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3b53c416-953d-48c8-b06e-4a40636773ed | STATE v KLIPPENSTEIN | N/A | 89-291 | Montana | Montana Supreme Court | NO. 89-291 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, plaintiff and Respondent, -vs- BRENT KLIPPENSTEIN, Defendant and Appellant. APPEAL FROM: District Court of the Fourth ~udicial District, In and for the County of Missoula, The Honorable Joseph Gary, Judge presiding. COUNSEL OF RECORD: For Appellant: Recht & Greef; Howard F. Recht, ~amilton, Montana For Respondent: Hon. Marc ~acicot, Attorney General, Helena, Montana Dorothy McCarter, Asst. Attorney General, Helena Robert L. Deschamps, 111, County Attorney, iss sou la, Montana Submitted on ~riefs: Aug. 10, 1989 Decided: August 30, 1989 Mr. Justice John C. Sheehy delivered the Opinion of the Court. Brent lipp pen stein, convicted upon his plea of guilty of the offense of felony theft in the District Court, Fourth Judicial District, Ravalli County, appeals from the judgment and sentence imposed upon him. On consideration, we affirm the sentence imposed with one modification. The defendant was charged by information with one count of felony theft. The investigation revealed that he had embezzled approximately $396,000 from Washington Corporation over a four-year period. He embezzled the money by channeling false purchase orders through a nonexistent tire company he had set up. Some of the stolen funds were used as part of the start-up capital for an otherwise legitimate auto parts store. The defendant entered a plea of guilty to the charge of theft on December 23, 1988, and sentencing occurred on March 2, 1989. After hearing the recommendations of the County Attorney, the defense counsel, and the Department of Institutions, the District Court sentenced the defendant, the pertinent part of which sentence follows: IT IS ADJUDGED AND DECREED that the Defendant is guilty of the offense charged. A Pre-sentence ~nvestigation Report was ordered and being fully advised as to the facts of this case; IT IS THE JUDGMENT OF THE COURT that BRENT KLIPPENSTEIN be and BRENT KLIPPENSTEIN is hereby sentenced to a term of ten (10) years in the Montana State Prison. It is the recommendation of the Court that when the Defendant qualifies according to the Montana State Prison then he shall be released to a Pre-Release Center. IT IS FURTHER ORDERED that upon release from prison, to the best of his ability, the Defendant shall make restitution to Chubb, 6500 ~ilshire, Los Angeles, CA (Attention: Frank Arenson) in the amount of Three Hundred Eighty-eight Thousand Eight Hundred Forty-nine and 31/100 Dollars ($388,849.31) . IT IS FURTHER ORDERED that that Defendant's business, NAPA Auto Parts, Lolo, Montana, is to be sold by the Defendant and the proceeds applied to the restitution, unless the Internal Revenue Service has not [sic] already seized it. The maximum sentence permissible for the offense of felony theft is a fine "not to exceed $50,000 or be imprisoned in the state prison for any term not to exceed ten years or both." Section 45-6-301(6), MCA. On appeal the defendant contends that since he was given the maximum sentence of imprisonment allowed by law for the offense, no part of which was suspended or deferred, that the additional requirement that he pay restitution and that his auto parts business be sold exceeds the authority of the court. He contends that the authority the District Court order restitution extends only to cases where the court imposes restitution as a condition of a suspended or deferred sentence under 5 46-18-201, MCA. In State v. Shaver (Mont. 1988), 760 P.2d 1230, 1236, this Court said: Under 5 46-18-201 (1) (a), MCA, the District Court has authority to impose reasonable restrictions or conditions including restitution (subsection (iv) and "any other reasonable conditions considered necessary for rehabilitation . . . " (subsection (x) ) The statute further states " [t] he sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence." Section 46-18-201(1) (b), MCA. The defendant has misinterpreted the sentence imposed by the District Court. The provision for restitution applies only if under the rules of the Montana State Prison he becomes eligible for parole and secures his release. If he never receives a parole, and serves the full term of ten years, then the condition of restitution does not apply, and the maximum imprisonment authorized by statute for the offense charged comes into play. In other words, the sentence imposed on him can never exceed the maximum allowed under the statutory authority of the court. The defendant assumes that his sentence is imposed under the provisions of s 46-18-201, MCA. That statute does refer to imposing restitution as a condition for deferred imposition of sentence or a suspended sentence. In this case, however, the District Court did not utilize the provisions of § 46-18-201, MCA, to impose either a deferred imposition of sentence or a suspended sentence. Instead, the court imposed a condition on parole of the defendant under the general power granted to the court in 5 46-18-202, MCA. The regulations of the Board of Pardons and Parole recognize that the sentencing court "may require other and additional special conditions to be placed upon the parolee." S 20.7.1101 (14) , A.R.M. The second issue raised by the defendant is his contention that the ~istrict Court sentenced him for crimes which he did not commit and for which he has not been charged and convicted. In part, the sentencing court said: Now, I think you've got a break because you were only charged with one count. I think Gallatin County would have charged with 20 or 30 counts. Which could have consecutively been 200, 300, 400 years in the prison. I don't know how you got the break and so forth, but you did get a break. Therefore, based upon the fact that you have had these breaks and you committed more felonies than I have ever seen committed since I have been on the bench, it is the sentencing judgment of this court that [sentence follows]. Again, the defendant has misinterpreted what the District Court did in imposing sentence. The information charging the defendant in a single count specified "on or between 1984 and 1988, the defendant purposely and knowingly asserted unauthorized control over monies and properties owned by Washington Incorporation etc." Because the defendant was charged only with one count, a count which embraced all of the embezzlements by the defendant as a common scheme, the court was limited in imposing sentence to the maximum imposed for one felony theft offense. The comments of the District Court indicated only that the defendant had been treated leniently insofar as the charges were concerned. In imposing sentence, the sentencing court may consider any relevant evidence relating to the nature and circumstances of the crime, the character of the defendant, his background history, mental and physical condition, and "any evidence the court considers to have probative force. . . ." Section 46-18-302, MCA. The District Court is given a wide scope of inquiry in sentencing. State v. D.B.S (1985), 216 Mont. 234, 247-48, 700 P.2d 630, 639-40. The information received by the sentencing court is not limited by the Rules of Evidence. Section 46-18-302, MCA; State v. Smith (Mont. 1988), 755 P.2d 569, 571-72. The defendant also contends that the ~istrict Court imposed the maximum sentence because of the ~istrict Court's belief that defendant's wife was also guilty by implication. In ref erring to the wife ' s knowledge of the embezzlements, the District Court referred only to the statement of the defendant that the wife didn't know of the ongoing embezzlements, and expressed a measure of disbelief in defendant's statement. Nothing in the record indicates that the ~istrict Court imposed its sentence upon the defendant for the presumed misfeasance of the defendant's wife. Referring again to the order of the District Court relating to restitution, the court ordered that the defendant's business, NAPA Auto Parts of Lolo, Montana, be sold and the proceeds applied to the restitution. At this juncture, the provision is not applicable, because as we stated above, restitution does not apply unless the defendant becomes eligible for parole. since the possibility of parole may occur at some indeterminable time in the future, a present order to sell the auto parts business is not workable. We will therefore modify the sentencing judgment to remove that paragraph. In so holding, it is not necessary for us to consider the due process arguments raised by the defendant as to this provision. ~ccordingly, the judgment and sentence is modified to remove therefrom the provision that the defendant's business, NAPA Auto Parts of Lolo, Montana, is to be sold. As so modified, the sentence imposed by the District Court is affirmed and will stand. -\ | August 30, 1989 |
07f570b0-db2d-40fd-bc43-2320bbc61e2d | LIBERTY v JONES | N/A | 89-359 | Montana | Montana Supreme Court | No. 89-359 IN THE SUPREME COURT OF THE STATE OF MONTANA RIO LIBERTY, Plaintiff and Appellant, -vs- AARON JONES, Q Defendant and Respondent. 73 - 0 - x r- rrl F' P 0 x 0 C 5 APPEAL FROM: District Court of the Twentieth Judicial District, In and for the County of Lake, The Honorable C. R. McNeil, Judqe presiding. COUNSEL OF RECORD: For Appellant: James A. Manley; Manley Law Offices, Polson, Montana For Respondent: Daniel Decker, Confederated Salish & Kootenai Tribes, Pablo, Montana Submitted on Briefs: Sept. 27, 1989 Decided: November 15, 1989 Filed: Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from an order of dismissal of the Twentieth Judicial District, Lake County. The District Court dismissed the case on the gro.und that it did not have subject matter jurisdiction over the controversy. We affirm. The sole issue on appeal is: Whether the state courts of Montana have subject matter jurisdiction over a civil dispute brought by an Indian alleging tortious conduct by another Indian arising on the Flathead Indian Reservation when both parties are members of the Confederated Salish and Kootenai Tribe. The facts of this case are simple. The parties are enrolled members of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation. Both parties' residence, business and place of employment are sit,uated within the exterior boundaries of the Reservation. Rio Liberty (Liberty) , a self -employed truck driver, filed a complaint in state court against Aaron Jones (Jones), who is a manager of a business known as the Flathead Post and Pole Yard. This business and the land that it sits on are owned by the tribes. In his complaint, he alleged that Jones unlawfully terminated a contract between Liberty and the Flathead Post and Pole Yard. Liberty maintains that the contract was terminated due to his failure as a member of the local school board, to hire Jones' wife as a teacher at a local elementary school. He bases this complaint upon an alleged conversation with Jones, which occurred at the Flathead Post and Pole Yard. It is alleged that, during this conversation, Jones stated that the reason for the termination of the contract was that Liberty had not hired his wife for the teaching position. Jones filed a motion to dismiss for lack of subject matter jurisdiction. The trial court found that it did not have jurisdiction over a dispute between two Indians that arose on the Reservation, and the motion to dismiss was granted. In the past, the Indians gave up much of their land through the signing of treaties with the American government. These treaties were not, however, a grant of power to the tribes from the government. It has always been recognized that the treaties represented an exchange of limited aspects of tribal sovereignty for the benefits and protection of the United States of America. Worcester v. Georgia (1832), 31 U.S. 515, 8 L.E. 483. Consequently, because the tribes have been recognized as "distinct independent political communities," their authority to manage the internal affairs of their populace has never been fully relinquished. Worcester, 31 U.S. at 557. The federal government has always precluded state interference with internal tribal affairs when such interference would unduly infringe upon tribal sovereignty. Williams v. Lee (1959), 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251. Normally, a state can only exercise jurisdiction over internal tribal relations when Congress has given its express assent. Liberty maintains that authority for the State's jurisdiction in this case, arises from the fact that the Flathead Indian Reservation is subject to the provisions of Public Law 280. See 18 U.S.C. S 1161-62, 25 U.S.C. S S 1321-1322, 28 U.S.C. 5 1360 (1986). Passed in 1953, Publ-ic Law 280 allowed the states under certain circumstances to extend their civil and criminal adjudicatory powers into Indian country. In 1965, the State of Montana and the Confederated Salish and Kootenai Tribes entered into a voluntary agreement, pursuant to Public Law 280, that extended State criminal and enumerated areas of civil jurisdiction onto the reservation. This agreement extended the laws and jurisdiction of the State onto the Flathead Reservation in nine areas: a) Compulsory School Attendance. b) Public Welfare c) Domestic Relations (exception adoptions) d) Medical Health, Insanity, Care of the Infirm, Aged and Afflicted. e) Juvenile Delinquency and Youth Rehabilitation. f) Adoption Proceedings (With consent of the Tribal Court) g) Abandoned, Dependent, Neglected, Orphaned or Abused Children h) Operation of Motor Vehicles upon the Public Streets, Alleys, Roads and Highways. i) All Criminal Laws of the State of Montana; and all Criminal Ordinances of Cities and Towns within the Flathead Indian Reservation. Tribal Ordinance 40A (1965) . Liberty maintains that the issues here can be litigated in state court under section b of the tribal ordinance. This section allows the State to extend its jurisdiction and laws onto the reservation in the area of "public welfare." Liberty argues that the facts of this case present a controversy which affects the welfare of the public, because it involves an act of extortion upon a public official. Such an act necessarily will affect the general happiness, well-being and welfare of the citizens of Montana. Therefore, it is argued that the State has jurisdictional authority under section b, over this tort action in order to protect these values. We disagree with this argument. As stated by the District Court, it is clear that the term "public welfare" only applies to practical issues of economic assistance to the needy. Contrary to Liberty's argument, it was not intended to include "lofty constitutional principles involving the welfare of the public. " In the absence of an express directive giving the State jurisdiction over disputes between tribal members, which arise on the reservation, Montana cannot extend its authority over such controversies. There is no such directive. Therefore, the District Court is affirmed. & ~ % & Justice | November 15, 1989 |
ca7c0680-4030-4356-8984-c5a468e59013 | GITTO v GITTO | N/A | 88-617 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA CAROLINA GITTO, plaintiff and Appellant, -vs- GUISEPPE GITTO AND KAREN GITTO, Defendants and Respondents. APPEAL FROM: District Court of the Fourth ~udicial ~istrict, In and for the County of Missoula, The Honorable James B. wheelis, Judge presiding. COUNSEL OF RECORD: For Appellant: Sol & Wolfe; Michael Sol, Missoula, Montana For Respondent: Tipp, Frizzell & Buley; Thomas W. ~rizzell, is sou la, Montana Submitted on ~riefs: ~ p r i l 27, 1989 Decided: August 31, 1989 Mr. Justice William E. Hunt, Sr. , delivered the Opinion of the Court. Plaintiff, ~arolina itt to (Mother), filed a complaint in the District Court of the Fourth ~udicial ~istrict, c is sou la County, seeking to impose a trust upon the home of the defendants, ~uiseppe (Joe) and Karen itt to. The ~istrict Court, after a non-jury trial, granted judgment in favor of Karen. Mother appeals. We affirm. The following issues are raised on appeal: 1. When a mother loans money to her son for the construction of the son's family home, is the district court required to impose upon the home a resulting trust in favor of the mother? 2. Is a wife unjustly enriched when, in a dissolution action, she is awarded the family home that was constructed in whole or in part out of funds loaned to her husband by his mother, and, if so, does equity entitle the mother to a constructive trust upon the home? On December 2, 1972, Joe and Karen itt to were married in Floral Park, New York. In 1979, the couple moved to Montana, where they purchased a parcel of land on a contract for deed. Shortly thereafter, Joe contacted his mother, Carolina Gitto, who lived in New York, to borrow money for the construction of a home on the Montana property. Mother consented to lend Joe money, which he orally agreed to repay. From 1979 through 1983, Joe continued to borrow money from Mother. The parties understood that Joe would repay the loans when he obtained steady employment. This understanding was never reduced to writing. Karen was not a party to the loans. Although she knew that Joe received money from Mother, she herself did not request any money, nor was she sure how Joe spent the funds he received from Mother. At one point, Mother sought to secure the loans by asking Joe to place her name on the title to the Montana property. Nothing in the record shows that Joe assented to, or otherwise indicated he would honor, Mother's request. Needless to say, he did not add her name to the deed. Even so, she continued to loan him money. All in all, Joe borrowed a total of $76,630. During the time he borrowed the money and continuing through the time of this action, Joe's employment picture remained gloomy. He was only sporadically employed; the two heating businesses he attempted to set up ended in failure. Joe's home life was not much better. The record reflects a tumultuous marital relationship. Joe displayed a violent temper, which he occasionally exhibited by destroying household furnishings. Due in part to Joe's destructive tendencies, the home in question had a value of only $45,000 at the time of this action. Joe and Karen separated in 1981, then reconciled. In 1985, Karen petitioned to dissolve the marriage. Slightly over one month later, Mother filed a complaint against both Joe and Karen, alleging that the loans were due and owing and seeking to impose a trust on the family home. The ~istrict Court granted Mother's motion to consolidate the two actions. On December 15, 1986, the dissolution trial was held. Only Karen appeared at the hearing. The District Court awarded her the custody of the couple's minor child. The court also granted her the family home, finding that she required the home as a residence for herself and the child. Karen was ordered to pay any debts she had incurred in the marriage, with the exception of any claim of debt on the family home, which the court found to be free of mortgage indebtedness. The court ordered Joe to pay "his own debts incurred by him." A non-jury trial on Mother's complaint was held on July 20, 1987. On March 29, 1988, the court issued its findings of fact and conclusions of law, opinion and order. The court held that the $76,630 constituted loans, not gifts, from Mother to Joe, but that equity would not be served by requiring Karen to repay the loans. Consequently, the court refused to impose either a constructive or resulting trust on the property. From this order, Mother appeals. The remedies of constructive and resulting trusts are equitable in nature. The standard of review governing proceedings in equity is codified at S 3-2-204(5), MCA, which directs the appellate court to review and determine questions of fact as well as questions of law. Although this statute appears to provide this Court with broad powers of review, we continue to defer to the trial court's judgment in those cases presenting close questions of fact. We will not disturb the district court's factual findings unless the record establishes a decided preponderance of the evidence against them. Rase v. Castle ~ountain Ranch, Inc. (Mont. 1981), 631 P.2d 680, 684, 38 St.Rep. 992, 996. Before we begin our discussion regarding whether the ~istrict Court erred in failing to impose an involuntary trust on the home, we note that the present case involves a series of money transactions between a mother and son. Generally, transfers of property between close relatives are presumed to be gifts. Peterson v. Kabrich (1984), 213 Mont. 401, 407, 691 P.2d 1360, 1364; Platts v. Platts (1959), 134 Mont. 474, 480-81, 334 P.2d 722, 727. In this case, however, the District Court found that Mother successfully rebutted the gift presumption, a finding that the evidence in the record amply supports. The following discussion is therefore based on the conclusion that the transfers between Mother and Joe constituted loans, not gifts. Montana law recognizes two general categories of trusts: voluntary and involuntary. Voluntary trusts arise by express agreement of the parties. Involuntary trusts, on the other hand, arise independently of any express contract. Lynch v. ~errig (1905), 32 Mont. 267, 274, 80 P. 240, 242. Because involuntary trusts are not dependent upon an express agreement, they may be proven by par01 evidence. The Statute of Frauds plays no part in the finding of an involuntary trust. Campanello v. Mercer (1951), 124 Mont. 528, 531, 227 P.2d 312, 314; Feeley v. Feeley (1924), 72 Mont. 84, 92, 231 P. 908, 910. within the category of involuntary trusts, two subclasses exist: resulting trusts and constructive trusts. Mother argues that the ~istrict Court erred in failing to impose either one or the other of these trusts upon the home awarded to Karen in the dissolution decree. A resulting trust, also known as a purchase-money trust, arises only in certain narrowly defined circumstances, which have been codified by statute as follows: When a transfer of real property is made to one person and the consideration thereof is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made. Section 72-24-104, MCA. A resulting trust exists only when one party provides the consideration for the transfer of property. If A gives money to B for the purchase of real estate and B puts the title to the land in his name, presumably the parties intend that B will merely hold the title in trust for A, and A will retain the beneficial use of the property. See Meagher v. Harrington (1927) 78 Mont. 457, 469-70, 254 P. 432, 435-36; Lynch, 32 Mont. at 274, 80 P. at 242. ~ikewise, if A gives money to B for the purchase of personal property, and B takes title to the personal property in his name, B holds the title in trust for A. Meaqher, 78 at 469-70, 254 P. at 435. However, if A gives money to B for the purpose of improving property owned by B, a resulting trust does not arise. As explained by a leading authority: If B has contracted for the purchase of land and entered into possession, and A thereafter, but before B gets a deed, pays for the construction of a house on the land, A has not paid the price of the equitable property interest which B then owns. A has merely added to the value of that interest, and the law does not infer an intent that B is to have an equitable interest by way of trust. A fortiori, if the improvement paid for by A comex after B has obtained a deed, there is no resulting trust presumed for A. The price of the land has already been paid by B. A is merely adding to the value of realty which is owned by B in fee simple absolute. G. Bogart, S 455, at 661-62 (rev. 2d ed. 1977). In the present case, Joe and Karen purchased the underlying real property on a contract for deed from Joe's aunt, Sally Travanto. The funds advanced by Mother were not intended to be, nor were they actually, used for the purchase of real property. Rather, Joe used the money to construct a house on the land. Because the parties applied the funds only to improve the underlying real property, the District Court did not err in refusing to impose a resulting trust on the home. Unlike a resulting trust, a constructive trust may be imposed in a wide variety of circumstances. While a resulting trust is said to be "intent enforcing," a constructive trust is "fraud rectifying." Bogart, S 451 at 611. A constructive trust may be imposed regardless of the intent of the parties. It is a remedy created by operation of law to prevent the unjust enrichment of one party at the expense of another. Rust v. Kelly (Mont. 1987), 741 P.2d 786, 787, 44 St.Rep. 1471, 1473; Meagher, 78 Mont at 469-70, 254 P. at 435-36. As provided by statute: One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act is, unless he has some other or better right thereto, an involuntary trustee of the thing gained for the benefit of the person who would otherwise have had it. Section 72-20-111, MCA. Before a court may impose a constructive trust, it must determine whether the holder of the subject property has been unjustly enriched. Undoubtedly, in this case, Karen was enriched when the court awarded her the home built with funds furnished by Mother. But is Karen's enrichment unjust? We think not. Injustice results from the performance of a wrongful act. Mother argues that the wrongful act in this case was Joe's breach of the trust she reposed in him. She contends that, by virtue of the fact that she was his mother, she stood in a confidential relationship with Joe, a relationship he violated when he failed to take steps to secure her interest in the property. Even assuming that Mother is correct in asserting that she maintained a confidential relationship with Joe, this fact in and of itself will not give rise to a constructive trust. Equity will not impose a constructive trust for the violation of a confidential relationship unless the party seeking to impose the trust shows by clear and convincing evidence the exercise of fraud or undue influence. Mahaffey v. DeLeeuw (1975), 168 Mont. 274, 280, 542 P.2d 103, 107. Here, Mother failed to introduce any evidence of fraud or undue influence. Quite the contrary, the record indicates that Mother entered into the series of money transfers with her eyes wide open. Joe represented only that he would repay the loans when he obtained steady employment. Although Mother knew his employment situation was shaky at best, she loaned him money. When he failed to honor her request to secure the loans, she continued to send him money. A constructive trust arises in law to remedy a wrongful act. In this case, no wrongful act occurred. We affirm the District Court. , We Concur: Justices | August 31, 1989 |
bdf3705a-1c97-47cd-8c0e-5da4c01e5941 | CITY OF FAIRVIEW v DEMING | N/A | 88-561 | Montana | Montana Supreme Court | No. 88-561 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 CITY OF FAIRVIEW, plaintiff and Respondent, -vs- WILLIAM M. DEMING, Defendant and Appellant. APPEAL FROM: ~istrict Court of the Seventh ~udicial ~istrict, In and for the County of Richland, The Honorable H. R. Obert, Judge presiding. COUNSEL OF RECORD: For Appellant: J. Douglas Alexander, Sidney, Montana For Respondent: ~ i k e Weber, F air view, Montana submitted on ~riefs: June 30, 1989 Decided: August 25, 1989 Filed: &I - - 2 . ' , \ _ _ I . r- i ,- -- . . . , Mr. ~ustice ~illiam E. Hunt, Sr. , delivered the Opinion of the Court. William ~eming, defendant and appellant, appeals from a money judgment entered in favor of the City of air view, plaintiff and respondent, by the District Court of the Seventh ~udicial ~istrict, Richland County. We affirm. The issues raised on appeal are: 1. Whether a proper foundation was laid to qualify a witness as an expert. 2. Whether contradictory expert testimony was properly weighed by the District Court. 3. Whether plaintiff laid a proper foundation for the introduction of certain exhibits. William Deming was the city judge of Fairview, Montana from July 1, 1980, through January 31, 1983. As city judge, his duties included the collection of fines due on various tickets. The monies collected were placed in his trust account with the City of Fairview. An examination of the records, accounts, and reports of the ~eming court covering the period of his judgeship was conducted by the Montana Department of ~dministration at the request of the City of Fairview. Loren ~lesjer, a municipal auditor of the Local Government services ~ivision of the Department, was in charge of the examination. Flesjer's examination showed that while a sum of $15,004.40 had been collected by defendant from tickets, only $10,989.77 had been accounted for, leaving a $4,014.63 deficiency. The City of Fairview filed suit for damages resulting in misappropriation of the funds. rial was held on July 12, 1988, before the District Court sitting without a jury. The expert testimony of Flesjer was admitted for the purpose proving the deficiency. Among the exhibits introduced were the tickets in question submitted as Plaintiff's Exhibit 1, a list of tickets that were unaccounted for and funds submitted as plaintiff's ~xhibit 1-A and an examination report prepared by ~lesjer submitted as plaintiff's ~xhibit 2. On September 9, 1988, the ~istrict Court ruled in favor of the City of air view and ordered that plaintiff recover from defendant the $4,014.63 plus costs. The first issue raised on appeal is whether plaintiff laid a proper foundation to qualify Flesjer as an expert witness. Rule 702, M.R.Evid.,provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an .expert by - - knowledge, skill, experience, tralnlng, or education may testify thereto in the form of an ~pinion~otherwise. (Emphasis ours. ) OR In this case, the record reflects that a proper foundation was laid for ~lesjer's qualifications as an auditor. Flesjer testified that he had been employed by the Local Government Service ~ivision of the Montana Department of ~dministration as an auditor for 174 years; he had 5 years of accounting experience before working for the state; he holds a two-year degree in business administration and accounting; he presently trains new employees and auditors, conducts audits, writes audit programs and conducts special examinations; and he has received training from the Lower Court Commission on examination of city judge's accounts. We hold that in light of the above testimony, the plaintiff laid a proper foundation for the introduction of Flesjer's expert testimony. In addition, after Flesjer gave this testimony, the record reflects that defendant stipulated as to the expert qualifications of Flesjer and cannot now complain that the foundation was improper. The next issue raised on appeal is whether contradictory expert testimony was properly weighed by the District Court. In this case, plaintiff called ~lesjer to testify as an auditing expert while defendant submitted a fiscal report prepared by ~ichard Lange, an accountant, to the District Court. Defendant argues that Lange's report contradicted Flesjer's testimony and demonstrated that evidence submitted lacked foundation, hence, the District Court improperly weighed the testimony of Flesjer in plaintiff's favor. We disagree. In Lumby v. Doetch (1979), 183 Mont. 427, 431, 600 P.2d 200, 202, we stated: The credibility of witnesses and the weight to be given their testimony are matters for the District Court's determination in a nonjury case. (Citation omitted.) Thus, in examining the sufficiency of evidence, we must view the same in a light most favorable to the prevailing party, and we will presume the findings and judgment by the District Court are correct. (citation omitted.) See also Como v. Rhines (1982), 198 Mont. 279, 645 ~ . 2 d 948 and Poepping v. Monson (1960), 138 Mont. 38, 353 P.2d 325. The District Court had before it the contradictory expert opinions of both parties and made its determination. The last issue raised on appeal is whether plaintiff laid a proper foundation for the introduction of certain exhibits. Defendant objected to the first exhibit, the tickets in question, submitted as plaintiff's ~xhibit 1. Rule 901(b)(7), M.R.~vid., provides: (b) By way of illustration only and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of thls rule: ( 7 ) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, statement, or data compilation, in any form, is from the public office where items of this nature are kept. Flesjer testified that the tickets contained in the exhibit were part of the original court docket. The tickets were properly identified in accord with Rule 901 ( b ) ( 7 ) , M.R.Evid., thus, plaintiff laid a proper foundation for the exhibit. The second exhibit objected to by the defendant was a list of the tickets in which sums due were unaccounted for, submitted as plaintiff's ~xhibit 1-A. The list was merely a synopsis of the information contained in ~xhibit 1 and was compiled by Flesjer to aid in the understanding of the case. A proper foundation was laid by plaintiff when Flesjer testified that he prepared the list and that the list was a synopsis of the information contained in Exhibit 1. The third exhibit objected to by the defendant was an examination report prepared by Flesjer and submitted as Plaintiff's Exhibit 2. Again, the record reflects that the exhibit was identified and verified by ~lesjer and, hence, plaintiff laid a proper foundation for its introduction. Affirmed. 2 . ' , ? <--? ,/ ' , - (-.(;.c;C'& i ' & U -(-b, . , y c - & c - t , Justice ' ' | August 25, 1989 |
