Fact: #7: On May 11, 1967, plaintiff signed an agreement - by which he accepted the stated terms on the change of period of employment. . . #8: Although alleged, no oral agreement with - Robert McCall, plaintiff's supervisor, was estab- lished with particularity. #9: Plaintiff - accepted 19 subsequent post-conversion employment contracts. #lo: In the subsequent 19 years after conversion, - plaintiff failed to pursue defendant's grievance procedures for any shortage in his salary since 1967. #11: In January and February 1984, plaintiff - negotiated with defendant's Michael P. Malone, then acting vice-president for academic affairs, for an early retirement. #12: On February 9, 1984, plaintiff confirmed in a - memorandum that he found the financial considera- tions acceptable. In addition, he further stated that his was an official resignation from the university effective March 31, 1986. #13: As part of the consideration of his retire- - ment, defendant increased plaintiff ' s final pay to $45,370 for a nine-month period, and plaintiff agreed to "not pursue any past wage grievances". #14: Defendant fully complied with all the terms - and conditions of the retirement agreement. #15: At no time during plaintiff's retirement Gotiation discussions with defendant did he inform defendant he claimed additional compensation due him from his conversion in 1967, 13 years previously. Conclusion of Law: #2: Plaintiff accepted the terms set forth in the - 1967-68 employment contract without written formal concern as to deferred compensation. The retire- ment aareement entered into between plaintiff and -~~ - - defendkt constitutes - - a full waiver and release of any claims plaintiff --- may have had against defendant arisina from salarv or waaes due to plaintiff as a - - - - d - result of his emplgyment iith defendant. #4: Plaintiff is not entitled to any additional - compensation for his employment at MSU. (Emphasis added. On appeal, Mr. Sperry contends his own oral testimony was sufficient to establish conversion compensation was due. He contends that his direct supervisor indicated his increase in pay did not include the conversion compensation, but promised he would receive that additional salary increase at a later date. Mr. Sperry testified that the only person who would have known of the alleged oral contract was his direct supervisor, Robert McCall. Mr. McCall died in 1971. Mr. Sperry did not raise the issue of conversion compensation until February 1985, one year after signing the retirement agreement. MSU contends there was no such agreement, and any such claim was waived when he accepted the terms of the retirement agreement. Waiver is an equitable doctrine, applicable when there is an intentional or voluntary relinquishment of a known right, claim or privilege, or such conduct as warrants an inference of the relinquishment of such right. State v. Statczar (Mont. 1987), 743 P.2d 606, 44 St.Rep. 1668; Kelly v. Lovejoy (1977), 172 Mont. 516, 565 P.2d 321. Release is defined as the abandonment of a claim to the party against whom it exists and may be gratuitous or for consideration. It is fundamental that an effective release can be consummated without resort to a particular form of words, for "all that is necessary is that the words show an intention to discharge." (Citations omitted. ) Melo v. National Fuse and Powder Co. (D.Colo. 1967), 267 F.Supp. 611. To be enforceable, a release must at a minimum be unambiguous, explicit, and unequivocal. Simonson v. Travis (Utah 1986), 728 P.2d 999, 1002. In Montana, the law of contracts governs releases. Westfall v. Motors Ins. Corp. (19621, 140 Mont. 564, 374 P.2d 96. We conclude that Mr. Sperry's signing of nineteen, one-year contracts and cashing paychecks over the past nine- teen years without complaint of no conversion compensation, in combination with his acceptance of the retirement agree- ment and his promise not to pursue a past wage grievance, constitute a complete waiver and release. An Alaskan Supreme Court holding is comparable to the case at bar. In that case, the note maker raised no objec- tion to the credit union's alleged failure to collect inter- est according to the terms of the loan agreement. This continued for a three-year period, when each lot subject to security agreement was sold, despite the fact he was required to sign the deed to complete the sale of each lot. For each sale, he had an opportunity to examine the ledger sheet that showed how the escrow company intended to disburse the pro- ceeds of each sale. The court held he waived his right to assert that the credit union breached the loan agreement by failing to collect interest on the sale of each lot. Jackson v. Nangle (Alaska 1984), 677 P.2d 242, 249. In the same way, Mr. Sperry signed his pay checks for nineteen years with knowledge of any increases and decreases, but without raising objection regarding the lack of any conversion compensation. We conclude that there exists substantial credible evidence to support the District Court's conclusion that Mr. Sperry's signing of the retirement agreement waived and released his right to any wage claims. We affirm the Dis- trict Court on this issue. I1 Is Mr. Sperry's claim barred by the doctrine of laches? On appeal, MSU contends Mr. Sperry's claim is barred by laches. Although this was not a part of the findings of fact and conclusions of law of the District Court, the defense of laches was asserted in the Final Pre-Trial Order, so it is subject to review by this Court. Mr. Sperry testified that his direct supervisor indicat- ed his increase in pay did not include the conversion compen- sation, but promised he would receive that additional salary increase at a later date. MSU contends Mr. Sperry received a 13% increase, which included his conversion compensation, and there was no promise by anyone to pay him further increases. The only person other than Mr. Sperry, who would have known of the alleged oral contract was his direct supervisor, Robert McCall. Mr. McCall died in 1971. Yet, the only time Mr. Sperry brought the issue of conversion compensation to the attention of anyone else at MSU was in his February 1985 letter to Michael F. Malone, long after Robert McCall's death, and after completing the retirement agreement. He did not raise the issue again until after he retired. MSU contends that Mr. Sperry's claim for such conversion compensation is now barred by the equitable doctrine of laches. We agree. Laches exists where there has been an unexplainable delay of such duration or character as to render the enforcement of an asserted right inequitable. Brabender v. Kit Mfg. Co. (1977), 174 Mont. 63, 67-68, 568 P.2d 547, 549. Where a party is actually or presumptively aware of his rights but fails to act, laches is appropriate. Clayton by Murphy v. Atlantic Richfield Co. (1986), 221 Mont. 166, 170, 717 P.2d 558, 561. A party is held to be aware of their rights where the circumstances he or she knows of are such as to put an ordinarily prudent person on inquiry. Johnson v. Estate of Shelton (Mont. 1988), 754 P.2d 828, 831, 45 St.Rep. 887, 891. Mr. Sperry asks for a retroactive wage increase for the last nineteen years of his employment. He does not allege that he was unaware of this claim during that time. We hold Mr. Sperry's claim is barred by the doctrine of laches. Although MSU argues that Mr. Sperry's claim is also barred by the statute of limitations, we find it unnecessary to discuss that issue in light of our holding on laches. Furthermore, we will not address Mr. Sperry's contentions that MSU breached the implied covenant of good faith and fair dealing. This Court will not address on appeal an issue not presented to the District Court. Wyman v. DuBray I~and Realty (Mont. 1988), 752 P.2d 196, 45 St.Rep. 621. Affirmed. | August 30, 1989 |
19f0273d-b333-4654-bb94-5b28192428fc | STATE v COOPER | N/A | 14255 | Montana | Montana Supreme Court | No. 14255 IN THE S U P = CCUI~T OF THE STATE OF m m m 1978 S T A T E O F ICNIYUA, Plaintiff ax3 Respondent, -VS- WlLLIAM ORIE COOPER, Defendant and Appellant. Appeal frm: D i s t r i c t Court of the Eighteenth Judicial D i s t r i c t , nora able Jack D. Shanstran, Judge presiding. Counsel of Record: For Appllant: Michael Sand argued, Bozeman, Mntana For Reqmndent : Hon. Mike Greely, Attorney General, Helena, mntana Sheri K. Sprigg argued, Assistant Attorney General, Helena, Mntana Donald White, County Attorney, Bozgnan, mntana Gregory R. Todd argued, Deputy County Attorney, B o z m , mntana Sdmitted: October 23, 1978 Decided: dkf? -- "3 a " , , r--t - . ! 1 I> , _ > - I - Filed: - - I M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. ~ e f e n d a n t was charged by information with one count of aggravated a s s a u l t and one count of a s s a u l t . A jury t r i a l w a s held on January 26 and 27, 1978, t h e Honorable Jack D. Shanstrom presiding. A f t e r t h e jury returned a g u i l t y v e r d i c t on both counts, defendant w a s sentenced t o f i v e years on Count I and s i x months on Count 11, t h e sentences t o run concurrently. One and one-half years were then suspended. Defendant appeals. Between 1:00 and 1:30 a.m. on D e c e m b e r 9, 1977, defen- dant and f i v e f r i e n d s entered the Sacajawea B a r , located i n t h e basement of t h e Sacajawea Motel i n Three Forks, Montana. Shortly t h e r e a f t e r , t h r e e Mexican-American brothers, Paul, David, and Caesar V i l l a r r e a l , entered t h e bar from the u p s t a i r s where they w e r e staying. A f o u r t h Mexican-American, named Tano, entered sometime l a t e r . When defendant saw these men order a six-pack of beer and noticed one w a s not wearing a s h i r t , he remarked: "No s h i r t , no shoes, no service." H e apparently walked over t o t h e men muttering things about "spics" and "wetbacks" and proceeded t o knock t h e six-pack o u t of t h e hands of Paul V i l l a r r e a l . A s c u f f l e ensued and one of t h e Mexican-American brothers had a knife. Soon bar s t o o l s and pool cues w e r e being used as weapons. After a s h o r t time, defendant l e f t the b a r , went t o a c a r , and picked up a gun. H e f i r e d a t least one s h o t while on t h e sidewalk next t o t h e bar entrance. H e then reentered t h e bar pointing t h e gun and helped one of h i s f r i e n d s o u t of t h e bar. Defendant drove t o Bozeman and while enroute threw t h e gun away. I t w a s never recovered. The next afternoon, Detective Bruce LaRue of the Gallatin County s h e r i f f ' s department found a .25 c a l i b e r automatic c o l t p i s t o l car- t r i d g e case near the top of the s t a i r s where a witness had seen defendant f i r e the gun the night before. Defendant presents s i x issues f o r review which can be summarized and s t a t e d i n the following manner: 1. Whether the D i s t r i c t Court erred i n giving Instruc- t i o n No. 20 concerning the defense of j u s t i f i a b l e use of force. 2. Whether the D i s t r i c t Court erred i n giving Instruc- t i o n No. 9 concerning i n t e n t . 3 . Whether the D i s t r i c t Court erred i n excluding the testimony of two defense witnesses. 4. Whether the D i s t r i c t Court erred i n refusing t o give defendant's offered Instruction No. 1 2 . 5. Whether defendant was denied h i s r i g h t t o a f a i r and impartial t r i a l because of e r r o r s on the p a r t of the D i s t r i c t Court. 6. Whether there was s u f f i c i e n t evidence t o support the verdicts of guilty. Instruction No. 20 read: "You a r e instructed t h a t a defense of justi- f i a b l e use of force is an affirmative defense and t h a t the defendant has the burden of pro- ducing s u f f i c i e n t evidence on the i s s u e t o r a i s e a reasonable doubt of h i s g u i l t . " Defendant contends t h i s instruction places the burden of proving self-defense on him. The S t a t e contends t h i s instruc- t i o n places the "burden of producing evidence" on defendant but not the "burden of persuasion". The Montana County Attorneys Association, appearing a s amicus curiae, argues t h a t "a criminal defendant asserting the affirmative defense of j u s t i f i a b l e use of force [should be] required t o prove t h a t defense by a preponderance of the evidence." The United S t a t e s Supreme Court, i n t h e landmark case of I n re Winship (1970), 397 U.S. 358, 364, 90 S . C t . 1068, 1073, 25 L Ed 2d 368, 375, e x p l i c i t l y held t h a t " t h e Due Process Clause p r o t e c t s [an] accused against conviction except upon proof beyond a reasonable doubt of every f a c t necessary - t o c o n s t i t u t e t h e crime with which he is charged." (Emphasis added.) Subsequently, i n a Maine homicide case, t h e Supreme Court held t h a t "the Due Process Clause requires t h e prosecution t o prove beyond a reasonable doubt the absence of t h e heat of passion on sudden provocation when t h e i s s u e is properly presented i n a homicide case." (Em- phasis added.) Mullaney v. Wilbur (1975), 4 2 1 U.S. 684, Defendant relies on Mullaney by analogy and argues the S t a t e should be required t o prove the absence of t h e " j u s t i - f i a b l e use of force" t o convict defendant of aggravated a s s a u l t . Such a contention ignores t h e d i s t i n c t i o n between t h e s t a t u t o r y scheme outlined i n the Mullaney case and the s t a t u t o r y scheme present i n Montana. A s i m i l a r d i s t i n c t i o n was addressed by t h e Supreme Court i n Patterson v. New York (1977), 432 U.S. 197, 97 S . C t . 2319, 53 L Ed 2d 281. I n Patterson t h e i s s u e was " t h e c o n s t i t u t i o n a l i t y under t h e . . . Due Process Clause of burdening t h e defendant i n a New York S t a t e murder t r i a l with proving the affirmative defense of extreme emotional disturbance a s defined by New York law." Patterson, 432 U.S. a t 198, 97 S . C t . a t 2320, 53 L Ed 2d a t 284. I n finding t h a t requiring the defendant t o prove h i s affirmative defense by a preponderance of the evidence did not v i o l a t e due process, the Supreme Court stated: "We . . . decline t o adopt a s a c o n s t i t u t i o n a l imperative, operative countrywide, t h a t a s t a t e must disprove beyond a reasonable doubt every f a c t c o n s t i t u t i n g any and a l l affirmative de- fenses r e l a t e d t o the culpability of an accused. Traditionally, due process has required t h a t only the most basic procedural safeguards be observed; more subtle balancing of s o c i e t y ' s i n t e r e s t s against those of the accused have been l e f t t o the l e g i s l a t i v e branch. W e there- f o r e w i l l not d i s t u r b the balance struck i n previous cases holding t h a t the Due Process Clause requires the prosecution t o prove beyond a reasonable doubt a l l of the elements included i n t h e d e f i n i t i o n of the offense of which the defendant is charged. Proof of the nonexistence of a l l affirmative defenses has never been con- s t i t u t i o n a l l y required; and w e perceive no rea- son t o fashion such a r u l e i n t h i s case and apply it t o t h e statutory defense a t issue here." Patterson, 432 U.S. a t 210, 97 S.Ct. a t 2327, 53 L Ed 2d a t 292. Section 94-3-112, R.C.M. 1 9 4 7 , provides t h a t " [ a ] defense of j u s t i f i a b l e use of force, based on the provisions of t h i s chapter is an affirmative defense." The accompanying commission comment affords further c l a r i f i c a t i o n : "A defense based upon any of the provisions of t h i s chapter is an affirmative defense, and i f not put i n i s s u e by the prosecution's evidence, the defendant, t o r a i s e it a s an issue, must present some evidence thereon." B y denominating the j u s t i f i a b l e use of force a s an affirmative defense, Montana's statutory scheme does not require the prosecution t o prove the absence of affirmative defenses beyond a reasonable doubt as though t h e i r absence were an element of the crime charged. This point is even more evident when t h e elements of the crimes charged a r e d i s t i l l e d from the s t a t u t e s defining the offenses. Under section 94-5-201 (1) ( c ) , R.C.M. 1947, a person commits the offense of a s s a u l t when he (1) purposely or knowingly, ( 2 ) makes physical contact with an individual, ( 3 ) when the contact is of an insulting o r provoking nature. Under sec- t i o n 94-5-202(1) ( c ) , R.C.M. 1947, a person commits t h e offense of aggravated a s s a u l t when he (1) purposely o r knowingly, ( 2 ) causes apprehension of serious bodily injury i n another, (3) by use of a weapon, ( 4 ) when such apprehen- sion is reasonable. Clearly, absence of j u s t i f i c a t i o n is not an element of e i t h e r of these offenses. That being the case, we a r e l e f t with the task of reviewing Instruction No. 20 t o see i f it i s consistent with Montana law. I n S t a t e v. Grady (1975), 166 Mont. 168, 175, 531 P.2d 681, 684, t h i s Court stated: "The law i n Montana is t h a t although the burden of persuasion remains on the S t a t e , i n order t o a v a i l himself of t h e affirmative defense of s e l f - defense, the defendant has the burden of producing s u f f i c i e n t evidence on the issue t o r a i s e a rea- sonable doubt of h i s g u i l t . " Clearly then, the D i s t r i c t Court did not e r r i n giving Instruction No. 20. It is a c l e a r statement of the law i n Montana. The Montana County Attorneys Association argues t h a t a greater burden should be placed on a defendant--that is, a defendant should be required t o prove h i s affirmative defense by a preponderance of the evidence. In support of t h i s contention the Association points out t h a t t h i s Court has already imposed t h a t burden f o r other affirmative de- fenses. S t a t e v. ~ c K e n z i e (1978), Mont . , 581 P.2d 1205, 1233, 35 St.Rep. 759, 795 (mental disease o r d e f e c t ) ; and S t a t e v. S t u i t (1978), Mont. , 576 P.2d 264, 267, 35 St.Rep. 313, 317 (section 94-3-110, R.C.M. 1947, compulsion). This Court has expressly s t a t e d t h a t the t e s t t o be used when considering the affirmative defense of s e l f - defense i s "the burden of producing s u f f i c i e n t evidence on