7ffef97b-ace6-42e3-a973-57069bc1627a | PRACHT v ROLLINS | N/A | 89-083 | Montana | Montana Supreme Court | No. 89-83 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 DALE H. PRACHT and JEANNE M. PRACHT, Husband and Wife, Plaintiffs and Appellants, -vs- SCOTT S. ROLLINS and LADONNA K. ROLLINS, Husband and Wife, Defendants and Respondents. APPEAL FROM: District Court of the Tenth Judicial District, I- ' ;-" In and for the County of Fergus, The Honorable Peter Rapkoch, Judge presiding. COUNSEL OF RECORD: For Appellant: Jon A. Oldenburg, Lewistown, Montana For Respondent: Timothy J. O'Hare, Lewistown, Montana Submitted on Briefs: July 20, 1989 Decided: August 31, 1989 Filed: Justice L. C. Gulbrandson delivered the Opinion of the Court. Plaintiffs, Dale H. and Jeanne M. Pracht, filed a complaint in the District Court of the Tenth Judicial District, Fergus County, seeking specific performance of a contract for deed dated August 14, 1984. Defendants, Scott S. and LaDonna K. Rollins, filed a counterclaim, seeking rescission of the contract due to a breach of the implied warranty of habitability and workmanship. The District Court, sitting without a jury, entered judgment for defendants. Plaintiffs appeal. We affirm in part, reverse in part and remand. The issues raised on appeal are: 1. Whether the District Court erred by determining that plaintiffs breached the implied warranty of habitability. 2. Whether the District Court erred by rescinding the contract for deed due to failure of consideration. Dale H. and Jeanne M. Pracht, current residents of Wisconsin, owned and still own in fee simple absolute a house built by Dale H. Pracht and located in Fergus County, Montana. Dale H. Pracht is a pharmacist by profession but built and sold two other houses prior to the house that is the subject of this case. After building the house during 1982 and 1983, the Prachts advertised the house for sale in 1984 as a "newer high-tech solar home." The Prachts sold the property and house located thereon to Scott S. and LaDonna K. Rollins for $65,000 via a contract for deed dated August 14, 1984. The Rollinses paid $7,500 as a downpayment and commenced to make the monthly payments on the house beginning in August, 1984. The Rollinses moved i n t o t h e house s h o r t l y a f t e r signing t h e c o n t r a c t f o r deed. Beginning i n December, 1984, t h e Rollinses became a l e r t e d t o a p o s s i b l e humidity problem i n t h e house. The Rollinses f i r s t discovered t h a t c l o t h items they s t o r e d i n a c l o s e t of t h e house f o r approximately four months were moldy and had t o be thrown away. Other problems slowly manifested themselves throughout 1985 and 1986. S p e c i f i c a l l y , during t h e summer of 1985, t h e Rollinses noticed t h a t t h e p a i n t was beginning t o p e e l o f f t h e deck, supposedly a s a r e s u l t of using green lumber, and a few of t h e boards on t h e deck were c u r l i n g up. The Rollinses a l s o began t o n o t i c e t h a t when they closed t h e doors and windows i n t h e house, they expanded and were t h e r e f o r e very hard o r even impossible t o open o r c l o s e again. This problem was a l s o a t t r i b u t e d t o t h e humidity problem found within t h e house. Near t h e end of 1985 o r t h e beginning of 1986, t h e Rollinses noticed t h a t t h e s i d i n g of t h e house s t a r t e d t o p u l l away from where it was joined together. A f t e r t h e s i d i n g began t o give way, t h e Rollinses then noticed t h a t t h e house was n o t sheathed underneath o r braced with plywood; a s a r e s u l t , gaps began t o form i n t h e siding. The Rollinses a l s o noticed t h a t t h e garage roof began t o leak; t h a t mold was growing i n s e v e r a l window and c l o s e t areas; t h a t t h e window sills began t o crack; and t h a t during t h e winter of 1986-87 t h e foundation of t h e house began t o s e p a r a t e from t h e b a c k f i l l s o i l . S c o t t Rollins a l s o t e s t i f i e d t h a t he suspected a wiring d e f e c t i n t h e house because l i g h t bulbs d i d not seem t o l a s t i n t h e house and because they had t o have t h e i r microwave repaired four d i f f e r e n t times. According to the repairman, the microwave breakdowns occurred as a result of power surges. The Rollinses initially took steps to repair and fix the problems, including venting the clothes dryer outside and putting in a new window in the basement. However, in light of all of the problems that began to appear after the Rollinses bought the house, they finally made a decision in late December of 1986 or early January of 1987 to move out of the house. Beginning in June, 1987, and after contacting an attorney, the Rollinses ceased making payments under the contract for deed. The Rollinses, via their attorney, sent a notice to the Prachts on July 7, 1987 stating that the house was noticeably deteriorating and that it was becoming uninhabitable. The Rollinses then demanded cancellation of the contract and a refund of their downpayment. The Prachts responded in October, 1987 by filing a lawsuit seeking specific performance of the August 14, 1984 contract for deed in the District Court of the Tenth Judicial District, Fergus County. The Rollinses filed a counterclaim, seeking rescission of the contract for deed due to a breach of the implied warranty of habitability and workmanship. The Rollinses then remained in the house until October, 1988 without making any further payments. The District Court, sitting without a jury, found that the house was not constructed in a workman-like manner or according to the Uniform Building Code; that the defects the Rollinses discovered in the house were not readily apparent when they bought the house and did not begin to appear until December, 1984; that the Rollinses relied upon the Prachts' representations that they were capable of building, and did build a "high-tech" energy efficient house; and that neither Scott nor LaDonna Rollins were knowledgeable in the construction of houses. The court then concluded that the Prachts breached the implied warranty of habitability and workmanship in building the house; that the breach was material and constituted a condition entitling the Rollinses to stop making their payments under the contract for deed; that the Prachts, as the builder-vendor of the house, were in a better position to have prevented the improper construction of the house and to have avoided the problems; and that the Rollinses were entitled to rescission of the contract which therefore entitled them to recover their $7,500 downpayment. The court, however, allowed the Prachts to retain the monthly payments made by the Rollinses from August, 1984 through May, 1987 as reasonable rent. The District Court then entered judgment for the Rollinses on January 4, 1989. The Prachts appeal from this judgment. The first issue raised on appeal is whether the District Court erred by determining that the Prachts breached the implied warranty of habitability. This Court first recognized the implied warranty of habitability in 1982 in Chandler v. Madsen (1982), 197 Mont. 234, 642 P.2d 1028. In Chandler, the evidence demonstrated that the house was uninhabitable due to inoperative doors, windows, and locks; cracked walls and floors; broken windows; bent plumbing; uneven and bulged floors; separation between fixtures and walls; cracked bathroom tiles; and a settlement of the foundation by 3.6 inches in some areas. We therefore abandoned the doctrine of caveat emptor and adopted the implied warranty of habitability. We held that a builder-vendor of a new house impliedly warrants that the house is constructed in a workman-like manner and is suitable for habitation. Chandler, 197 Mont. at 239, 642 P.2d at 1031. In a subsequent case, Degnan v. Executive Homes, Inc. (1985), 215 Mont. 162, 696 P.2d 431, we upheld the application of the implied warranty of habitability. In Degnan, the house in question suffered from structural damage as a result of it being built on unstable ground. We again emphasized that the theory behind the implied warranty of habitability is not one of fault, but rather that the builder-vendor is in a better position to prevent the resulting harm and therefore is properly liable as opposed to the innocent buyer. Degnan, 215 Mont. at 166, 696 P.2d at 433. We then held that the builder-vendor was liable for defects in the structure which made it uninhabitable. Degnan, 215 Mont. at 166-67, 696 P.2d at 434. More recently, in Samuelson v. A.A. Quality Const., Inc. (Mont. 1988), 749 P.2d 73, 45 St.Rep. 157, this Court further refined the definition of the implied warranty of habitability. In Samuelson, the basement of the house in question had a water seepage problem. As a result of the seepage problem, the buyers had to remove furniture from the guest room; remove portions of the sheetrock in an attempt to locate the problem; roll back the carpeting for weeks at a time to allow the floor to dry; install floor heaters to dry the wet areas; raise items in the storeroom; restrict the use of the recreational room; use a pump to clear the crawl space of excess water; and make use of a vacuuming service to clear the water from the basement. The buyers eventually had the problems remedied. We then held that "the implied warranty of habitability of a dwelling house is limited to defects which are so substantial as reasonably to preclude the use of the dwelling as a residence." Samuelson, 749 P.2d at 75, 45 St.Rep. at 160. In the present case, the Prachts argue that the implied warranty of habitability does not apply in this case. They argue that they are not a "builder-vendor" as contemplated by this Court. Further, the Prachts argue that they built the house for themselves and then resided in it for approximately a year, therefore they argue that the house was not new at the time of the sale. The Prachts also argue that even if this Court finds that the implied warranty of habitability applies, that the defects in this house do not equal a breach of the warranty since the defects do not reasonably preclude the use of the house as a residence. We disagree. The record reveals that Dale Pracht had built and sold at least two other houses prior to building the house in question and then selling it to the Rollinses. Although Dale Pracht is obviously an amateur builder and a pharmacist by profession, the implied warranty of habitability is nonetheless applicable. As noted earlier, the theory behind the implied warranty is not to discern fault, but to place the liability on the party most able to prevent the resulting harm. Dale Pracht was the builder-vendor and was thus in a better position to prevent the structural and design problems that arose in the house than the innocent buyers--the Rollinses. Further, the record also reveals that although the Prachts lived in the house for approximately a year, they nonetheless had not yet completed the house before selling it to the Rollinses. The District Court therefore did not err in finding that the implied warranty of habitability applied in this case. in part that the District Court erred in concluding that the Rollinses were entitled to rescind the contract as a result of failure of consideration because the Rollinses did not plead this affirmative defense as required by Rule 8 (c) , M.R.Civ.P.. We agree with this part of the Prachts' argument. Rule 8 (c) , M.R.Civ.P., states that "a party shall set forth affirmatively . . . failure of consideration . . ." An affirmative defense is generally waived if not set forth affirmatively. Chandler, 97 Mont. at 241, 642 P.2d at 1032. The record shows that the Rollinses did not plead the affirmative defense of failure of consideration in either their answer or their counterclaim. Therefore the District Court erred in concluding that the Rollinses were entitled to rescind the contract as a result of failure of consideration. The court, however, also stated in its Conclusions of Law No. 8, that the Rollinses were entitled to rescission of the contract due to the Prachts' material breach of the implied warranty of habitability and workmanship. The Prachts then also attempt to argue that the equitable remedy of rescission is applicable only in those circumstances that are set forth in S 28-2-1711, MCA, which addresses when a party to a contract may rescind. While many of our common law principles have been codified in statutes, a court of equity nonetheless is not bound by the codified laws when fashioning an equitable result. On the contrary, a court sitting in equity has all the power requisite to render justice between the parties. Maddox v. Norman (1983), 206 Mont. 1, 13-14, 669 P.2d 230, 237; Rase v. Castle Mountain Ranch, Inc. (Mont. 1981), 631 P.2d 680, 687, 38 St.Rep. 992, 1000. We thus reject the Prachts' argument tha.t rescission We also hold that in light of the facts, the District Court did not err in finding that the defects in the house constituted a breach of the implied warranty of habitability. The District Court found and the evidence shows that a severe ventilation problem existed in the house as a result of the design and construction of the house. As a consequence, problems began gradually to manifest themselves while the Rollinses were living in the house. These problems included inoperative windows, doors, and locks; a faulty heating and air exchange system; cracked window sills and door frames; moldy fixtures; a leaky garage roof; separation of the foundation from the backfill soil; and separation of the siding from each other and the house. The defects also included the house not being properly sheathed or braced with plywood. These problems constituted defects which were so substantial as reasonably to preclude the use of the dwelling as a residence. Merely because the occupants continued to live in the house until they were able to find another suitable place to live, does not necessarily mean that the defects were not so substantial as to preclude reasonably the use of the dwelling as a residence. We therefore affirm the District Court on this issue. The second issue on appeal is whether the District Court erred by rescinding the contract for deed due to failure of consideration. In Conclusion of Law No. 6, the District Court stated that the house was not what the Prachts represented it to be and therefore it was not what the Rollinses had reasonably expected. The District Court therefore concluded that the Rollinses were entitled to rescind the contract as a result of a substantial failure of consideration. The Prachts argue is not proper in this case, however, we do note that the District Court did not properly consider all of the available evidence. After finding that the Rollinses were entitled to rescission of the contract, the District Court also found that the Rollinses were entitled to recover their $7,500 downpayment and that the Prachts were entitled to retain the monthly payments made by the Rollinses as reasonable rent. However, we note that when fashioning this remedy, the District Court failed to consider the time the Rollinses spent in the house from June, 1 9 8 7 to October, 1 9 8 8 . During this sixteen month time period, the Rollinses lived in the house without paying the Prachts any sort of reasonable rent. In light of the District Court's oversight of this evidence, we remand this case to the District Court to consider all of the evidence before fashioning a remedy. Affirmed in part, reversed in part, and remanded. We concur: f | August 31, 1989 |
cee0234e-63cc-45a2-b9a9-131f8a837666 | DEPT OF FISH WILDLIFE PARKS v | N/A | 89-288 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA IN THE MATTER OF THE ADJUDICATION OF THE EXISTING RIGHTS TO THE USE . . OF ALL THE WATER, BOTH SURFACE AND UNDERGROUND, WITHIN THE DEARBORN S o % DRAINAGE AREA, INCLUDING ALL 2 % A f l 2 TRIBUTARIES OF THE DEARBORN RIVER ?z" IN CASCADE AND LEWIS AND CLARK "YS P 2 COUNTIES, MONTANA, 3 Y' 5 0 -9 5- a DEPARTMENT OF FISH, WILDLIFE AND PARKS, 9 -L, 9 Tr- Claimant and Appellant, L <I L r" ' 9 -vs- 0 - 7 = 0 c 6 MONTANA STOCKGROWERS ASOCIATION, INC., Respondent and Respondent. 3 APPEAL FROM: Montana Water Courts The Honorable Roy C. ~odeghiero, Judge presiding COUNSEL OF RECORD: For Appellant: Robert N. Lane, Chief Legal Counsel, Department of ~ i s h , wildlife & Parks, Helena, Montana For Respondent: Perry T. Moore, Moore, O'Connell, ~efling & Moon, P.C. Bozeman, Montana Filed: Submitted: October 4 , 1 9 8 9 Decided: November 21, 1989 d Clerk Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from a judgment of the Water Court, Upper Missouri Division, finding the appellant, the Montana Department of Fish, Wildlife and Parks (Department) , liable for attorneys' fees and costs incurred by the Montana Stockgrowers Association, Inc. (Stockgrowers). We reverse. The sole issue on appeal is: Whether the Water Court erred in awarding attorneys' fees and costs to the Stockgrowers, who prevailed against the Department in a case involving the public's recreational use rights of the waters in Bean Lake. This issue arose out of this Court's decision in the Bean Lake case. Matter of Dearborn Drainage Area (Mont. 1988), 766 P.2d 228, 45 St.Rep. 1948. In Bean Lake, the Department pursued a water right claim, for the waters of Bean Lake as part of the ongoing statewide adjudication of water rights under the Montana Water Use Act. See S S 85-2-201, MCA et seq. The Stockgrowers intervened in response to statewide notice by publication and opposed the Department's claim. Legal counsel for the Stockgrowers, was appointed lead counsel for all intervenors opposing the claim. The Water Court ruled, and we affirmed, the Department had no appropriation right in Bean Lake predating 1973, because before that time no such right was recognized for recreation, fish and wildlife. Before 1973, some form of diversion was necessary for an appropriation. Because the right asserted by the Department lacked the elements of "diversion, intent, and notice," we held that the Department, for itself or for the public, had no valid water right which predated the 1973 Water Use Act. Then after remittitur the Stockgrowers filed a motion for attorneys' fees. A hearing was held, and the Water Court ruled that the Stockgrowers were entitled to attorneys' fees and costs. The court arrived at this conclusion although it specifically found that the Department acted in good faith within its statutory obligation to represent the public's recreational interest. It based its conclusion on the fact that the case was of precedent setting nature. Because the outcome was significant to all water users in the state, the court ruled that the Stockgrowers assumed "a burden which was disproportionate to its interest in Bean Lake." It held the case presented unique circumstances which warranted an assessment of costs and attorneys' fees. The Department's position is that when attorneys' fees and costs are to be assessed against agencies of the state, one must determine whether they are warranted under § 25-10-711, MCA. This statute, it is maintained, sets out the specific test that must be met before costs, as enumerated in S 25-10-201, MCA, and attorneys' fees, can be assessed. In short, it requires that such award is only proper when a private party prevails against the state agency and the claim or defense asserted by the agency was frivolous or pursued in bad faith. Section 25-10-711, MCA. The Department takes the view that this statute sets out the sole means by which attorneys' fees can be granted. They argue that the judgment rendered by the Water Court is in error because it specifically found the claim was asserted in good faith and in accordance with the statutory mandate of 5 85-2-223, MCA. This statute directs the Department to represent the public in claiming water for recreational use. The Department asserts that a failure on its part to make the claims on Bean Lake would have been tantamount to a dereliction of duty on its part. Therefore, because the claim was asserted in good faith, the assessment of fees and costs was in error. The Water Court did not rely upon 5 25-10-711, MCA, to arrive at its conclusion. It held that due to the constitutional and economic significance of this case, the State should bear all of the costs. It reasoned that in order to ensure full presentation of all public interests affected by its decision, it was necessary to provide fundinq to private organizations, such as the Stockgrowers. If t h i ~ funding is not provided, certain viewpoints may not he presented, and, as a result the overall integrity and effectiveness of the adjudication process may be diminished. The Water Court's ruling does not comply with the general rules set out by this Court regarding attorneys' fees. We have held that Montana adheres to the "American Rule" regarding attorneys' fees. Under the American Rule, a party in a civil action is generally not entitled to fees absent a specific contractual or statutory provision. In Re Marriage of Hereford (1986), 223 Mont. 31, 723 P.2d 960. It is true that we have departed from this rule when certain extraordinary and compelling circumstances have been presented. For instance, in Cate v. Hargrave (1984), 209 Mont. 265, 680 P.2d 952, we held that under the inherent equitable powers held by the judiciary, a District Court can assess attorneys' fees in cases of bad faith. Rut we disagree with the Water Court that the circumstances of this case provide a basis for the assessment of fees. The Stockgrowers is a private organization that represents approximately 3,000 farmers and ranchers across the State. Many of its members hold a right to use the waters which are owned by the State. The Stockgrowers, like many other organizations, have a distinct economic and philosophical interest in the uses and adjudication of the waters within the State. They represent primarily a private agricultural interest. The Department, on the other hand, has been charged by S 85-2-223, MCA, with the duty of representing the public interests in regard to recreational use of Montana waters. The duty conferred by this statute is concomitant with Article IX, Section 3, Part 3 of the Montana Constitution which states: All . . . waters within the boundaries of the state are the property of the state for use of its people This provision sets forth the fact that the waters of the State belong to the State for use by all of its citizens. However, as this case demonstrates, these uses often conflict, and competing interests often disagree over how this resource should be allocated. The premise of the Montana Water Use Act anticipates these disagreements, and the integrity of Montana's adjudication process depends upon the assertion and ultimate resolution of these varying interests. The provisions of the Act charge all water users with the duty of asserting and defending their interests. The Stockgrowers has taken upon itself the duty of defending a private agricultural interest. The Department, on the other hand, has been directed to enhance and protect the State's resources under its charge. It therefore claims waters necessary to ensure the well being of fish, wildlife and scenic values in order to fulfill this mandate. Viewed in this context, the dispute at Bean Lake, is really no more than an ordinary water rights dispute which was envisioned, by the legislature in the passage of the Montana Water Use Act. The legislature in the passage of the Act determined that the adjudication process would he adversarial in nature. It did not, however, determine that the prevailing parties in these disputes would be entitled to attorneys' fees. Many water rights disputes have the potential of affecting a number of water users. A case determining a question of abandonment, for example, could have far reaching effect on other water users. However, this Court declines to award attorneys' fees and costs for the sole reason that a case is of precedent setting nature. We agree with the rationale of the California Supreme Court in Woodland Hills v. City Council of Los Anqeles (Cal. 1979), 593 P.2d 200: . . . the doctrine of stare decisis has never been viewed as sufficient justification for permitting an attorney to obtain fees from all those who may, in future cases, utilize a precedence he has helped to secure. Woodland Hills, 593 P.2d at 216. The Stockgrowers urge the Court to recognize and apply the Private Attorney General Doctrine to the facts of this case. The Water Court did not utilize this doctrine in arriving at its conclusion. However, we will point out that the Doctrine should not apply to the facts of this case. The Doctrine is normally utilized when the government, for some reason, fails to properly enforce interests which are significant to its citizens. In this case, the Department complied with its mandate and represented a public's interest as defined by § 85-2-223, MCA, in making the in-lake claims at Bean Lake. There was no failure on its part to comply with its duties. We reiterate the point that the Department acted in good faith and in accordance with constitutional and statutory mandates in making its claims at Bean Lake. We therefore hold t h a t t h e award was i n e r r o r and t h e judgment awarding f e e s i s reversed. | November 21, 1989 |
319a0b9a-addc-457d-b41e-2d816d2c2d10 | ADOPTION OF R D T | N/A | 89-267 | Montana | Montana Supreme Court | No. 8 9 - 2 6 7 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 I N RE THE ADOPTION OF R.D.T., a/k/a R.D.E., a M i n o r . APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t , I n and for t h e C o u n t y of L e w i s & C l a r k , T h e H o n o r a b l e T h o m a s H o n z e l , Judge presiding. COUNSEL OF RECORD: For A p p e l l a n t : L e o n a r d F . T h o m a s , pro se, H e l e n a , Montana F o r R e s p o n d e n t : J. C o r t H a r r i n g t o n , Jr., 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 : J u l y 13, 1 9 8 9 D e c i d e d : A u g u s t 2 5 , 1 9 8 9 .Yd Justice R. C. McDonough delivered the Opinion of the Court. This appeal involves a claim for sanctions pursuant to Rule 11, M.R.Civ.P. arising out of a petition for adoption. Respondent Leonard F. Thomas appeals from the judgment of the District Court of the First Judicial District, Lewis and Clark County, denying his motion to impose sanctions on petitioners Nancy J. Thomas, Mark A. Erler, and their attorney J. Cort Harrington, Jr. The court ruled that based on the law and the facts as presented at hearing, Rule 11 sanctions were not proper. We affirm. Respondent Thomas raises only one issue on appeal: Did the District Court err by failing to impose such sanctions? R.D.T. was born to Nancy J. Thomas and Leonard F. Thomas on October 16, 1978 in Fairbanks, Alaska. The Thomases moved to Montana in 1979. Shortly afterward, Nancy and Leonard separated. That same year, Nancy and R.D.T. began living with Mark A. Erler in Basin, Montana and Leonard returned to Alaska. Leonard and Nancy dissolved their marriage on February 14, 1983. The decree of dissolution provided that Nancy would have custody of R.D.T. and Leonard would have visitation upon request. No child support was requested. Mark and Nancy were married on August 20 of the same year. In February of 1988, the marriage of Mark and Nancy was dissolved. Mark moved into a guest house on the same lot as the family home where Nancy, R.D.T and J.E. the daughter of Mark and Nancy, resided. In August of 1988, Leonard began exercising his visitation rights with R.D.T. Shortly afterward, Nancy and Mark, now divorced, filed a joint petition for the adoption of R.D.T. by Mark. The proceeding was bifurcated into two issues. The first issue was whether Leonard's parental rights should be terminated for non-support of R.D.T. The second issue involved a determination of whether the adoption by Mark A. Erler was in R.D.T. 's best interests. A hearing on the first issue was held on November 16, 1988 in the District Court of the Fifth Judicial District. The court took under advisement Leonard's motion to dismiss for lack of jurisdiction and limited the hearing to the question of whether Leonard's consent was required to complete the adoption. After submission of additional briefs on the jurisdictional question, the court granted Leonard's motion to dismiss the petition. On January 16, 1989, Leonard filed a motion to impose sanctions on the petitioners Mark and Nancy and their attorney J. Cort Harrington for violation of Rule 11 of the Montana Rules of Civil Procedure. Leonard's motion alleged that a reasonable inquiry into the adoption statutes by a competent attorney would have resulted in the conclusion that the petition for adoption was not warranted by existing law and that the petition was filed for an improper purpose. Leonard's motion was denied after a hearing and the propriety of that denial is now before this Court on appeal. Rule 11, M.R.Civ.P., which is nearly identical to the federal rule, provides that: . . . Every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record. . . . The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Rule 11, M.R.Civ.P. The Rule further provides for the imposition of sanctions on any party, the party's attorney, or both if a pleading is signed in violation of the Rule. Rule 11, M.R.Civ.P. Appellant Leonard first contends that a reasonable inquiry into the adoption statute by the petitioners' attorney, Mr. Harrington, would have indicated that the petition was not warranted by existing law. The applicable statute is 5 40-8-109 (1) , MCA, which provides as follows: 40-8-109 Placement for adoption by parents. (1) No parent may make a placement of a child for adoption with an individual who is not a stepparent or a member of the child's extended family unless the parent files with the district court for the county in which the prospective adoptive parent or the parent making the placement resides: (a) a notice of parental placement; and (b) a relinquishment of parental rights to the prospective adoptive parents executed voluntarily and in accordance with 40-6-135 (2) through (4). As correctly noted in the District Court's Memorandum and Order granting Leonard's motion to dismiss the petition, Mark is neither the stepparent nor a member of R.D.T.'s extended family. Furthermore, Nancy did not relinquish her parental rights; rather, she specifically stated in the petition that she would retain her parental rights. The court dismissed the petition because the requirements of 5 40-8-109, MCA, were not met. Appellant argues that a reasonable inquiry into the meaning of S 40-8-109, MCA, by Mr. Harrington would have led to the conclusion that the adoption was not warranted by existing law, as evidenced by the ruling of the District Court on the motion to dismiss. However, to avoid sanctions under Rule 11 it is not necessary that a party be correct in their view of the law. The party need only make a good faith argument for their view of the law. Zalvidar v. City of Los Angeles (9th Cir. 1986) 780 F.2d 823, 830-831. Thus the granting of a motion to dismiss against the pleader is not dispositive of the issue of sanctions. Zalvidar, 780 F.2d at 830. The petitioners1 attorney Mr. Harrington argued that S 40-8-109, MCA, did not apply because there had been no "placement for adoption." "Placement for adoption" is defined as "the transfer of physical custody of a child with respect to whom all parental rights have been terminated and who is otherwise legally free for adoption to a person who intends to adopt the child. " Section 40-8-103 (10) , MCA. Petitioners argued that because there was no intent to transfer physical custody of the child and there was no attempt to terminate the parentlchild relationship between Nancy and R.D.T. the petition did not constitute a "placement for adoption." While the District Court did not agree with this argument, it held that the argument was made in good faith. We agree. In judging the good faith argument the court must strive to avoid the wisdom of hindsight in determining whether a pleading was valid when signed, and any and all doubts must be resolved in favor of the signer. Eastway Construction Co. v. City of New York (2nd Cir. 1985), 762 F.2d 243, 254. Leonard also relies on 8 40-8-125, MCA, to support his argument that the petition was not based upon a reasonable inquiry into the adoption statutes. The statute provides that the effect of a final decree of adoption is to terminate the rights of the natural parents, unless they are the adoptive parents or a spouse of an adoptive parent, and to vest those rights in the adoptive parents. If the District Court had proceeded with the petition and terminated Leonard's parental rights pursuant to the first portion of the bifurcated hearing, a final decree of adoption entered after the second portion would only have affected the parent/child relationship between Nancy and her daughter R.D.T. Thus, the appellant has no standing to raise the issue of the effect of § 40-8-125, MCA. Finally, Leonard contends that the petition for adoption was filed for an improper purpose, to delay and prevent visitation between Leonard and his daughter R.D.T. The petitioners contend that the purpose of the petition was to officially establish the parent/child relationship between Mark and R.D.T., a relationship petitioners argue had existed in fact for nine years. As noted in Schwarzer, Sanctions Under the New Federal Rule 11 (1985), 104 F.R.D. 181, when determining whether a pleading was filed for an improper purpose, the court, in its discretion, should objectively consider all the facts and circumstances in the case: In considering whether a paper was interposed for an improper purpose, the court need not delve into the attorney's subjective intent. The record in the case and all of the surrounding circumstances should afford an adequate basis for determining whether particular papers or proceedings caused delay that was unnecessary, whether they caused increase in the cost of litigation that was needless, or whether they lacked any apparent legitimate purpose. Findings on these points would suffice to support an inference of an improper purpose. The court can make such findings guided by its experience in litigation, its knowledge of the standards of the bar of the court, and its familiarity with the case before it. Schwarzer (1985), 104 F.R.D. 181, 195. The record and surrounding circumstances in this case provided the District Court with an adequate basis to determine if the petition was filed for an improper purpose. The District Court found that the petition was not filed for an improper purpose, and based on the record the District Court's findings are not clearly erroneous. The imposition of sanctions pursuant to Rule 11 lies within the discretion of the district court. Schmidt v. Colonial Terrace Assoc. (1986), 223 Mont. 8, 723 P.2d 954. We find no abuse of discretion in this case. We affirm the District Court. We concur: | August 25, 1989 |