t h e issue t o r a i s e a reasonable doubt of h i s g u i l t . " Grady, 166 Mont. a t 175, 531 P.2d a t 684. W e reaffirm t h a t holding and hold t h a t when a criminal defendant seeks t o a v a i l himself of the affirmative defense of t h e use of force i n defense of a person pursuant t o section 94-3-102, R.C.M. 1947, he has the burden of producing s u f f i c i e n t evidence on t h e issue t o r a i s e a reasonable doubt of h i s g u i l t . Defendant's second issue f o r consideration concerns Instruction No. 9: "You a r e instructed t h a t the law presumes t h a t a person intends the ordinary consequences of h i s voluntary acts." Defendant argues t h i s instruction creates a conclusive presumption of criminal i n t e n t and is therefore unconstitu- t i o n a l . The S t a t e responds f i r s t by pointing out t h a t defendant did not object t o the giving of t h i s instruction a t t r i a l ; second by pointing out t h a t t h i s instruction has been approved by t h i s Court on a number of previous occa- sions; and t h i r d by arguing t h a t giving the instruction was not prejudicial. W e have i n t h e p a s t considered t h i s instruction and have decided t h a t it i s a proper instruction i n a criminal case. See S t a t e v. McKenzie, 581 P.2d a t 1 2 2 2 , 35 St.Rep. a t 780. Therefore, w e conclude the D i s t r i c t Court did not e r r i n giving Instruction No. 9 t o the jury. Defendant's t h i r d issue concerns whether the D i s t r i c t Court erred i n excluding the testimony of two witnesses, Charles Robinson and Mark Davis. Robinson's testimony, t h a t he had been attacked i n the bar by Mexican-Americans three months p r i o r t o the incident involved i n t h i s case, was excluded a s being too remote i n time and because Robinson could not identify t h e persons who attacked him. Addi- t i o n a l l y , there was no proof whatsoever t h a t the p a r t i e s involved i n the a l t e r c a t i o n s were the same. This testimony was properly excluded. Robinson did not witness the f i g h t involved i n t h i s case. H i s testimony, offered i n support of defendant's defense of j u s t i f i a b l e use of force, was i r r e l e - vant under these circumstances. Davis' testimony, that he had seen a man named Tim Van Luchen leave the bar a week before this incident with a broken jaw, was also excluded by the District Court. De- fendant argues that Davis should have been allowed to testify with respect to statements made at that time by Van Luchen concerning how his jaw had been broken under Rule 803, Mont.R.Evid. The portions of that rule cited by defendant read: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness. "(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. "(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excite- ment caused by the event or condition." The time element is important under either of these exceptions. The fact that Davis did not perceive the event which caused the injury creates a problem with respect to this time element. Thus, the District Court's determination to exclude the testimony was not clearly erroneous. Assuming, for the moment, that the testimony should not have been excluded as hearsay, the testimony was clearly irrelevant. Like Robinson's testimony, Davis' testimony was offered as proof of defendant's state of mind when he entered the bar. But defendant's own testimony indicated that these prior events were either unknown to him or had no effect on his state of mind. Therefore, defendant was not prejudiced by the exclusion of Davis' testimony. Defendant's fourth issue concerns the District Court's refusal to give defendant's offered instruction number 12: "You a r e hereby instructed t h a t a f t e r considering and weighing t h e evidence and reconciling any discrepancies i n the evidence, i f there is any reasonable hypothesis upon which you can base a v e r d i c t of not g u i l t y it is your duty t o return a v e r d i c t of not guilty." Defendant c i t e s S t a t e v. Fitzpatrick (1974), 163 Mont. 220, 225, 516 P.2d 605, 609, f o r the proposition t h a t " t o j u s t i f y conviction on circumstantial evidence, the f a c t s and circumstances must not only be e n t i r e l y consistent with theory of g u i l t , but must be inconsistent with any other r a t i o n a l e ( i . e . reasonable) conclusion." In t h i s regard, defendant is concerned with the f a c t t h a t the gun he used when he reentered t h e bar was never recovered. H e had argued t h a t the gun was a harmless teargas p i s t o l and not a r e a l gun. However, i n Fitzpatrick the S t a t e proved its case t o t a l l y by circumstantial evidence. In the i n s t a n t case the g r e a t majority of evidence offered a t t r i a l was d i r e c t evidence. Circumstantial evidence instructions a r e only required i n a case which depends e n t i r e l y on circumstantial evidence. S t a t e v. Mah Sam Hing (1931), 89 Mont. 178, 186, 295 P. 1014, 1017. It i s not e r r o r t o refuse circumstantial evidence instructions i f there is d i r e c t evidence introduced against t h e defendant. S t a t e v. White (1965), 1 4 6 Mont. Defendant's f i f t h issue, regarding the e f f e c t of e r r o r s by the D i s t r i c t Court, is merely a summary of arguments we have already addressed i n the previous four issues. W e find no m e r i t i n t h i s contention t h a t defendant was denied a f a i r t r i a l . Finally, defendant contends there was not s u f f i c i e n t evidence t o support the verdicts of g u i l t y entered against him. Again, defendant is primarily concerned with t h e evidence supporting h i s contention t h a t he acted i n a j u s t i - f i e d manner. But, "[wlhether t h e circumstances w e r e such a s t o j u s t i f y defendant's a c t i o n s is c l e a r l y a question of f a c t f o r t h e jury." S t a t e v. Larson (1978), Mont. I 574 P.2d 266, 269, 35 St.Rep. 69, 73. Defendant's conviction is affirmed. W e Concur: ~ 4 A 8 %&?Q Chief J u s t i c e | January 5, 1979 |
8d6f1907-8dfa-4934-b3d6-3b99e79d4694 | GROUNDWATER v WRIGHT | N/A | 14219 | Montana | Montana Supreme Court | January 9, 1979 | |
2a3c977e-081f-4065-afb3-f830e9717ec6 | BURLINGTON NORTHERN v DISTRICT COU | N/A | 89-096 | Montana | Montana Supreme Court | No. 89-96 IN THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA, ex rel., BURLINGTON NORTHERN RAILROAD COMPANY, Relator, -vs- THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA in and for the County of Cascade, HONORABLE THOMAS M. McKITTRICK, Judge thereof, Respondent. ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Relator: James A. Robischon (argued); Charles Deardm; Murphy, Robinson, Heckathorn & Phillips, ~ a l i s ~ e l l 7 Montana For Respondent: Terry Trieweiler (argued), Whitefish, Montana Submitted: J U ~ Y 7, 1989 Decided: September 19, 1989 Filed: Mr. Justice Fred J. Weber delivered the Opinion of the Court. This application for a writ of supervisory control arises from an order by the District Court of the Eighth Judicial District, Cascade County, Montana. We accept juris- diction of this application, and after receipt of briefs and oral argument, we order supervisory control. Burlington Northern Railroad Company (Burlington North- ern) was ordered by the District Court to answer certain interrogatories and was enjoined from any further discovery until compliance with the order. The District Court further ordered Burlington Northern to pay plaintiff's attorney fees and costs in bringing the motion to compel discovery. We affirm in part and reverse in part. This action arises from injuries received by Mr. Gilliland, an employee of Burlington Northern Railroad in Whitefish, Montana. On August 4, 1988, at approximately 2:50 a.m., while he was working as a utility foreman assisting a switch crew in switching operations, Mr. Gilliland was in- jured. A railroad car ran over him during a switching move- ment, causing a traumatic amputation of his right leg above the knee, and his right arm above the elbow. On August 4, 1988, just hours after the accident, a senior claims representative of Burlington Northern, Mr. Dale Roos, interviewed the two crew members who were operating the train which hit Mr. Gilliland. Mr. Roos also interviewed the supervising yardmaster. There were no eye witnesses to the accident. Mr. Roos also photographed the accident site that same morning. This action was filed on August 26, 1988, pursuant to Federal Employer's Liability Act. On August 30, 1988, plaintiff served interrogatories, requests for production, notice of deposition, and deposition subpoena duces tecum on defendant. This discovery included requests for defendant's entire investigative file, copies of Burlington Northern's safety rules and films, photographs of the accident site, investigative reports, and witness statements. On October 12, 1988, plaintiff deposed several witness- es, including Mr. Roos, and the Burlington Northern employees whose statements had been taken immediately after the acci- dent. The subpoena duces tecum, which had been issued to Mr. Roos, requested that he bring to the deposition his entire investigative file. The subpoena duces tecum specifically requested a number of items, including the photos of the accident site, and the witness statements he had taken. However, Mr. Roos did not bring the photographs to the depo- sition, stating rather that he had turned them over to defen- dant's lawyers. Mr. Roos did bring his file to the deposition, but the witness statements and a four-page list of safety materials with Mr. Roos' handwritten notations, had been removed. At the deposition he did produce handwritten statements of the Burlington Northern employees. On October 17, 1988, defendant served interrogatories and requests for production on plaintiff. Plaintiff's depo- sition by Burlington Northern was scheduled for November 10, 1988. During the late afternoon of November 9, plaintiff's attorney called defendant to request that the photographs of the accident scene be brought to the deposition. Co-counsel of the attorney who would be taking plaintiff's deposition agreed that the photos would be brought to the deposition. On November 10 the plaintiff and counsel for both par- ties arrived for the deposition. Plaintiff's counsel re- quested that plaintiff be allowed to view the photos prior to the commencement of the deposition. Counsel for Burlington Northern stated that he had not been informed that the prior viewing of the photographs was a condition to plaintiff's deposition. Counsel for Burlington Northern agreed to allow plaintiff to view the photos during a recess or after the deposition had been concluded, but he refused to delay com- mencement of the deposition while the plaintiff viewed the 49 photographs in question. Plaintiff's counsel refused to begin the deposition before the plaintiff had the opportunity to view the photographs of the accident site. As a result of this disagreement, plaintiff's counsel would not allow the deposition to proceed. Counsel for Burlington Northern emphasized that he would subpoena plaintiff for a future deposition. On the day following the aborted deposition plaintiff filed a motion to compel discovery and for sanctions. Plain- tiff's motion to compel requested that the court order pro- duction of defendant's entire investigative file, disclosure of the identity of all experts consulted by defendant, copies of Burlington Northern safety rules and films, all photo- graphs of the accident scene taken the morning of the injury, and all statements of crew members, employees, or witnesses. The motion included a request that defendant be prohibited from conducting any further discovery until ten days after compliance with the order, and also included a request for expenses incurred in bringing the motion to compel. On December 2, 1988, defendant filed a motion to compel discov- ery of answers to interrogatories and requests for production which had been served on plaintiff on October 17, 1988, but had not been answered. Defendant also requested a protective order regarding the identities of the non-witness experts, the witness statements obtained by Mr. Roos, the identity of Burlington Northern employees whose earnings were requested, and all privileged information contained in its file. On December 5, 1988, the court heard argument on these motions and ordered further briefing on whether defendant should be compelled to disclose identities of non-witness experts and witness statements. On February 10, 1989, the court issued an order compelling defendant to identify its non-witness experts and to disclose the witness statements taken by Mr. Roos. The court granted a partial protective order to defendant by ordering that certain employee earnings be disclosed, but keeping the employee identities confiden- tial. While the court ordered that the photographs and catalog of safety files be produced, these items had already been produced by defendant on December 13, 1989. The court's order also restrained defendant from pursuing any further discovery until ten days after it had complied with plain- tiff's discovery requests, and ordered defendant to pay $7,250 in attorney fees and $170 in costs to plaintiff. Defendant seeks relief from this order through a writ of supervisory control. I Is issuance of a writ of supervisory control appropriate regarding a motion to compel discovery? Defendant contends that a writ of supervisory control should issue in the present case because the District Court has ordered production of privileged material. Defendant contends that because it asserted its right to withhold privileged work product it is now being prevented from con- ducting any discovery. It contends that if it is required to disclose material which is privileged then "the harm is complete and cannot be rectified by appeal." Thus there is no adequate remedy. A discovery order is interlocutory and normally not appealable, and this Court has expressed disfavor in granting a writ in the context of a discovery issue. State ex rel. Guar. Ins. v. District Court (Mont. 1981), 634 P.2d 648, 38 St.Rep. 1682. However, this Court has issued a writ in two significant cases involving discovery issues. In Kuiper v. Dist. Court of Eighth Judicial Dist. (Mont 1981), 632 P.2d 694, 38 St.Rep. 1288, a writ issued to determine whether the District Court had properly granted a protective order. Kuiper in- volved free speech issues and public policy considerations in that the plaintiff alleged Goodyear Tire Company had covered up a defect in a product. Kuiper also involved issues of whether certain material was work product. In a second case, Jaap v. District Court of Eighth Judicial District (Mont. 1981), 623 P.2d 1389, 38 St.Rep. 280, this Court granted a writ because the District Court had exceeded its jurisdiction by allowing defendant's attorney to privately interview plaintiff's physicians. In Jaap the method of discovery was incorrect. In accepting jurisdiction to resolve a discovery dis- pute, the court in Nat. Farmers Un. Prop. & Cas. v. Denver D.C. (Colo. 1986), 718 P.2d 1044, 1046 stated: Initially we note that orders pertaining to discov- ery are interlocutory in character and generally are not reviewable in an original proceeding. However, we will exercise our original jurisdiction when an order will place a party at a significant disadvantage in litigating the merits of the case. Regarding the appropriateness of supervisory control, in Continental Oil v. Elks Nat. Foundation (Mont. 1989), 767 P.2d 1324, 1326, 46 St.Rep. 121, 123, this Court stated: Supervisory control is proper to control the course of litigation when the lower court has made a mistake of law or willfully disregarded the law so that a gross injustice is done and there is no adequate remedy by appeal; also, to prevent extend- ed and needless litigation. (Citation omitted. ) The present case involved discovery of potentially privileged material. The discoverability of the identity of non-witness experts presented an issue of first impression in Montana. The sanctions imposed on defendant are severe and exceed the authority of Rule 37, as will be discussed fur- ther. We conclude that the order would place the defendant at a significant disadvantage in litigating the merits of the case and therefore accept supervisory control. Did the District Court err in ordering disclosure of the identity of non-witness experts? Plaintiff's first set of interrogatories included the following request: INTERROGATORY NO. 7: State the names and addresses of all experts you have retained or conferred with concerning this action or any facts or circumstances which are relevant to this action; Defendants objected to this interrogatory on the basis that it seeks the identity of experts not to be called at trial. Defendant contends that this information is not discoverable, basing this assertion on Rule 26 (b) (4) (B) , M.R.Civ.P., which provides: A party may discover facts known or opinions held by an expert who has been retained or special- ly employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is imprac- ticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. Federal Rule 26(b)(4) was adopted in 1970 to standardize discovery of expert witnesses. Montana's Rule 26(b) (4) is identical to the federal rule. Subdivision (A) deals with discovery of experts who will be called to testify at trial. Subdivision (B) deals with non-witness experts. Thus the rule itself treats the two classes differently. While iden- tity is not mentioned in this rule, the Advisory Comments to the rule state: "As an ancillary procedure, a party may on a proper showing require the other party to name experts re- tained or specially employed. . . . " 48 F.R.D. 487, 504. Defendant contends that if the identity of experts who have been retained but who will not be called to testify at trial must be disclosed, then these witnesses could be con- tacted by the adverse party, and forced to testify. Defen- dant cites the case of Ager v. Jane C. Stormont Hospital and Training, Etc. (10th Cir. 1980), 622 F.2d 496, 503, for the holding that the identity of a non-witness expert is discov- erable only upon a showing of exceptional circumstances. The Ager court also stated that an in-camera inspection is appro- priate to initially determine the status of the expert. The Ager court based its holding on four policy considerations, as follows: . . . once the identities of retained or specially employed experts are disclosed, the protective provisions of the rule concerning facts known or opinions held by such experts are subverted. The expert may be contacted or his records obtained and information normally non-discoverable, under rule 26 (b) (4) (B) , revealed. Similarly, although perhaps rarer, the opponent may attempt to compel an expert retained or specially employed by an adverse party in anticipation of trial, but whom the adverse party does not intend to call, to testify at trial. Kaufman v. Edelstein, 539 F.2d 811 (2d Cir. 1976). The possibility also exists, although we do not suggest it would occur in this case, or that it would be proper, that a party may call his opponent to the stand and ask if certain experts were re- tained in anticipation of trial, but not called as a witness, thereby leaving with the jury an inference that the retaining party is attempting to suppress adverse facts or opinions. Finally, we agree with Ager's view that " [dl isclosure of the identities of [medical] consultative experts would inevitably lessen the number of candid opinions available as well as the number of consultants willing to even discuss a potential medical mal- practice claim with counsel . . . " Ager, 622 F.2d at 503. The Ager court further concluded that ' [tlhe party "seeking disclosure under Rule 26(b) (4) ( B ) , carries a heavy burden" in demonstrating the existence of exceptional circum- stances, ' citing Hoover v. United States Dept. of Interior, (5th Cir. 1980), 611 F.2d 1132, 1142 n. 13. The holding in Ager accords with the statutory language of Rule 26 (b) (4) (B) . In analyzing the recent case of Kuster v. Harner (D. Minn. 1986), 109 F.R.D. 372, a case which followed the Ager holding, one commentator explained that not only the policy reasons enumerated in Ager support non-disclosure of identity under this rule, but the language of the rule itself indicates that identity is protected. Rule 26(b) (4) establishes a general rule and then carves out different standards for testifying and non-testifying experts. The general rule does not expressly address the disclosure of an expert's identity. Instead, Rule 26 (b) (4) (A) (i) expressly mandates the disclosure of a testimonial expert's identity. The fact that the drafters thought it necessary to treat the identity of a testimonial expert separately may suggest that the identity of a non-testimonial expert need not be revealed. It seems reasonable to apply this restrictive approach not only to the facts and opinions of a non-testimonial expert but also to the expert's identity because when the Advisory Committee wanted an identity to be discovered, they provided for it as in Rule 26 (b) (4) (A) (i) . M. Tapken, "Kuster v. Harner: A New Interpretation of Federal Rule of Civil Procedure 26(b) (4) (R) ," 33 South Dakota L.Rev. 352 (1988). We adopt the holding in Ager because we agree with its rationale. There are no significant cases to the contrary, and the following cases demonstrate that the Aqer case is the current prevailing view on whether the identity of a non-witness expert is discoverable. (See, e.g., Detwiler v. Gall, Landau and Young Const. Co. (Wash.App. 1986), 712 ~ . 2 d 316; Kuster; In re Sinking of Barge Ranger I (U.S. D.C. Texas 1981), 92 F.R.D. 486; In re Pizza Time Theatre Securities Litigation (N.D. Ca. 1986), 113 F.R.D. 94). We hold that the identity of non-witness experts is discoverable under Rule 26 (b) (4) (B) , M.R.Civ.P., only upon a showing of exceptional circumstances. In the present case, plaintiff made no showing of need for this information. This portion of the District Court's order is therefore reversed. Did the District Court err in ordering disclosure of witness statements taken by the senior claims representative of the defendant? Within hours after Mr. Gilliland's accident, Mr. Dale Roos, the senior claims representative for Burlington North- ern, interviewed the two crew members who were operating the train which hit Mr. Gilliland. The supervising yardmaster was also interviewed. One of the interrogatory questions at issue sought discovery of these interviews. Defendant contends that this information is "work prod- uct" and is privileged, citing Rule 26(b)(3), M.R.Civ.P., which states in pertinent part: (3) Trial preparation: Materials. Subject to the provisions of subdivision (b) (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b) (1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has sub- stantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discov- ery of such materials when the required showing has been made, the court shall protect against disclo- sure of the mental impressions, conclusions, opin- ions, or legal theories of an attorney or other representative of a party concerning the litigation. Defendant contends that these statements were taken by an agent of defendant and were taken in anticipation of litiga- tion. Defendant contends that this information may only be discovered upon a showing of substantial need, and that the substantial equivalent cannot be obtained without undue hardship. Plaintiff contends that these statements were simply statements taken in the regular course of business and are discoverable without any showing of need. He refers this Court to our holding in Cantrell v. Henderson (1986), 221 Mont. 201, 718 P.2d 318, in which this Court concluded that a statement made by a defendant to his insurance company, before suit was filed, was not taken in anticipation of litigation and was therefore not privileged. We conclude that the holding in Cantrell controls the present issue, allowing discovery. The rules of civil proce- dure are premised upon a policy of liberal and broad discov- ery. We therefore begin with the premise that these statements are generally discoverable. The statements at issue were taken in the regular course of the railroad's claims department business, just as in Cantrell the disputed statement was taken in the regular course of the insurer's business. In the present case the contemporaneous state- ments, taken within 24 hours of the accident, are unique and non-duplicable and should be available to both parties. See Southern Railway Company v. Lanham (5th Cir. 1968), 403 F.2d 119; Stout v. Norfolk & W. Ry. Co. (U.S.D.C. Ohio 1981), 90 F.R.D. 160. The modern trend favors discovery of this type of information. For similar analyses, see Langdon v. Champi- on (Alaska 1988), 752 P.2d 999; Nat. Farmers - - - Un. Prop. and Cas.; Henry Enterprises, Inc., v. Smith (Kan. 19791, 592 P.2d - The analysis of this issue does not end with this ini- tial premise however, because no absolute rule can be formed to apply to every case. We agree with the court in Klaiber v . Orzel (Ariz. App. 19851, 714 P.2d 830, that a balance must be sought which requires appropriate disclosure of facts, without allowing a party to build its case on the other party's efforts. As the Klaiber court stated: Thus, the exercise of the trial court's discretion in each case must involve striking a balance be- tween ensuring that counsel for the requesting party is not permitted to build his case on the work done by his opponents and fostering sufficient disclosure to enable the ultimate determination of the issues to be based on a full development and presentation of the relevant facts. The first element requires a consideration of the efforts made by counsel to obtain the same or equivalent material. The second element requires a consider- ation of the nature of the material and the purpose for which it is sought. Klaiber, 714 P.2d at 834. In reaching this conclusion, we do emphasize that the plaintiff here has worked diligently to develop his case so that this statement does not apply in the present case. While we begin with the premise that these witness statements are taken in the ordinary course of business and are discoverable, we recognize that in such statements there may very well be portions which are not discoverable because they constitute work product and are therefore privileged. Rule 26 (b) (3) precludes inquiry into information taken "in anticipation of litigation." This standard stems from the theory that attorney "work product" is privileged, a concept first articulated in Hickman v. Taylor (1947), 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. This work product doctrine, incorporated into Rule 26(b) (3), gives a qualified immunity to materials prepared "in anticipation of litiga- tion," and nearly absolute immunity to the "mental impres- sions, conclusions, opinions, or legal theories of an attorney or other representative of a party to the litiga- tion." Kuiper, 632 P.2d at 701. If the present witness statements contain material which may be privileged, the burden is on Burlington Northern, the party opposing discovery, to make a motion to limit discovery and to make a showing that the material sought is privileged. If necessary, an in-camera inspection by the court is appro- priate to determine whether certain portions of the material should be protected. Any material which reflects attorney thought processes is clearly not discoverable. As mentioned, a showing that information was taken in anticipation of litigation gives a qualified immunity. We hold that the witness statements were taken in the ordinary course of business and are therefore discoverable. In the present case defendant has cited to the court no facts which would render these statements privileged. We affirm the District Court's order of disclosure of these statements. Did the District Court err in enjoining defendant from any other discovery until it had complied with the court's discovery order? The hearing on plaintiff's motion to compel discovery and for sanctions was held on December 5, 1988. The court issued its order on February 10, 1989. After ordering dis- closure of the identity of non-witness experts, and disclo- sure of the witness statements, the District Court enjoined defendant from initiating any further discovery until ten days after compliance with the order. Plaintiff's motion for a protective order and to quash the subpoena duces tecum which had been served on him, compelling him to appear for a deposition, was granted. The court's order specifically ordered that plaintiff's deposition could not be taken until ten days after defendant had fully complied with the discov- ery order. The court then set a trial date for September 1989. Defendant urges that this in junction against discovery is both inappropriate and overly severe. Defendant contends that it did not refuse to comply with an order since no discovery order had been issued. Defendant also contends that the sanction is inappropriate because defendant's oppo- sition to the motion to compel was substantially justified. In the alternative, defendant urges that the sanction imposed was overly severe in relation to the alleged abuses. Rule 37, M.R.Civ.P., authorizes sanctions for discovery abuses. Both an overview of Rule 37 and a close examination of the statutory language aids in our understanding of how this rule should be applied. Rule 37 of the Federal Rules of Civil Procedure was enacted because the discovery rules are not self-executing and the framers recognized the possibili- ties of abuse. Our Montana Rule 37 is identical to the federal rule. Rule 37 was enacted in 1938 and stood virtually unchanged until 1970 when it was substantially revised. The 1970 amendments were intended to encourage more frequent use of sanctions for abuse. Wright, Miller, & Kane, Federal Practice and Procedure, 5 2281, p. 756 (1970). Rule 37, M.R.Civ.P., is divided into four subsections. The distinctions between each section must be recognized in analyzing the facts of the present case. Rule 37(a) provides that a party may apply for an order compelling discovery. If the motion is granted, the court shall award attorney fees and costs to the moving party, "unless the opposition to the motion was substantially justified." This same rule applies to the party opposing the motion if the motion is denied. Rule 37(a) ( 4 ) . Rule 37(b) provides for sanctions for failure to comply with an order. It is not necessary that the failure be willful. It appears that a finding of willfulness is rele- vant only to the choice of sanction. Societe Internationale v. Rogers (1958), 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255. In conjunction, Rules 37(a) and (b) contemplate giving the party a second chance to comply with discovery requests before awarding sanctions. Rule 37(d) authorizes sanctions for 3 specific failures: 1) failure to attend at one's own deposition, 2) failure to serve answers to interrogatories; or 3) failure to serve a written response to a request for production. In the event of one of these failures, a court may issue sanctions, with- out first ordering the non-responding party to comply. No second chance is contemplated. It is important to note this distinction between Rule 37(b) and Rule 37(d). Under section (b) no sanctions are available without a previous court order; under section (dl no order is necessary, however, sanctions are only authorized for the three enumerated failures. Montana has acknowledged this distinction in former cases. See First Bank (N.A.)-Billings v. Heidema (1986), 219 Mont. 373, 711 P.2d 1384 (affirming judgment in favor of bank entered by trial court pursuant to Rules 37 (b) and (d) for borrower's willful refusal to attend own deposition, refusal to produce documents, and ignoring court orders directing compliance) ; Dassori v. Roy Stanley Chevrolet Co. (Mont. 1986), 728 P.2d 430, 43 St.Rep. 2113, (holding that a motion to compel is not required as a condition to sanctions under Rule 37(d), and affirming trial court's dismissal of com- plaint as a sanction for failure to respond to interrogato- ries; Thibaudeau v. Uglum (1982), 201 Mont. 260, 653 P.2d 855, (refusing to instruct trial court on remand that it should award sanctions, noting that Rule 37(b) requires failure to comply with an order and there had been no order). In the present case defendant urges that sanctions were not appropriate pursuant to Rule 37 (b) because the defendant had not failed to comply with an order. We agree with defen- dant's contention. We further conclude that Rule 37 (d) does not authorize sanctions in the present case because defendant did not violate one of the express instances in which it may apply. Therefore, there was no provision within Rule 37 authorizing the sanction imposed in the present case. Plaintiff contends that the language of Rule 37 need not be strictly adhered to in determining the appropriateness of the sanction, since the court has inherent power and broad discretion in imposing sanctions. We decline to endorse the doctrine of a court's inherent power to award sanctions. Although some courts still resort to the use of inherent powers in assessing sanctions, it is argued that the inherent powers doctrine promotes inconsistency and uncertainty, creates a "randomly-enforced system," and dilutes the effect of Rule 37. See A. Behar, "The Misuse of Inherent Powers When Imposing Sanctions for Discovery Abuse: the Exclusivity of Rule 37," 9 Cardozo Rev. 1779, (1988). We agree with this rationale and conclude that Rule 37 should be the source of authority in assessing sanctions for discovery abuse. Broad discretion is available to the trial court within the statutory language of this rule without reference to an inherent power theory. Defendant contends that the sanction imposed was too severe in relation to the abuse, and we agree. The agent of defendant, Mr. Roos, did not bring the photographs of the accident site to his deposition on October 12, thus disobey- ing the subpoena duces tecum which had been issued to him on August 30, 1988. These photographs had still not been pro- duced by November 12 at plaintiff's deposition, although they had been listed in a request for production on August 30. Compounding this lack of responsiveness, the court was obvi- ously incensed over defendant's conduct regarding the disput- ed photographs at plaintiff's deposition. Our review of the record however, reveals that there were no other significant discovery abuses by defendant. We note that by October 12, 1988, only two months after the accident, plaintiff had deposed seven of defendant's employees, including the senior claim's representative, Mr. Dale Roos, and the employees who were working the morning of the accident who gave a statement to Mr. Roos. Plaintiff had also received the handwritten statements of these crew members. On October 14, 1988, defendant sent responses to plaintiff's interrogatories and requests for production. Aside from the material to which defendant interposed an objection, the answers were respon- sive. Supplemental responses were later sent to plaintiff. Thus within two and a half months from the date of injury, plaintiff had obtained most of the requested discovery. Plaintiff has not been denied information; in fact, the amount of discovery accomplished by plaintiff in a short amount of time demonstrates that defendant has been coopera- tive in discovery. In contrast, nearly a year after the accident, plaintiff, the only witness to the accident, still has not been deposed by defendant. Prohibiting discovery is a severe sanction, compounded in this case by the setting of a September 1989 trial date. The record does not reveal any egregious conduct by defendant which would warrant the severe sanctions imposed in this case. Justice Sheehy's dissent suggests the prohibition on discovery was authorized as part of a protective order pursuant to Rule 26 (c) so that our discussion of Rule 37 is not appropriate. We point out that a protective order under Rule 26 (c) is authorized to protect a party from annoyance, embarrassment, oppression or undue burden or expense. We conclude that none of these are present in this case. We regret that experienced counsel were not able to resolve this issue between themselves through reasonable communication. While