20dabc8d-00eb-46f0-a700-b42f34c62ff6 | STATE v KRUM | N/A | 89-164 | Montana | Montana Supreme Court | No. 89-164 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Respondent, -vs- TIMOTHY ERNEST KRUM, - . r Defendant and Appellant. ! - - % p- - I - , . -- i APPEAL FROM: District Court of the Thirteenth ~udicial District, In and for the County of Yellowstone, The Honorable Russell ~illner, Judge presiding. COUNSEL OF RECORD: For Appellant: Allen Beck, ~illings, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Kathy Seeley, Asst. Atty. General, Helena Harold Hanser, County Attorney; Charles Bradley, Deputy County Attorney, ~illings, Montana Filed: Submitted on ~riefs: July 13, 1989 Decided: August 10, 1989 Clerk Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Krum appeals his January 4, 1989, conviction following a two- day trial by jury in the Thirteenth Judicial District for criminal possession of a dangerous drug in violation of section 45-9-102 (1) , MCA. Krum was sentenced on February 7, 1989, to five years in the Montana State Prison. This sentence was scheduled to run consecu- tively to the prison term currently being served by Krum on another offense. Krum asserts on appeal that there was insufficient evidence in the record to sustain his conviction. We disagree and herein affirm Krum's conviction for criminal possession of a dangerous drug. Krum was charged by information on July 19, 1988, for violation of section 45-9-102 (I), MCA. Jury trial was held January 3 and 4, 1989. Prior to trial, a stipulation was entered into between the State and the defendant. The stipulation was read by the court to the jury at the opening of the State's case. The following facts were contained in the stipulation: Krum's arrest on July 12, 1988, was lawful. At the time of his arrest, two pill bottles were taken from his backpack. The two bottles contained 173 yellow caplets (State's Exhibit 1 ) One bottle originally contained Dilaudid and the prescription for that was issued in the name of Bill Davis, Krumls stepfather. The prescrip- tion label was affixed to that bottle. The pills were analyzed by the state crime lab, and it was determined that the caplets in Exhibit #1 contained Talwin NX, a Schedule IV controlled substance which contains pentazocine, a Schedule IV analgesic (pain killer). See section 50-32-229, MCA. The chain of possession of both bottles and their contents had not been disturbed and there is no evidence of tampering. At trial, Krum testified that he found two bottles of pills in a park located six blocks from his stepfather's house. He testified that he read the label which was affixed to one bottle and believed the contents to be Dilaudid. He put the bottles in his backpack and had them there for two or three days prior to his arrest. He was in possession of them at the time of his arrest. Krum further testified that the bottle to which was affixed the prescription label made out to his stepfather was not one of the two bottles he found in the park and put in his backpack. Krum asserted that someone had switched the bottles and assumed the switch was made by law enforcement personnel. When questioned about his theory regarding the Krum said law enforcement personnel could have gone to his stepfather's house, rang the front doorbell, and asked for a bottle of Davis' prescription pain killers. Krum denied on cross-examination that he took the pills from his stepfather's house while Krum was living there. The State's evidence consisted of the stipulation, the bottles and the pills. On appeal, Krum asserts that there is insufficient State's evidence to sustain a conviction because he did not I1knowl1 the contents of the bottles to be a controlled substance; rather, he believed he was in possession of Dilaudid. We do not agree. Felony criminal possession of a dangerous drug requires proof that a defendant: (1) possessed (2) dangerous drugs. State v. Smith (1983), 203 Mont. 346, 661 P.2d 463. lnPossession" is defined as: [tlhe knowing control of anything for a suff i- cient time to be able to terminate control. Section 45-2-101(52), MCA. Thus, the mental state of 'lknowinglyll is also contained in the definition of possession of dangerous drugs. Section 45-9-102(1), MCA. "Knowingly1' is defined as follows: "Knowinglyn--a person acts knowingly with respect to conduct or a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists . . . when knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence . . . Section 45-2-101 (33) , MCA. Additionally, a mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense. Section 45-2-103, MCA. The court instructed the jury in Instruction Nos. 4 and 7 that the State had to prove that Krum ffpurposelyff possessed Talwin. The result was that the State had to prove that Krum both purposely and knowingly was in control of a dangerous drug. As noted in the elements set forth above, the State is only obligated to prove ffknowingff control of the dangerous drug. However in this case, the State carried its burden of proof on the instruction of ffpurposelyff as well. No prejudice to Krum can be found in the erroneous placement of this additional burden on the State. The standard of review applied to this case is whether, after reviewing the evidence in the light most favorable to the prosecu- tion, any rational trier of fact could have found the three essential elements of the crime charged (violation of section 45- 9-102(1), MCA) beyond a reasonable doubt. If so, then there is sufficient evidence to support the verdict. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. McDonald (Mont. 1987), 734 P.2d 1216, 44 St.Rep. 593. We conclude that a rational trier could find all elements satisfied and thus, for the reasons set forth below, there was sufficient evidence to support the verdict. a. Knowledge. Krum hinges his defense on what he asserts is his lack of knowledge. That argument is without merit. Although knowledge cannot be inferred from mere possession alone, knowledge may be proved by evidence of acts, declarations or conduct of the accused from which an inference of knowledge may be drawn. State v. Anderson (1972), 159 Mont. 344, 351, 498 P.2d 295, 299. With that in mind, we examine Krum's conduct and declarations. Krum was carrying the two bottles of pills when he was arrested. He stated he believed them to be a prescription of Dilaudid which he found in the park. Although he testified that he examined the pills and believed them to be Dilaudid, the record reflects that each yellow pill was marked with the letter "T" on one side. Further, Krum testified that part of the prescription label was torn from the bottle, but the part that remained showed that the prescription was issued in the name of "Billy D." Yet, Krum stated these pills he "foundv could not have belonged to his stepfather, Bill Davis. When questioned as to whether he had taken the pills with his stepfather's name on them while he had been living in his step- father 's home, Krum responded that l'someonetl must have switched the pill bottles on him. Krumls testimony regarding where he had obtained the two bottles of controlled substances and how his stepfather's prescrip- tion bottle got in his backpack was incredible. This raised an inference allowing the jury to disbelieve Krum. Viewing this in the light most favorable to the State, there is sufficient evidence to prove "knowledgev beyond a reasonable doubt. The remaining elements are not as easily contested. b . Control. Krum was exercising exclusive control of the two pill bottles and their contents when he placed them into his backpack. He kept them in his backpack for two or three days. That time is certainly of a sufficient length wherein Krum could have terminated control. However, Krum did not terminate his control over the contents of the two bottles, and they were still in his backpack when he was arrested. It is hard to dispute control when Krum was carrying the pills around for two or three days. At one point on cross-examination, Krum was asked why he did not throw the drugs away if he had found them. Krum answered, "1 more or less forgot they were in there . . . That testimony is still insufficient to dispute that Krum had control of the pills for a sufficient time to terminate control. The State proved this element beyond a reasonable doubt. c. Dangerous Drug. The results of the state crime lab analysis of the contents of the pill bottles revealed them to be Talwin, NX, a prescription drug containing pentazocine. The defendant stipulated to the result and to the accuracy of the results. A dangerous drug, as defined by section 50-32-101, MCA, means any substance or immediate precursor delineated in Schedules I - V in the statutes. In section 50-32-229, MCA, the Schedule I V controlled substances are listed. At section 50-32-229(5)(a), pentazocine is specifically listed by name as a dangerous drug. Little more can be said regarding this element, especially since the defendant stipulated to the results of the crime lab analysis. Based on the foregoing analysis, we conclude there was sufficient evidence to support the jury's verdict. Krum's convic- tion for violation of section 45-9-102(1), MCA, and the sentence imposed thereon are hereby affirmed. Chief Justice 6 We concur: ' Justices | August 10, 1989 |
b4e74e4c-0786-48dc-bd64-52a6aa86e5fd | ZAVARELLI v MIGHT | N/A | 89-044 | Montana | Montana Supreme Court | NO. 89-44 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ERMINDO ZAVARELLI, plaintiff and Respondent, cc. 1 ' -vs- ANGELA MIGHT, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial ~istrict, In and for the County of Missoula, The Honorable Jack L. Green, Judge presiding. COUNSEL OF RECORD: For Appellant: Connell & Beers; Thomas J. Beers, Missoula, Montana For Respondent: John C. Schulte, is sou la, Montana Hugh Kidder, Missoula, Montana Filed: Submitted on ~riefs: June 30, 1989 ~ecided: September 14, 1989 Mr. Justice John C. Sheehy delivered the Opinion of the Court. This appeal presents a procedural issue as to the power of a district court, upon remittitur and remand of a cause to the District Court from this Court "for further proceedings." We determine that a district court, on reversal and remitti- tur from this Court "for further proceedings," is reinvested with full jurisdiction of the cause, and that the issues raised in the cause are generally open for the ~istrict Court's decision, except only for legal conclusions con- trolled by the law of the case established in the reversal. Angela Might appeals from a decision of the District Court, Fourth ~udicial ~istrict, is sou la County, which held adversely to Angela that the common boundary line between her real property and that of her brother, ~rmindo Zavarelli, followed an historic old board fence. Ermindo zavarelli and Angela ~ i g h t are brother and sister. Through the probated will of their father, in 1968, they each became life tenants with undivided interests in the whole of certain abutting tracts of land in iss sou la County, previously owned by the father. The father died in 1966. ~eginning in that year, Ermindo commenced building certain apartment buildings on the property subject to then undivided life estates of the par- ties. This continued until eight apartments were built, all of them being situated on Lot 18, Cobban and c ins more Orchard Homes No. 2. Ermindo obtained permits for the installation of septic tanks and sewer drainage lines from the iss sou la County Health Department. The District Court found that part of a septic tank system (or sewer system) intruded on lands contained within the Eddy Edition to the south of Lot 18. The court further found that ~rmindo placed the septic tanks on the property, before the life estate interests were divided, north of a board fence which the court found was understood by the parties to be on the south property line of Lot 18. On February 25, 1971, ~rmindo made, executed and deliv- ered to Angela a quitclaim deed to certain of the real prop- erty, and in return on the same date Angela made, executed and delivered a quitclaim deed to Ermindo to certain of the real property. The remaindermen after the life estates were all grandchildren of the deceased father and all of the remaindermen joined in the execution and delivery of the quitclaim deeds. Thus, the issues in this case involve only the rights of the life estate holders, ~rmindo and Angela. The District Court further found and concluded that the parties had by mutual agreement divided the property subject to the life estates between them by delineating in the quitclaim deeds the exact descriptions of the property each was to own. They further found that they relied on the legal descriptions as set forth in recorded subdivision plats in Missoula County and that they were both under the impression that the fence erected by the father was a boundary line between the two divided properties. In the first trial of this cause, the ~istrict Court did not disturb the descriptions of the property deeded by Angela to Ermindo in the mutual quitclaim deeds. Instead, the District Court concluded that Ermindo had obtained a prescriptive easement to that parcel of the property, which under the description of the quitclaim deeds, belonged to Angela. That judgment of the District Court was appealed by Angela to this Court, and in zavarelli v. ~ i g h t (Mont. 1988), 749 P.2d 524, 45 St.Rep. 211, we reversed the holding that Ermindo had a prescriptive easement over Angela's lands. In reversing and remanding the cause for further proceedings in the District Court, we said: Ermindo's complaint proceeds on the theory that he and Angela had divided the property in accordance with direc- tions received from the father and that the true boundary line between their property should have been that marked by a board fence south of Lot 18. Although the District Court made findings and conclusions respecting the location of the fence, the judgment that there was a prescriptive easement, is a refutation of any title to the disputed area in Ermindo and is, instead, a conclusion that Angela owned the line up to the subdivision line in Lot 18, but subject to the purported prescriptive easement of Ermindo. Ermindo cannot both own the surface of land up to the line of the board fence, and have a prescriptive easement under the same ownership. The easement would merge in the title. Ermindo could not claim title to the surface of the disputed area south of Lot 18 by adverse possession, since he does not pay the taxes thereon. Section 70-19-411, MCA. Since the prescriptive easement cannot be supported, the judgment must be reversed. We remand for such further proceedings as are necessary in the light of- this opinion - - and the facts found a the ~istrict Court. (~mphasis supplied. 1 When the District Court received the cause again after reversal and remand to it, the court held further proceedings. Angela moved for a judgment f r o r r i the ~istrict Court ejecting Ermindo Zavarelli from Angela's property and requiring him to remove the existing sewer system. On the other hand, Ermindo moved for summary judgment, claiming that on the facts already found by the District Court the descrip- tions of the quitclaim deeds to each other constituted a mutual mistake between the parties, because of their inten- tion to fix the common boundary line to that of the old board fence . In deciding the matter, the District Court made no further findings of fact, but made additional conclusions of law to the effect that when the parties divided their respec- tive ownership interests in the real property, they agreed and understood that the real property would be divided along a boundary fence, which they mistakenly believed represented the boundary line as shown on described tracts on the records of Missoula County; that because of their mutual mistake, the deeds did not accurately convey to each other the exact parcels that were intended to be transferred, and concluded that the exact proper line of the historic old board fence was one which the court described with particularity. The District Court thereupon quieted title in Ermindo for the duration of his life estate in the real property up to the old board fence. This judgment had the effect of including within Ermindo's real property the sewer system above-mentioned. Angela has now appealed a second time to this Court from the decision of the District Court. She contends on appeal that under our former Opinion in zavarelli v. Might, supra, the District Court on remand had to conclude and enter a judgment that she was the owner of the disputed property, that Ermindo was trespassing thereon, and that the court erred in allowing a new affirmative defense of mutual mistake. Angela's contention that the ~istrict Court was duty bound after remand and remittitur to hold Ermindo a trespass- er on her land requires an examination of the doctrine of "law of the case." In explaining "law of the case," thj-s Court has said: The rule is well established and long adhered to in this state that where, upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pro- nouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal; . . . It is a final adjudication from the consequences of which this Court may not depart, nor the parties relieve them- selves [citing cases]. Carlson v. Northern pacific ailw way Co. (1929), 86 Mont. 78, 281 P. 913, 914. See also ~iscus v. Beartooth ~lectric cooperative (1979), 180 Mont. 434, 591 P.2d 196. It is generally true, however, that the doctrine of law of the case applies to questions of law which are decided on the case. The doctrine does not apply to questions of fact: The general principle seems to be that the doctrine of the law of the case applies only to determinations of ques- tions of law and not to questions of fact. It has been said that the doc- trine of the law of the case applies to all questions of law identical to those on the former appeal, and on the same facts and to the same questions only, that the doctrine is rarely, and in a very limited classification, applied to matters of evidence as distinguished from rulings of law, and that a decision on appeal on a question of fact does not generally become the law of the case, nor estop the parties on a second trial from showing the true state of facts. 5 Am.Jur.2d 198, Appeal and Error S 755 (1962). Under the doctrine of law of the case, therefore, the ~istrict Court on remand was precluded from determining as a matter of law that Ermindo had acquired a prescriptive ease- ment over property owned by Angela. However, our order of reversal and remittitur told the District Court that the remand was "for such further proceedings as are necessary in the light of this opinion and the facts found by the District Court." Under the facts found by the District Court in the first trial, it had concluded that the parties intended to divide their property using as a common boundary line an old board fence. The rule of law of the case, therefore, precluded the District Court from making any further conclusions that would have the effect of establishing a prescriptive easement in Ermindo. The rule of law of the case did not, however, preclude the District Court from reaching a different conclusion of law based on the facts which it had already found. We come now to the effect of the mandate from this Court to the District Court when, on reversal and remittitur, the District Court was instructed to take "such further proceedings as are necessary in light of this opinion and the facts found by the District Court." On remand, the trial court may consider or decide any matters left open by the appellate court, and is free to make any order or direction in further progress of the case, not inconsistent with the decision of the appellate court, as to any question not presented or settled by such decision. The issues are generally open on a retrial when a case is re- versed and remanded for further proceed- ings. If the mandate speaks only in the light of the special facts found, the lower court is at liberty to proceed in all other respects in the matter that, according to its judgment, justice may require. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformi- ty with the views expressed therein. The mandate is to be interpreted accord- ing to the subject matter and, if possi- ble, in a manner to promote justice. 5 Am.Jur.2d 420, 421, Appeal and Error, 5 992 (1962). When this Court reversed the first judgment of the ~istrict Court as to a prescriptive easement, and remanded the cause to the District Court for further proceedings, the cause was then before the District Court in the posture of not having a final judgment. In that situation, when there is nothing in the terms of the mandate to prevent it, the trial court has the power, on reconsideration, to find the same facts and change its holding, or to find different facts consistent with its original holding. Imperial Chemical Industries Ltd. v. National Distillers and Chemical Corp. (2d Cir. New York), 354 F.2d 459, 19 A.L.R.3d 492. ~ssuming nonapplication of the doctrine of law of the case, the D ~ S - trict Court was free to correct any error in its original findings and conclusions, without hearing new evidence as to matters not passed on by this Court. Hutchins v. State (Idaho 1979), 603 P.2d 995. The conclusion of law that the descriptions in the mutual deeds were the result of a mutual mistake between the parties at the time of the execution of the deeds is, of course, a different conclusion of law from a holding that one party has a prescriptive easement over the land of another. Nothing in our first opinion in this cause prohibited the District Court from reaching a different conclusion of law based upon the same or nearly identical facts. The finding of fact as to the mutual intent of the parties at the time of the execution of the deeds is founded on substantial evi- dence. It is therefore not clearly erroneous (Rule 52(a), M.R.Civ. P. ) and the conclusion of law based thereon must be affirmed by us. Angela argues, however, that the pleadings do not support the theory of mutual mistake. It is true in this case that the original complaint filed by ~rmindo asked for injunctive relief to prevent Angela from interfering with the sewer system. There is no direct allegation in his pleadings as to mutual mistake, although his original complaint assumed that he was in fact the owner of the property on which the sewer system was situated. The answer of Angela contended that she was in fact the owner of the property by virtue of the descriptions in the deeds and she cross-complained against ~rmindo for damages arising from trespass and a reduction in the value of her property. Regardless of the pleadings, however, an issue in the cause in the first trial before the ~istrict Court was whether a mutual mistake had been made by the parties in determining the common boundary line. The ~istrict Court made findings with respect to that issue. In this situation, the judgment finding mutual mis- take between the parties and correcting the description is not improper. Under Rule 54(c), M.R.civ.P., "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." Angela, however, raises two further objections to the judgment entered after remand which have some merit. The first is that in the conclusions of law and judgment, the District Court entered a description of the common boundary line based upon an exact survey. No evidence was taken in the case that the line as surveyed followed accurately the line of the old board fence. Apparently the description of the common boundary line adopted by the District Court was supplied by counsel for Ermindo through proposed findings. We cannot determine from the record whether the survey accu- rately reflects the position of the old board fence. The second objection raised by Angela is that the District Court, in making its final judgment, quieted title to the disputed land not only as between Angela and ~rmindo, but also as to their respective remaindermen. Since no issues in the cause at this point directly affected the remaindermen, they were not parties to the action. As to the first objection, the boundary line, this Court will on remand permit a period of sixty days for Angela to present evidence, if she may desire, as to the exact location of the old board fence, if she determines that it does not agree with the description now entered by the D ~ S - trict Court. AS to the second contention, we will modify the judgment so that title is quieted only as to the parties to this cause. CROSS -APPEAL Angela appeals from the denial by the ~istrict Court of costs which she claims by virtue of being the successful litigant on the first appeal. Rule 33, M.R.App.P., allow costs, if not otherwise provided by this Court in its decision, automatically to the successful party against the other party. Angela timely filed her memorandum of costs after our decision in the first appeal in the amount of $706.75. The District Court did not enter judgment with respect to those costs. Since Angela was the successful party, and properly filed her memorandum of costs, she is entitled to receive the same, although eventually the judgment on remand went against her. No appeal was taken by either party from that portion of the second judgment that each party should bear his or her own costs of suit. Accordingly, we will on remand, direct the entry of judgment in favor of Angela for her costs on her successful appeal and sustain the further judgment of the ~istrict Court that each party will otherwise bear his or her own costs. CONCLUSION The judgment of the ~istrict Court is affirmed with these modifications, which shall be entered by the District Court upon remand in this cause: 1. The District Court shall, if required by Angela within 60 days from the date of remittitur, grant a further hearing for the presentation of evidence as to the exact location of the old board fence. 2. ~ i n a l judgment of the District Court shall quiet title to the disputed strip only as to the parties Ermindo and Angela. 3. Angela shall be awarded her costs incurred in the first appeal in the sum of $706.75. 4. Otherwise these parties shall bear his or her own costs in the ~ i s t r i c t Court and Justice | September 14, 1989 |
8ab8e4a5-8fa2-4bf1-a5ab-dda6d111b90a | STATE v URNESS | N/A | 89-079 | Montana | Montana Supreme Court | No. 89-79 IN THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA, Plaintiff and Respondent, -vs- RICK JEROME URNESS, Defendant and Appellant. i - . 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: Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, Montana For Respondent : Hon. Marc Racicot, Attorney General, Helena, Montana Dorothy McCarter, Asst. Atty. General, Helena Mike McGrath, County Attorney; Carolyn Clemens, Deputy, Helena, Montana Filed: Submitted on Briefs: June 30, 1989 Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the District Court of the First Judicial District, in and for the County of Lewis and Clark, State of Montana. The appellant, Rick Jerome Urness, was charged with burglary and sexual intercourse without consent. He was tried and convicted by a jury on both counts and was sentenced to ten years in prison, with seven years suspended on each count, the sentences to be served concurrently. In addition, the appellant was ordered to pay restitution and abide by certain conditions as ordered by the District Court. He now appeals. We affirm. The sole issue before this Court is whether the evidence presented at trial supports the verdicts of burglary and sexual intercourse without consent. The record indicates that at approximately 4:00 a.m., on March 24, 1988, two deputies from the Lewis and Clark County Sheriff's office were dispatched to the victim's home. Present at the home when the officers arrived were the victim and the victim's boyfriend. While taking the victim's statement, the officers found her very upset. The victim stated that she had been asleep in her bedroom and was awakened by the appellant, her estranged husband. After she and the appellant had gone into another room he physically assaulted her. She further stated that she attempted to call the police while the appellant was still in her home but the appellant ripped the telephone out of the wall, and continued to physically assault her. After the assault, the appellant left the home. The officers noticed that the lock on the side door of her house had been broken and that the victim had red marks on her arms and wrists. The officers left the house and searched for the appellant on foot and by car. While searching for the appellant, the officers were dispatched on another call. At approximately 6:00 a.m., the Sheriff's deputies were dispatched back to the victim's house. A call was received from the victim stating that someone was outside her house. However, the officers failed to find anyone. The victim's first statement form which she gave the Sheriff's deputies did not contain the details of a rape, only the assault. Later, on May 4, 1988, the victim completed another statement which contained more details of the offense which were testified to at trial. At trial, the victim testified that at the time of the incident she and the appellant were legally separated and awaiting the decree of dissolution. She testified that most of their marital problems were the result of the appellant's alcohol abuse. She stated that he reacted violently to both the separation and the pending divorce. The victim further testified that she had been dating another man during the separation, and when the appellant discovered she was dating, he threatened to kill the man involved. The victim's testimony at trial included the details of what occurred March 24, 1988. She testified that the appellant first appeared next to her bed wearing only his shirt and attempted to get into bed with her. She stated that she got the appellant out of her bedroom so he would not see her boyfriend in her bed. She further claimed the appellant became violent and pulled the phone out of the wall. She stated that despite repeated pleas for the appellant to leave, he grabbed her, mauled her and sexually assaulted her. Finally, she testified the appellant became even more angry, slammed. her into the kitchen cabinets, then picked her up over his head and threw her to the floor, causing her to lose consciousness. A friend of the victim also testified that the victim had come to her the next morning extremely upset and told her what transpired the previous night. The friend took Polaroid photographs of the bruises on the victim's body but the pictures were unclear, therefore they did not attempt to photograph other marks on the victim's body. The friend testified as to the type and severity of the marks on the victim, specifically that the marks on her arms were red welts in the shape of a hand. Others who testified at trial included the victim's boyfriend, the sheriff's deputy, the appellant's girlfriend, and a bartender from a local bar/casino. The bartender testified that the appellant entered the bar on the night of March 23, 1988, around midnight, and asked for his estranged wife, who had been employed there on a part-time basis. The bartender stated that the appellant was angry, argumentative and called the victim a "bitch, a slut and a no good wife." The bartender testified that while the appellant remained in the bar between 45 minutes and an hour, he did not appear drunk, only angry. The appellant argues that the evidence is insufficient to support the verdicts because he testified that he was invited to the victim's home and he did not rape her. He also asserts that her version of the facts were inherently incredible, and that the weight of the evidence and the credibility of the witnesses does not support the guilty verdicts. We disagree. The weight of evidence and credibility of witnesses is exclusively within the province of the trier of fact. It is the duty of this Court to uphold the verdict if there is substantial evidence to support the conclusion reached by the trier of fact. State v. Oman (1985), 218 Mont. 260, 707 P.2d 1117; State v. Maxwell (1982), 198 Mont. 498, 647 P.2d 348. The jury heard the testimony of all the witnesses and concluded defendant was guilty of the crimes charged. There is nothing to support appellant's claim that the victim's testimony was inherently incredible. We conclude there is substantial evidence to support the jury's verdict. Affirmed. We concur: / I | August 31, 1989 |