we understand that attorneys "in the pit" may react in an impulsive or instinctive manner, such disputes are best resolved between the attorneys. Unfortu- nately a minor dispute evolved into a significant court issue where telephone calls could have resolved the questions. The portion of the District Court's order which enjoined defendant from any further discovery until ten days after compliance with the order is therefore vacated. We also vacate the September 1989 trial date and order the court to reset a new trial date, allowing both parties adequate time to pursue discovery. v Did the District Court err in requiring defendant to pay plaintiff's attorney fees and costs incurred in bringing the motion to compel? The District Court order of February 10, 1989, ordered defendant to pay $7250 in attorney fees and $170 in costs which were incurred by plaintiff in bringing the motion to compel discovery. Defendant argues that expenses may be awarded pursuant to Rule 37 (a) (4) unless "the opposition to the motion was substantially justified." Defendant contends that its oppo- sition to disclosure of the identity of non-witness experts and its opposition to disclosure of the witness statements was substantially justified, as demonstrated by the fact that these issues were appealed to this Court. Defendant also contends that its opposition to disclosure of the earnings of certain Burlington Northern employees was substantially justified as demonstrated by the fact that the District Court granted a partial protective order on this issue, protecting the identities of the employees. From the record, however, it is clear that defendant's non-production of the photographs of the accident site at least partially motivated both the motion to compel, and the District Court's order. These photographs were clearly discoverable and at no point did defendant dispute this. However, defendant was dilatory in producing the photographs, did not obey the subpoena duces tecum, and was uncooperative at plaintiff's deposition by refusing to allow plaintiff to view the photos prior to being deposed. It is understandable that at this point, plaintiff's counsel decided that a motion to compel discovery was necessary, and while defendant did not oppose plaintiff's entitlement to these photos, and in fact did deliver the photographs on December 13, 1988 prior t o t h e c o u r t ' s o r d e r , we conclude t h a t t h e motion t o compel and t h e c o u r t ' s order were l a r g e l y i n response t o t h e f a c t t h a t t h e photographs were not produced i n a timely manner. Thus we conclude t h a t t h e expenses were appropriately awarded pursuant t o Rule 37 ( a ) ( 4 ) . Defendants a l s o contend t h a t t h i s award may n o t be affirmed because an award of expenses under Rule 37(a) ( 4 ) can only be made a f t e r a hearing on t h e i s s u e , and no hearing was held i n t h e p r e s e n t case. Rule 37(a) ( 4 ) does n o t r e q u i r e a hearing b u t merely an opportunity f o r a hearing. The record does n o t contain a request f o r a hearing before t h e D i s t r i c t Court on t h e p a r t of t h e defendant. W e a f f i r m t h e award of a t t o r n e y f e e s and c o s t s . W e Concur: J u s t i c e s Justice L.C. Gulbrandson specially concurring and dissenting. I concur with the majority opinion insofar as the first four issues are concerned, but I respectfully dissent to the affirmation of the award of $7,250 in plaintiff's attorney fees, and costs, in bringing the motion to compel discovery. It appears that the attorney fees fixed by the District Court clearly involved items which the majority has now ruled were not discoverable. I would remand the issue attorney fees and costs to the District Court for Justice R. C. McDonough dissents: The facts in this case clearly show a squabble which escalated between advocates relative to discovery. Such differences are commonplace at the trial court level and are disposed of in the discretion of the trial judge. These orders are interlocutory and non-appealable by our rules for the losing party normally has an adequate remedy on appeal from the final judgment. Here, the decisions relative to discovery did not dispose of any major aspect of the case with any finality, deny any substantive fundamental right which would be prejudicial to the defendant, nor are there any procedural entanglements. This supervision of the trial court is not necessary or proper. I would deny the writ. Justice John C. Sheehy, dissenting: The factual background of this case is one where the railroad counsel obstructively frustrated the discovery process. District Judge McKittrick, faced with this record of implacable belligerence, restrained himself remarkably by not finding the objectors in contempt and limiting his order to a mere assessment of attorney fees and costs, which this Court has no alternative but to sustain. The opinion of this Court while not condoning the obstinate blocking of discovery in this case, is at some pains not to hurt anybody's feelings. The result is a series of nonapplicable statements respecting discovery (especially about Rule 37) which are not pertinent to this case, and which can only be a source of difficulty in future cases when problems of discovery arise. Identity Of Experts Not To Be Called The order of the ~istrict Court on this subject was as follows : 1. The defendant is ordered to respond to plaintiff's interrogatory number 7 by identifying by name and address those experts it has retained and conferred with even though it has no intention of calling them as witnesses at the time of trial. This information is to be in addition to that information required by Rule 26, M.R.Civ.P., concerning those experts whom the defendant intends to call as witnesses at the time of trial. In ordering the disclosure of these names, the court concurs with the rea- soning set forth by the United States District Court for the District of Maryland, in Baki v. - BF Diamond Con- struction - Co. (1976T, 71 F.R.D. 179. The opinion of this Court holds that the identity of nonwitness experts is discoverable under Rule 26(b) ( 4 ) (B), M.R.Civ.P., "only upon showing of exceptional circumstances." It further holds that because the plaintiff made no showing of need for this information that portion of the District Court's order is reversed. That was not the reason given by the railroad for refusing to make such disclosure. The interrogatories, and the responses thereto, are as follows: Interrogatory No. 7: State the names and - - addresses of all experts you have re- tained or conferred with concerning this action or any facts or circumstances which are relevant to this action; and (a) state which experts you expect to call as an expert witness at trial; Answer: Objection must be interposed to this interrogatory to the extent that it seeks the identity of experts not to be called as expert witnesses at trial as it seeks information which constitutes work product and seeks to invade the mental impressions, conclusions, opin- ions or legal theories of BN1s counsel. With regard to expert witnesses who will be called to testify, no decision has been made as yet as to what such wit- nesses, if any, will testify for BN. It is likely that one or more of plain- tiff's treating physician or other medical providers will be called. Iterrogatory - - No. 8: Identify all per- sons whom you have consulted as experts but do not intend to call at a trial to testify by giving their names and ad- dresses and qualifications. Answer: See objection posed to inter- rogatory number 7. Not only did the railroad counsel not identify experts who will not be called, they also did not name experts they intended to call at the time of trial. In Detwiler v. Gall, Landau & Young construction Co. (Wash. App. 1986), 712 P.2d 316, 319, the court warned coun- sel about playing games with the identities of expert wit- nesses. It said: Although our decision precludes discov- ery of the identities of nonwitness experts without a showing of exceptional circumstances, we caution counsel against using CR 26(b) (4) (B) as a tactic to delay discovery of an expert witness who will be called to testify at trial. CR 26 (e) (1) places a duty upon the parties to seasonably supplement re- sponses to interrogatories requesting information about expert witnesses. Exclusion of the expert ' s testimony is an appropriate sanction for failure to suppfy such supplementary responses (cltlng cases). The real difficulty with the decision relating to the identity of experts not expected to be called for testimony is that nothing - - in this record shows that any such experts exist. This Court may have been jockeyed into giving an advisory opinion on a purely-imagined factual situation. Moreover, it is quite possible in this case that the experts consulted or retained by the employer are actually employees of the corporation who are expert in their field. ~urlington Northern may have, and undoubtedly does have, people in its employ who are outstanding experts on particular subjects, for example the engineering and operation of air brake sys- tems on railroad cars. If such persons exist, plaintiff is entitled to discovery as to "the identity and location of persons having knowledge of any discoverable matter." Rule In this case we should follow the lead of the North Carolina Court of Appeals which suggested that with respect to such expert witnesses not expected to be called, that the court should hold an in camera review to consider (1) whether - the expert has information of discoverable matter, ( 2 ) how the expert acquired the information, and (3) whether the party expects to call the expert as a witness. Mack v. Moore, et al. (C.A. N.C. 1988), 372 S.E.2d 314. It is remarkable that the opinion does not mention in any respect the case relied upon by the District Court on this subject. ~ a k i v. BF ~iamond construction Co. (1976), 71 F.R.D. 179. Statements Of Witnesses The following is the request for production and re- sponse thereto relating to this subject: Request for Production No. 14: All statements taken from crew members, railroad employees, or other witnesses and which pertain to the accident in which Ed Gilliland was injured at the BN railroad yard in Whitefish, Montana, on August 4, 1988. Response: Objection must be interposed as to this request to the extent that it seeks material prepared in anticipation of litigation, work product, or trial material. Subject to said objection, see copies of handwritten statements of Steve Bruce, Greg Loberg, Russ ~ i l e y and ~obbie Seward produced in response to subpoena duces tecum and attached to the deposition of Mr. Ruse. Also see copies of statements attached to the deposition of Mr. Riley. In handling this subject, the ~istrict Court ordered: 3. Pursuant to the Montana Supreme Court's decision in Cantreli v. - Henderson, 718 P.2d 3 1 8 (Mont. 1 9 8 6 ) , the defendant is ordered to respond to plaintiff's request for production no. 1 4 by providing the plaintiff's attorney a copy of all statements or transcripts of all recorded statements taken from crew members, railroad employees, or other witnesses, and which pertain to the accident in which the plaintiff was injured at the defendant's railroad yard in Whitefish, Montana, on August 4, 1 9 8 8 . This order is intended to specif- ically apply to those recorded state- ments taken from the defendant's crew members by Dale Roos, the railroad's claims agent, on the morning of August 4 , 1988, shortly after the plaintiff's injury occurred. There is not any doubt now that plaintiff was entitled to these statements upon his request for production, and was so entitled at every stage of the proceedings before us. That issue has been decided in Cantrell v. Henderson, relied on by the ~istrict Court, supra. There should not have been a moment's quibble about the right of the plaintiff to have those statements when requested. Instead of so holding, and ending the matter, the plural opinion of this Court goes on gratuitously to talk about "allowing a party to build its case on the other par- ty's efforts.'' That subject has no relevance to the produc- tion of statements from witnesses taken in the ordinary course of business. This Court then goes on to conclude that if these witness statements contain material which may be privileged there should be some sort of - in camera inspection relating to them. That holding, of course, waters down considerably the effect of Cantrell v. Henderson, and is completely unnecessary to a decision on the subject of the witness statements before us here. Photographs and the Subpoena Duces Tecum The request for photographs and the response was as follows : Request for production No. 10: All photographs taken of the scene where plaintiff was injured on August 4, 1988, or any of the railroad cars on Track 2 at the time of plaintiff's injury. Response: Defendant will agree to an exchange of photographs at a mutually agreeable time and place. That response, filed in the District Court on October 14, 1988, was nothing less than a denial of production. The production of discoverable photographs cannot be conditioned upon a statement of "I will if you will." On this subject the ~istrict Court ordered: 2. The defendant is ordered to respond to plaintiff's request for production number 10 by having duplicate photo- graphs made of all photographs taken by the defendant or any of its agent at the scene where plaintiff was injured or of any of the railroad cars at the scene of plaintiff's injury at the time of his injury. These copies should then be sent to the office of the plaintiff's attorney with a bill for the costs of duplication. In the alternative, the defendant's attorneys can send the negatives to plaintiff's attorney who can have duplicate photographs made at his own expense and then return the negatives to the defendant. Under Rule 34 (a) , M.R.civ.P., a party may request the production of documents, including photographs. Under Rule 34 (b) , the request may be made without leave of court. The party upon whom the request is made must serve a written response within the time allowed under Rule 34 (b) and if the request is objected to, "the reasons for objecting shall be stated." The foregoing response does not include any reasons for objecting to the production of the photographs. Thus, it was that on November 10, 1988, when the deposition of the plaintiff was scheduled to be taken by the defendant, counsel for the plaintiff requested that the photographs be presented to the plaintiff before the deposition was commenced. Counsel for Burlington Northern refused to allow the plaintiff to view the photos before his deposition but stated they would be made available during a recess or after the deposition had been concluded. This, although since October 14, 1988, or earlier, plaintiff was absolutely entitled under the rules to the production of the photographs for his inspection and copying. In fact, in this case, plaintiff was entitled to the production of the photographs and of the statements taken of the witnesses at a much earlier time. On August 26, 1988, plaintiff had procured the issuance of subpoenae to witnesses Steve Bruce, Russ Riley and Greg Loberg. Also issued were subpoenae duces tecum for Dale Roos, Robbie Seward, John A. Sitton, and ~ i c h Wetsch. In the subpoenae duces tecum, the witnesses were required to bring with them to their deposi- tions, among other items, the photographs and the statements taken of the witnesses immediately following the injury. These were not produced at the time of the depositions, although no written objections were filed by the railroad at or prior to the time of the taking of the depositions. Some of these non-party witnesses were told by counsel that as to other statements, they did not have to produce them, and that the witnesses could withhold those statements if they wanted to. The opinion makes no mention of Rule 45, and its affect on this case. Rule 45 (dl provides the method of taking the deposition of a witness who is not a party to the action. The rule specifically allows subpoenae commanding the witness to produce and permit inspection and copying of books, pa- pers, documents and tangible things which fall within the scope of the examination permitted by Rule 26(b). Further, under Rule 45 (d) , if a person objects to the production of documents under a subpoena, that objection must be made in writing within ten days after the service of the subpoena, or at or before the time specified in the subpoena for compliance. Only when objection is made in writing is the party serving the subpoena not entitled to inspect and copy the material unless an order of the court is obtained. Rule 45 (f) provides that any person who without adequate excuse fails to obey a subpoena duces tecum served upon him may be deemed in contempt of court. At the depositions of these witnesses, neither the statements nor the photographs were produced, despite the properly served subpoenae duces tecum. We find in Moore's Federal Practice, Vol. 5A pg. 45-20 this statement: A party or witness cannot refuse to obey a subpoena that is validly served on him on the ground that the documents called for are irrelevant or immaterial, or the ground of privilege against self-incrim- ination, or on any other ground, but should make a motion to quash within the time provided in Rule 45 (b) . On this subject, Moore felt it proper to quote the language of the late chief ~ustice inc cent in United States v. Bryan (1950), 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884: Persons summoned as witnesses by compe- tent authority have certain minimum duties and obligations which are neces- sary concessions to the public interest in the orderly operation of legislative and judicial machinery. A subpoena has never been treated as an invitation to a game of hare and hounds, in which the witness must testify only if cornered at the end of the chase. If that were the case, then, indeed, the great power of testimonial compulsion, so necessary to the effective functioning of courts and legislatures, would be a nullity. We have often iterated the importance of this public duty, which every person within the jurisdiction of the