e21776a8-dc25-4d0d-9e15-9dc5b3280a55 | COTTONWOOD HILLS INC v STATE DE | N/A | 89-105 | Montana | Montana Supreme Court | No. 89-105 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 COTTONWOOD HILLS, INC., a Montana corporation, plaintiff and Appellant, -vs- STATE OF MONTANA, DEPARTMENT OF LABOR & INDUSTRY, UNEMPLOYMENT INSURANCE DIVISION, and WORKERS' COMPENSATION DIVISION, Defendant and Respondent. APPEA .L 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: Karl P. Seel; White & Seel, Bozeman, Montana For Respondent: James Scheier, Agency Legal Services, Helena, Montana Submitted on Briefs: June 30, 1 9 8 9 Decided: August 11, 1989 Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. The District Court, Eighteenth Judicial District, dismissed the complaint of Cottonwood Hills, Inc., which sought money damages and judicial review of a workersf compensation action. Cottonwood Hills, Inc., appeals. The issue on appeal is whether the District Court abused its discretion by granting defendantsf motion to dismiss the complaint. We affirm. Cottonwood Hills, Inc. (Cottonwood), is a closely-held family corporation. In April 1985 Cottonwood hired several workers/con- tractors to build a pro shop at the public golf course near Bozeman, Montana. It is the characterization of these workers which was at the heart of this dispute. In January 1987 the Unemployment Insurance Division (UID) of the Department of Labor and Industry (Department) notified Cottonwood that it would be the subject of an audit. As a result of that audit, UID determined that Cottonwood was not paying the proper rate of unemployment insurance contributions. The UID found that three of Cottonwood's workers must be characterized as employees, not independent contractors, and thus additional premiums were owed. The Uninsured Employersf Fund and the State Compensation Insurance Fund (State Fund) assessed additional premiums and penalties against Cottonwood. Cottonwood appealed that decision. A contested case hearing as allowed under section 2-4-601 et seq, MCA, was held before the Employment Relations Division of the Department on April 19, 1988. A decision was issued upholding the additional assessments made by the UID. The Board of Labor Appeals affirmed the findings and decision on July 8, 1988. During the same time period, Cottonwood requested a contested case hearing before the Division of Workersf Compensation (DWC) of the Department. Hearing was held February 10, 1988, and a proposed order issued on March 30, 1988, in favor of the DWC and UID. The administrator of the DWC upheld the assessments made by the State Fund and Uninsured Employers' Fund in a final order dated October 14, 1988. On August 11, 1988, Cottonwood filed a complaint in District Court. The complaint contested the final decisions of the DWC and the UID, alleged that they had not dealt with Cottonwood in good faith and requested money damages. The defendants (DWC, UID, the Department and the State) moved to dismiss the complaint as filed in an improper forum. The District Court granted defendants' motion. Cottonwood appeals. For this Court to reverse the District Court's grant of this motion, Cottonwood must make a showing that the District Court abused its discretion by dismissing the complaint. Gold Reserve Corporation v. McCarty (Mont. 1987), 744 P.2d 160, 44 St.Rep. 1723. Cottonwood is unable to make that showing. We conclude the District Court properly dismissed Cottonwood's complaint. Procedures for judicial review of administrative rulings are found in Part 7, Montana Administrative Procedure Act (MAPA), sections 2-4-701 through -711, MCA. Additionally, there are detailed review provisions set forth under the "Unemployment Insurancew statutes which govern the initial dispute in this case. Specifically applicable are section 39-51-1109 (tax appeals); section 39-51-2403 (decisions of appeals referee); and section 39- 51-2404, (appeal to board) . Compliance with the procedures is mandatory because only after the procedures have been followed is the District Court vested with jurisdiction. F. W. Woolworth Company v. Employment Security Division (Mont. 1981) , 627 P. 2d 851, 38 St.Rep. 694. The proper procedure for review of administrative rulings adverse to Cottonwood is set forth below. Pursuant to section 39-51-1109, MCA, Cottonwood already requested a hearing before an appeals referee to contest UID1s additional assessment. See also, sections 39-51-2403 and -2404, MCA . Pursuant to section 39-51-2404, MCA, Cottonwood then appealed the decision of the appeals referee to the Board of Labor Appeals. At this juncture, Cottonwoodls proper review procedure was to file a petition (not a complaint) with the District Court. This Cottonwood failed to do. Section 39-51-2410 (2) , MCA, states that the petition "which need not be verified but which shall state the grounds upon which a review is sought, shall be served upon the commissioners of Labor and Industry and all interested parties . . . The District Court would then review the matter to determine if the findings of the Board of Labor Appeals were based on substantial credible evidence. Cottonwood failed to follow the correct procedure. Dismissal of the complaint on that issue was proper and is hereby affirmed. Regarding the DWC decision, Cottonwood also is in error. Any appeal of a workersv compensation decision must be filed with the Workers1 Compensation Court and not the District Court. Section 39-71-2041, MCA; section 24.29.207(2), A.R.M. The District Court specifically cited these sections when it noted that the review of the DWC decision was not properly before it. We agree and affirm the dismissal as to that issue. We note that dismissal of the complaint seeking money damages was also proper. Cottonwood alleged that the defendants had breached the covenant of good faith and fair dealing which attached to their contract (the workersv compensation insurance policy issued by State Fund to Cottonwood in 1986). The District Court noted that claims for breach of the covenant or ! ' b a d faithvv are also tort actions in Montana. Gates v. Life of Montana Insurance Co. (1983), 205 Mont. 304, 668 P.2d 213. We agree. It is well-settled law that all tort claims against the State must first be filed with and reviewed by the Department of Administration. See, section 2-9-101, MCA, et seq., the State Tort Claims Act. Such was not done in this case, and the District Court had no jurisdiction to review the matter. It was properly dismissed. We note that dismissal of the claim alleging breach of the covenant of good faith and fair dealing was not challenged by Cottonwood on appeal, and, therefore, its dismissal would have been upheld in any event. Cottonwood is unable to show any abuse of discretion in the District Court's order of December 12, 1988, dismissing its complaint. Judgment affirmed. We concur: Chief Justice e-, Justices | August 11, 1989 |
f4df31ea-9e06-4a5e-99d7-48fb72e9c4c2 | PALMER BY DIACON v MONTANA INSURAN | N/A | 89-186 | Montana | Montana Supreme Court | No. 89-186 IN THE SUPREME COURT OF THE STATE OF MONTANA DAVID ALARIC PALMER, a protected person by MARTHA ROSE DIACON, his conservator, Plaintiff and Respondent, -vs- MONTANA INSURANCE GUARANTY ASSOCIATION, Defendant and Appellant. 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: Sidney R. Thomas and Ramona R. Heupel; Moulton Law Firm, Billings, Montana For Respondent: Dennis Patrick Connor, Great Falls, Montana John C. Risjord, Overland Park, Kansas Submitted on Briefs: Aug. 10, 1989 Decided: September 5, 1989 Filed: Justice L. C. Gulbrandson delivered the Opinion of the Court. This case involves the interpretation of an offset provision of the Montana Insurance Guaranty Association Act. The Montana Insurance Guaranty Association appeals from entry of judgment by the Eighth Judicial District Court, Cascade County, Montana, in favor of respondent, David Palmer. This action, filed on behalf of Palmer, a protected person, sought declaratory relief to have determined whether the Montana Insurance Guaranty Association (MIGA) is obligated to pay Palmer its statutory limit of $300,000. The District Court concluded MIGA was obligated to pay Palmer its statutory limit. We reverse. The facts underlying this action are more fully set forth in Palmer by Diacon v. Farmers Ins. Exchange (Mont. 1988), 761 P.2d 401, 45 St.Rep. 1694, but the essential facts are these. Palmer suffered severe head injuries in a motorcycle accident in 1984. He sought recovery for his damages, stipulated to exceed $1,000,000, from both his uninsured motorist carrier and Abaddon Products Company, Inc., the manufacturer of the motorcycle helmet he was wearing at the time of the accident. Abaddon, an Idaho corporation, carried $1,000,000 in insurance coverage through its primary insurance carrier, Ideal Mutual Insurance Company. Ideal became insolvent, which triggered coverage of MIGA. Because Abaddon is an Idaho corporation, Palmer was required to make his claim first against the Idaho Insurance Guaranty Fund, as mandated by S 33-10-115(2), MCA, which provides: Any person having a claim which may be recovered under more than one insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured . . . Palmer filed this declaratory judgment action to have determined whether the coverage limits of MIGA could be stacked with the amounts received from the Idaho Insurance Guaranty Fund. MIGA argues that $ 33-10-115 ( 2 ) , MCA, requires an offset of the Idaho Fund contribution against its statutory maximum. The offset provision of $ 33-10-115 (2) , MCA, provides: Any recovery under this part shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent. The District Court concluded the Idaho payments were to be offset against the unpaid claim, rather than against MIGA's limits. In its Order granting summary judgment, the District Court concluded: [TI he sentence " [a] ny recovery under this part shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent" means simply that the total value of PALMER'S claim, that is the value of the total amount payable as damages for claimant's injuries caused by the covered occurrence, shall be reduced by the amount the claimant has recovered from the Idaho guaranty fund. Judgment for $300,000 was entered in favor of Palmer on February 6, 1 9 8 9 and this appeal followed. MIGA raises these issues for our review: 1. Was the Montana Insurance Guaranty Association entitled to offset amounts Palmer received from the Idaho Insurance Guaranty Fund against its statutory maximum? 2. Was the Montana Insurance Guaranty Association entitled to offset amounts Palmer received under his uninsured motorist policy? Respondent has received the Idaho statutory maximum, $300,000, from the Idaho Insurance Guaranty Fund. The issue presented here is whether MIGA is obligated for the residual unpaid portion of Palmer's claim, which the parties have stipulated exceeds MIGA's statutory limit of $300,000. Respondent argues MIGA is obligated to pay the unsatisfied portion of the claim because Montana's statutes do not prohibit stacking of insurance guaranty association limits. Respondent supports his position by emphasizing the declared purpose of the guaranty association as stated in § 33-10-101 ( 2 ) , MCA: The purpose of this part is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers. Respondent argues the act is an assurance that the duties and obligations of the insolvent insurer will be satisfied. Therefore, to give effect to the act's purpose, respondent argues, the District Court was correct to conclude the payments paid by the Idaho Insurance Guaranty Fund are to be offset against the total claim, rather than against MIGA's statutory limit. We disagree. The Montana Insurance Guaranty Association Act, § 33-10-101, MCA, et seq., was adopted in 1971 from the model act designed by the National Association of Insurance Commissioners. The Montana act provides for the creation of t h e Montana Insurance Guaranty Association, a non-profit unincorporated l e g a l e n t i t y c o n s i s t i n g o f i n s u r e r s l i c e n s e d t o t r a n s a c t b u s i n e s s i n Montana. While t h e purpose o f t h e a c t i s t o "avoid f i n a n c i a l l o s s " t o claimants and p o l i c y h o l d e r s because o f t h e insolvency o f an i n s u r e r , t h e b r e a d t h of t h i s announced g o a l i s l i m i t e d by t h e t e r m s of t h e s t a t u t e . Section 33-10-105, MCA, provides t h a t t h e a s s o c i a t i o n s h a l l : ( a ) be o b l i g a t e d t o t h e e x t e n t of t h e covered claims . . . b u t such - - o b l i g a t i o n s h a l l i n c l u d e only t h a t amount -- of each covered claim which i s i n excess -- o f $100 and i s less than $ 3 ~ , ~ 0 . . . ------ (Emphasis added. ) Recovery under t h i s a c t , t h e r e f o r e , i s limi-ted t o an amount which exceeds $100 b u t i s less than $300,000. The scope of M I G A ' s coverage i s a d d i t i o n a l l y l i m i t e d by t h e o f f s e t p r o v i s i o n s o f S 33-10-115, MCA: (1) Any person having a claim a g a i n s t an i n s u r e r under any p r o v i s i o n i n an insurance p o l i c y o t h e r than a p o l i c y of an i n s o l v e n t i n s u r e r which i s a l s o a covered claim s h a l l be r e q u i r e d t o exhaust f i r s t h i s r i g h t under such p o l i c y . Any amount payable - - on a covered claim under t h i s ~ a r t s h a l l be reduced bv L - t h e amount of any recovery under such - - insurance p o l i c y . ( 2 ) Any person having a claim which may b e recovered under more than one insurance guaranty a s s o c i a t i o n o r i t s e q u i v a l e n t s h a l l seek recovery f i r s t from t h e a s s o c i a t i o n of t h e p l a c e o f r e s i d e n c e of t h e i n s u r e d . . . Any recovery under t h i s p a r t s h a l l be reduced by t h e amount -- of recovery frof;; any o t h e r insurance - guaranty a s s o c i a t i o n - - o r i t s e q u i v a l e n t . (Emphasis added. ) MIGA's statutory obligations are not as broad as Palmer suggests. The act's purpose language, while very broad, cannot be given the "effect" as Palmer construes it, in light of the unambiguous language which defines and limits MIGA's obligations. The framers' comments to this offset provision of the Model Act support our conclusion that payments from another association are offset against the $300,000 limit of MIGA's obligation: This subsection does not prohibit recovery from more than one Association, but it does describe the Association to be approached first and then requires that any previous recoveries from like Associations must be set off against recoveries from this ~ssociation. (Emphasis added. ) It is the duty of this Court to give effect to the purpose of a statute. LaFountaine v. State Farm Mut. Auto. Ins. Co. (1985), 215 Mont. 402, 698 P.2d 410. However, if the intent of the legislature can be determined from the plain meaning of statutory words, we will go no further or apply any other means of interpretation. Phelps v. Hillhaven Corp. (Mont. 1988), 752 P.2d 737, 45 St.Rep. 582. We conclude that this language of the statute is clear and unambiguous. The conclusion reached here is not contrary to the permitted stacking provisions of the statute. Since recovery from other States' insurance guaranty funds may not reach MIGA's statutory limit of $300,000, any difference is recoverable under Montana's Act, up to the $300,000 limit. The Montana Insurance Guaranty Association was not adopted as a form of reinsurance for every insurer who becomes insolvent. Rather, it is clear the Association was established to soften resulting hardship which may be encountered, under limited circumstances, by a policy holder or claimant when an insurer become insolvent. Because we have concluded MIGA is entitled to offset the $300,000 paid by the Idaho Fund, we need not address Palmer's second issue relating to an offset of his uninsured motorist coverage. Reversed and remanded for accordance with this opinion. I We concur: w Justices Justice John C. Sheehy did not participate in this Opinion. Justice William E. Hunt, Sr., dissenting. I dissent. The purpose of the offset provisions provided in § 33-10-115, MCA, is to offset amounts received from solvent insurers and other state guaranty associations against the value of a covered claim, thereby preventing a claimant from recovering more than the total value of the claim. The purpose of the provisions is not to offset amounts received from solvent insurers and other state guaranty funds against the Montana Insurance Guaranty Association's $300,000 liability limit. The Montana Insurance Guaranty Association Act is to be liberally construed to prevent a claimant's financial loss because of a failed insurer. The act is not to be read restrictively to protect MIGA at the expense of injured claimants. The guaranty association is already protected by the $300,000 liability limit written into the statute. I would affirm the District Court. | September 6, 1989 |
1030f2cc-2e94-4985-b5aa-b35a532ad668 | MARRIAGE OF RYAN | N/A | 89-184 | Montana | Montana Supreme Court | No. 89-184 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF ROBERT L. RYAN, Petitioner and Appellant, and SHIRLEY J. RYAN, Respondent and Respondent. APPEAL FROM: District Court of the First Judicial ~istrict, In and for the County of Lewis & Clark, The Honorable Jeffrey Sherlock, Judge presiding. COUNSEL OF RECORD: For Appellant: J. Cort ~arrington, Jr., Helena, Montana For Respondent : Shirley J. Ryan, pro se, paradise Valley, ~rizona Submitted on ~riefs: Aug. 10, 1989 Decided: September 7, 1989 Filed: Chief Justice J. A. Turnage delivered the Opinion of the Court. The First Judicial District Court, Lewis and Clark County, granted a decree of dissolution to appellant Robert L . Ryan and respondent Shirley J. Ryan and ordered the appellant to pay respondent $9,380 to fulfill his child support obligations. Robert Ryan appeals the child support judgment alleging that it is an improper modification of the parties1 separation agreement because it creates a retroactive child support obligation. We affirm. Did the District Court err in ordering the husband to pay child support to the wife when the separation agreement required the husband to support children in his custody and those children subsequently moved to the wife's home? The episodic marriage of Shirley and Robert Ryan began on January 24, 1959 and produced four children: Cheryl, Robert, Jr., Patrick and Michael. The parties divorced in 1973 and remarried two years later. On September 20, 1976, they entered a decree of legal separation which incorporated their separation agreement. Shirley petitioned the District Court for dissolution in 1986 but declined to complete the matter until Robert filed for dissolution on September 27, 1988. The separation agreement, which remained in effect until the final decree of dissolution, provided for a balanced division of the family property, obligations and children. Shirley assumed custody of Cheryl and Robert, Jr., while Robert took custody of Patrick and Michael. The agreement also provided for child support : Husband agrees to be responsible for and support Patrick Sean Ryan and Michael Erin Ryan and Wife agrees to be responsible for and support Cheryl Ann Ryan and Robert Lee Ryan, Jr. Each party was to retain medical insurance and tax deductions for the children in their custody. Shirley testified during the dissolution proceedings that she took a lesser amount of the family property to compensate for the earlier date at which Cheryl and Robert, Jr., would reach emancipation. This arrangement continued until February 1980 when Patrick left his father and went to live with his mother. By that time, Cheryl and Robert, Jr., had both attained the age of majority. In December 1984, Michael also moved in with his mother, but returned to his father's home in November 1986. In May 1988, Michael again left his father to live with his mother. On July 31, 1986, Shirley filed an application for a decree of dissolution, child support, and modification of custody. Among other things, she requested that the court order Robert to pay retroactive and continuing child support for the time that Patrick and Michael lived in her home. Robert entered a motion to quash. After denying Robert's motion, the District Court granted the decree of dissolution as of February 24, 1989. The District Court found that the parties had agreed to a mutual modification of their 1976 separation agreement by allowing Patrick and Michael to live with their mother. The court found that Patrick and Michael, both emancipated at that time, had lived with Shirley for forty months and twenty-nine months respectively. Applying the Supreme Court's Guidelines for Child Support, the District Court ordered Robert to pay Shirley $9,380 at $200 per month. Robert now appeals that decision. We agree with the District Court's equitable and well-reasoned decision. The general rule on modification of child support provides that, "a decree may be modified by a court . . . only as to installments accruing subsequent to actual notice to the parties of the motion for modification. Section 40-4-208 (I), MCA (1987) . This Court, however, has carved out an equitable exception to the statute. These legal principles, however valid they may be as a general rule, are rendered impotent when the parties mutually agree that they be ignored and also carry out such agreement in actual fact . . . . State of Washington ex rel. Blakeslee v. Horton (1986), 222 Mont. In the separation contract, Robert agreed that he would have custody and support responsibilities for Patrick and Michael. The District Court found that Robert at least tacitly assented to modification of the arrangement by allowing Patrick and Michael to live with their mother. As the District Court noted, this case is notably similar to In Re Marriage of Sabo (Mont. 1986), 730 P.2d 1112, 43 St.Rep. 2175. In Sabo the divorce decree and settlement agreement provided that the couple's children would live with the wife and the husband would pay child support. We held that the wife was not entitled to child support after she gave residential custody of the children to her former husband. Sabo, 730 P.2d at 1114, 43 St.Rep. at 2178- 79. As a corollary to Sabo, the parent who takes residential custody of children pursuant to a mutual modification of custody provisions is entitled to child support. Parents are responsible for the support of their offspring. In Re Support of Krug (Mont. 1988), 751 P.2d 171, 174, 45 St.Rep. 446, 449; State v. Hubbard (1986), 222 Mont. 156, 160, 720 P.2d 1177, 1179; In Re Marriage of Hickey (1984), 213 Mont. 38, 45, 689 P.2d 1222, 1226. Child support is for the benefit of the children. Kruq, 751 P.2d at 173, 45 St.Rep. at 448. It should flow toward the children regardless of the diversionary machinations of the parents. The present case is less one of retroactive modification than it is a simple case of collecting reasonable support based on custody. Robert had a legal, moral, and contractual duty to support Patrick and Michael, and he avoided that duty while they were living with Shirley. Robert now complains that Shirley will reap a windfall under the District Court Is order. To the contrary, the order will prevent Robert from reaping a windfall at Shirley's expense. Af f inned. &?PAlY7'z Chief Justice We concur: / Justices | September 7, 1989 |
255809f1-33ab-4f54-9413-ef639250cc5f | GAY v CABINET PUBLISHING INC | N/A | 89-223 | Montana | Montana Supreme Court | No. 89-223 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 IJARRY GAY, Plaintiff and Appellant, -vs- CABINET PUBLISHING, INC., Defendant and Respondent. APPEAL FROM: District Court of the Nineteenth Judicial District, In and for the County of Lincoln, The Honorable Robert S. Keller, Judge presiding. COUNSEL OF RECORD: For Appellant: Richard R. Buley; Tipp, Frizze1.l & Ruley, Missoula, Montana For Respondent: L. Charles Evans, Libby, Montana Submitted on Briefs: Aug. 10, 1 9 8 9 < - - - Decided: September 14, 1989 i - d - ~inkd: -' 3 - : , , - Justice John Conway Harrison delivered the Opinion of the Court. Larry Gay (Gay) initiated this action to recover proceeds from sale of equipment respondent Cabinet Publishing, Inc. (Cabinet) allegedly sold in violation of Article 9 of the Uniform Commercial Code. Following a bench trial, the District Court of the Nineteenth Judicial District, Lincoln County, entered judgment for Cabinet ruling that the transaction between Gay and Cabinet was a true lease and not subject to Article 9. From that judgment, Gay appeals. We affirm. Appellant raises two issues for review. 1. Did the District Court err in determining that the lease agreement between Gay and Cabinet was a true lease and not a secured transaction? 2. Did the sale of the equipment conform to the requirements of the U.C.C.? On April 2, 1979, Summit County Sentinel Corporation, owned by William C. King and Clara C. King, purchased Western Montana Publishing Company (Western) from Paul and Iris Verdon. Western ran the weekly newspaper in Libby, Montana called the Western News. The Verdons retained a perfected security interest in all the business' printing equipment. Sometime in 1979, Gay and Rodney Johansen started a newspaper called Bargain Express, which competed with the Western News. After a period of stiff competition, Gay and Johansen agreed to sell the Bargain Express to Western. On December 18, 1980, the parties executed a contract whereby Western agreed to give up the job printing and office supply business and assign such rights, including most of the Lincoln County printing contract, to Gay and Johansen. As part of the contract, Western transferred to Gay and Johansen certain inventory and equipment not subject to the Verdons' security interest. Additionally, the contract provided that Western would lease to Gay and Johansen the equipment that was subject to the Verdons' security interest. The lease was to run until May 1, 1994 at which time Western's indebtedness to the Verdons would be satisfied. At that time, Gay and Johansen would have an option to purchase the equipment for $50. As consideration for the lease, Gay and Johansen agreed to pay the taxes on the equipment, insure it against theft and damage and keep it in good repair. If Gay and Johansen failed to perform their obligations, then the contract provided for a five-day default period after which time Western could repossess the equipment if the default was not cured. The contract expressly stated that the leased equipment was subject to Verdons' security interest. At the time of the contract, Gay and Johansen also entered into a side agreement with Western in which they agreed not to move the leased equipment without written permission of the Verdons. This agreement was in writing and sent to the Verdons. Cabinet, owned by Mark and June McMahon, purchased Summit's interest in Western on August 27, 1981. Cabinet assumed Western's purchase and lease agreement with Gay and Johansen. Between September, 1981 and September, 1982, Gay and Johansen encountered numerous difficulties. They were arrested and convicted on federal counterfeiting charges and had to serve almost three months in prison beginning February 1, 1982. On November 2, 1981, they were served with an eviction notice at their Express Press location. On January 8, 1982, Gay moved all the printing equipment from the Express Press building into storage. Also during this time, United Bank obtained a judgment against Gay and Johansen on defaulted loans and seized and sold whatever assets it could. On July 2, 1982, Cabinet served a Notice of Default on Gay in connection with the leased equipment. Gay did not pay the taxes on the equipment for either 1981 or 1982. Gay failed to insure the equipment against theft at any time and what insurance had been on the equipment had expired in the fall of 1981. Also the equipment was not in good repair. Gay and Johansen did not correct the default within the five-day period. As to the repossessed equipment, Cabinet and the Verdons agreed that the equipment should be sold and the proceeds applied to the Verdon debt. Cabinet subsequently had the repossessed equipment appraised by a Mr. Buckner, a licensed broker from Spokane, Washington. Some of the equipment was then sold to a Ray Denning at its fair market value as determined by Buckner. Buckner sold the remainder at fair market value to third parties. The proceeds were then applied to the Verdon obligation as agreed. I. Did the District Court err in determining that the lease agreement was a true lease and not a secured transaction? Due to our holding on issue two, we need not discuss this issue. The evidence shows a valid sale. Did the sale of the equipment conform to the requirements of the U.C.C.? Section 30-9-504, MCA, sets forth both the secured party's right to dispose of collateral after default and a scheme of priorities for distributing the proceeds. Under § 30-9-504, MCA, the secured party may sell the collateral in any commercially reasonable manner. The proceeds must then be distributed in the following order: (1) to the expenses of the sale; (2) to satisfy the indebtedness secured by the security interest under which the disposition is made; and (3) to satisfy any subordinate security interest if certain requirements are met. The secured party must account to the debtor for any surplus. Additionally, the U.C.C. requires the secured party to notify the debtor of the time and manner of sale. Appellant contends that respondent violated § 30-9-504, MCA, because respondent failed to give him proper notice of sale and failed to account for the surplus proceeds of the sale. The status of the parties in relation to the equipment is not in dispute. Verdons and respondent are secured parties with Verdons' security interest being superior to respondent's. Appellant is the debtor-in-default. Also, no dispute exists that both secured parties, Verdons and respondent, planned that a sale should take place and that the proceeds should be applied to the Verdon indebtedness. Because of this plan, in effect both secured parties disposed of the equipment and the proceeds were then applied to satisfy the "indebtedness secured by the security interest under which the disposition is made." Section 30-9-504(1) (b), MCA. The distribution of the sale proceeds conformed to the requirements of B 30-9-504, MCA. No surplus proceeds remained to distribute to appellant. Appellant also asserts summarily that respondent did not give him proper notice of the time and manner of sale. However, appellant failed to give this Court any arguments or any references to the record in support of his assertion. We reject appellant's contention. This Court affirms correct District Court decisions. We affirm the District Court. \ We concur: | September 14, 1989 |
205694cc-a8a9-4209-8a8a-825db15f96d4 | BOEGLI v GLACIER MOUNTAIN CHEESE C | N/A | 89-039 | Montana | Montana Supreme Court | NO. 89-39 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 JOHN BOEGLI, WALT BOEGLI, JOHN PAYNE, ROBERT WALLER AND JACK YOUNG, Plaintiffs and Appellants, -vs- GLACIER MOUNTAIN CHEESE COMPANY, a Montana corporation, Defendant and Respondent. APPEAL FROM: District Court of the Eighteenth Judicial. District, In and for the County of Gallatin, The Honorable Joseph Gary, Judge presiding. COUNSEL OF RECORD: For Appellant: Karl P. Seel, Bozeman, Montana For Respondent: Michael Coil, Bozeman, Montana Submitted on Briefs: July 7, 1989 August 2 Clerk Mr. Justice R. C. McDonough delivered the Opinion of the Court. Plaintiffs appeal from the dismissal of their action against the defendant in the District Court for the Eight- eenth Judicial District, Gallatin County. The District Court based its dismissal on plaintiffs' failure to exhaust their administrative remedies. We reverse the order of the Dis- trict Court. The issue is whether plaintiffs denied overtime compen- sation under S 39-3-405, MCA, must seek relief exclusively from the Commissioner of Labor under the provisions of Title 39, Chapter 3, MCA, entitled, "Wages and Wage Compensation." At the filing of the complaint, plaintiffs were employ- ees of the Glacier Mountain Cheese Company (GMCC) in Gallatin County, Montana, who is the named defendant in this action. The complaint alleged that as an employer GMCC is subject to the provisions of the Montana labor laws contained in Title 39, Chapter 3. Plaintiffs alleged that GMCC was in violation of § 39-3-405, MCA, which provides in relevant part: OVERTIME COMPENSATION. (1) No employer shall employ any of his employees for a workweek longer than 40 hours unless such employee receives compensation for his employment in excess of 40 hours in a workweek at a rate of not less than 14 times the hourly wage rate at which he is employed. Plaintiffs sought damages for overtime hours worked at the rate of lf times the hourly wage, a penalty for failure to pay the overtime compensation as it became due upon termi- nation of employment pursuant to § 39-3-206, MCA, and costs and attorney fees under § 39-3-214, MCA. The defendant, GMCC, filed a Rule 12 (b) (1) motion to dismiss, alleging that jurisdiction properly lies with the Department of Labor and. that plaintiffs failed to exhaust their administrative remedy. The District Court granted defendant's motion and ordered dismissal of the action. In this case we are called upon to interpret various provisions of Title 39, Chapter 3, entitled "Wages and Wage Compensation." Specifically, the statutes under Part 2 and Part 4 must be reconciled in order to determine whether a . wage claimant must exhaust an administrative remedy with the Commissioner of Labor or whether an action can be initiated in District Court. The statutes relevant to this inquiry are as follows: 39-3-209. Commission of labor to investigate violations and institute actions for unpaid wages. It shall be the duty of the commissioner of labor to inquire diligently for any violations of this part and to institute actions for the collection of unpaid wages and for the penalties provided for herein in such cases as he may deem proper and to enforce generally the provisions of this part. 39-3-211. Commissioner to take wage assignments. Whenever the commissioner determines that one or more employees have claims for unpaid ages, he shall, upon the written request of the employee, take an assignment of the claim in trust for such employee and may maintain any proceeding appropri- ate to enforce the claim, including liquidated damages pursuant to this part. With the written consent of the assignor, the commissioner may settle or adjust any claim assigned pursuant to this section. 39-3-212. Court enforcement of commissioner's determination. A determination by the commissioner of labor and industry made after a hearing as provided for in parts 2 and 4 of this chapter may be enforced by application by the commissioner to a district court for an order or judgment enforcing the determination if the time provided to initiate judicial review by the employer has passed. The commissioner shall apply to the district court where the employer has its principal place of business or in the first judicial district of the state. A proceeding under this section is not a review of the validity of the commissioner's determination. 39-3-407. Enforcement. Enforcement of this part shall be treated as a wage claim action and shall be pursued in accordance with part 2 of this chap- ter, as amended. This part may also be enforced in accordance with part 5 of this chapter for the benefit of certain employees in the mineral and oil industry. The commissioner may enforce this part without the necessity of a wage assignment. 39-3-408. Provisions cumulative. (1) The provi- sions of this part shall be in addition to other provisions now provided by law for the payment and collection of wages and salaries but shall not apply to employees covered by the Fair Labor Stan- dards Act except as provided in subsection (2). (2) Sections 39-3-402 and 39-3-404 shall apply to an employee covered by the Fair Labor Standards Act if state law provides a minimum wage that is higher than the minimum wage established under federal law. Plaintiffs rely primarily upon this last statute, § 39-3-408, MCA, which they contend makes the remedy provisions of Title 39, Chapter 3 cumulative so that exhaustion of administrative remedies is not required. Despite the clear and unambiguous language of that statute, the defendant GMCC argues that the other statutes cited above indicate a legis- lative intention that the Commissioner of Labor must first consider wage claims before the matter goes to district court. The lower court agreed, ruling that S 39-3-408, MCA, should not act as a hedge on the doctrine of administrative remedies. We first note the general rule of statutory interpreta- tion found in § 1-2-102, MCA, which states that legislative intent controls. Legislative intent is to first be determined from the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may not go further and apply any other means of i n t e r p r e t a t i o n . Oldenburg v . County of Flathead (19841, 208 Mont. 128, 130, 676 P.2d 778, 779. W e conclude t h a t 5 39-3-408(1), MCA, i s c l e a r and unambiguous i n i t s designation of cumulative remedies: The provisions of t h i s p a r t s h a l l -- be i n addition t o - law f o r tG o t h e r provisions now provided by - payment and c o l l e c t i o n of waqes a n d s a l a r i e s . . . - - - (Emphasis added.) Defendant argues t h a t d e s p i t e a lack of ambiguity, S 39-3-408, MCA, has been impliedly a l t e r e d by t h e subsequent enactment of o t h e r s t a t u t o r y provisions under T i t l e 39, Chapter 3. S p e c i f i c a l l y , t h e defendant p o i n t s t o § 39-3-212, MCA, enacted i n 1974, which gives t h e Commissioner t h e r i g h t t o apply t o a d i s t r i c t c o u r t f o r an order enforcing t h e Commissioner's determination. The defendant contends t h a t any causes of a c t i o n recognized by t h e L e g i s l a t u r e upon passage of 5 39-3-408, MCA, i n 1971 were t h e r e a f t e r subjected t o t h e 1974 provisions of 5 39-3-212, MCA. I n t h i s regard, defendant a t t a c h e s s i g n i f i c a n c e t o t h e cumulative remedy provision of P a r t 5, which a p p l i e s t o mineral and o i l employees, and attempts t o d i s t i n g u i s h it from t h e cumulative provision of P a r t 4 . The cumulative remedy provision of P a r t 5 s t a t e s : Remedy cumulative. The remedy h e r e i n provided f o r t h e g r e a t e r s e c u r i t y f o r t h e payment of wages and s a l a r i e s and t h e c o l l e c t i o n thereof s h a l l be i n a d d i t i o n t o any remedy now provided by law f o r t h e payment and c o l l e c t i o n of wages and s a l a r i e s . Section 39-3-520, MCA. Defendant argues t h a t S 39-3-520, MCA, i s u n l i k e t h e cumulative provision of § 39-3-408, MCA, because it c l e a r l y stands alone without reference t o any other p a r t of T i t l e 39, Chapter 3 a s a means f o r i t s enforcement. Contrastingly, S 39-3-408, MCA, is subject to § 39-3-407, MCA, which requires enforcement of Part 4 to be pursued in accordance with Part 2. Part 2 refers to the powers and duties of the Commissioner of Labor. See §§ 39-3-209 to 213, MCA. While this argument is discernable, we hold that it does not provide sufficient basis for this Court to ignore the plain language of § 39-3-408, MCA. That statute provides for cumulative remedies. As a final point, S 39-3-408, MCA, was amended in 1987 to include subsection ( 2 ) , which provides that the section applies to an employee covered by the Fair Labor Standards Act. While subsection (2) does not apply as a matter of law to this case, the reenactment of subsection (1) in 1987 does indicate a cumulative process. We hold that resort to the Commissioner of Labor is not plaintiff's exclusive option. Reversed. We Concur: -Ti Chief Justice | August 15, 1989 |
17ecd6fe-47d8-4830-a2b6-0b726c17ebca | NORTH FORK PRESERVATION ASS N v DE | N/A | 88-516 | Montana | Montana Supreme Court | No. 88-516 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 NORTH FORK PRESERVATION ASSOCIATION, Plaintiff and Respondent, -vs- DEPARTMENT OF STATE LANDS, a Department of the State of Montana, Defendant and Appellant and FARMERS UNION CENTRAL EXCHANGE (CENEX), Intervenor and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael Keedy, presiding Judge. COUNSEL OF RECORD: For Appellant: Tommy H. Butler argued, Dept. of State Lands, Helena, Montana Doug James argued; Moulton, Belligham, Longo & Mather, Billings, Montana Dana L. Christensen; Murphy, Robinson, Heckathorn & Phillips, Kalispell, Montana For Respondent: Jon L. Heberling argued; McGarvey, Heberling, Sullivan & McGarvey, Kalispell, Montana , - Andrew Bittker argued, Kalispell, Montana Submitted: June 15, 1989 Mr. Justice R. C. McDonough delivered the Opinion of the Court. This appeal involves an oil and gas lease on school trust land within the Coal Creek State Forest, which was acquired from the State by the Farmers Union Central Exchange (Cenex) . School trust lands are administered by the Depart- ment of State Lands (Department), which issued the lease to Cenex. Pursuant to an Annual Operating Plan approved by the Department, Cenex proposes to drill an exploratory well on its leased tract. North Fork Preservation Association (North Fork) has challenged the Department's approval of Cenex's operating plan, alleging that the Department failed to pre- pare an environmental impact statement on the proposed well as required by law. North Fork filed its complaint in the District Court of the Eleventh Judicial District, Flathead County, and obtained a summary judgment in its favor. The judgment set aside the Department's approval of Cenex's operating plan; issued a writ of mandate directing the De- partment to prepare an environmental impact statement; and awarded costs, fees and a small money judgment. We reverse, and remand the case to the District Court for entry of judg- ment in favor of the Department. We hold that the District Court incorrectly applied the "clearly erroneous" standard for reviewing the Department's decision and misinterpreted applicable statutory and case law. We further hold that the Department's decision was proper under the correct, "arbi- trary, capricious or unlawful" standard of review, and that mandamus was not a proper remedy in this case, as mandamus is not available to compel a discretionary act. The parties have stated a number of issues, some of which overlap: As Stated by the Department: 1. Whether the Department must prepare an environmental impact statement on the drilling of a single exploratory well on school trust land which had been previously clear-cut of timber and is managed under the multiple use concept. 2. Whether the Department is required to prepare a site-specific environmental impact statement concerning full-field oil and gas development. 3. Whether mandamus is an inappropriate remedy to en- force the provisions of the Montana Environmental Policy Act. 4. Whether North Fork Preservation Association sustained its burden of proof. As Stated by Cenex: 1. Did the District Court apply the wrong standard of review in reviewing the State Lands' decision that approval of Cenexls plan to drill one exploratory well was not a major action of state government significantly affecting the quali- ty of the human environment? 2. Whether State Lands' decision that an environmental impact statement was not required was arbitrary and capricious. 3. Whether the 1984 preliminary environmental review was sufficient, as a matter of law, without considering the "cumulative impacts" of oil and gas development and production. 4. Whether a writ of mandamus will lie to compel the preparation of an environmental impact statement. As Stated by North Fork: 1. Did the District Court apply the wrong standard of review to State Lands1 procedural decision to forego an environmental impact statement? 2. Whether the Cenex operating plan "may significantly affect environmental attributes recognized as being endangered, fragile, or in severely short supply." ARM 26.2.603 (3) (a) . 3. Piecemealing: At what stage in the oil and gas lease process is an environmental impact statement on development legally required? 4. Is there a separate ground supporting the District Court's decision, which State Lands and Cenex did not raise on appeal? 5. Whether the 1984 preliminary environmental review was legally sufficient, particularly in its evaluation of cumula- tive impacts. 6. Whether a writ of mandate will lie to compel prepara- tion of an environmental impact statement. In April of 1975, the Department received applications for oil and gas leases on 14 tracts of school trust land in the Coal Creek State Forest. The Department deferred action on possible leases until an environmental impact statement (EIS) could be prepared. Coal Creek State Forest is bordered on three sides by National Forest Service land, and on the fourth side by the North Fork of the Flathead River. The river is part of the National Wild and Scenic Rivers System, as well as the western boundary of Glacier National Park. The surrounding National Forest Service land was also the subject of oil and gas development proposals at about the same time. In 1976, the National Forest Service issued a draft EIS concerning proposed leases on land in its charge. The Department also issued an EIS in 1976. The introduction to the Department's EIS stated that the National Forest Service EIS dealt with the impacts of oil and gas leasing in the larger area surrounding Coal Creek, and the Department's EIS would therefore focus only on the state lands involved and should be considered "an extension of that made by the federal government." The Department's EIS permitted leasing of all 14 Coal Creek tracts. However, at a meeting of the State Board of Land Commissioners held in March of 1976, all of the bids received were rejected. The National Forest Service subsequently undertook a new environmental analysis of the area, and abandoned its 1976 draft EIS. In 1982, the Department received new applications for oil and gas leases covering a larger portion of the Coal Creek area. The Department prepared a preliminary environ- mental review (PER) for the purpose of determining whether issuance of oil and gas leases would be an action by state government "significantly affecting the quality of the human environment," therefore requiring an EIS under S 75-1-201, MCA. The PER was issued in 1983, and concluded that no such significant effect would result if certain protective stipu- lations were included in any leases granted. The Department then offered leases in Coal Creek State Forest at public auction. Cenex purchased leases to 17 tracts. Each lease contained 16 environmentally protective stipulations. Under these stipulations, Cenex was required to submit an annual operating plan to the Department detail- ing all activities to be carried out on the leased acreage during the coming year. No activity could be undertaken until written approval of each year's plan was received from the Department. Cenex's first annual operating plan was submitted in 1984. The plan proposed drilling an exploratory well on one of the leased tracts located approximately three miles south of the town of Polebridge and one mile west of Glacier Park. The proposed well site was a clear-cut left from previous logging under lease from the Department. Cenex planned to make improvements to an existing logging road in order to transport necessary drilling equipment and supplies. The Department delayed approval of the plan while it completed a site-specific PER, held two public hearings and received comments on the PER during a 30-day review period. After reviewing the comments, the Department issued a supplement to the PER. The Department then approved the plan, subject to 31 additional protective stipulations. In February of 1985, North Fork filed this action. The complaint sought an order setting aside the Department's approval of the Cenex operating plan and the Cenex lease, and a writ of mandate directing the Department to prepare an EIS on the cumulative effects of oil and gas development in the Coal Creek area. Cenex successfully petitioned to intervene as a defendant in the case. The Department and Cenex filed a motion for summary judgment, as did North Fork. In 1988, the District Court issued a Memorandum and Order granting North Fork's motion, and subsequently entered judgment in North Fork's favor. This appeal followed. The many issues taken up by the parties have rendered their arguments difficult to follow. North Fork has gone so far as to attempt a "chart of corresponding issue numbers" in its brief to this Court. A careful reading of the issues and arguments offered, as well as the record from below, shows that the parties are posing three core questions: 1 . Did the District Court apply the proper standard of review? 2. Did the Department proceed properly in approving Cenex's annual operating plan? 3. Is mandamus an appropriate remedy to enforce provi- sions of the Montana Environmental Policy Act? We will proceed with our review by addressing these three questions. The District Court looked to the Montana Administrative Procedure Act (MAPA) for its standard of review. The court applied the standard of review found in S 2-4-704 (2) (e) , MCA: (2) ... The court may reverse or modify the deci- sion if substantial rights of the appellant have been prejudiced because the administrative find- ings, inferences, conclusions, or decisions are: ... (el clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. On appeal, the Department and Cenex argue that the "clearly erroneous" standard was improper in this case. Cenex specif- ically argues that 5 2-4-704, MCA, was inapplicable, because the section deals with judicial review of "contested cases", and this was not a contested case. A "contested case" is defined at 5 2-4-102(4), MCA, as a proceeding before an agency where a "determination of legal rights, duties, or privileges" of a party is required to be made after an oppor- tunity for hearing. In contrast to cases such as State ex rel. Montana Wilderness Association v. Board of Natural Resources and Conservation (1982), 200 Mont. 11, 648 P.2d 734, no hearing was requested or held before the Department in this case. North Fork did not initiate this action until after the Department had approved Cenex's operating plan. There was no "evidentiary record" against which to measure the Department's decision and determine whether it was clear- ly erroneous. Cenex is therefore correct in asserting that § 2-4-704, MCA, does not apply in this case. Both Cenex and the Department argue that the District Court should have employed an "arbitrary and capricious" standard. The Department asserts that decisions by adminis- trative agencies are given deference by reviewing courts due to the agencies' access to superior expertise, and are not overturned unless arbitrary or capricious. The Department notes that in Wilderness Association, 648 P.2d at 740, this Court cited deference to agency expertise as one of three important factors in selecting a standard of review in a contested case. Cenex notes that the arbitrary and capri- cious standard was used prior to the enactment of MAPA, and would logically apply in this case. Our decision in Langen v. Badlands Cooperative State Grazing District (1951), 125 Mont. 302, 308, 234 P.2d 467, 470, which is cited by Cenex, is relevant to both points: The review by the district court is only for the purpose of determining the legal rights of the parties involved. This is so because of the divi- sion of governmental powers under the Constitution, neither the district court nor the Supreme Court may substitute their discretion for the discretion reposed in boards and commissions by the legisla- tive acts. [citations] . . . The appeal from the commission to the district court is for the purpose merely of determining whether upon the evidence and the law the action of the commission is based upon an error of law, or is wholly unsupported by the evidence, or clearly arbitrary or capricious. On such review courts will only inquire insofar as to ascertain if the board or commission has stayed within the statutory bounds and has not acted arbitrarily, capriciously or unlawfully. [citations] Both sides agree that because the Montana Environmental Policy Act (MEPA) is modeled after its federal counterpart (NEPA), this Court can look to federal decisions under NEPA as an aid to addressing cases under MEPA. See Kadillak v. Anaconda Co. (1979), 184 Mont. 127, 602 P.2d 147. In fact, North Fork argues that we should adopt the "reasonableness" standard utilized by the U.S. Court of Appeals for the Ninth Circuit in cases cited in North Fork's brief. While looking to federal decisions is not always conclusive, cases decided on analogous facts can shed light on a given issue. The United States Supreme Court recently took up two companion cases involving the issues at bar. In one of those cases, Marsh v. Oregon Natural Resources Council (No. 87-1704, May 1, 1989), 57 LW 4504, the Supreme Court ad- dressed the issue of the proper standard for review of an agency decision not to amend a previously-issued EIS. The argument before the Court was that newly-discovered informa- tion cast doubt on the agency's previous conclusion that the proposed project would not significantly affect the environ- ment. The agency involved had decided that the information did not raise questions sufficient to require amendment of the EIS. This case presents an analogous question. North Fork alleged several specific shortcomings in the procedure fol- lowed by the Department in approving Cenex's annual operating plan. The thrust of these contentions, when taken together, is that the information gathered by the Department indicated that Cenex's proposed well would generate a significant impact on the human environment, and an EIS should have been prepared. As in any comparison between federal and Montana law, there is a distinction between Marsh and this case. In Marsh, the federal Administrative Procedure Act was applica- ble where in this case MAPA judicial review provisions do not apply However, the federal act offers several possible standards of review. In choosing a standard, the Supreme Court in Marsh specifically rejected the "reasonableness" standard used by the Ninth Circuit Court of Appeals and adopted the "arbitrary and capricious" standard. In explaining its choice, the Court stated: The question presented for review in this case is a classic example of a factual dispute the resolution of which implicates substantial agency expertise. ... Because analysis of the relevant documents "requires a high level of technical expertise," we must defer to ''the informed discre- tion of the responsible federal agencies. [citations] The Department in this case was carrying out its statutorily-imposed fiduciary duty to "secure the largest measure of legitimate and reasonable advantage to the state" in managing school trust lands. Section 77-1-202, MCA. The Department also had to carry out duties imposed by MEPA, pursuant to which it prepared a PER in order to gather infor- mation for its decision on whether to prepare an EIS for Cenex's proposed action. This decision necessarily involved expertise not possessed by courts and is part of a duty assigned to the Department, not the courts. In light of this, and the cases cited above, we hold that the standard of review to be applied by the trial court and this Court is whether the record establishes that the agency acted arbi- trarily, capriciously, or unlawfully. 11. When applying the above standard of review to this case, it is important to keep in mind which Department action is challenged by North Fork: the approval of Cenex' Annual Operating Plan, which calls for the drilling of an explor- atory well. North Fork has contended, and the District Court has held, that this action should not have been undertaken without prior preparation of an EIS. It is apparent from our review of the record, however, that the arguments of counsel and the District Court's Memorandum and Order have strayed from the issue of the operating plan to consider policies and activities that are not at issue here. This is a primary reason for our reversal of the District Court's judgment. A. The Department's Decision Was Not Unlawful. While the standard of review we have adopted utilizes three terms, it breaks down into two basic parts. One part concerns whether the agency action could be held unlawful, and the other concerns whether it could be held arbitrary or capricious. See Langen, 234 P.2d at 471. We will first address the "unlawful" portion. The Department is both empowered and constrained by a set of statutes and regula- tions relevant to its actions challenged in this case. One such statute is S 77-1-202, MCA, cited above, which imposes a fiduciary duty on the Department to manage the land at issue to the advantage of the State. The procedures followed by the Department in its dealings with Cenex were governed in part by MEPA (SS 75-1-101, et seq., MCA) and administrative rules enacted pursuant to MEPA (ARM 26.2.602, et seq. re- pealed 11/1/89; recodified at ARM 26.2.642, et seq.). North Fork's complaint in the District Court alleged in large part that the Department failed to carry out its ap- pointed duties under these provisions. In the brief filed in support of its motion for summary judgment, North Fork made three arguments: 1. [The Department's] decision to forego an EIS at the stage of drilling an oil well was clearly unreasonable and wrong. Conner v. Burford, 605 F.Supp. 107 (D. Mont. 1985) and Kadillak v. Anaconda Co. (1979), 184 Mont. 127, 602 P.2d 147. 2. The case is clearly one where the decision "may significantly affect" endangered species and a fragile environment, requiring an EIS under ARM 26.2.603 (3) (a) . 3. [The Department] omitted to perform an evalua- tion of cumulative impacts, in violation of ARM 26.2.604 (1) (b) and (c) . Two of these arguments, the first and third, are directly relevant to the "unlawful" portion of our standard of review. The District Court's Reliance on Conner v. Burford. The District Court agreed with North Fork's first argument, and relied on Conner v. Burford, supra, to hold the Department's 1976 EIS, 1983 PER and 1984 PER to be insufficient. At the outset, the court adopted North Fork's broad view of the development of oil and gas in the Coal Creek area, and con- cluded that full-field development required the preparation of an EIS. The Department had argued that its 1976 EIS was sufficient for this purpose. The court found, however, that the 1976 EIS was insufficient because it focused only on Coal Creek lease tracts and did not address the overall impacts of such development. Without a valid EIS, the two PER'S became "falling dominos," their environmentally protective stipula- tions mere examples of the kind of "piecemeal" approach to environmental review held improper in Conner. We disagree. First, the Department's 1976 EIS has no relevance to this case. The overall impacts of full-field oil and gas development in the Coal Creek State Forest are not at issue. Section 75-1-201, MCA , (entitled "General Directions--Environmental-Impact Statements") sets out guide- lines for "every recommendation or report on proposals for projects." ARM 26.2.603 ("Determination of Necessity for Environmental Impact Statement") governs consideration of a "proposed action". The proposed project/action under consid- eration in this case is the drilling of one exploratory well on one lease tract. In considering this proposed action, the Department prepared a site-specific PER in 1984, which sup- plemented a more general PER prepared in 1983. The conclu- sion reached by the Department was that an EIS was not required for the single Cenex test well. This is the deci- sion under review. Second, while the District Court was correct in assert- ing that "[ilf found rich in oil and gas the acreage in question would be under tremendous pressure for further exploration and development," it was premature in concluding that an EIS was required. The court's conclusion apparently resulted from a misreading of the Conner case. The decision of the U.S. District Court for the District of Montana in Conner, cited by North Fork in its brief below, dealt with the question of when an agency action would "significantly affect" the environment, thus requiring preparation of an EIS. This is the same standard employed in § 75-1-201, MCA, and its attendant regulations. The Federal District Court held that issuance of a lease permitting oil and gas develop- ment was "the first stage of a number of successive steps" leading to development, and therefore met the "significantly affect" standard. The court feared that proceeding with a piecemeal environmental review by considering only one step at a time would ignore the cumulative effects of development and risk unforeseen, irreversible impacts. When reviewing the decision, however, the Ninth Circuit Court of Appeals made an important distinction. The appel- late court reviewed case law determining that under the "significantly affect" standard, an EIS was always required at the "go/no go" point of oil and gas development. The test derived to pinpoint when the "go/no go" point is reached looks for the proposed action that will entail an "irretriev- able commitment of resources". Some of the leases at issue in Conner had "no surface occupancy" (NSO) clauses. Under these clauses, no activity which would disturb the ground in any way could be undertaken without prior approval from the agency involved. The Ninth Circuit Court held that leases with NSO clauses were not an irretrievable commitment of resources. Nothing could happen under the leases without government approval. The point had not been reached where preparation of an EIS was "automatic." The court also noted, "We cannot assume that government agencies will not comply with their NEPA obligations in later stages of development." Conner, 836 F.2d at 1528. Cenex will operate under essentially the same type of strictures found in the Conner NSO leases. The lease at issue in this case was executed on a printed "Montana Oil and Gas Lease" form supplemented in blank spaces with information specific to the lease arrangement between the Department and Cenex for this well site. North Fork has made much of the printed language in the initial portion of the lease indicat- ing that Cenex thereby acquires the right to do the following: . . . mining and operating for oil and gas, and of laying pipelines, building tanks, power stations, and other structures thereon necessary in order to produce, save, care for, dispose of and remove the oil and gas ... According to North Fork, it is hard to imagine these activi- ties not significantly affecting the human environment of the Coal Creek area. North Fork is correct in that the lease could ultimately empower Cenex to conduct all of the listed activities, and it is easy to imagine these activities having a significant effect on the environment. However, the lease also contains specific environmental stipulations typed into to the lease form under paragraph 26, entitled "Special Provisions". One of these typed stipulations reads: If the lessee [Cenex] intends to conduct any activ- ities on the leased premises, it shall submit to the Department of State Lands two copies of an Annual Operating Plan or Amendment to an existing Operating Plan, describing its proposed activities for the coming year. No activities shall occur on the tract until an Annual O~eratina Plan or Amendments have been aDDr0ved in writina bv the (Emphasis supplied.) It is a fundamental principle of con- tract law that written or typewritten provisions in a con- tract take precedence over printed provisions. Hoerner Waldorf Corp. v. Bumstead-Woolford Co. (1972), 158 Mont. 472, 494 P.2d 293. The typed "special provision" therefore takes precedence over the printed authorization in this lease. Cenex can carry out the listed activities only with prior written approval of the Department. The issuance of this lease was thus not an "irretrievable commitment of resources" as the term was used in Conner. The District Court was incorrect in concluding that full development of oil and gas in the Coal Creek State Forest was a matter of successive steps set into irreversible motion by the issuance of the lease. Like the Ninth Circuit in Conner, this Court cannot assume that the Department will not comply with its MEPA obligations if development proceeds beyond this stage. The 1983 PER. The District Court's misapplication of the Conner decision also tainted its holdings that the 1983 and 1984 PER'S were insufficient. Because the 1984 PER is a "supplement" to the 1983 PER, the court's holdings on both documents are relevant. The court held the 1983 PER inade- quate because it relied on the inclusion of environmentally protective stipulations to support its finding that issuing leases would not significantly affect the human environment. The District Court held this approach insufficient for two reasons: (1) it represented piecemealing prohibited by Conner and (2) it should have been a "programatic" review as re- quired by ARM 26.2.614. Our discussion of Conner has shown that a lease issued. pursuant to the 1983 PER need not be violative of the ruling in Conner, and the lease involved here in fact was not. As to ARM 26.2.614, the court engaged in selective reading of this rule, which has resulted in misinterpretation. The court and North Fork have at several points focused on por- tions of relevant provisions utilizing the words "shall" or "must" to conclude that the Department failed to carry out mandatory procedures. However, a cursory examination of ARM 26.2.614 reveals that the procedures listed are subject to a very prominent "if": (1) If the department is contemplating a series of agency-initiated actions [which] will constitute a major state action significantly affecting the human environment, the department may prepare a programmatic review ... (Emphasis supplied.) Again, our discussion above shows that the contemplated action at issue in the 1983 PER was the issuance of leases, which the Department determined did not constitute state actions significantly affecting the human environment. That decision was not challenged by North Fork, so no programmatic review was required. The 1984 PER. The District Court adopted North Fork's third argument in holding the 1984 PER to be insufficient. North Fork asserted that under ARM 26.2.604, an evaluation of the cumulative impacts of the proposed action was mandatory. The District Court found the 1984 PER insufficient because of its failure to address cumulative impacts. The term "cumulative impacts" is defined in ARM 26.2.602(1). The rule states that analysis of cumulative impacts under this definition involves consideration of past and present actions related to the proposed action. The proposed action under consideration in the 1984 PER was the drilling of the test well, the first such well in the Coal Creek area. The only past related action was the issuance of leases to Cenex, which was the subject of the 1 9 8 3 PER. The 1 9 8 3 and 1 9 8 4 PER'S fulfill the requirement of ARM 26.2.604 in that they examine the impacts of issuing leases and drill- ing a single test well, the only related proposed actions before the Department. The arguments advanced by North Fork and the District Court's Memorandum attack the 1 9 8 4 PER for failing to consid- er the cumulative impacts of related future actions, namely the full-field development of oil and gas. However, ARM 26.2.604 requires consideration of related future actions only when they are under current consideration. As we stated above, full-field development was not a proposed action before the Department. It was not included in Cenex's Annual Operating Plan, and therefore was not under "current consideration". In sum, the arguments advanced by North Fork and the rationale provided by the District Court failed to show that the Department acted "unlawfully" in determining that approv- al of Cenex' first annual operating plan did not require an EIS. Our review of the record has not uncovered any statute or regulation violated by the Department in its dealings with Cenex thus far. The Department has followed required