Govern- ment is bound to perform when properly sumrnoned . Plaintiff in this case was proceeding properly under Rule 45 in obtaining discovery and production of documents from a person not a party. Rule 34 deals with the discovery or production of items from a party. Rule 45(b) provides for a subpoena duces tecum to any person, whether or not a party, to produce documents, papers, or other enumerated items at the taking of a deposition or at a hearing or trial. The record here is clear that the railroad not only contumaciously refused to produce documents after a proper request for production under Rule 34; it earlier allowed its witness employees to risk contempt of court in failing to produce those pertinent documents when their depositions were taken after the service upon them of a subpoena duces tecum. Severity of Sanctions I particularly disagree with the portion of the opinion which recites that "the record does not reveal any egregious conduct by defendant which would warrant the severe sanctions imposed in this case." Apart from failing to produce the photographs in a timely manner, the opinion states "our review of the record, however, reveals that there were no other significant discov- ery abuses by defendant." The opinion then goes on to excuse the tactics of the defendant on the grounds that "most of the requested discovery" had been supplied. The defendant here had refused to produce statements to which the plaintiff was clearly entitled under Cantrell v. Henderson (Mont. 1986), 718 P.2d 318; had withheld the photo- graphs subject to a subpoena duces tecum, at a nonparty's deposition, and refused to produce them at the plaintiff's deposition; and had told nonparty witnesses that they did not have to produce their personal statements if they did not want to. If these actions do not amount to egregious con- duct, then this Court has raised the threshhold of egregious conduct so high that no recalcitrant can overstep it. The purported "sanction" reversed by the opinion is not a sanction at all but rather a response to a motion for a protective order granted by the ~istrict Court. On November 11, 1988, the plaintiff moved the court for its order compelling the defendant to produce the evidence that had been withheld. At the defendant's request, a hear- ing on that motion was not scheduled until December 5, 1988. On November 11, 1988, the plaintiff also moved the court for a protective order enjoining the defendant from conducting any further discovery in the case until ten days after it had responded to plaintiff's request for discovery by producing the information and documents that were being withheld. Following the motion for a protective order by the plaintiff, the defendant issued a notice of deposition on November 28, 1988, that the deposition of the plaintiff would be taken in Kalispell on Wednesday, December 7, 1988. On November 21, 1988, the District Court issued its order to show cause to Dale Roos, a nonparty witness, and to Charles Dearden and James Robischon, the defendant's counsel, to appear and show cause on December 5, 1988, why each of them should not individually be held in contempt for intentional disregard of a lawful subpoena. (The ~istrict Court has yet to rule on this show-cause order.) In response, on December 2, 1988, the defendant filed in the District Court a motion to dismiss plaintiff's com- plaint, or in the alternative, to order discovery, requiring the plaintiff to answer interrogatories and requests for production. In that motion the defendant ~urlinqton Northern moved the court "to make an order requiring plaintiff to respond to discovery before he undertakes any other discovery and such other orders that the court may deem just." (The same protective order this Court finds "severe.") At the December 5, 1988 hearing before the District Court, the court ruled from the bench on most of the plain- tiff's motions relating to discovery. The court took two issues under advisement and requested additional briefing. One of the issues was the identification of nontestifying expert witnesses. After the December 5 hearing, when it was clear what the court's ruling on photographs was going to be, the defen- dant mailed, on December 13, 1988, the photographs to the plaintiff's attorney. On February 10, 1989, the court issued its written order in this cause. In three separate paragraphs in the order, the ~istrict Court ordered the defendant to produce a catalogue of safety or instructional films or brochures to the plaintiff, to produce the photographs, and to produce the statements taken from the witnesses immediately following the accident by the agent of Burlington Northern. The court went on to make two further orders that it deemed necessary in the premises : IT IS FURTHER ORDERED that due to the defendant's failure to provide the aforementioned information and evidence prior to being ordered to do so, the following relief is granted: 1. In the event that the statements from Greg Loberg, Robbie Seward and Steve Bruce suggest areas of examination which could have been covered during their previous depositions if their statements had been produced when re- quested, plaintiff may re-depose those witnesses. 2. The defendant is enjoined from conducting any further discovery in this case until at least ten days after it has complied with this order by respond- ing to the aforementioned interrogato- rles and producing those items it has been ordered to produce. Thus, the District Court, in the face of a clear record of obstruction on the part of the railroad, responded to the motion for a protective order and entered the requirement of a ten-day compliance before further discovery could be had by the defendant. The effect of the opinion is to remove this protective order and force the plaintiff to a deposition in spite of the power of the District Court to control the sequence and timing of discovery. Rule 26(d), M.R.civ.P. Thus, the discussion in the opinion regarding Rule 37 and the applicable sanctions in it has no relevance here. This was a protective order, issued by the ~istrict Court under Rule 26(c), M.R.civ.P., which provides: Protective orders. Upon motion by a party or by the person from whom discov- ery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court or the district court where the deposition is to be taken, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppres- sion, or undue burden or expense, in-- - - cluding one or more o f t h e following: (1) that the discovery not be had; ( 2 ) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; ( 3 ) that the discovery may be had only by a method of discovery other than that. selected by the party seeking discovery; . . . (Emphasis supplied.) The protective order issued by the ~istrict Court was clearly well within its power, and should be upheld by this Court. ina ally, it should be noted that the so-called "sanc- tion" is one completely within the power of the defendant Burlington Northern to remove. All Burlington Northern had to do was to comply with a just order of the District Court and the limitation would be removed. If this "sanction" constituted punishment, it is punishment which the defendant has willingly embraced. I agree that the plaintiff here is entitled to the attorney fees and costs as fixed by the District Court; otherwise I disagree with the rationale and approach of the opinion in this cause. After this dissent was first proposed, there was inserted in the opinion the language that Rule 26(c) (the protective order) does not apply because there has been no annoyance, embarrassment, oppression, or undue burden or expense under the Rule. That gratuitous conclusion is completely unsupported in the record. The District Court has ruled that plaintiff has been put to undue burden and expense in excess of $7,000. The oppressive obstinancy of the railroad to refuse discovery in this case fits every category of the preconditions in Rule 26 (c) for a protective order. Moreover, the gratuitous conclusion ignores the power of the district court, in the interests of justice, to control the timing and sequence of discovery under Rule 26(d). It should be clear to all that a district court has a broad discretion to control discovery so as to make the rules of discovery work properly, and that is what the District Court strove to do in this case. This opinion in itself frustrates that process. On August 28, 1989, while this case was still pending in this Court, and before the opinion was in final form, a majority of Justices, without a Court conference on the subject, entered an order vacating the trial date of this cause that had been set by the District Court. The result was that the plaintiff, whose income from employment stopped on the date of his injury, faces a further delay before he can arrange a trial date in the District Court. In his desperation, the plaintiff filed a motion in this Court on September 5, 1989, offering to waive his right to all discovery and expenses if we would simply dismiss the application. From that viewpoint Justice McDonough is correct in his dissent. We have not serviced justice or the parties by the holding in this case. / ' I c o n c u r i n t h e d i s s e n t s o f M r . ' - J u s t i c e R . C . McDonough a n d M r . J u s t i c e J o h n C . S h e e h y . I | September 19, 1989 |
feead96d-8764-4672-a038-c9a4f0b2a88b | BRODNIAK v STATE | N/A | 88-311 | Montana | Montana Supreme Court | No. 88-311 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN THE MATTER OF THE PETITION FOR POST-CONVICTION RELIEF OF JAMES M. BRODNIAK, Petitioner and Appellant, -VS- STATE OF MONTANA, Respondent. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable James B. Wheelis, Judge presiding. COUNSEL OF RECORD: For Appellant: William Boggs argued, Missoula, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Dorothy McCarter argued, Asst. Atty. General, Helena Robert L. Deschamps, 111, County Attorney, iss sou la, Montana Decided: September 14, 1989 Justice Fred F. Weber delivered the Opinion of the Court. James M. Brodniak appeals from an order of the Fourth Judicial District Court, Missoula County, denying his peti- tion for post-conviction relief. We affirm. We phrase the issues as follows: 1. Did the Montana Supreme Court apply the proper harmless error test during its review of Mr. Brodniak's criminal trial? 2. Does the harmless error analysis applied by the Montana Supreme Court in its review of Mr. Brodniak's crimi- nal trial contravene the due process clause requirement that guilt be proven beyond a reasonable doubt? 3. As a matter of law, can evidence be found to be overwhelming for purposes of harmless error analysis where one or more members of the appellate tribunal are not con- vinced that it is? A detailed description of the events leading to James M. Brodniak's conviction of sexual intercourse without consent can be found in our opinion considering his direct appeal, State v. Brodniak (1986), 221 Mont. 212, 718 P.2d 322. Therefore, we only briefly describe the facts here. In the early morning hours of May 10, 1984, D.P. left a Missoula bar with James M. Brodniak. The couple purchased a six-pack of beer and proceeded to drink and talk in a dormi- tory parking lot at the University of Montana. At trial, D.P. testified that, after a while, she asked Mr. Brodniak to take her home. Instead, he took her outside of Missoula to Pattee Canyon, locked the car doors, grabbed her hair, and forced her to engage in sexual acts. Mr. Brodniak, on the other hand, testified that he took D.P. to Pattee Canyon because she suggested that they go to a wooded area where she could to to the bathroom. He claimed that they then engaged in consensual sexual acts. He admitted, however, that toward the end of the incident he became violent, pulling D.P.'s hair and choking her. After the incident, D.P. was examined by a medical doctor. The doctor testified that the injuries suffered by D.P. were probably not a common result of consensual sexual intercourse. A nurse at the hospital observed that a "gross amount" of hair came out while D.P. combed her hair. The bureau chief of the Montana Criminalistic Laboratory testi- fied that several long hairs found in Mr. Brodniak's car belonged to D.P. and that most of her hair had been pulled from her head with painful force. The psychologist who examined D.P. testified that she had an IQ of approximately 78. He also testified that her psychological condition was consistent with all of the symp- toms of rape trauma syndrome (RTS) . In addition, he gave statistical testimony on the percentage of false accusations in rape cases and testified that he did not believe that D.P. was malingering. After a four-day trial, Mr. Brodniak was convicted by a jury of the charge of sexual intercourse without consent. He was designated a dangerous offender and sentenced to 20 years in the Montana State Prison. In Brodniak, we affirmed the conviction. In our opinion we discussed the admissibility of RTS testimony and concluded that, although RTS testimony is generally admissible, it was error for the State's expert witness to testify as to his belief that D.P. was not malingering and to the statistical percentages of false accusations. We stated that such testi- mony was "improper comment on the credibility" of D.P. Brodniak, 221 Mont. at 222, 718 P.2d at 329. We held, howev- er, that the admission of such testimony constituted only harmless error because the State's evidence against Mr. Brodniak and his own admissions were overwhelming. Brodniak, 221 Mont. at 223, 718 P.2d at 329. We also determined that three other errors were commit- ted during the criminal trial, but refused to reverse the conviction, holding that each of the additional errors did not prejudice Mr. Brodniak. Mr. Brodniak's petition for rehearing, which was summarily denied, was based on the doctrine of cumulative error, not on the issue of the stan- dard of review employed in determining harmless error. On January 16, 1987, Mr. Brodniak filed a habeas corpus petition in the United States District Court for the District of Montana, Missoula Division, Brodniak v. Risley, cause no. CV-87-29-MI alleging that the Montana Supreme Court had applied an incorrect test in its determination of harmless error. In response, the State alleged that Mr. Brodniak had not exhausted his state remedies because he had not presented that precise question to the state courts for review. Conse- quently, the U.S. District Court dismissed the habeas corpus proceeding without prejudice. Mr. Brodniak then filed a petition for post-conviction relief with the Fourth Judicial District, Missoula County. After a hearing, the District Court denied the petition. Mr. Brodniak appealed to this Court. Did the Montana Supreme Court apply the proper harmless error test during its review of Mr. Brodniak's criminal trial? Mr. Brodniak contends that the psychologist's comment on D.P.'s credibility violated his right to jury trial guaran- teed by the Sixth Amendment to the Constitution of the United States. He argues that expert testimony regarding a wit- ness's credibility invades the province of the jury, amount- ing to a Sixth Amendment violation. Mr. Brodniak contends that the federal test of harmless error, rather than the state test, must therefore be applied to his conviction, citing Chapman v. California (1967), 386 U.S. 18, 21, 87 S.Ct. 824, 826-827, 17 L.Ed.2d 705, 709. Mr. Brodniak cites United States v. Azure (8th Cir. 1986), 801 F.2d 336, to support his contention that his Sixth Amendment right was violated. It is true that in Azure the Eighth Circuit held that, in a trial involving a sex crime against a minor, a pediatrician's comment on the believabili- ty of the complaining witness constituted reversible error. That court however, made no reference to the Sixth Amendment. Rather, its analysis centered on the Federal Rules of Evi- dence. In a more recent case the Eighth Circuit explicitly stated that the propriety of expert testimony on general patterns of credibility among children reporting sexual abuse is essentially a matter of state law. Adesiji v. Minnesota (8th Cir. 1988), 854 F.2d 299, 300. Research has disclosed no cases holding that an expert's comment on witness credi- bility violates the Sixth Amendment. Rather, other courts have analyzed this type of error pursuant to rules of evi- dence, and by applying a state harmless error test. - See, e.g. Tevlin, 715 P.2d at 341-342; People v. Oliver (Colo. 1987), 745 P.2d 222, 225; State v. Chul Yun Kim (N.C. 1986), 350 S.E.2d 347, 352. In Montana, an error of state law will be deemed harm- less "unless the record shows that the error was prejudi- cial." Section 46-20-701, MCA. "The test of prejudicial error requiring reversal is whether there is a reasonable possibility the inadmissible evidence might have contributed to the verdict." State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266; State v. Gray (1983), 202 Mont. 445, 449-450, 659 P.2d 255, 257; State v. Lave (1977), 174 Mont. 401, 407, 571 P.2d 97, 101. Mr. Brodniak devotes considerable argument to the feder- al harmless error test. We note that the federal harmless error test is essentially the same as that above enunciated for Montana. The United States Supreme Court stated the test for federal constitutional error in Fahy v. Connecticut (19631, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173. The Court later restated this test in Chapman, noting however, that it did not change the Fahy test: There is little, if any, difference between our statement in Fahy v. Connecticut about "whether there is a reasonable possibility that the evidence complained of might have contributed to the convic- tion" and requiring the beneficiary of a constitu- tional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitu- tional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24. The essential question is whether there is a reasonable possibility that the inadmissible evidence might have con- tributed to the conviction. Before discussion of this issue, we first note that Mr. Brodniak is asking this Court to reconsider an issue which was already decided in the original appeal of Brodniak where this Court stated: This Court, however, will not reverse a judgment of conviction for harmless error, and the question as to whether a particular error is harmful or harm- less depends on the facts of the case under review. (Citation omitted.) In the instant case we hold that the admission of Walters' testimony, above quoted, was harmless error. A review of the record of this case reveals that the physical evidence against Brodniak and his own admissions that he resorted to violence were so overwhelming that admission of the RTS testimony did not affect his substantial rights. Brodniak, 221 Mont. at 223, 718 P.2d at 329. The overwhelming evidence rule is one method used by this Court to ascertain whether there is a reasonable possi- bility that the inadmissible evidence contributed to the verdict. State v. McKenzie (1980), 186 Mont. 481, 533, 608 P.2d 428, 458, cert. denied, 449 U.S. 1050 (1980); accord, Tevlin v. People (Colo. 1986), 715 P.2d 338, 342. Also, when assessing the prejudicial effect of an error, this Court will examine the totality of the circumstances in which the error occurred. See Gray, 207 Mont. at 268, 673 P.2d at 1266. If - the error involves erroneously admitted evidence, we will not single out that one item of evidence to evaluate it in isola- tion. To do so could magnify the prejudicial effect of the error beyond its actual impact on the verdict, leading to reversals for mere technical violations of evidentiary rules. Mr. Brodniak urges that the evidence in this case is not overwhelming either from a factual or a legal standpoint. His legal argument on this issue will be addressed in Issue 111. Factually, he contends that the evidence is equally as consistent with defendant's theory of the case (which was that the sexual acts were consensual, but that defendant subsequently became violent) as it is with the prosecution's theory. This is the key point of Mr. Brodniak's argument with which we disagree. This is not a case where the complaining witness's story is uncorroborated. Overwhelming evidence--both physical and testimonial--supports D.P.'s story. First, the evidence with regard to the tearing out of D.P. 