proce- dures and included in its PER'S the information required by statute and administrative rules. Nor can the decision on the Cenex test well be analogized to the situation in Conner. Even under the Conner criteria, the Department made its decision to forego an EIS at a point in the process where that decision was still left to the Department's discretion. We therefore proceed to examine the Department's decision under the "arbitrary or capricious" portion of our standard of review. B. The Department's Decision Was Not Arbitrary Or Capricious. North Fork's second argument in its brief in support of its motion for summary judgment addressed the 1984 PER, and is relevant to this portion of our review. North Fork as- serted that by the Department's own analysis, the approval of the well was an action significantly affecting the human environment. North Fork is critical of the Department's treatment of the effects the well might have on bald eagles, grizzly bears or grey wolves thought to inhabit or at least frequent the Coal Creek area. North Fork notes that the Department employs no eagle biologist or wolf biologist, and no wildlife biologist is included in the list of PER prepar- ers. However, North Fork's brief states, The issue here is not the questionable quality of the [eagle, bear and wolf] biology in the PER. The issue is whether there is a "may affect" situation According to North Fork, such a situation "clearly" exists, and an EIS should have been prepared prior to approval of the Cenex Annual Operating Plan. For each of North Fork' s contentions, it quotes a por- tion of the 1984 PER discussing possible impacts of the well on that animal. North Fork does not contend that required analyses are missing, nor does it focus on the adequacy of the analyses given. North Fork simply contends that the impacts discussed are evidence themselves that the well may significantly affect these facets of the human environment. Its criticism of the lack of wildlife biologists in the list of preparers appears aimed at showing that the Department did not recognize the import of even the "questionable analysis" found in the PER. According to North Fork, the Department was therefore incorrect in deciding that drilling a test well would not significantly affect the human environment, and its decision ran afoul of the "unreasonable" standard of review. Our analysis will be similar to that employed by North Fork, except for the actual standard of review applied. This Court has not had the opportunity to review an administrative decision under MEPA utilizing the "arbitrary or capricious" standard. In the Marsh case, however, the U.S. Supreme Court stated a method for conducting such a review: As we observed in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971), in making the factual inquiry concerning whether an agency decision was "arbitrary or capricious," the review- ing court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judg- ment." This inquiry must "be searching and care- ful," but "the ultimate standard of review is a narrow one. " Marsh, 57 LW at 4509. It is also worth noting that our decisions in cases decided under MAPA (see, e.g., Thornton v. Comm'r of the Dep't of Labor and Indus. (1981), 190 Mont. 442, 621 P.2d 1062; Wilderness Association, 648 P.2d at 740) have recognized the limited scope of review in administrative cases. We cannot substitute our judgment for that of the Department by determining whether its decision was "correct." Instead, we must examine the Department's decision to see whether the information set out in the PER'S was considered, or the decision to forego an EIS was so at odds with that information that it could be characterized as arbitrary or the product of caprice. We will read the 1983 and 1984 PER'S together, because as noted above, the 1984 PER was intended to supplement the 1983 PER. In these documents, the Department had before it analyses of the possible impacts of drilling the test well that raised a number of environmental concerns. There were questions about maintaining the purity of the water in the North Fork of the Flathead River and a nearby glacial lake. There were questions about how the sight of the drilling rig, the noise it produced while working and the smells associated with its presence would affect endangered species such as bald eagles that nested at the glacial lake, grizzly bears that were thought to use the Coal Creek drainage as a travel corridor to find food, and grey wolves which were slowly being reintroduced to the area. There were also questions about how these same sights, sounds and smells would affect activities such as camping, river floating and hiking along the river and in Glacier Park. The 1 9 8 3 PER consumed 39 pages in addressing these and other questions, while in the 1 9 8 4 PER the analyses required 75 pages. In the process of preparing the two PER'S, the Depart- ment consulted with over 30 departments and organizations, including the Environmental Protection Agency, the Border Grizzly Project and Wolf Ecology Project at the University of Montana School of Forestry, the Rocky Mountain Oil and Gas Association, and Glacier National Park. The Department also utilized over 60 published studies and other references. During public comment on the 1 9 8 4 PER, the Department re- ceived 70 letters from concerned groups and individuals. Clearly, there were many concerns expressed and much informa- tion provided. In response to this process, the Department decided to include measures to mitigate the impact of oil and gas activ- ities in the form of stipulations to Cenex's lease and to the written approval of Cenex's operating plan. The Department has argued that these stipulations prevented its approval of the operating plan from rising to the level of a state action significantly affecting the human environment. At the feder- al 1-evel, the Ninth Circuit Court of Appeals has held that such "mitigation measures" are to be considered in reviewing a decision to forego an EIS, and if the measures are "signif- icant", they may justify such a decision under the "unrea- sonable" standard. Friends of Endangered Species, Inc. v. Jantzen (9th Cir. 1985), 760 F.2d 976, 987. Given the nar- rower, "arbitrary or capriciousw standard being applied in this case, sufficiently significant mitigation measures certainly would justify the Department's decision. The mitigation measures adopted by the Department have taken the form of a total of 42 protective stipulations, 11 attached to the lease and 31 attached to the approval of the operating plan. They include such measures as forbidding any activity on the lease tract during times of the year impor- tant to bald eagle nesting and grizzly bear migration. The drilling rig must be painted a color that will not stand out against the natural background, additional mufflers must be installed on the diesel engines used to power the rig, and the engines must be mounted facing a certain direction to reduce the noise reaching bald eagle nests and Glacier Park. Five stipulations deal with any necessary disturbance of the soil and its replacement. Eight stipulations concern main- taining the quality of the ground water, and include restric- tions on the chemical content of drilling fluids and the size of trucks that may be used to haul diesel fuel to the rig. The stipulations also address the workers on the rig, impos- ing regulations on garbage disposal and forbidding the pres- ence of personal pets, among other measures. We have reviewed the concerns raised by the preparers of the PER'S, as well as those raised by agencies consulted and members of the public. We have also reviewed the mitigation measures imposed by the Department. We conclude that the Department has considered the concerns raised and taken significant steps to address them. We therefore hold that the Department's decision to approve Cenex's annual operating plan was not arbitrary, nor was it an exercise of caprice. Having also held that the Department did not act illegally, we therefore uphold the Department's decision and reverse the District Court on this question. 111. One of the remedies afforded by the District Court was a writ of mandate requiring the Department to prepare an EIS. We have held above that an EIS was not required in this case, which makes the issuance of the writ erroneous. We feel compelled to add, however, that mandamus was an inappropriate remedy in this case. As our discussion above has brought out, the Department's decision to forego an EIS at this stage of development was necessarily an exercise of discretion to which courts must give a measure of deference. In fact, we have previously held that the Department must exercise its discretion in all phases of its management of state lands. "If the 'large measure of legitimate and reasonable advantage' from the use of state land is to accrue to the state, then the [Department] must, necessar- ily, have a large discretionary power. Every facet of the [Department's] action cannot, and is not, explicitly laid out in the statutes of the State Constitution." Jeppeson v. State (19831, 205 Mont. 282, 289, 667 P.2d 428, 431 (quoting Thompson v. Babcock (1966), 147 Mont. 46, 409 P.2d 808). We held in Jeppeson that mandamus is not avail- able to compel a discretionary act. We therefore reverse the District Court on this question. We have held that the District Court applied the incor- rect standard of review in this case, and that under the correct standard, the Department's approval of Cenex's annual operating plan was proper. We have further held that manda- mus was not available in this case. We therefore reverse the decision of the District Court, dissolve the writ of mandate issued by the court, and remand this case for entry of judg- ment in favor of the Department. We Concur: A @ C Justice % & d sitting for J u s t i d John C , Sheehy Justice ~illiam E. Hunt, Sr., dissenting. I dissent. The District Court's summary judgment in favor of North Fork should be affirmed. The majority concludes that an oil well drilled in the Coal Creek State Forest, located on the North Fork of the Flathead ~iver, will not generate such a "significant impact upon the human environment" as to require the preparation of an Environmental Impact Statement (EIS) . The lease in ques- tion, however, not only gives Cenex the right to drill for oil and gas, it also empowers the corporation to engage in other activities associated with oil and gas development-- laying pipelines, building tanks, constructing power stations and other necessary structures. Should this one exploratory well produce oil or gas, Cenex will definitely undertake these activities--activities that will significantly affect the human environment. Taking comfort in the lease's seemingly restrictive provisions that require Cenex to submit annually an operating plan for written approval by the Department before Cenex undertakes any additional developmental activity, the majori- ty incorrectly concludes that the only issue involved in this case is the impact of this one well. Much more than one, site-specific well is at stake here. This well is merely the first step toward the full development of oil and gas in the Coal Creek State Forest. Should Cenex discover gas or oil with this one well, as is highly probable, the economic pressure for full-field oil and gas development of the area will be tremendous. For the majority to believe that such development is not at issue is incomprehensible. The majority states that an EIS will not be required until Cenex has made an "irretrievable commitment of resourc- es." An irretrievable commitment of resources occurs at the "go/no go" point of oil and gas development. with the Department's approval of Cenex's proposal to drill one ex- ploratory well, we have reached this "go/no go" point. The drilling of one oil well on Coal Creek land constitutes a disturbance of the ground and, definitionally, an irretriev- able commitment of resources. An EIS must be undertaken before the Department approves an annual operating plan that includes a proposal to drill--whether the proposal is for one well or twenty. The immediate and long-term effects that drilling in the Coal Creek State Forest will have on the human and physical environment are potentially devastating. Yet, by choosing to review the need for an EIS under the most lenient of all standards of review--the arbitrary, capricious and unlawful standard--the majority appears content to let the future of our forests, rivers, wildlife and wilderness rest in the hands of non-elected public officials. When I see the De- partment giving priority to the raising of revenue over the quality of our environment, I cannot share the majority's assurance that the Department is adequately carrying out its fiduciary duty to "secure the largest measure of legitimate and reasonable advantage to the state" in managing school trust lands. The core of Montana's value derives from its natural beauty. The area involved, teeming with wildlife, includes the gateway to Glacier National Park, the Coal Creek State Forest and the North Fork of the Flathead River, which not only comprises part of the Wild and Scenic River System but also feeds the majestic Flathead Lake. The majority and the Department may be willing to exploit these state treasures without taking a hard look at the future. I, for one, cannot condone the Department's hasty and ill-considered decision to allow drilling prior to the compilation of an EIS. I would affirm the District Coyt. - 25 - Justice | August 22, 1989 |
2519e252-f590-4691-abc5-b7770a8788cc | STATE v STILLINGS | N/A | 88-609 | Montana | Montana Supreme Court | NO. 88-609 I N THE SUPREME COURT O F THE STATE O F MONTANA 1 9 8 9 THE STATE O F MONTANA, P l a i n t i f f and Respondent, -vs- MICHAEL DUANE STILLINGS, Defendant and Appellant. - . APPEAL F R O M : ~ i s t r i c t Court of t h e Eighth ~ u d i c i a l ist trick, ; - I % , I n and f o r t h e County of Cascade, n - - i - f The Honorable J o e l G. Roth, Judge presiding. - - C O U N S E L O F RECORD: +. : For Appellant: . L . - ., ,- i - ( - A - E. June Lord, Great F a l l s , Montana For Respondent: Hon. Marc ~ a c i c o t , Attorney General, Helena, Montana John Paulson, A s s t . Atty. General, Helena P a t r i c k Paul, County Attorney, G r e a t F a l l s , Montana Steven Hudspeth, Deputy County Attorney, Great F a l l s , Montana Filed: Submitted on b r i e f s : Aug. 3, 1989 Decided: August 2 4 , 1989 Chief Justice J. A. Turnage delivered the Opinion of the Court. Defendant Michael Duane Stillings appeals his conviction by the District Court of the Eighth Judicial District, Cascade County, for committing perjury by making two, inconsistent, material statements under oath in an official proceeding in violation of section 45-7-201(6), MCA (1987). We affirm. The defendant raises the following issues on appeal. Did the District Court err in denying the defendant's motion to dismiss the information when the District Court found that either: 1) the defendant's act of perjury under section 45-7-201(6), MCA (1987), was not complete, and therefore the statute of limitations did not begin to run until the defendant made a material statement under oath that was inconsistent with this previous testimony; or, in the alternative 2) under section 45-1-206 (I), MCA (1987), the defendant's out- of-state incarceration tolled the statute of limitations on his first statement so that both statements fell within the five year statute of limitations? On the night of February 23, 1971, Vicki Renville was raped and bludgeoned to death in the Wadsworth Park area of Great Falls, Montana. During the resulting murder trial, Michael Stillings testified on October 4, 1971, that he and Fred Lee Perry raped Renville and that when she threatened to "rat," Perry repeatedly struck Renville on the head with a tire iron. Perry was subse- quently convicted of second degree murder. See State v. Perry (1973), 161 Mont. 155, 505 P.2d 113 (affirming the District Court decision). Stillings pled guilty to the same charge and received a sixty-year sentence with ten years suspended. Stillings was incarcerated in the Montana State Prison on November 29, 1971. On December 6, 1971, he was transferred to the California prison system under the provisions of the Interstate Correctional Compact Agreement to prevent his confinement in the same prison as Perry. California paroled Stillings to Washington on August 18, 1978. On February 14, 1979, Stillings was arrested and subsequently convicted of armed robbery in Washington. After he served five years of his thirty-five year sentence, Washington paroled ~tillings to Montana on detainer on April 20, 1984. Montana revoked Stillingsl parole on his second degree murder charge returning him to the Montana State Prison. In 1986 the California prison system transferred Perry to Deer Lodge placing Stillings and Perry in the same prison for the first time. Stillings soon indicated that he would recant his previous testimony against Perry, and Perry applied for a new trial. During the new trial hearing on July 24, 1987, Stillings disavowed his 1971 testimony against Perry and stated under oath that he, and not Perry, had killed Vicki Renville. The trial court, however, did not find Stillingsl testimony credible and refused to grant Perry a new trial. See State v. Perry (Mont. 1988), 758 P.2d 268, 45 St.Rep. 1192 (affirming the District Court decision). On September 25, 1987, the Cascade County Attorney filed an information against Michael Stillings charging that Stillings committed perjury by making two, inconsistent, material statements under oath in violation of section 45-7-201, MCA (1987) . Stillings filed a motion to dismiss the information on the grounds that the statute of limitations had run. The District Court denied the motion. Defendant Stillings then filed an application for writ of supervisory control on the same grounds and the Montana Supreme Court denied the petition. In the ensuing bench trial, the District Court found the defendant guilty and sentenced him to ten years for perjury and ten years as a persistent felony offender. The District Court also revoked the ten-year suspended sentence on Stillings' second degree murder conviction and ordered that all sentences run consecutively. Defendant Stillings now appeals his perjury conviction. Did the District Court err in its alternative finding that the defendant's act of perjury under section 45-7-201(6), MCA (1987), was not complete, and therefore the statute of limitations did not begin to run until the defendant made a material statement under oath that was inconsistent with his previous testimony? Montana's perjury statute provides that: A person commits the offense of perjury if in any official proceeding he knowingly makes a false [material] statement under oath . . . . Section 45-7-201(1), MCA (1987). The statute further provides that: Where the defendant made inconsistent state- ments under oath or equivalent affirmation, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prose- cution to prove which statement was false but only that one or the other was false and not believed by the defendant to be true. Section 45-7-201(6) , MCA (1987) . The defense in this case argues that by the plain language of the inconsistent testimony provision, both statements must be made within the five year statute of limitations for felony crimes. Stillings contends that because seventeen years lapsed between his statements, the statute of limitations had run before the prosecu- tion filed its information against him. We disagree. The statute of limitations did not run because the statute was triggered only by Stillings' second statement which completed the crime of perjury under section 45-7-2Ol(6), MCA (1987). The statute of limitations clearly states when the time limitation begins to run: A prosecution for a felony must be commenced within 5 years after it is committed. Section 45-1-205 (2) (a) , MCA (1987) . (Emphasis added. ) An offense is committed either when every element occurs or, when the offense is based upon a continuing course of conduct, at the time when the course of conduct is terminated. Time starts to run on the day after the of- fense is committed. Section 45-1-205(5), MCA (1987). Commission of the crime of perjury by making inconsistent, material statements under oath requires at a minimum that the accused has made two conflicting statements. When a witness makes conflicting statements under oath, it is axiomatic that one is false so long as all other elements of perjury can be satisfied. This statute expedites prosecution by eliminating the needless requirement of proving which statement is false. The intrinsic falsity of the accused's testimony arises, and the crime is complete, only when the inconsistent testimony occurs. The statute of limitations, therefore, cannot begin to run at least until the defendant has completed the crime by making the indispensable, second statement. The issue raised by the defendant accentuates an underlying contradiction in the inconsistent testimony statute. A crime under this statute cannot be completed, and the statute of limitations does not begin to run, until the defendant makes at least two allegedly inconsistent statements. However, the statute declares that "both [statements must be] made within the period of the statute of limitations.~~ Section 45-7-201(6) , MCA (1987) . BY including the first statement, which might be entirely true, within the period of limitations, this clause would trigger the statutory period before any crime has been committed. The statute entices the unscrupulous witness to falsely recant five-year-old, credible testimony and insulate himself against prosecution under this statute. We invite the legislature to consider an appropriate remedy to this problem. In the present case, application of this questionable statu- tory clause would still not have provided grounds for barring the prosecutionls information. Did the District Court err in its alternative finding that under section 45-1-206(1), MCA (1987), the defendant's out-of-state incarceration tolled the statute of limitations on his first statement so that both statements fell within the five year statute of limitations? Section 45-1-206, MCA (1987), provides that: The period of limitation does not run during: (1) any period in which the offender is not usually and publicly resident within this state or is beyond the jurisdiction of this state . . . . The defendant argues that during the time he was incarcerated in California on his second degree murder charge, he was still under Montana jurisdiction. While this contention may be true, we make no determination on this issue since it is not relevant. Section 45-1-206(1) is written in the disjunctive and either clause is sufficient in itself to toll the statute of limitation. Failure of the criminal defendant to be llusually and publicly resident within this statew will itself interrupt the running of the statutory period regardless of jurisdiction. The statute is - also tolled when the criminal defendant is "beyond the jurisdiction of the staten regardless of his place of residence. The Criminal Law Commission Comments on section 45-1-206 are also written in the disjunctive and note that: subsection (1) tolls the statute for the offender who is absent from this state, or absents himself from his usual place of abode and makes some effort to conceal himself. Again, each clause is sufficient to toll the statutory period. Absence from the accused's usual abode coupled with attempts at concealment will toll the statute. Absence from the state will, independently, interrupt the statutory period. We therefore hold that the mere absence of the criminal defendant from the state is sufficient to toll the statute of limitations. The majority of states interpreting similar statutes have also concluded that a criminal defendant's mere absence from the state is sufficient to toll the statute of limitations. See State v. Nelson (Ariz. App. 1988), 755 P.2d 1175; State v. Wright (Utah 1987), 745 P.2d 447; State v. Houck (Kan. 1986), 727 P.2d 460; State v. Ansell (Wash. App. 1984), 675 P.2d 614; State v. Azzone (Minn. 1965), 135 N.W.2d 488; State v . Lupino (Minn. 1964), 129 N.W.2d 294; Grayer v. State (Ark. 1962), 353 S.W.2d 148; Couture v. Commonwealth (Mass. 1958), 153 N.E.2d 625; Traxler v. State (Okla. Crim. App. 1953), 251 P.2d 815. A number of states have applied this principle to cases similar to that of Stillings. In the seminal case of People v. Carman (Ill. 1943), 52 N.E. 2d 197, the Illinois Supreme Court first interpreted the statutory exclusion for periods during which the defendant was "not usually and publicly resident within this state. The court defined "residentN by its common meaning and held that the statute of limitations was tolled during the Missouri incarceration of the defendant even though he remained a legal resident of Illinois. Carmen, 52 N.E.2d at 199-200. Similarly, Stillings' incarceration in Washington on armed robbery charges tolled the statute of limitations. The fact that Stillingsl whereabouts were known to Montana law enforcement officials throughout his absence does not change the rule. The Washington Court of Appeals held that the absence from the state of a first-degree statutory rape defendant was sufficient to toll the statute of limitations even though the defendant's whereabouts were easily determinable by law enforcement officials. State v . Ansell (Wash. App. 1984), 675 P.2d 614, 617. The ability of Montana to force the return of Stillings at any point during his time in California and Washington does not affect the tolling of the statutory period. The Washington courts held that the statute was tolled on a first-degree robbery defendant incarcerated in Oregon who was available for extradition under the Interstate Agreement on Detainers. State v. Newcomer (Wash. App. 1987), 737 P.2d 1285, 1290. Similarly, Montana's maintenance of some control of Stillings during his California incarceration for his Montana murder convic- tion did not overcome the tolling of the statute. In an analogous case the Kansas Supreme Court held that a criminal defendant volun- tarily paroled to Arkansas from the Kansas prison system and under the control of Kansas parole officials was not in the custody of the State of Kansas and therefore the statute tolled during his absence. State v. Houck (Kan. 1986), 727 P.2d 460, 465-66. In each of these cases, the principle is the same as that which we adopt today; mere absence from the state is sufficient to toll the statute of limitations for a criminal defendant. If the statute of limitations were applied to Stillings' first statement, it would have been triggered by his testimony on October 4, 1971. The defendant left Montana for incarceration in ~ali- fornia on December 6, 1971, tolling the statutory period at two months. He returned to prison in Montana on April 20, 1984, restarting the statute of limitations which ran until the prosecu- tion filed its information on September 24, 1987--a period of three years and five months. The statute of limitations, therefore, ran for three years and seven months and fell well within the five year statutory period. We find that the District Court was correct in both of its alternative holdings. Stillingsl mere absence from the state tolled the statute of limitations. Even if the statutory period had not been tolled, it could not have begun to run until Stillings made a material statement under oath that was inconsistent with his previous testimony. Affirmed . We concur: I i P , < ;A 4, Justices | August 24, 1989 |
174ee965-a635-44bb-8bbd-9b8fdb4458c8 | MARRIAGE OF RUDIO | N/A | 89-077 | Montana | Montana Supreme Court | No. 89-077 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF ELAINE HARLAN RUDIO, Petitioner and Appellant, and WILLIAM HARLAN, Respondent and Respondent. APPEAL FROM: District Court of the Fourth Judicial District, . In and for the County of Missoula, The Honorable John S. Henson, Judge presiding. \ , - COUNSEL OF RECORD: C. I . I --7 For Appellant: Darla J. Keck; Datsopoulos, MacDonald & Lind, Missoula, Montana David B. Cotner; Boone, Karlberg & Haddon, Missoula, Montana For Respondent : Kerry N. Newcomer; Geiszler, Taylor, Newcomer & ~cClain, Missoula, Montana Filed: Submitted on Briefs: July 7, 1989 Decided: Augast 24, 1989 I Clerk Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from a judgment issued on the findings of fact and conclusions of law in the parties' marriage dissolution action in the Fourth Judicial District Court, Missoula County, Montana. Petitioner/appellant wife argues the court abused its discretion when it arbitrarily valued the husband's pension plan, awarded minimal maintenance to the wife for a limited period of time, and required the wife to pay her own attorney's fees. The findings and judgment of the District Court are reversed and remanded for a new trial. Appellant Elaine Harlan (Elaine) and respondent William Harlan (Bill) were married March 10, 1962. At the time of the marriage, Elaine had just graduated from high school and Bill was a laborer for the predecessor of Stone Container Corporation. Bill has continued to work for the same company for the past 27 years. Elaine was a housewife throughout the marriage. She raised the parties1 two children, both of whom had reached the age of emancipation at the time of the parties' separation. Elaine also did the cooking, cleaning and shopping for the family. Elaine's work experience outside of the home was very limited, consisting of temporary part time work as a day care attendant, election judge, and home care attendant. Bill completed an apprenticeship program with Stone Container and is now an industrial electrician. At the time of the trial, Bill's hourly wage was $17.65 per hour, or approximately $38,300 per year. After 24 years of marriage, the parties separated in March of 1986. When Bill left the parties' home, no arrangements were made for Elaine's financial maintenance. Consequently, during the 29 months between the time of separation and trial, Elaine spent all of the money from one of the parties' savings accounts, approximately $17,000, in order to live. During this same time, Bill consumed his regular take-home pay of more than $500 per week, and $175 per month which he received from a contract receivable. Additionally, Bill depleted all of the funds from another of the parties' savings accounts, which also amounted to approximately $17,000. All told, Bill spent over $71,750 during this period of time. He could not account for this money at trial. Elaine was not informed by her original counsel that she could receive financial support from Bill during the period of separation. It was not until Elaine retained new counsel in 1988 that she sought an award of temporary maintenance. After notice of a hearing to set maintenance, the parties stipulated to a maintenance amount of $800 per month. In March of 1988, Bill was "married" to Bonnie Lucier in Hawaii. Although Bill concedes the marriage is invalid, he and Bonnie Lucier live together, share monthly expenses, and expect to "remarry." Bonnie Lucier presently has assets of nearly $230,000, and earns between $600 and $800 per month from investments. Additionally, Bill's $175 per month contract receivable is payable through August, 2002. Elaine requested an award of permanent maintenance because she had no income producing property, and no employment skills which would provide her with sufficient funds to cover her monthly expenses. During trial, Kathy Kleinkopf, a certified rehabilitation counselor, described Elaine as fragile, nonassertive, extremely frightened, directionless, and possessing a weak self-presentation. Kleinkopf stated that she did not believe Elaine had the skills to seek or get employment, in part because Elaine's work history was "non-existent for practical purposes." Kleinkopf recommended that Elaine enter a five-week pre-vocational program at the Missoula Vocational Technical Center, to be followed by six quarters of clerical training from the Vo-Tech Center which would take at least two years to complete. Kleinkopf stated that it would be more advantageous for Elaine to obtain a bachelor's degree from the University of Montana, a course of study which would last through June, 1993. The parties did not dispute the value of most of their assets. At trial, however, Bill disagreed with Elaine's expert's evaluation that the Stone Container pension plan was worth $20,600. Bill stated the pension plan was only worth $10,000. He offered this round figure because he believed he had been exposed to asbestos at his work place. He concluded that since he is a smoker, he does not expect to live as long as the expert calculated. Elaine's counsel objected to this testimony because it was speculative and without foundation. The trial judge sustained the objection. Bill also disagreed with Elaine's valuation of her automobile, a 1977 Pontiac. Elaine testified that the car got an average of ten miles per gallon and would soon need to be replaced. The Pontiac was appraised for purposes of the trial at $450. Bill disagreed and gave this unqualified opinion: [Direct examination by Bill's counsel:] Q. Did you have a chance to review the appraisal . . . for the '77 Pontiac? A. Yes. I viewed it in your office the other night. Q. Do you agree with that appraisal? A. No, I do not. Q. What do you think the car is worth? A. Well, I know the car two and a half years ago was in excellent shape, the motor was taken care of extremely well by my father, the interior was spotless. That's why it was valued at that time --the lawyer that I had handling my father's estate --he said let's just slap three thousand dollars on it. I think it was worth more than that if we would have valued then. Q. What do you think it's worth now? Just what