's hair overwhelmingly demonstrated the use of force. The chief of the crime lab testified that most of the hairs found in the car and the large ball of hair retrieved from D.P. 's scalp had been pulled from her head with painful force. He testified that most of the strands of hair had extended roots still at- tached, indicating that these hairs were extracted violently. The ball of hair was introduced into evidence. The attending nurse testified that, while D.P. combed her hair, a "gross amount" of hair came out and her scalp appeared to be tender. Second, D.P. suffered a tear one inch in length in her anus, a fact clearly inconsistent with consensual relations. Third, the examining physician's testimony established that D.P. had blood in and around her vagina, on her underwear and that the vaginal area still remained sore at the time of the examination. In response the defendant attempts to argue that he became violent only after they had engaged in consen- sual sexual intercourse. The foregoing evidence clearly is not consistent with consensual intercourse and establishes violent acts on the part of the defendant. We will not set forth the rest of the evidence including the testimony of D.P. which supports the conviction. Our careful review of the record reveals that the evidence overwhelmingly supports the verdict that Mr. Brodniak was guilty of sexual inter- course without consent. We hold there is no reasonable possibility that the psychologist's testimony contributed to the jury's finding that Mr. Brodniak was guilty of the crime of sexual intercourse without consent. Mr. Brodniak makes an extensive argument with regard to the burden of proof according to the different tests. We conclude that it is unnecessary to discuss that argument because the previously described evidence submitted by the State is overwhelming and this Court has concluded that there is no reasonable possibility that the error contributed to the verdict. Does the harmless error analysis supplied by the Montana Supreme Court in its review of the defendant's criminal trial contravene the due process clause requirement that guilt be proven beyond a reasonable doubt? Mr. Brodniak's claim rests on the erroneous assumption that the state harmless error analysis somehow lowers the requisite level of proof necessary to meet the standard of "guilty beyond a reasonable doubt." As stated earlier, the Montana test requires that there be no reasonable possibility that the error contributed to the verdict before it can be declared harmless. We hold that in Brodniak, there was no contravention of the due process requirement that guilt be proven beyond a reasonable doubt. As a matter of law, can evidence be found to be over- whelming for purposes of harmless error analysis where one or more members of the appellate tribunal are not convinced that it is? In Brodniak, one member of our seven-member Court dis- sented from the majority opinion. Brodniak argues that, as a matter of law, evidence cannot be overwhelming for purposes of harmless error analysis where one or more members of the appellate tribunal are not convinced that it is. However, unanimity among the appellate tribunal has never been a prerequisite to a finding of harmless error when using the overwhelming evidence test, even when the test is used to determine the magnitude of constitutional error. See State - v. Powers (1982), 198 Mont. 289, 645 P.2d 1357 (one justice dissenting from harmless error determination); State v. Dess (1979), 184 Mont. 116, 602 P.2d 142 (one justice dissenting); Milton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed. 2d 1; (four justices dissenting) ; and Harrington v . California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (three justices dissenting). Although we have referred to some federal cases, our analysis and our holding in this opinion are based upon our analysis of Montana's statute defining harmless error and our case law interpreting that standard. Our opinion therefore is based on independent and adequate state grounds. We affirm the District Court's denial of Mr. Brodniak's petition for post-conviction relief. We Concur: A Justices Justice William E. Hunt, Sr., dissenting. I dissent. The State bore the burden of proving beyond a reasonable doubt that the complaining witness did not consent to sexual intercourse with the defendant. To bolster its case, the State solicited testimony regarding the credibility of the complaining witness. Because of the potentially tremendous impact of this testimony, I cannot join the majority's conclusion that the error did not contribute to the jury verdict. Whether an error is harmless depends on a number of factors, each of which should be carefully analyzed by the reviewing court. These factors include: 1) the nature of the error; 2) the importance of the erroneously admitted evidence to the State's case; and 3 ) the presence or absence of corroborating untainted evidence. Cf. Delaware v. Van Arsdall (1986), 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (listing factors to be considered in determining harmlessness of error involving Sixth Amendment right of confrontation) ; Satterwhite v. Texas (1988) , - U.S. - , 108 S.Ct. 1792, 100 L.Ed.2d 284 (psychiatrist's testimony in violation of Sixth Amendment right to counsel was not harmless when the testimony regarding defendant's dangerous propensity was critical to sentencing, when only one psychiatrist testified on the issue and when the State placed significant weight on the testimony). The nature of the error committed in this case directly implicated the ultimate issue to be determined at trial, that is, whether the complaining witness consented to sexual intercourse with the defendant. Thus, the expert's testimony regarding the credibility of the complaining witness improperly invaded the province of the jury. Furthermore, the testimony was material to the State's case. The State actively solicited the testimony and the State relied upon it in closing. Moreover, the untainted evidence corroborated not only the State's case, it corroborated the defendant's theory of the case as well, that is, that the violent acts did not occur until after a consensual sexual encounter. The overwhelming evidence test used in this opinion places the majority in the uncomfortable position of factfinder, forcing the majority to reweigh and, to some extent, mischaracterize the evidence. For example, the physician who examined the complaining witness testified that, although not common, her condition could possibly have resulted from consensual sexual relations. The majority, however, claims that her condition was "clearly inconsistent" with consensual intercourse. By concentrating solely on the weight of the evidence and ignoring the nature of the error and the error's importance to the State's case, the majority examines the impact of the error in a vacuum. The issue before the jury was whether the complaining witness engaged in consensual sexual relations with the defendant. To reach a verdict, the jury weighed the credibility of the witnesses. Among the evidence the jury had before it was the testimony of a highly qualified expert witness who asserted that he believed that the complaining witness was credible. his testimony was solicited by the State and extensively relied upon by the State in closing. Under these circumstances, I cannot agree with the majority that, beyond a reasonable doubt, the expert testimony did not contribute to the jury verdict. I would remand the case to the District Court for a new trial. Mr. Justice John C. Sheehy, dissenting: I concur in the dissent of Justice ~ i l l i a m E. Hunt, Sr. | September 14, 1989 |
b41fa6a7-39c2-4744-804a-4d04ca272ad0 | MARRIAGE OF HOFFMASTER | N/A | 88-618 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF MARCIA J. HOFFMASTER, petitioner and Appellant, and RICHARD K. HOFFMASTER, : .- Respondent and Respondent. APPEAL FROM: District Court of the Fourth ~udicial ~istrict, In and for the County of is sou la, The Honorable John Henson, Judge presiding. COUNSEL OF RECORD: For Appellant: Jon E. Ellingson; ~llingson & Moe, is sou la, Montana For Respondent: Thomas J. Beers; Connell, Beers & MacDonald, is sou la, Montana submitted on ~riefs: July 13, 1989 Decided: September 7, 1989 Filed: Mr. Justice William E. Hunt, Sr., delivered the Opinion of the Court. Marcia J. Hoffmaster, petitioner and appellant, appeals from the custody arrangement, child support and maintenance award mandated in the judgment entered by the District Court of the Fourth ~udicial District, Missoula County. We affirm in part and reverse and remand for a modification of child support consistent with this opinion. The following issues are raised on appeal: 1. Whether the District Court exercised proper discre- tion when it established custodial arrangements. 2. Whether the District Court exercised proper discre- tion when it established the amount of child support. 3. Whether the ~istrict Court exercised proper discre- tion when it established the amount of maintenance. Marcia and ~ichard Hoffmaster were married on May 29, 1977. Previously, Richard received a gift of $250,000 worth of Amstar stock from his father. Prior to the marriage, Marcia had a bachelor of arts in elementary education and special education and was a full-time special education teacher. In addition, she needed only 15 credit hours to receive her masters of arts in special education. Richard had a degree in English. Before the the marriage, ~ichard purchased land at North Fork, Idaho, where he built a cabin. Marcia and Richard primarily resided at the Idaho cabin from the year of their marriage until 1980. During that time, Richard's parents made gifts of money to him which were used to pay marital expenses and make payments on property. The parties lived frugally during those years. From 1980 to 1983 they resided in Arizona, Washington and Idaho. In 1983, the parties moved to Missoula, Montana, and continued to live a frugal lifestyle. They lived in a tri-plex rental. In 1983, Richard began a course of diversification which involved the sale of his Amstar stock in order to make other financial investments. Among his investments was a $50,000 down payment on the purchase of a golf course in a is sou la. ~arcia worked part-time on the golf course until August 15, 1985. In April of 1984, Richard's father died, leaving him a sizeable inheritance. Richard received the first installment of his inheritance, $1,000,000, in the fall of 1985. ~ichard used his inheritance to purchase assets and pay sums due on the golf course property. In May of 1985, the parties moved into a $115,000 resi- dence on airv view Avenue. Soon after moving into the home, Marcia went to Chicago to visit her parents. Upon her return in August of 1985, Richard advised her that he would be moving out. On December 4, 1985, Marcia filed for dissolution of the marriage. On January 4, 1986, the parties' son, Alex, was born. During the parties' separation, Marcia continued to live at the airv view residence. Alex remained with ~arcia. In November of 1987, ~arcia and Alex moved to ~lgin, Illinois, and have resided there since. Dissolution proceedings were held before the District Court in July of 1988. During dissolution proceedings, ~ichard received $750,000 as another inheritance installment. He is likely to receive another installment pending resolu- tion of a dispute with the Internal Revenue Service. The court entered its findings of fact, conclusions of law and judgment on August 17, 1988. Included in the court's judg- ment, were resolutions to the issues of child custody, child support and maintenance. Custody of Alex was awarded jointly to the parties with primary residential custody granted to Marcia. Richard was granted residential custody for two months during the summer, one month in the spring and one month in the fall. The parties received alternating residential custody during Christmas and Easter. The joint custody arrangement will remain in effect until Alex starts the first grade of primary school. At that time, Marcia will have primary residential custody of Alex and Richard will have residential custody for two months during the summer. The court, in its judgment, established that ~ichard is responsible for child support as follows: a) $1,200 child support per month until the child reaches the age of 18 or is otherwise emancipated. b) All medical, ocular, dental and orthodontic bills that are incurred by the child. c) All medical, ocular, dental and orthodontic insurance. d) All secondary and post-secondary education costs of the child to whatever schools he is quali- fied to attend and which the child, and both par- ents, wish him to attend. The court also established that ~ichard shall pay Marcia $1,000 per month maintenance until Alex reaches the first grade of primary school. Marcia received $34,000 cash as a property settlement in lieu of maintenance reduced by $3,000 which had been previously advanced. The first issue raised on appeal is whether the ~istrict Court exercised proper discretion when it established the custodial arrangement. As noted, the District Court implemented a joint custody arrangement. Marcia was given primary residential custody while Richard was given residential custody for two months during the summer, one month in the spring and one month in fall. The arrangement is to remain in effect until Alex starts the first grade of primary school. Marcia argues that under In re the Custody of Andre (Mont. 1988), 761 P.2d 809, 45 St.Rep. 1745, she has estab- lished de facto custody of Alex. Andre, however, is distin- guishable from the present case. In Andre, this Court awarded mother custody. The parties in Andre never married but lived together and shared parental responsibilities for the first four years of the child's life. When the parties separated, the child remained in the custody of mother. While the parties never established a judicial custody arrangement, they did agree orally that mother would have custody. The parties also agreed orally to a child support arrangement. In the present case, while Marcia maintained custody of Alex upon the parties' separation, ~ichard never conceded custody of Alex to ~arcia. his was amplified by the fact that Richard sought temporary joint custody of Alex during settlement negotiations. A custody arrangement had never been agreed upon and remained at issue pending resolution of the action. Under these facts, de facto custody has not been established. Marcia attempts to argue that establishing a joint custody arrangement violates § 40-4-219, MCA, which provides that the ~istrict Court, in its discretion, may modify a prior custody decree if it finds that circumstances of the custody arrangement have changed. Because neither a decree nor informal arrangement was in effect prior to this action, the statute does not apply. Montana policy favors joint custody. See In re the ~arriage of Cruikshank (1986), 222 Mont. 152, 154, 720 P.2d 1191, 1193. Section 40-4-223 (1) (a) , MCA, provides in part: (1) In custody disputes involving both parents of a minor child, the court shall award custody according to the best interests of the child as set out in 40-4-212: (a) to both parents jointly. Section 40-4-212, MCA, provides: The court shall determine the custody in accordance with the best interest of the child. The court shall consider all relevant factors, including but not limited to: (1) the wishes of the child's parent or parents as to his custody; (2) the wishes of the child as to his custodian; ( 3 ) the interaction and interrelation of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest; (4) the child's adjustment to his home, school, and community; ( 5 ) the mental and physical health of all individuals involved; (6) physical abuse or threat of physi- cal abuse by one parent against the other parent or the child; and ( 7 ) chemical dependency, as defined in 53-24-103, or chemical abuse on part of either parent. Further, the standard of review for child custody issues was established by this Court in In re the Marriage of Bier (Mont. 1981), 623 P.2d 550, 551, 38 St.Rep. 158, 159, as follows: In order to prevail, [Marcia] must show an abuse of discretion by the judge, must demonstrate that there is a clear preponderance of evidence against the findings, and must overcome the presump- tion that the judgment of the trial court is correct. [citation omitted.] [In reviewing the District Court's custody order], this Court need only look to the record to see if the factors set forth in section 40-4-212, MCA, were considered, and then must determine whether the trial court made appropriate findings with respect to these criteria. [Citation omitted. Parenthetical inserts supplied. I The District Court, in its findings of fact and conclusions of law, specifically noted that both Marcia and Richard are capable of caring for Alex and communicate with each other about his care; that it is in the best interests of Alex for both Marcia and ~ichard to be involved in Alex's development; and that it is in the best interests of Alex to give Marcia and Richard joint custody with residential custody to be divided between them. We hold that in light of the District Court's findings, there was no abuse of discretion nor a showing by Marcia of a clear preponderance of evidence against the findings. The District Court properly considered the best interests of Alex as required under 5 40-4-212, MCA. The next issue raised on appeal is whether the ~istrict Court exercised proper discretion when it established the amount of child support. The ~istrict Court established that ~ichard is responsi- ble for $1,200 child support plus medical and educational needs. Marcia contends that the court erred in setting the amount of child support. She requested $3,357 per month. An award of child support is governed by $ 40-4-204, MCA, which provides in pertinent part: (1) In a proceeding for dissolution of marriage, . . . or child support, the court may order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for his support, without regard to marital misconduct, after considering all relevant factors including: (a) the financial resources of the child; (b) the financial resources of the custodial parent; (c) the standard of living the child - would have enjoyedhad the marrlaqe not - . -- been dissolved; (dl the physical and emotional condition of the child and his educational needs; (e) the financial resources and needs of the noncustodial parent. [Emphasis ours. I The District Court stated in its findings: The child, presently age 24,. has only experienced a standard of llving with his mother and that standard is not consistent with the standard of living developed during the course of the marriage. The District Court maintained that while it considered the Uniform ~istrict Court Guidelines on child Support (Mont. 1987), 44 St.Rep. 828, it did not adhere to the Guidelines because of the lifestyles of the parties, the standard of living of the child, and that the Guidelines: . . . would allow this child to be favored with monies and personal wealth that would not be in the best interest of the child in his development toward adulthood. The ~istrict Court awarded child support payments in the amount of $1,200 a month instead of the $3,357 a month as Marcia requested. While the District Court is not bound by the ~uidelines, ~arcia contends that the ~uidelines suggested an award of $4,500 per month, thus, the amount awarded gross- ly deviated from the ~uidelines and was in error. ~ichard never contested the calculation of the Guideline amount. The amount arrived at by the District Court ignores two statutory factors under § 40-4-204, MCA--the standard of living Alex would have enjoyed had the marriage not been dissolved and the financial resources of Richard. The stan- dard of living that Alex would have enjoyed had the marriage not been dissolved is not to be confused with the standard of living that the parties enjoyed during the marriage, nor is it the standard of living that Alex enjoyed during the marriage. Richard has collected $1,750,000 in inheritance install- ments and will likely receive another installment pending a resolution of a dispute with the Internal Revenue Service. Richard also owns income-producing property. Hence, the sum awarded by the District Court does not reflect Richard's financial resources nor the standard of living Alex would have enjoyed had the marriage remained intact because of his father's wealth. Marcia requested $3,357 a month based on expenditures. The District Court rejected both Marcia's $3,357 per month request and the Guidelines' suggested amount of $4,500 per month, as Marcia contends, and, instead, implemented a $1,200 per month (plus medical and educational needs) support payment. The amount awarded is unreasonable and would result in substantial injustice to Alex who is entitled to share in the high standard of living achieved by his father. See, In re the Marriage of Anderson (Mont. 1988), 748 P.2d 469, 471, 45 St.Rep. 40, 43. The District Court will be reversed on appeal only where there has been a "clear abuse of discretion resulting in substantial injustice." See, In re the Marriage of Alt (1985), 218 Mont. 327, 333, 708 P.2d 258, 261. We hold that the District Court abused its discretion in establishing the amount of child support. We reverse on this issue and remand to the District Court with instructions to grant $3,357 per month for child support in light of the expenditures reflected in the record. The last issue raised on appeal is whether the District Court exercised proper discretion when it established the amount of maintenance. Here, the District Court awarded Marcia $1,000 per month maintenance until Alex reaches the first grade. In addition, she received $34,000 in cash to be treated as part of the property settlement in lieu of maintenance reduced by a $3,000 advancement. The award of maintenance is governed by § 40-4-203, MCA, which provides: (1) In a proceeding for dissolution of marriage . . . the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: (a) lacks sufficient property to provide for his reasonable needs; and (b) is unable to support himself through appropriate employment or is the custo- dian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. (2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including: (a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provi- sion for support of a child living with the party includes a sum for that party as custodian; (b) the time necessary to acquire suffi- cient education or training to enable the party seeking maintenance to find appropriate employment; (c) the standard of living established during the marriage; (dl the duration of the marriage; (e) the age and the physical and emo- tional condition of the spouse seeking maintenance; and (f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seek- ing maintenance. In the findings of fact and conclusions of law, the District Court noted that Marcia received a bachelor of arts in elementary education and special education and was 15 credit hours short of receiving her masters of arts in spe- cial education. Marcia was a full-time special education teacher prior to her marriage. The ~istrict Court noted that it provided for maintenance until Alex reaches the first grade of primary school in order to allow Marcia to continue her education for recertification and/or her masters degree while attending to Alex. In the property distribution, Marcia received the cash equivalent of the marital estate property in the amount of $76,000 and a $34,000 cash property settlement in lieu of maintenance ($10,000 of which to be considered as Marcia's contribution to the golf course) reduced by a $3,000 advancement. The court further noted that the standard of living established during the marriage was nomadic and frugal and that the time Marcia spent at the Fairview residence did not create a standard of living or new lifestyle. The standard of review for awarding maintenance was set forth by this Court in Anderson, 748 P.2d at 471, as follows: The District Court has wide discretion in the determination of maintenance awards, and that discretion is not to be disturbed unless clearly erroneous. Citing In re the Marriage of Aanenson (1979), 183 Mont. 229, 235, 598 P.2d 1120, 1123. The ~istrict Court found that ~arcia had a sufficient occupational and educational background. Granting her main- tenance until Alex reaches school age gives her the time for recertification and further training, hence, she will be capable of self-support when Alex reaches school age. The court also considered the fact that Marcia will receive a portion of the marital estate. Thus, the District Court properly considered the factors set forth in § 40-4-203, MCA, and did not abuse its discretion when it awarded maintenance. -?3-rpow e 103 papuemax pue pasxanax pue qx-ed ur pauxr33y | September 7, 1989 |
d5cfaf69-6577-43fd-973c-99a6c11c6ee8 | ROMAIN v EARL SCHWARTZ COMPANY | N/A | 88-567 | Montana | Montana Supreme Court | No. 88-567 IN THE SIJPREME COURT OF THE STATE OF MONTANA JOHN D. ROMAIN, Defendant and Appellant, -vs- EARL SCHWARTZ COMPANY, A Partnership, composed of EARL SCHCVARTZ , GLADYS SCHWARTZ, KAY SCHWARTZ YORK, RAY L. YORK, KATHY SCHWARTZ MAU, ROBERT MAU and KARLA LEA SCHWARTZ, Partners, Defendant and Respondent. APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable Chan Ettien, Judge presiding. COUNSEL OF RECORD: For Appellant: Robert J. Emmons and Joseph Sullivan; Emmons & Coder, Great Falls, Montana For Respondent: STUART c ~ ~ W C K E N Z I E , E ~ U ~ ~ S , Solem & MacKenzie, Chinook, Montana Submitted on Briefs: June 30, 1989 Decided: Au-yust 25, 1989 2 *qc . C Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from an action begun to foreclose a mortgage on agricultural real property. Defendant John D. Romain (Romain) appeals from the judgment of the District Court of the Twelfth Judicial District, Hill County, finding adverse to his cross-claim asserted against Earl Schwartz Company, a partnership (partnership) . We affirm in part and reverse in part. Although Romain presents several issues for review, we find that consideration of only two are necessary to decide this case. These issues are: 1) Did the trial court err in determining that Romain as vendor and grantor divested himself of all alleged rights to repossession under a contract for deed covering the property upon delivery of a warranty deed to the partnership, vendee and grantee? 2) Did the trial court err in holding that Romain failed to mitigate his damages and therefore should not be allowed to assert a right of indemnity against the partnership for damages caused by the partnership's default on the mortgage? The facts in this case are somewhat complicated. On July 26, 1979, John Romain agreed to sell his farm by contract for deed to the partnership for $4,635,000. When this contract was entered into, the farm was subject to a mortgage held by John Hancock Mutual Life Insurance Company (John Hancock) . As part of the purchase price, the partnership agreed to pay the remaining balance owed John Hancock by Romain. On July 31, 1979, Earl Schwartz as an individual delivered his personal guaranty of Romain's note, to the extent of $1,000,000, to John Hancock. In January 1980, the partnership paid off the balance owed Romain on the contract for deed. Romain then conveyed the legal title by warranty deed to the partnership, "subject to," the John Hancock mortgage. In 1986 and 1987, payments on the mortgage were not made, putting the note and mortgage in default. As a result, John Hancock sued to foreclose on the property. Named as defendants were the partnership and the individual partners, Earl Schwartz in his individual capacity as guarantor, John and Maradel Romain and other lienholders. Upon learning of the default, Romain cross-claimed against the partnership and sought cancellation of the con- tract for deed, possession of the property and growing crops, and all monies from any federal farm programs on the farm. On August 29, 1988, the trial judge granted John Hancock a decree of foreclosure with a judgment against John and Maradel Romain for $3,966,973.46, and a judgment against Earl Schwartz based on his guaranty in the amount of $1,269,310.87. The trial judge made separate Findings of Fact, Conclu- sions of Law and Judgment on Romain's cross-claim. On this issue, the trial court denied Romain relief and redemption rights and left the partnership in possession of the farm property and crops, and all monies from the 1987 and 1988 farm programs. In reaching this conclusion, the court found that Romain lost all rights to repossession of the property upon delivery of the warranty deed by him to the partnership. Because he had no right to possession of the property, the trial court also found that Romain had no claim to any growing crops or farm program money. Rather, his only existing remedy under the contract for deed was indemnification by the partnership for damages sustained as a consequence of the default. Any right to indemnification, however, was contingent upon Romain's mitigation of damages. In August of 1988, John Hancock wrote Romain and informed him that if he executed a deed transferring all of his rights and interest in the property to John Hancock, he would be absolved of all claims against him resulting from the foreclosure and any deficiency which may arise. Romain refused to execute such a deed. The trial court found this refusal to be a failure on his part to mitigate damages. Consequently, Romain was denied indemni- fication for any deficiency judgment which may arise from the foreclosure sale. This appeal followed. I Romain argues that his delivery of the warranty deed to the partnership did not operate to divest him of his right to repossession of the farm under the contract for deed. We disagree. In support of our conclusion, we begin by examining two statutes. Section 70-1-508, MCA, provides that a grant of property takes effect only upon delivery by the grantor. Moreover, $ 70-1-510, MCA, provides that a grant cannot be delivered conditionally. Rather, delivery to a grantee is deemed to be absolute and the instrument takes effect upon its delivery. Any prior conditions are discharged at time of delivery. Examination of these two statutes leads to the conclu- sion that Romain divested himself of all interest in the property upon delivery of the deed to the partnership. The language of the warranty deed is clear. Romain gave up the legal title and any other interest in the property. Romain argues, however, that it was not his intent, upon delivery of the deed, to give up his right to repossession upon foreclosing or cancelling the contract for deed. He maintains that it was always his intention, to allow the forfeiture clause of the contract for deed to remain in effect until the John Hancock loan was fully repaid. Because he remained liable for any deficiency underlying the multi-million dollar mortgage, Romain argues that his intention to retain his right to repossession should be obvious. We recognize that a valid delivery of title requires not only actual manual transfer, but also an intent on the part of the grantor to pass title to the property. Hartley v. Stibor (Idaho 1974), 525 P.2d 352, 355. Therefore, it is possible that there is no legal delivery although the instru- ment has been delivered to the grantee. Hayes v. Moffatt (1928), 83 Mont. 214, 226, 271 P. 433, 437. Romain argues that this lack of intent is evidenced by the default provi- sion within the contract for deed and the language within the warranty deed which states that the conveyance is "subject to" the John Hancock mortgage. This logic fails in light of Montana statutory law, the language of the warranty deed, and established case law. Section 70-1-519, MCA, in accordance with established case law, provides that upon transfer of property, the transferee obtains all title held by the transferor unless a different intention is expressed or is necessarily implied. As stated earlier, Romain maintains that this intent should be implied from the language within the contract and the warranty deed, and the circumstances surrounding the conveyance. The language of the deed giving up all right, title and interest in the property clearly indicates Romain's intent to transfer full title to the partnership, including all his security interest. The fact that the warranty deed contained language stating that it was "subject to" the John Hancock mortgage does not render inoperative the presumption that Romain intended to convey his entire interest. It is presumed that one who conveys property by deed intends to convey his entire interest unless a portion of the interest. is expressly excepted. The words "subject to" are a limitation upon the warranty of title and not such an excep- tion. First National Bank of Denver v. Allard (Colo. 1972), 506 P.2d 405, 406. Moreover this intention, manifested by the deed, pre- vails over any contrary intent which may be gleamed from the contract for deed. It has long been recognized that an unambiguous provision in a deed prevails over an inconsistent provision in a sales contract pursuant to which the deed was given. Johnson v. Ware (Cal. 1943), 136 P.2d 101, 102; McCafferty v. Young, (1964), 144 Mont. 385, 397 P.2d 96. I1 Romain next contests the trial court's decision to deny him any right to indemnity for damages sustained as a result of the respondent's default. The trial court ruled that Romain failed to mitigate his damages by refusing to execute a deed transferring all of his rights in the property to John Hancock. In exchange for this performance, John Hancock promised to absolve Romain of any possible deficiency judg- ment. Because of this failure to mitigate, the court held that Romain could not avail himself of any indemnification by the partnership for damages sustained as a consequence of their default. In this regard, we disagree with the trial judge. A damaged party is only expected to do what is reasonable under the circumstances and need not embark upon a course of action which may cause further detriment to him. Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 414 P.2d 918. Romain may have reasonably determined that a release of his interest in the property to John Hancock would jeopardize his ownership of the claim here. Therefore, we decide that under these facts, Romain was under no duty to sign over the deed to John Hancock until he exhausted his remedies. However, as a result of the holding in this case, Romain could now be required to transfer all of his rights in the property pursuant to John Hancock's offer. Accordingly, on this issue the trial court is reversed and the case is remanded for proceedings consistent with this opinion. | August 25, 1989 |