do you think-- A. I would say it's worth at least fifteen hundred. Elaine testified that her repairman found a leak in the 24-year-old roof of her house and that she obtained an estimate for its repair. The estimate presented at trial, for $1,470, was to lay new shingles over the old. She testified that she had since leaned the old shingles would have to be removed at an additional cost of $550. Bill also disagreed with the estimate for the roofing job, however, he did not disagree that a repair was necessary. At trial, Bill gave his opinion that "I know that I could have it done cheaper . . . I think I can get it done for nine hundred." In its findings of fact, conclusions of law, and decree of dissolution, the District Court divided the property essentially as the parties agreed: Pro~ertv to Elaine Harlan Residence at 316 Dearborn (unencumbered) $47,000.00 Household furnishings (including player piano & other property in her possession except the property awarded Respondent below, presently in Petitioner's possession) 3,500.00 Dain Bosworth Apache oil 350.00 WIN cash account 3,584.11 Great Falls municipal bond 5,583.15 Jones' Cable interest (approx.:) 9,000- 15,000.00 Elaine's IRA 1,683.78 1977 Pontiac 700.00 1975 Dodge pickup 500.00 WFS&L checking 313.84 4 1987 tax year refund 665.50 $72,880.38--78,880.38 Property to Bill Harlan Luptak Harlan Escrow (remains of father's estate) 17,117.00 Champion/Stone retirement 10,000.00 Dain Bosworth-IRA account 11,573.00 Personal Property (including all items in Bill Harlan's possession) one kerosene decorator lamp Grandmother's musical instrument Grandfather's diamond willow cane All father's tools, equipment and miscellaneous items (trunk with estate papers) Remainder of Bill's hand and power tools Other items from garage, i.e. battery charger Grandmother's .32 cal. H & R revolver and cartridges Ruger 10-22 cal. rifle Firepoof box and contents, purchased by father Tax returns and supporting documents for 1980-87 3 h.p. Evinrude outboard and remote tank with oil 4 h.p. motor and fan blade Items purchased from Bill's Aunt Mary Lay Father's golf clubs Grandmother's coffee table from living room 3 remaining silver coins or medallions 2,000.00 1988 Ford pickup (subject to encumbrance) 6,200.00 3 1987 tax year refund 665.50 $47,555.50 Although the court sustained counsel's objection to Bill's testimony regarding the value of the pension plan, it nonetheless accepted Bill's valuation and reasoning. In its opinion and order, the court made the following statement: Petitioner requests that the Court amend its Findings of Fact Nos. 19, 20 and 24 relating to the Court's valuation of Respondent's pension. Underpinning Michael Duffield' s present value calculation for this pension is the assumption that Respondent has a life expectancy equal to that of other American males. Respondent's place - of employment exposes him to toxic or harmful substances. ~ o s t American males do not work in this type of environment. ------- Duffield's assumption - disregards this exposure - and renders present value - calculations unreliable. The Court has rejected Duffield's testimony in this instance as not credible because his analysis disregards the environmental factors of Respondent's employment. (Emphasis added.) The court ruled that Bill would pay Elaine $100 per week only while she is enrolled in the Missoula Vo-Tech program. The payments were not to exceed two years. The court reasoned: In the over two years between separation and trial Petitioner had access to savings, cash and in kind support from Respondent exceeding $26,000.00. Petitioner also received all the marital assets except Respondent's retirement, Respondent's IRA account, personal possessions and half of the 1987 tax year income tax refund. The Court considered the expenses that Petitioner claimed at trial, her spending after the separation, the ass= she was awarded and the factors set out in 55 40-4-202 and 40-4-203, MCA. The Court's award of short term educational maintenance was designed to require Petitioner to responsibly marshal her - resources and make choices as to how to -- - - - - apply her assets - to achieve her goals. It is unfortunate, but true, that a -- - - substantial portion of the marital estate -- was dissipated between separation and trial a Petitioner. The opportunity- put those funds to more constructive use is forever gone. Petitioner's track record is such that it appears to the Court that her "needs" will always exceed the funds available to her. There was no convincing testimony at this trial to show why Petitioner should not be required to make the same choices about allocation of resources as other non-handicapped people. (Emphasis added. ) The court valued the 1977 Pontiac at $700 because Bill "thought" the car was worth more than the written appraisal and because of the "parties' respective biases regardinq valuation. " However, when Elaine valued the personal property remaining in her possession at $2,500 to $3,000, and Bill valued the same property at $3,500, the court valued the property at $3,500. Additionally, the court refused to award Elaine any funds for the repair of the roof because "[nlo necessity for immediate replacement was shown by Petitioner." The District Court also accepted Bill's unsupported suggestion that Elaine could inherit property from her parents. In Finding of Fact No. 15, the court stated: Petitioner's parents are in their seventies and are presently in good health. Petitioner's parents live - comfortably. Petitioner can expect a modest - to substantial inheritance when her parents die, barring unforeseen - - circumstances. (Emphasis added. ) The District Court disallowed any award of attorney's fees to Elaine because it concluded "Petitioner has sufficient property, cash and short term assistance to pay her own attorney's fees and costs." Elaine raises the following issues for review: 1. Did the District Court abuse its discretion in its valuation of Bill's pension plan? 2. Did the District Court abuse its discretion when it awarded only $100 per week in financial assistance, and when it ruled the assistance was not to exceed two years? 3. Did the District Court abuse its discretion when it required Elaine to pay her own attorney's fees? Issue No. 1 Did the District Court abuse its discretion in its valuation of Bill's pension plan? There can be no question but that the court did abuse its discretion. There is absolutely no evidence in the record to support the court's valuation of the pension plan. Bill does not contest Elaine's expert's methodology in valuing the pension plan. He merely thinks the mortality table used by the expert does not apply to him. No doubt it would be helpful to such valuations if it were possible to determine exactly how long a person will live. However, such necessarily speculative devices must be utilized in order to make a reasonable calculation. As we held in In re Marriage of Bowman (Mont. 1987), 734 P.2d 197, 44 St.Rep. 488, it is an abuse of discretion to arbitrarily pick a method of calculation which enjoys no support from the record. Likewise, it is an abuse of discretion to arbitrarily value a pension plan through the use of no calculation whatsoever. Bill had full opportunity to produce expert testimony or other reliable evidence which would illustrate that he has a shorter life expectancy than that used by the expert. However, Bill presented no evidence that his health was poor, no evidence that he was ever exposed to any toxic substances, no evidence that all other workers at Bill's place of employment died before reaching age 76, no evidence that Bill's life expectancy was anything other than age 76, and absolutely no evidence supporting the rough figure valuation of $10,000. That valuation was clearly in error. Issue No. 2 Did the District Court abuse its discretion when it awarded only $100 per week in financial assistance, and when it ruled the assistance was not to exceed two years? When the marital property is properly considered and valued, it is clear the maintenance award was an abuse of discretion. From the record it is apparent that the District Court was convinced of two things: 1) that Elaine was receiving the vast majority of the marital property; and 2) that Elaine spent too much money between the time of separation and trial. In spite of this, however, the court concluded Elaine was entitled to an award of maintenance. If all of the marital property is properly valued, the difference between what each party will receive is not great. When the valuation of the car is recalculated, and the value of the pension is properly established, the property distribution will be much closer: Property to Elaine Residence Household furnishings Dain Bosworth Apache oil WIN cash account Great Falls Municipal Bond Jones' Cable interest Elaine's IRA 1977 Pontiac 1975 Dodge pickup WFS&L checking 3 1 9 8 7 tax year refund Property to Bill Luptak Harlan Escrow Champion/Stone retirement Dain Bosworth-IRA account Personal Property 1 9 8 8 Ford pickup 4 1987 tax year refund Section 40-4-203, MCA, provides that the court may award maintenance if the spouse seeking maintenance: (a) lacks sufficient property to provide for his reasonable needs; and (b) is unable to support himself through appropriate employment . . . (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 . . . ; (b) the time necessary to acquire sufficient 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 emotional condition of the spouse seeking maintenance; and (f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. There is no evidence in the record that the District Court adequately considered the factors of 5 40-4-203, MCA. Even though the marital property was not properly valued, it is evident that the court did not consider the nature of the majority of the assets awarded Elaine. In re Marriage of Tow (Mont. 1987), 748 P.2d 440, 44 St.Rep. 2154. By far the most valuable asset awarded to ~laine, the residence, is not income producing, but rather income consuming property. The income producing property awarded to Elaine included : Dain Bosworth Apache Oil WIN cash account Great Falls Municipal Bond Jones' Cable WFS&L checking 3 1 9 8 7 tax year refund Total Income Producing Assets: Even a 10% annual return on this amount of money would only generate $1,949.96 per year before state and federal taxes are deducted. Elaine listed her monthly expenses as exceeding $800 per month, exclusive of any costs for education and retraining. Additionally, Kleinkopf testified that the pre-vocational program would cost $199, and the Vo-Tech programs would cost $1,504 per year. We conclude the court erred in awarding temporary maintenance of $100 per week in light of Elaine's financial resources, education and employment skills, age, physical and emotional condition, the duration of the marriage, the standard of living established during the marriage, and Rill's ability to provide Elaine with maintenance in an amount which is fair and just. In view of these factors, the temporary award of $100 per week was unjustified. There was no evidence which established what Elaine's income and expenses would be after she obtains employment. An assumption of self-reliance after that time is not supported by the record. Nor was there any evidence which would support a conclusion that Elaine would inherit anything from her parents. Further, an award of permanent maintenance may be modified or terminated to reflect a change of circumstances, such as these assumed by the court. Section 40-4-208, MCA. Finally, there is no evidence to support a conclusion that Elaine spent too much money from the time of the separation to the date of the trial. While Elaine may have spent over $26,000, this amounts to less than $900 per month for the 29 month period. Still, while there was nothing more than Bill's insinuation that this amount was excessive, the $26,000 figure pales when compared to the nearly $72,000 spent by Bill during this same time period, an amount the court failed to consider in its distribution of the marital property. Issue No. 3 Did the District Court abuse its discretion when it required Elaine to pay her own attorney's fees? We conclude it did. The District Court denied Elaine's request for attorney's fees and costs because it concluded she had sufficient property, cash and short-term assistance to pay them herself. However, as we have concluded above, the court incorrectly valued the marital property and erred in awarding limited maintenance. Therefore, and because we are returning this cause for a new trial, this issue must be re-examined by the court in light of a new property distribution or valuation, and award of maintenance. Reversed and remanded for a new trial. I We concur: .' A */ * &ii!!&@dU,, Justices | August 24, 1989 |
eba4c8ca-77e8-4de1-8dd7-b8754c81fd4e | W R GRACE CO v DEPT OF REVENU | N/A | 88-266 | Montana | Montana Supreme Court | No. 88-266 IN THE SUPREME COURT OF THE STATE OF MONTANA W. R. GRACE & COMPANY, a corporation, Petitioner and Appellant, -vs- DEPARTMENT OF REVENUE OF THE STATE OF MONTANA; and THE STATE TAX APPEAL BOARD OF THE STATE OF MONTANA, Defendants and Respondents. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Henry Loble, Judge presiding. COUNSEL OF RECORD: For Appellant: George T. Bennett argued; Helena, Montana Paul H. Frankel argued; f orris on & Foerster, New York, New York Terry B. Cosgrove argued; Luxan & ~urfitt, Helena, Montana For Respondent: Paul Van ~richt argued; Tax Counsel, Dept. of Revenue, Helena, Montana For Amicus Curiae: Bruce W. Moerer; Montana School Boards Assoc., Helena, . Montana Mr. ~ustice William E. Hunt, Sr., delivered the opinion of the Court. W. R. Grace & Company appeals from an order of the District Court of the First Judicial District, Lewis and Clark County, upholding a ruling by the State Tax Appeal Board (STAB) , which denied certain deductions claimed by Grace on its net proceeds of mines tax returns for the years 1977, 1978 and 1979. We affirm. The following issues are raised on appeal: 1. Did the District Court err in holding that STAB properly disallowed certain deductions in the calculation of Grace's net proceeds taxes? 2. Did the Department of Revenue (Department) complete its deficiency assessment of Grace's 1977 and 1978 net proceeds taxes within the time allowed by law? W. R. Grace & Company, a Connecticut corporation, owns and operates a vermiculite mine and related plant and facilities on Vermiculite ~ountain, located in Lincoln County near the Kootenai River, approximately nine miles northeast of Libby. Vermiculite is a micaceous mineral, which must be expanded before being used in various construction materials. After the vermiculite ore is extracted from an open pit mine on Vermiculite Mountain, it is transported to a "transfer point'' and, from there, into mine processing facilities. Processing carries the mineral through a storage and blending facility into a wet mill, then through a dry screen plant to a sized product storage facility, bordering the Kootenai River. From that point, a conveyor transports most of the unexpanded mineral across the Kootenai to rail-loading facilities adjacent to the Burlington Northern railroad tracks, where it is loaded in bulk onto rail cars. A small portion of the ore is hauled to separate facilities in Libby, owned and operated by Grace, where it is bagged and loaded onto rail cars. The unexpanded vermiculite is shipped FOB from these two points to expanding plants owned by Grace--none of which are located in Montana--or to expanding plants owned by third parties. Grace maintains offices at both the mine site and the town of Libby. Personnel in the Libby office perform various administrative functions, e.g., accounting, procurement and payroll. A manager and assistant manager, who supervise the Libby employees as well as the employees working at the mine and milling facilities, also maintain an office in Libby. The Montana facilities are part of Grace's Construction Products ~ivision (CPD), located in cambridge, Massachusetts, separate from Grace's corporate headquarters. The CPD manufactures and markets numerous commercial products for the construction and agricultural industries. It operates over one-half dozen plants in Canada and over 40 in the united States, although its only Montana plant is the mine and mill site on vermiculite Mountain. Grace timely filed its net proceeds of mines tax returns for the years 1977, 1978 and 1979. On the returns, Grace deducted the entire cost of the vermiculite ~ountain facilities and the ~ i b b y office. It also deducted a portion of the expenses incurred by the CPD in Cambridge. The Department conducted an audit of the returns and concluded, among other things, that deductions for expenses incurred by the Libby and Cambridge offices were improper. Therefore, by letter dated August 7, 1981, the Department issued a proposed deficiency assessment. When an acceptable resolution of the issues could not be reached through assessment revision conferences between the parties, the Department issued final notice of deficiency. Grace timely appealed the final decision to STAB. After a hearing, STAB ruled that the majority of the expenses were not properly deducted as they were either: 1) not an actual cost of extracting the vermiculite; 2) incurred by employees not actually engaged in working or superintending the mine; 3) incurred past the point of beneficiation; or 4) not properly prorated between the Libby office and the plant facilities. STAB did conclude, however, that a portion of the expenses were properly deducted. These included: 1) expenses incurred in activities related to the safety of the mine, whether incurred in Cambridge or on Vermiculite Mountain; 2) salary and benefits for the two managers who maintained offices in Libby because they were actually engaged in superintending the mine; 3) salary of the chief geologist because he was actually engaged in working the mine; and 4) legal and consulting fees for filing water rights claims and obtaining patents. On June 11, 1987, Grace filed a petition for judicial review with the First Judicial District Court, Lewis and Clark County. The Department filed a cross-petition. The District Court upheld the STAB ruling in its entirety. Grace appeals from the ~istrict Court determination. The Department does not cross-appeal. The standard of review governing appeals of administrative rulings, including those made by STAB, is codified at 5 2-4-704, MCA. Department of Revenue v. avids son Cattle Co. (1980), 190 Mont. 326, 330, 620 P.2d 1232, 1234-35. The standard is delineated as follows: (1) The review shall be conducted by the court without a jury and shall be confined to the record. (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 the administrative findings, inferences, conclusions, or decisions are: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (dl affected by other error of law; (el clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (g) because findings of fact, upon issues essential to the decision, were not made although requested. section 2-4-704, MCA. The statute sets out two basic standards. One, findings of fact will be upheld unless they are clearly erroneous, and two, conclusions of law will be upheld unless they constitute an abuse of discretion. Swan Corp. v. Montana Dept. of Revenue (Mont. 1988), 755 P.2d 1388, 1389-90, 45 St.Rep. 998, 1000; City of Billings v. Billings ire fighters Local No. 521 (1982), 200 Mont. 421, 430-31, 651 P.2d 627, 632. Neither party contests the valuation of the deductions declared by Grace nor whether Grace actually incurred the expenses claimed. Therefore, the question raised by Grace's first issue--whether the deductions are statutorily permissible--involves only a question of law. Likewise, the second issue presented for review--whether the deficiency assessment is barred by the statute of limitations--involves solely a question of law. Thus, we will use the broader "abuse of discretion" standard in our analysis of both issues. I Did the District Court err in holding that STAB properly disallowed certain deductions in the calculation of Grace's net proceeds of mines taxes? The net proceeds of mines tax has been a part of the property tax scheme of Montana since 1864, preceding statehood itself. Faced with the difficulty of accurately measuring the value of undeveloped minerals in place, the territorial legislature adopted the net proceeds tax as a substitute for an - ad valorem tax on the value of mines or mining interests. See Byrne v. Fulton Oil Co. (1929), 85 Mont. 329, 334, 278 P. 514, 517. The framers of the first state constitution incorporated the tax into that document at article XII, section 3. The current tax was separately codified in 1921 and, with the exception of some minor variations, the tax remains much as it was at that time. The 1972 Constitutional Convention eliminated the 1889 constitutional provision for the tax from the present constitution. The tax is centrally assessed by the Department. Section 15-23-101, MCA. The producer or operator of the mine annually reports, on a form provided by the Department, the gross yield of the mineral, as well as various costs incurred in the mining process. Section 15-23-502, MCA. From the returns, the Department calculates the net proceeds of the mine by subtracting certain expenses from the value of the gross product. Section 15-23-503, MCA. The Department then transmits the assessed value of the net proceeds to the county assessor, who records the value in the assessment book as class one property. sections 15-23-106 and 15-6-131, MCA. At issue in this case is the deductibility of certain expenses claimed by Grace on its net proceeds returns. Section 15-23-502, MCA (1977) , the statute in effect during the years in controversy, enumerates costs a taxpayer may declare on its net proceeds tax statement, including the following : (6) cost of extracting from the mine; (7) cost of transporting to place of reduction or sale; (8) cost of reduction or sale; (9) cost of marketing the product and conversion of same into money; (10) cost of construction, repairs, and betterments of mines and cost of repairs and replacements of reduction works; (12) cost of fire insurance and workers' compensation insurance. Section 15-23-502, MCA (1977) , is read in conjunction with 5 15-23-503, MCA (1977). The latter statute lists the items the Department subtracts from gross value to arrive at net proceeds, including: (b) all moneys expended for necessary labor, machinery, and supplies needed and used in the mining operations and developments; (c) all moneys expended for improvements, repairs, and betterments necessary in and about the working of the mine, except as hereinafter provided; (d) all moneys expended for costs of repairs and replacements of the milling and reduction works used in connection with the mine; (f) all moneys actually expended for transporting the ores and mineral products or deposits from the mines to the mill or reduction works or to the place of sale and for extracting the metals and minerals therefrom and for marketing the product and the conversion of the same into money; (g) all moneys expended for fire insurance and workers' compensation insurance and for payments by mine operators to welfare and retirement funds when provided for in wage contracts between mine operators and employees. section 15-23-503(1), MCA (1977). The statute goes on to restrict the allowable deductions in the following manner: (4) No moneys invested in the mines and improvements during any year except the year for which such statement is made and except as provided in this section may be included in such expenditures, and such expenditures may not include the salaries or any portion thereof of any person or officer not actually engaged in the working of the mine or superintending the management thereof. section 15-23-503 (4), MCA (1977). Grace maintains that 5 15-23-503, MCA (1977), allows the deduction of all costs related to the vermiculite mine as long as they are necessary to the mining operation. Therefore, Grace argues, all general overhead, office and administrative expenses attributable to the mining process for which it has properly accounted are deductible, whether incurred at the mine site, Libby or Cambridge. Grace reads the statute too broadly. The law does not permit the deduction of "every conceivable item of expense." Anaconda Copper Mining Co. v. Junod (1924), 71 Mont. 132, 140, 227 P. 1001, 1004. The net proceeds tax is not an income tax. It is a property tax. Its purpose is to arrive at a fair valuation of mining interests by using net proceeds as a proxy for the value of the mine itself. Byrne, 85 Mont. at 334, 278 P. at 517. Therefore, what may be properly deducted from net proceeds is construed restrictively. Only the direct costs and expenses of extracting the mineral are deductible. Anaconda, 71 Mont. at 138, 227 P. at 1004. Certainly, overhead and administrative expenses incurred by the Cambridge and ~ i b b y offices are necessary in the sense that they contribute to the smooth functioning of the vermiculite mine. However, they are not necessary in the sense contemplated by the net proceeds tax. Overhead, office and administrative expenses, while properly deductible for arriving at taxable income, are not properly deductible for determining the value of this taxable property. Not only must expenses be needed and used in the mining operation before they may be deducted from net proceeds, they must also be a direct cost of extracting the mineral. In addition, subsection (4) of S 15-23-503, MCA (1977), specifically provides that deductions shall not include "the salaries or any portion thereof of any person or officer not actually engaged in the working of the mine or superintending the management thereof." Many of the expenses Grace seeks to deduct are salaries of personnel who are not working or superintending the mine, e.g., accountants, systems analysts, financial planners and lawyers. While we do not doubt that these individuals are important to the mining operation, the statute simply does not allow the deduction of their salaries. Grace relies on our decision in Cyprus Mines Corp. v. Madison County (1977), 172 Mont. 116, 560 P.2d 1342, for the proposition that necessary overhead, office and administrative expenses are deductible as long as the taxpayer uses a proper cost accounting system. Indeed, in Cyprus Mines, we denied the taxpayer's claims due to an improper method of allocating costs. However, the opinion does not stand for the proposition that a proper cost accounting system turns otherwise nondeductible expenditures into deductible expenditures. Before the items at issue may be subtracted from gross value to arrive at net proceeds, they must be needed and used in the mining operation as a direct cost of extracting the mineral. General overhead, office and administrative expenses are indirect costs, and, as such are not deductible--regardless of the accounting system employed by the taxpayer. Our opinion today does not abrogate the general principle of Cyprus ~ i n e s . Expenses that are improperly acounted for will not be permitted. Thus, STAB did not abuse its discretion in concluding that computer use, electricity, telephone and transportation costs were not deductible because they were improperly prorated between the mine site and the Libby office. Grace also contests STAB'S failure to allow deductions for transporting and marketing the mine product. STAB disallowed these expenses because it found that they were incurred beyond the point of beneficiation. Section 15-23-503 (1) (f) , MCA (1977), provides for the deduction of costs incurred in transporting the mineral from the "mines to the mill or reduction works or to the place of sale and for extracting the metals and minerals therefrom and for marketing the product and the conversion of the same into money. " However, in ~fizer, Inc. v. Madison County (1.9731 , 161 Mont. 261, 5 0 5 P.2d 399, we limited the deductions allowed by this subsection. In Pfizer, we rejected the State Board of Equalization's contention that the net proceeds tax extends all the way through the mining process to the point where the product is marketed, sold and converted into money. Instead, we held that the net proceeds tax applies only to the mining stage of the operation. Once the mineral passes the beneficiation stage--the pre-manufacturing phase of the mining process--the net proceeds tax no longer applies. Value added to the mineral from operations undertaken beyond the point of beneficiation is not included in the value of net proceeds. Therefore, deductions from such operations are not allowed. Where the net proceeds tax ends, there also ends the deductions for such tax. Only deductions for the mining operation will be allowed up through the beneficiation stage. All other expenses will be incurred as to the manufacturing process. Pfizer, 161 Mont. at 267, 5 0 5 P.2d at 402. Grace points out that our affirmance of the STAB decision may result in some inconsistent applications of the law. For example, STAB permitted deductions for costs associated with the safety of the miners even though these expenses were incurred by personnel who were not directly engaged in working or superintending the mine. Any inconsistencies, however, may be attributed to the fact that the Department did not appeal the STAB decision to this Court. Whether STAB properly permitted deductions for costs associated with the safety of the miners is not in issue here and we will not attempt to address the question. With regard to the issues that have been properly raised on appeal, we find that STAB did not abuse its discretion. Statutes and case law do not permit the expenses Grace sought to deduct on its net proceeds of mines tax returns. I1 Did the Department complete its deficiency assessment of Grace's 1977 and 1978 net proceeds taxes within the time allowed by law? By letter dated August 7, 1981, the Department issued its deficiency assessment of Grace's 1977, 1978 and 1979 taxes. Grace argues that, because the Department did not complete the assessment of the 1977 and 1978 taxes until more than two years after the returns were due, it was barred by the statute of limitations from pursuing any deficiencies in net proceeds taxes for these years. Grace does not raise the statute of limitations issue with regard to the 1979 taxes because the Department issued the deficiency assessment within two years after that return was filed. Grace relies on Caterpillar Tractor Co. v. Department of Revenue (Mont. 1981), 633 P.2d 618, 38 St.Rep. 1245, to support its argument that a two-year statute of limitations applies to deficiency assessments of net proceeds taxes. In Caterpillar, we held that, in the absence of a specific statute of limitations governing the particular tax in question, the general two-year limitations period prescribed in § 27-2-211(1)(c), MCA, for a liability created by statute other than a penalty or forfeiture applied. The tax examined in Caterpillar, however, differs from the tax in question here. In Caterpillar, we considered the corporation license tax, which is a self-assessing tax on corporate income. The tax in issue in this case, on the other hand, is the net proceeds of mines tax, which is a centrally assessed tax on property. Prior to 1983, the limitations period for assessment revisions of property taxes, including the net proceeds of mines tax, was found at S 15-8-601, MCA. Because a specific statute of limitations governed the mines net proceeds tax during the years in question, the two-year limitations period found in 5 27-2-211(1)(c), MCA, does not control this case. Section 15-8-601, MCA, provides as follows: (1) Whenever the department of revenue discovers that any taxable property of any person has in any year escaped assessment, been erroneously assessed, or been omitted from taxation, the department may assess the same provided the property is under the ownership or control of the same person who owned or controlled if at the time it escaped assessment, was erroneously assessed, or was omitted from taxation. All such revised assessments must be made within 10 years after the end of the calendar year in which the original assessment was or should have been made. The statute sets out two prerequisites. The factual situation must involve taxable property that has "escaped assessment, been erroneously assessed, or been omitted from taxation;" and, the property sought to be assessed must remain "under the ownership or control of the same person who owned or controlled it at the time it escaped assessment, was erroneously assessed, or was omitted from taxation." The circumstances of this case fulfill both conditions. ~irst, taxable property owned by Grace was omitted from taxation when Grace claimed statutorily impermissible deductions on its net proceeds of mines tax returns. In Butte & superior ~ining Co. v. McIntyre (1924), 71 Mont. 254, 229 P. 730, we noted that unlawful deductions taken by the taxpayer on its net proceeds of mines returns resulted in property omitted from taxation within the meaning of a predecessor to the present 5 15-8-601, MCA. Here too, we hold that unlawful deductions claimed by a taxpayer on its net proceeds of mines tax returns allows taxable property to be omitted from taxation within the meaning of S 15-8-601, MCA . Second, even though it had sold the vermiculite ore mined in 1977 and 1978 by the time the Department completed its deficiency assessment, Grace retained ownership and control of the property subject to taxation. This is because the "taxable property" contemplated by the statute is the mine itself. As we stated earlier, the net proceeds tax is an attempt to place an accurate fair market value upon the mine. The tax "is simply a tax in lieu of, or as a substitute for, [an] - ad valorem tax on the value of mines or mining interests." Byrne, 85 Mont. at 334, 278 P. at 517. The tax measures the value of the mine itself, not merely the value of the extracted minerals. Therefore, as long as Grace owns the vermiculite mine, it retains control of taxable property subject to the ten-year limitations period for reassessment under 5 15-8-601, MCA. Grace also argues that the legislature's enactment of § 15-23-116, MCA, a comprehensive five-year statute of limitations for centrally assessed property, impliedly repealed the ten-year limitations period provided in § 15-8-601, MCA. This Court looks disfavorably upon repeals by implication. State ex rel. Sol v. Bakker (1982), 199 Mont. 385, 392, 649 P.2d 456, 460. without an express declaration by the legislature that an enactment repeals an existing law, a later statute will not repeal an earlier law unless the two are "plainly and irreconcilably repugnant to or in conflict with each other. . . " Johnson v. arias ~ i v e r ~lectric Coop. (1984), 211 Mont. 518, 523, 687 P.2d 668, 671. The legislature did not adopt the five-year statute, 5 15-23-116, MCA, until 1983. The statute was made retroactive to taxes due after December 31, 1980. Act of March 23, 1983, ch. 194, S 3, 1983 Mont. Laws 389. The tax years at issue in this case, however, are 1977 and 1978. Therefore, even if the statutes are repugnant to each other, a question we will not consider at this time, they cannot possibly conflict prior to 1981, as the five-year statute of limitations had no force or effect prior to that year. with regard to the 1977 and 1978 tax years, Grace's argument that § 15-23-116, MCA, impliedly repealed § 15-8-601, MCA, is without merit. A ten-year statute of limitations governed the reassessment of Grace's net proceeds taxes for the years 1977 and 1978. Therefore, when the Department issued its deficiency assessment in 1981, it did so within the time allotqed by law. ~f f irmed. We Concur: | August 18, 1989 |