da3c625e-fdc6-4dfe-a722-106c2e247c91 | MARRIAGE OF WASH | N/A | 88-449 | Montana | Montana Supreme Court | No. 88-449 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF WARREN HANKINS WASH, petitioner and Appellant, and PEGGY LEE WASH, Respondent and Respondent. APPEAL FROM: District Court of the Fourteenth Judicial District, In and for the County of Golden Valley, The Honorable Roy ~odeghiero, Judge presiding. COUNSEL OF RECORD: For Appellant: V. Joe ~eckie; Peterson, Schofield & Leckie, Billings, Montana For Respondent: John L. Pratt; Ask & Pratt, Roundup, Montana Filed: Submitted on Briefs: June 8, 1989 Decided: September 19, 1989 Mr. Justice John C. Sheehy delivered the Opinion of the Court. In this case we affirm the division of the marital estate in the appeal of the petitioner Warren arki ins Wash from a judgment of marital dissolution entered in the ~istrict Court, Fourteenth Judicial District Court, Golden Valley County. Warren arki ins Wash had been married to Peggy Wash some eight years before their separation in August, 1984. Warren petitioned for marital dissolution. At the time, he was employed as a bus driver for a school district earning $21,762.00 per year under a contract that had four years to run. Peggy had worked for the Milwaukee ailr road before it ceased operations, and at the time of dissolution was working for the Department of Agriculture, earning $10,653.00 yearly or a net of $419.00 every two weeks. Peggy had a 14-year-old daughter by a previous marriage, for whom Peggy received child support in the amount of $100.00 per month. Husband had a child by a previous marriage for whom he paid $75.00 per month. The husband had undertaken bankruptcy proceedings which absolved him of his debts except for income tax liabilities. The parties filed separate income tax returns for the years 1984 and 1985 for which he incurred a liability of $5,574.00 in 1984, and $2,257.00 in 1985. The wife, because of her filing a separate income tax return for 1984 had an income tax refund of $453.40. The parties had more liabilities to divide than assets. One liability was a $1,000.00 debt owed to one Walter Meyers for trucking expenses incurred on Warren's behalf. The District Court in its decree awarded two cows to the wife, with the obligation attached that they be immediately sold and the proceeds implied to the Walter Meyers' debt. Otherwise the District Court decreed that personal property in each of their possessions be kept by the respective parties, that each party pay his or her own legal fees and costs, that the husband deliver to the wife a motorcycle and that the husband turn over to the wife a hackamore and set of reins as her property. The court further provided that each party be responsible for taxes for prior years based on their separate returns. Vlarren attacks the division of the marital estate on the grounds that it is inequitable and that the District Court made no findings which sustained the division. He claims that the District Court gave him a negative $6,640.24 in marital assets while giving the wife a positive $6,784.68 in such assets. He arrived at this conclusion, however, by taking the highest value for the motorcycle, $4,000.00 instead of the $1,500.00 for which testimony appears in the record. Moreover, much of his negative result is because of the income taxes he owes for 1984 and 1985. The District Court further ordered that the husband pay the wife $200.00 per month for three years as maintenance. The husband attacks this provision of the decree claiming that the award of maintenance was not in compliance with S 40-4-203, MCA, and that the court failed to make the necessary findings to support an award of maintenance. The wife meets the contentions respecting maintenance by pointing out the eight year duration of the marriage, during which the wife worked to contribute to the marital expenses, and that her earnings are approximately $500.00 short of her necessary monthly living expenses, that his contract as a school bus driver had an additional four years to run, the value of which was not computed in the final judgment, and that the husband's monthly earnings of $2,418.00 per month clearly enabled him to pay $200.00 a month in maintenance. We determine here that the trial court did not abuse its discretion in the award of maintenance to the wife, or in the property disposition since the record fails to disclose an arbitrary exercise of discretion. In Re Marriage of ~oegering (1984), 212 Mont. 449, 510, 689 P.2d 260, 266; Jerome v. Jerome (1978), 175 Mont. 429, 431, 574 P.2d 997, 998. When, as in this case, the ~istrict Court makes an equitable distribution of property, and then determines that the property is insufficient to provide for the spouse's financial needs, it may award maintenance. ~ i l t v. ~ i l t (1984)~ 209 Mont. 140, 145, 679 P.2d 783, 786. Affirmed. | September 19, 1989 |
e6770975-c13b-453c-b492-53d829178556 | ADOPTION OF C R D | N/A | 89-187 | Montana | Montana Supreme Court | No. 89-187 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN THE MATTER OF THE ADOPTION OF: C. R. D., A Minor. APPEAL FROM: The District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell K. Fillner, Judge Presidjnq. COUNSEL OF RECORD: For Appellant: Joan E. Cook; Miller & Cook, Great Falls, Montana For Respondent: Virginia Bryan, Billings, Montana Submitted on Briefs: October 13, 1989 Decided: November 30, 1989 ---- Y - Clerk Justice R. C. McDonough delivered the Opinion of the Court. J.M.S. (father) appeals the decree of the Thirteenth Judicial District Court, Yellowstone County, granting the adoption of his natural daughter, C.R.D. (daughter) by respondents J.E. D. and A.C .D. (qrandparents) . The respondents are the maternal grandparents of the child and have been her legal guardians since 1985. In granting the petition, the District Court held that the father's consent to the adoption was not required because he failed to pay child support and had abandoned his daughter. We affirm the District Court's decree on the grounds that the appellant abandoned the child according to Montana law. Appellant raises the following issues on appeal: (1) Did the District Court err in concluding that the father's consent to the adoption was not required because he had abandoned his daughter according to Montana law? (2) Did the District Court err in allowing evidence of the child's best interests? (3) Did the District Court err when it concluded that the father's consent to the adoption was not required because he failed to pay for the support of his daughter? (4) Did the District Court err in concluding that the grandparents, as appointed guardians, had the authority to consent to their own adoption of the child? Father and V.D. (mother) were married on January 2, 1981 in Billings, Montana. The mother was eight weeks pregnant with the child at the time of the marriage. The couple lived together as husband and wife for approximately two weeks following the marriage, and separated on or about January 15, 1981. After the separation, the mother returned and resided at the home of her parents, the petitioners, where she lived when the daughter was born. Mother filed for divorce on April 3rd, 1981. A decree dissolving the marriage was entered on June 22, 1981. Mother and father signed a Separation, Custody, Support, and Property Settlement Agreement on December 14, 1982. The agreement was incorporated into the decree of dissolution the following August. It established mother as the custodial parent of the child and obligated the father to pay $100.00 per month in child support. During the mother's pregnancy and at no time since the birth of the child has the father provided financial assistance to either the mother or the child. The father was jailed on November 15, 1983 in the Yellowstone County Jail. He was later transferred to the Montana State Prison at Deer Lodge where he currently resides. Prior to this incarceration, he had two thirty minute visits with his daughter in 1982, when she was approximately nine months old. Both visits were conducted at the business establishment of the petitioner's. There have been no further personal visits between father and daughter since 1982. In May of 1984, the mother moved from her parent's home to seek employment in another state. Not wanting to disrupt her daughter's development, she consented to her parents becoming the legal guardians of her daughter. The father was served with the guardianship petition on February 15, 1985. He failed to contest the action, and the petition was granted by default on March 19, 1985. On February 11, 1985, and October 27, 1986, the grandparents received letters from the father. Neither letter included support for the child. The grandparents have never received any money from the father for his daughter's support. The petitioners have been the sole providers of their grandaughter's daily and medical needs since her birth. The girl has become integrated into the petitioners' home. She refers to the petitioners' as her parents and the petitioner's other children as her brothers and sisters. She is also named as a beneficiary in the petitioners' will. The father's mother, has visited with her qrandaughter on five or six occasions totaling approximately 15 hours during 1985. During these visits, the father had one or two telephone visits with his daughter. There have been no telephone visits since 1985 or visits with father's mother since 1985. Father sent his daughter a Christmas card in 1987 and a birthday card in July 1988. No other correspondence has taken place between father and his daughter. On two occasions, prior to father's incarceration, visitation had been arranged and the father failed to show up at the designated time and place. No requests for visitation with the child by either the father or the father's mother have ever been denied. Prior to his incarceration, appellant was employed as a school bus driver from August 1980, to the fall of 1981; as an air freight attendant from June to December, 1982 and as a restaurant worker. He earned $16.00 per day as a bus driver, $900.00 per month with the freight company, and minimum wage at the restaurant. At the adoption hearing, he acknowledged he has earned in excess of $2,000.00 while an inmate at Montana State Prison. He testified that while incarcerated he gave $20.00 to one of the petitioners' sons for his daughter and opened up a savinqs account for her with hie prison earnings. He has offered no documentary proof of these or any other payment for his daughter's support. At the hearing, the father testified that in 1985 he began efforts to have the child's last name changed to his because he was not recorded as the father on the birth certificate. He testified that this change required the consent of the mother which she refused to give. Father filed a petition to change his daughter's surname to his own on February 9, 1988. The grandparents filed this action for adoption of the child on October 5, 1988. The mother has consented to the adoption. The father has not consented and has indicated his intentions to seek custody of his daughter upon his release from prison. Father's petition to chanqe his daughter's surname was denied and the petition for adoption was granted on February 13, 1989. The natural father now has appealed the adoption decree, raisin9 the aforementioned issues. I. Montana law generally requires the filing of written consents in an adoption proceeding. Section 40-8-111 (11, MCA. However, where a child has been willfully abandoned by a parent, that parent's consent is not required for the adoption. Section 40-8-11 1 a ( i , MCA. Abandoning a child is defined as: . . . leaving him under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the fut.ure or by willf.ully surrendering physical custody for aperiod of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child. . . . (Emphasis added.) S e c t i o n 41-3-102 (3) ( d ) , MCA. Thus, a p a r e n t ' s r i g h t s may be terminated, and an adoption subsequently executed without t h a t p a r e n t ' s consent upon a showing of abandonment under §§ 40-8-111 and 41-3-102(3)(d), MCA. See I n R e Adoption o f S.E. - (Mont. 1 9 8 8 ) , 755 P.2d 27, 45 St.Rep. 843; Matter of R.R (1985), 217 Mont. 99, 103-104, 703 P.2d 846, 848. Because p a r e n t a l r i g h t s involve a fundamental l i b e r t y i n t e r e s t , a j u d i c i a l d e c r e e t e r m i n a t i n g such r i g h t s must be supported by c l e a r and convincing evidence. R.B., 703 P.2d a t 848, c i t i n g Santosky v . Kramer (1982), 455 U.S. 745, 753-754, 102 S.Ct. 1388, 1394-1395, 71 L.Ed.2d 599, 606; S.E., 755 P.2d a t 29; Matter o f Adoption of E . S . R . (1985), 218 Mont. 118, 120, 706 P.2d 132, 133. I n t h e c a s e a t b a r , t h e record c o n t a i n s c l e a r and convincing evidence t h a t t h e n a t u r a l f a t h e r w i l l f u l l y abandoned h i s daughter. F a t h e r h a s never provided any f i n a n c i a l support f o r t h e c h i l d . H e has only v i s i t e d with h e r p e r s o n a l l y on two occasions i n 1982 and v i s i t e d with h e r over t h e phone on two occasions d u r i n g t h e year 1985. There i s no evidence t h a t t h e f a t h e r even attempted t o c o n t a c t h i s daughter i n 1983, and he f a i l e d t o show up a t scheduled v i s i t s i n 1984. This amounts t o only f o u r personal c o n t a c t s between t h e c h i l d and h e r n a t u r a l p a r e n t over some e i g h t y e a r s . F a t h e r d i d n o t c o n t e s t t h e proceeding t o name t h e grandparents a s t h e c h i l d ' s guardians. The evidence of abandonment a s found by t h e D i s t r i c t Court i s c l e a r and convincing. - See, Matter of M.W. (Mont. 1 9 8 8 ) , 764 P.2d 1279, 1282, 45 St.Rep. 2107, 2 1 1 0 . The r e c o r d does suggest t h a t t h e n a t u r a l f a t h e r may have had some renewed i n t e r e s t i n h i s daughter a f t e r h i s i n c a r c e r a t i o n . H e s e n t h e r a Christmas c a r d i n 1987 and a b i r t h d a y c a r d i n J u l y , 1988. The f a t h e r t e s t i f i e d t h a t he began a t t e m p t s t o have h i s d a u g h t e r ' s l a s t name changed t o his own in 1985, and filed a petition to have her name changed in 1988. However, this evidence is insufficient to demonstrate that the father has terminated or repented from his abandonment of his daughter. "Abandonment is not an ambulatory thing the legal effects of which a parent may dissipate at will by token efforts at reclaiming a discarded child." Matter of Adoption of David C. (1978), 479 Pa. 1, 387 A.2d 804, 811; In Re Ad.option of Simonton (1982), 211 Neb. 777, 320 N.W.2d 449, 454. The record clearly demonstrates that the child has been fully integrated into the home of her grandparents. It is the only home she has ever had. Considerinq the length of the abandonment, the father's efforts at reclaiming his daughter while incarcerated can only be characterized as token. The District Court did not abuse its discretion in concluding that the father had abandoned his dauqhter and had not terminated that abandonment. 11. The father also contends that the District Court erred in allowing evidence of the best interests of the child before there was a judicial determination terminating his parental rights. He contends that the District Court prematurely admitted best interest evidence illustrating his daughter's well adjusted and happy life with her grandparents. The father argues that such evidence is irrelevant toward the issues of abandonment and nonsupport and their effect on termination of his parental rights. Thus, father contends that the admission of this evidence before it became relevant to the adoption was prejudicial. We disagree. Generally, "the 'best interest' test is applied .under S 40-8-123 or 124, MCA, after the parental rights have been terminated, in determining whether the adoption should be allowed." - S . E , 755 P.2d at 29. However, once an abandonment is shown to have existed by clear and convincing evidence to the extent shown here, the evidence is sufficient to support the conclusion of the court, and if admission of evidence relating to best interest of the child is in error, such error would not rise in gravity so as to overturn the findings and conclusions of the court as a result of a bench trial. 111. and IV. The natural father also argues that the District Court erred in concluding that his consent was not required for the adoption because 1) he failed to pay support for his daughter; and 2) the grandparents, as appointed guardians, had the authority to consent to their own adoption of the child. Nonsupport is a ground for excusing the consent requirement for an adoption under S 40-8-111(l) (a) ( v ) , MCA. However, the District Court need only find one of the substitutes for consent enumerated by the statute in order to proceed with the adoption. Section 40-8-111, MCA. In light of the overwhelming evidence of abandonment in this case, we need not address the sufficiency of the evidence as it relates to nonsupport. Furthermore, because the natural father's consent was excused when his parental rights were terminated, we need not discuss the guardians' authority to consent because consent was no longer required to complete the adoption. We find that there is clear and convincing evidence in the record to support the District Court's finding that the father abandoned his daughter. The District Court did not abuse its discretion in terminating the father's parental riqhts and granting the qrandparents' petition for adoption. AFFIRMED. @ ( s i & k d Justice Justices u | November 30, 1989 |
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