691fd82d-b75b-49a7-b373-8192be14bd22 | FIRST NATIONAL BANK OF ALBUQUERQUE | N/A | 88-599 | Montana | Montana Supreme Court | No. 88-599 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 FIRST NATIONAL BANK OF ALBUQUERQUE, a National banking corporation, Plaintiff and Respondent, QUINTA LAND AND CATTLE COMPANY, a New Mexico corporation; RICHARD D. BOKUM, 11, and MARGARET B. BOKUM, Defendants and Appellants. APPEAL FROM: ~istrict Court of the Eighteenth ~udicial District, In and for the County of Gallatin, The Honorable Thomas Olson, Judge presiding. COUNSEL OF RECORD: For Appellant: Richard C. Conover, Bozeman, Montana For Respondent: William D. amd din, 111; Crowley Law Firm, Billings, Montana Filed: Submitted on Briefs: June 16, 1 9 8 9 Mr. Chief Justice J. A. Turnage delivered the opinion of the Court. This is a foreclosure action brought by ~ i r s t National Bank in Albuquerque, New Mexico (Bank) , against Quinta Land and Cattle Company a New ~exico corporation (Quints), ~ichard Bokum and his wife, Margaret Bokum. Bank sought foreclosure of a mortgage on certain real property located in alla at in County, Montana. The mortgage secured certain notes (numbers 753, 109, and 5052 which are herein referred to as the 1982 notes) held by and made payable to Bank. Those notes were the subject of an underlying suit litigated in New Mexico and were found to be in default. A judgment was entered and upheld on appeal by the New Mexico Supreme court. Rank then sought foreclosure in Montana. The Montana ~istrict Court, Eighteenth ~udicial District, granted Bank summary judgment on the foreclosure issue, dismissed the counterclaims raised by defendants, and awarded certain attorney fees and costs to Bank. Requested relief from summary judgment was denied September 6, 1988. Defendants appeal. Thus, the issues on appeal are whether any genuine issue of material fact exists to preclude summary judgment for Bank regarding either the foreclosure or the counter- claims, and, whether it was error to award attorney fees. We affirm. Quinta is a New Nexico corporation of which Mr. Bokum is the president and sole shareholder. In 1971, Quinta bought a large ranch consisting of several sections of land on the Madison River in Gallatin County (the Montana property) . In 1972 and 1973, Mr. and Mrs. Bokum constructed a large residence on the ~uinta Montana property. Mrs. Bokum, although not a part of Quinta, contributed many hundreds of thousands of dollars of her own wealth to this endeavor. The final structure included 30,000 square feet of living space. Prior to this time, Bank and Bokum had an established banking relationship under which Bokum borrowed considerable amounts of money from Bank over many years. In 1974, Quinta, as well as Bokum, began signing on Bokum's notes with Bank. The mortgages and indebtedness at issue in this action are founded on a comprehensive settlement and refinancing agreement executed by Bank, Quinta, and both Bokums on Febru- ary 6, 1981. This agreement is fully evidenced by an Agree- ment of Accord and Satisfaction and Release; a commitment letter; and a Novation Agreement (referred to collectively herein as the "1981 Release") . As part of the 1981 Release, Mr. Bokum and Quinta executed two promissory notes in the amounts of $830,000 and $394,360.70. Both notes were dated February 6, 1981, and were due and payable on February 6, 1982. These two notes were secured by a mortgage on the Montana property which was recorded in the alla at in County Clerk and Recorder's office. That mortgage was dated Febru- ary 6, 1981, and was signed only by ~uinta. As additional security for those two notes, Bokum pledged 317,000 shares of stock in Bokum Resources Corporation and all outstanding stock in Quinta. The mortgage on the Montana property and pledged stock for ~uinta corporation represented the collateral agreed upon in the 1981 Release. The note for $394,360.70 was renewed on February 6, 1982. To evidence this renewal, Quinta and Bokum executed a new promissory noted for $394,36C.70 bearing a 16 percent per annum interest rate, which was due on or before August 5, 1982. This note is referred to as #753. Also on February 6, 1982, the $830,000 note was reduced and renewed. Quinta and Bokum executed a new promissory note in the amount of $330,230 also to be repaid with interest at the rate of 16 percent per annum on or before August 5, 1982. This note is referred to as #109. Lastly, Bank made a loan of $82,000 to Quinta and Bokum on June 9, 1982. Quinta and Bokum executed a promissory note, also dated June 9, 1982, evidencing this debt. The note was due on or before December 9, 1982, together with interest thereon calculated at Bank's prime rate. This note was also secured by the two mortgages on the Montana property as well as by a pledge of stock in Quinta. It is referred to as #5052. These three notes comprise the 1982 notes, none of which were signed by Mrs. Bokum. Quinta and Bokum never paid on these notes. Bank initiated this suit in Albuquerque, New Mexico, against Mr. Bokum and Quinta in December 1983. The suit sought joint and several judgment against the defendants as co-makers on the 1982 notes, and foreclosure on the two mortgages executed by Quinta on the Montana property. In July 1984, Bank started these foreclosure proceed- ings in Montana, naming both Bokums and Quinta as defendants. (Mrs. Bokum was added because she claimed an "interest" in the residence.) At that time, defendants moved to stay the Montana proceedings until completion of the New Mexico litigation. Defendants argued to the Montana court that the validity of the 1982 notes needed to be established before foreclosure of Bank's mortgages would be proper. The District Court granted a stay in November 1984, at which time it pledged itself to give full faith and credit to any New Mexico judgment. The New Mexico litigation was complex and lengthy. However, on March 31, 1986, the New Mexico trial court en- tered its findings of fact and conclusions of law, finding in favor of Bank. The court then entered judgment against Mr. Bokum on the defaulted notes and ordered Bank to proceed with its foreclosure on the collateral. Bokum appealed to the New Mexico Supreme Court. while that appeal was pending, Bank moved the Montana court to lift the stay in this proceeding. That motion was granted in March of 1987. Bank's case was later upheld by the New Kexico Supreme Ccurt. Bank filed motions for summary judgment in Montana on the foreclosure issue and on the late counterclaims raised by Quinta and Mr. Bokum. The District Court, following written and oral argument, issued its consolidated order dated March 2, 1988, granting both motions for summary judgment and awarding attorney fees and costs. Quinta and Mrs. Bokum ap- peal. Mr. Bokum does not appeal the entry of foreclosure judgment against his interest. I. Foreclosure Action Bank needs to prove the following elements to make out a prima facie case for foreclosure: (1) The debt of defendants; (2) Nonpayment of the debt; and (3) Present ownership of the debt by the complaining party. Furray v. Creese (1927), 86 Mont. 453, 260 P.2d 1051. The record reveals that Bank made its prima facie case of foreclosure at the summary judgment hearing and that no material dispute in the facts could be discerned. At that point, the burden shifted to defendants to present some evidence of a genuine issue of material fact which would defeat summary judgment. P J l a y e r Brothers v. ~aniel ~ichard Jewelers, Inc. (1986), 223 Mont. 397, 726 P.2d 815. Quinta wholly failed to do so. Rather, Quinta relied on the affirmative defenses raised in its pleadings. Under Rule 56(e), M.R.Civ.P., a party opposing summary judgment has an affirmative duty to respond by affidavits or sworn testi- mony with specific facts that show the need for trial, and is not allowed to merely rest on its laurels as set forth in the pleadings. Quinta asserts that the Montana District Court improp- erly relied on the judgment of the New Kexico court in deter- mining its liability on the 1 9 8 2 notes. That argument is without merit. The ~istrict Court ruled that "any attempt to question the debt between plaintiff [Bank] and [Mr. I Bokum/Quinta is barred by the doctrine of collateral estop- pel." We agree. Assuming that Quinta raised its usury defense and its accommodation defense timely in the Montana action, those matters were fully litigated in New ~exico and liability was established on the defaulted notes. Specifically noteworthy in the findings of the New Mexico court are the following: 1 9 . The 1 9 8 2 notes are valid, binding obligations on Bokum and Quinta. The 1 9 8 2 Notes were executed and given for valid consideration. 21. The 1 9 8 2 notes are not usurious. 22. The 1 9 8 2 notes are in default. 27. The 1 9 8 2 notes are secured by a mortgage on Quintals Montana ranch, all of the outstanding stock of Quinta and 317,000 shares of BRC stock. [Bank] is entitled to foreclose on that security. Quinta was not a party to the New Mexico proceeding. However, the defenses raised in Montana by Quinta were iden- tical to those raised by Bokum in New ~exico. The New ~exico court also found: 23. Bokum did not prove any defenses to the 1982 notes. Under these facts, we affirm the district court finding that Quinta had the opportunity to litigate these matters during the first trial and they are now barred by collateral estoppel. We stated in Thoring v. LaCounte (1987), 219 Mont. 462, 733 P.2d 340, that the law of the state where a judgment is rendered controls the interpretation of the effect of the foreign judgment in any subsequent actions between the parties or those with whom there is privity. Collateral estoppel under New Mexico law requires the following four elements: (1) The parties must be the same or in privity with the parties in the original action; (2) The subject matter in the two actions must be different; (3) The facts or issues were actually litigated; and (4) The issues were necessarily determined. Reeves v. Wimberly (N.M. 1 9 8 8 ) , 755 P.2d 75. Reeves interpreted these elements saying: "Collateral estoppel applies to identical issues in the suits where the same parties or parties in privity are involved in both actions even though the subject matter in the second action differs from the first." Reeves, 755 P.2d at 77. Quinta disputes that it was in privity with its sole shareholder, Mr. Bokum, and argues that lack of privity should defeat application of the collateral estoppel doc- trine. We conclude that argument is also without merit. The record fully supports the trial court's ruling that collater- al estoppel applied to bar Quinta from denying liability on the 1982 notes as was determined conclusively in the previous action. At this juncture, we would also like to quote from Quintals brief in support of its motion to stay the Montana proceeding: . . . the issues of the validity of the notes in the suit will be determined under New Mexico law and the Montana court should not have difficulty in applying the findings of the New Mexico court to the Montana litigation as to Quinta since ~uinta allegedly signed the notes in suit and Quinta is a company wholly owned by Mr. Bokum. Bank also argued that Quintals assertion that it was not liable on the 1982 notes would likewise be barred by the 1981 Release, res judicata and judicial estoppel. Since we have decided this issue under a collateral estoppel analysis, it is unnecessary for us to discuss Bank's further conten- tions, although they are equally persuasive. Summary judgment as to ~uinta on the foreclosure issue is affirmed. Next, Mrs. Bokum asserts that she has an "interest" in the residence on the Montana property which should be pro- tected from foreclosure and thus summary judgment as to her foreclosure defense was improper. We disagree. Quinta, as legal successor to Kyd Cattle Co., is the owner of the mortgaged Montana property. It is undisputed that Mrs. Bokum contributed generously to the residence constructed thereon; however, that building is now affixed to the mortgaged property and legally subject to foreclosure. It was incumbent upon Mrs. Bokum to take further steps if she intended to sever her interest from Quinta and protect it separately. specifically, she should have obtained a partial satisfaction of Bank's mortgage, and a deed f r o n i Quinta to the residence and recorded these with the alla at in County Clerk and Recorder's office. Absent those steps, Quinta is the owner of the property and house on which Bank has the recorded mortgage which is superior to all other claims of Mrs. Bokum. Mrs. Bokum's claimed "interest1' fails as a matter of law and summary judgment against her on the foreclosure issue is affirmed. 11. Counterclaims After the stay was lifted on the Montana proceeding in March 1987, Bank filed an amended complaint against defen- dants. Defendants filed two amended answers and then assert- ed the following counterclaims: 1. Breach of fiduciary duty to Mr. Bokum; 2. ~ailure to release mortgages under 5 71-1-212, MCA; and 3. Bad faith failure to release mortgages. The District Court granted summary judgment on these counterclaims. Quinta and Mr. Bokum appeal summary judgment as to Count 11, regarding the violation of S 71-1-212, MCA. Additionally, Mrs. Bokum appeals the District Court's "disre- gard for her harassment claim." We affirm summary judgment on both issues. Section 71-1-212, MCA, provides for damages when a mortgagee refuses or neglects to issue a certificate of release after the mortgagor's full performance of the condi- tions of the mortgage. Bokum and ~uinta asserted that Bank wrongfully failed to release its 1976 and 1979 mortgages in the New Nexico action. The District Court dismissed this claim, ruling that Eokum's claim was barred in Montana because he was obligated to assert it in the New Mexico action but did not. The District Court likewise dismissed Quintals claim (as standing in privity with Bokum) as barred by res judicata. We agree. The res judicata elements are determined under New Mexico law for our purposes here. Thoring, supra. Under New Mexico law, the following are the requisite elements to apply res judicata: (1) identity of parties or privies; (2) same subject matter; ( 3 ) identity of capacity of character of persons for or against whom the claim is made; and (4) the same cause of action. Myers v. Olson (N.M. 1984), 676 P.2d 822, 824. New Mexico has adopted the "transactional" analysis found in the Restatement (Second) of Judgment (1980), 5 24 and S 25. Under that approach, the cause of action is viewed in the context of the broader transaction, or series of transactions, from which it arose. This approach disregards the fact that a variety of legal theories may be available to the parties under the transaction. Myers holds that the cause of action is "essentially equated with the transaction from which it springs." 6 7 6 P.2d at 824. As was discussed under the collateral estoppel issue, the record supports the lower court finding with regard to identity of parties (or privies) in both actions. Also, there can be no genuine dispute that the subject matter and the capacities are the same in both actions. Lastly, we conclude that the fourth element regarding cause of action is likewise met under the transactional analysis. Bokum and Quinta both have failed to bring forth any evidence which would preclude the District Court from apply- ing = judicata to their counterclaims, thus precluding summary judgment. The record is replete with credible evi- dence supporting the District Court's application of summary judgment on these counterclaims and that judgment is hereby affirmed. We note only in passing that both counterclaims are likewise barred as a matter of law as claims specifically intended to be waived when all parties signed the 1981 Release. We now turn to Mrs. Bokum's claim of "harassment." Mrs. Bokum asserts that the Bank tried to recover on property which Bank knew was in her name only. The Montana District Court disregarded Mrs. Bokum's claim for damages against the Bank for harassment. We agree. The record reveals that Mrs. Bokum did not plead this claim properly but rather raised the issue for the first time in defendant's brief filed in opposition to Bank's motion for summary judgment on the counterclaims. It was not a part of the pleadings and she did not seek leave of the District Court to amend her pleadings as she was required to do under Rule 13, M.R.Civ.P. Thus, this "claim" was not properly before the District Court, and no error was committed by disregarding it. Bank has carried its burden in showing no genuine issues of mate- rial fact exist as to its claims. Defendants have failed to come forward with affidavits or other sworn testimony to show any genuine issues of material fact which would defeat summary judgment. Therefore, summary judgment was proper on the counterclaims and is affirmed. 111. Legal Fees ~ollowing an evidentiary hearing as to the reasonable- ness of attorney fees, the ~istrict Court awarded Bank $50,000 in attorney fees. We conclude that this award was lawful and reasonable. The 1982 notes and the two mortgages securing those notes all provided contractually for the recovery of attorney fees. Additionally, Montana statute provides for award of attorney fees in foreclosure actions. Section 71-1-233, MCA. Thus, the award of fees was lawful. The court took in testimony as to the reasonableness of the $62,477 amount requested by Bank. At the close of the testimony, the court awarded $50,000. Both the Montana and the New Mexico courts noted the complexity and the involved nature of this litigation. Based on the record of consider- able time and energy spent by Bank and the other evidence presented as to attorney fees, we conclude the amount awarded for legal fees was reasonable. Here we note that Bank argued in its appellate brief, "clearly the record reflects that Mr. Bokum and ~uinta fought [Bank] every step of the way, on issues that could no longer be controverted in good faith, in ar, effort to delay the inevitable foreclosure that is now nearly seven years over- due." We conclude that this is an accurate representation of the record. Bank is also entitled. to its attorney fees on appeal. Defendants were unable to present any evidence to preclude summary judgment when the burden shifted to them and have been unable to raise any meritorious arguments on appeal. This cause is remanded to the ~istrict Court for a determination and award of reasonable attorney fees to Bank as a result of this appeal. | August 3, 1989 |
984e540c-bab5-4d7e-965d-a236bf08d9e9 | MARRIAGE OF GERSOVITZ SIEGNER | N/A | 88-579 | Montana | Montana Supreme Court | No. 8 8 - 5 7 9 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 I N RE THE MARRIAGE OF JEREMY GERSOVITZ, P e t i t i o n e r and A p p e l l a n t , and CATHERINE ANN SIEGNER, R e s p o n d e n t and R e s p o n d e n t . APPEAL FROM: D i s t r i c t C o u r t of the F o u r t h J u d i c i a l D i s t r i c t , I n and for t h e C o u n t y of M i s s o u l a , T h e H o n o r a b l e John S. H e n s o n , Judge presiding. COUNSEL OF RECORD: For A p p e l l a n t : C a r o l A. M i t c h e l l , M i s s o u l a , M o n t a n a Joan U d a , H e l e n a , M o n t a n a F o r R e s p o n d e n t : M a r t h a E . M c C l a i n , M i s s o u l a , M o n t a n a F o r A m i c u s C u r i a e : B r u c e B. B a r r e t t , M o n t a n a A s s o c i a t i o n of J e w i s h C o m m u n i t i e s , M i s s o u l a , M o n t a n a I - S u b m i t t e d on B r i e f s : June 1 6 , 1 9 8 9 1 -- 3 D e c i d e d : A u g u s t 25, 1 9 8 9 L . - iri - -* ,. ?. Filed: -; - '5 -.-- k 1 I - --a- ) - i - 1 .) ( > - - w . . L C Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the District Court of the Fourth Judicial District, in and for the County of Missoula, the Honorable John S. Henson presiding. Judge Henson issued findings of fact and conclusions of law and order in this marriage dissolution action. Appellant Jeremy Gersovitz appeals from the custody order concerning the parties' minor child. We affirm. Three issues are presented by the appellant, Jeremy Gersovitz, which we will condense into two issues as stated by the respondent, Catherine Ann Siegner. 1. Did the District Court abuse its discretion in ordering a residential plan which placed the child with respondent wife, after the child reaches a school age? 2. Did the District Court abuse its discretion in its determination that neither party should have the exclusive right to determine the child's religious education? The parties met in Washington, D.C. while attending school to earn graduate degrees. Respondent (hereinafter referred to as Catherine) received a bachelor's and master's degree in journalism. The appellant (hereinafter referred to as Jeremy) holds a bachelor's degree in political science and a master's degree in journalism. After receiving their degrees, the parties found work in Missoula, Montana in January of 1986. The parties were married on February 14, 1986. Their son, Alexander Samuel Gersovitz (hereinafter referred to as Alex) was born on August 1, 1986. Jeremy and Catherine separated in December, 1987. At the time of their separation, Catherine moved out of the family home to a residence within several blocks of Jeremy and the parties worked out an amiable joint custody arrangement. Shortly after Catherine moved, Jeremy filed a petition for the dissolution of the marriage. Between the time of the filing for dissolution and the trial, the parties shared joint custody of Alex. The central issue here is whether Alex should reside with Catherine or Jeremy after he reaches school age. Each party made several recommendations to the court prior to and during the trial regarding the residence and care of Alex. After hearing the evidence, the court structured a plan which would enable each parent to have physical custody of Alex during certain periods of the year. Alex was approximately three years of age when this plan was established. Jeremy objects to that portion of the plan which places Alex in the custody of Catherine after he begins school. Section 40-4-212, MCA, sets forth the factors to be considered when determining the best interest of the child. The court noted in its findings that both parents were loving, concerned and capable parents. Both sought joint custody and each requested to be the primary custodian commencing with Alex's school years. However, the court concluded that the child must reside primarily with one parent during the time he attends school so his education will not be interrupted by multiple custodial transfers. Further, the court concluded that it was in Alex's best interest that he spend time with both parents during the summer. The court, in finding no. 31 noted: It is in the best interest of the minor child to reside with Respondent [Catherine] during the school year because of her parenting abilities, her lack of animosity towards Petitioner [Jeremy] and her greater range of interests. It is less likely that Respondent will interf ere with Petitioner's relationship with Alex, including providing access to the child, than Petitioner is likely to interfere with Respondent's relationship with the child, including providing access to him. Respondent appears to be more capable of allowing Alex to develop his own identity. Further, her ability to recognize and address the needs of the child to have a strong relationship with the other parent is not likely to be hampered by anger towards that parent. The same cannot be said of Petitioner. Included in its order, the court addressed child support, medical insurance, summer vacations, and a residential plan for Alex before he starts school. It also provided for the custody of Alex and incurred travel costs should one parent move more than 200 miles from the other, or in excess of 200 miles from Missoula. Jeremy's second issue, which has been supported by an amicus brief by the Montana Association of Jewish Communities, relates to the District Court's order no. 9 which provides as follows: Neither parent shall have the exclusive right to determine the child's religious education and affiliation. This determination is consistent with the philosophy underlying joint custody and also with the reality of the child's heritage. Jeremy argues that from the time of his birth, Alex has been raised Jewish, with the support and cooperation of both parents. He argues that being Jewish is not merely a religion, it is a way of life. Alex's full name, Alexander Samuel Gersovitz, is a Jewish name and he will be recognized by society as a Jew. Jeremy further states that Alex has been circumcised and has regularly and routinely been made a part of the Missoula Jewish community celebration of their faith. Jeremy argues that the District Court abused its discretion in concluding, for all practical purposes, that once Alex reaches school age, he should be raised in no religion, rather than the religion in which he has been raised since his birth. Jermey claims that because he has been separated from Alex, he will not be raised with sufficient knowledge of Judaism. This, he argues, will make it difficult, if not impossible, for Alex to live in the Jewish tradition, because a Jewish boy achieves religious responsibility at the age of thirteen when he celebrates his barmitzvah, becomes an adult and chooses his religion, Judaism. It is further argued that it is necessary for a school age child to receive the religious training necessary to prepare him for his barmitzvah. It is claimed that the District Court's order which places Alex in his non-Jewish mother's care during the school year prevents Jeremy from raising Alex in a strong Jewish tradition. After carefully studying the transcript, briefs and District Court file, we cannot say that the court abused its discretion in this custody matter. The District Court's order relating to Alex's religion was correct because it reflects Alex's best interests and is constitutionally sound. This case presents an issue of first impression in Montana. The First Amendment guarantees religious liberty, and the right of parents to direct the religious upbringing of their children. Wisconsin v. Yoder (1972), 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15. There is a common feature in the cases cited by the appellant and amicus. That is, courts will not debate the merits of different religions or show preference to any religious faith. However, courts will examine religious practices which interfere with the child's general welfare. Religion as a Factor in Child Custody and Visitation Cases, 22 A.L.R.4th 971. A question of religious education must be strictly limited to the context of the best interests of the minor child. The appellant cites In re the Marriage of Simms, a 1987 Colorado district court case, as support for an option which would grant custody of a child to one parent "for the purposes of determining religious training." However, Simms, a district court case rather than a Colorado Supreme Court case, is not persuasive. Its facts differ from those of this case, which in our opinion, makes Simms inapplicable. In Simms, the mother converted to Judaism before the children were born. The children were raised in the Jewish faith prior to the divorce of the parents. After the parties separated, the mother reverted to her original faith of Catholicism and began taking the children to church. The Colorado district court thought it would be best if the parents could agree jointly on the issue of religious training for the children, but further found that the parents were not able to do so and after hearing considerable expert testimony, found that it was most appropriate for one parent or the other to determine the religious training of the children. That is not the situation here. The facts of this case did not require the District Court to appoint one parent as the religious custodian of Alex. However, under S 40-4-218, MCA, the custodial parent may determine the child's religious training. We find that under the facts of this case, an award of custody for the purpose of religious education should not dominate other elements which comprise the best interests of this particular child. This Court has previously held in In re Marriage of Cole (Mont. 1986), 729 P.2d 1276, 43 St.Rep. 2136; and In re the Custody and Support of B.T.S. (1986), 219 Mont. 391, 712 P.2d 1298, that the findings and conclusions of a district court regarding the best interests of a child are presumptively correct and will not be overturned unless there is a clear preponderance of evidence against them. Here, the District Court's determination as to the best interests of the minor child was supported by substantial credible evidence. The judgment of the District Court is affirmed. We concur: - | August 25, 1989 |
42e72867-e364-4fdc-92d2-de64495be991 | MATTER OF R T L P | N/A | 88-614 | Montana | Montana Supreme Court | No. 88-614 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MATTER OF R.T.L.P., Youth in Need of Care. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G Barz, Presiding Judge. COUNSEL OF RECORD: For Appellant: Sally M. Johnson, Billings, Montana For Respondent : Hon. Marc Racicot, Attorney General, Helena, Montana Dorothy McCarter, Asst. Atty. General, Helena Harold Hanser, County Attorney; Greg Mullowney, Deputy, Billings, Montana Damon Gannett; Olsen, Christensen & Gannett, Billings, Montana Carnil-le Ventrell; Davidson & Poppler, Billings, Montana Submitted on Briefs: May 25, 1989 I _ P-- Decided: August 11, 1989 ) Mr. Justice Fred J. Weber delivered the Opinion of the Court. This is an appeal from a ruling of the District Court of the Thirteenth Judicial District, Yellowstone County, grant- ing long-term custody of R.T.L.P. to his natural grandmother and her husband. Mother appeals. We affirm. The issues presented for our review are: 1. Did the District Court err in determining that R.T.L.P. was a "youth in need of care?" 2. Is the granting of long-term custody until age 18 the equivalent of a termination of parental rights, requiring that the statutory factors of termination be established? 3. Was the mother constitutionally entitled to effec- tive assistance of counsel? R.T.L.P. was born in Montana on February 5, 1983. The family moved to Wisconsin where they resided until 1984. In 1984 R.T.L.P. 's mother and father separated and the state of Wisconsin began an investigation into the family situation. In violation of a Wisconsin court order, mother moved to Missoula, Montana on August 15, 1984, with R.T.L.P. and his baby sister. At that time R.T.L.P. was seventeen months old and the sister was two months old. Mother claims she left Wisconsin because she was afraid of physical harm from her husband. Upon arrival in Montana, mother and her children moved in with the maternal grandmother and her husband. Upon their arrival, the grandmother immediately noticed that the 2 month old baby appeared very sick and that the infant had a burn on her body. Grandmother made an appoint- ment with a doctor and both the grandmother and the mother took the baby to the doctor on August 17, 1984. The baby was diagnosed as a "failure to thrive" baby and a letter from the doctor began by stating: "To Whom it May Concern: This child suffered from severe malnutrition." Efforts to feed the infant resulted in a perforated bowel. On August 20 the infant was flown to Salt Lake City, Utah for further medical care, but the infant died on August 31, 1984. While the cause of death was listed as septicemia with meningitis, reports from both the Missoula doctors and the Salt Lake City doctors revealed that the infant was in a very weakened physical condition. The grandmother testified that for the few days in which she observed the mother care for the child, the mother was feeding the infant diluted formula, and also that she allowed the infant to cry all night rather than feeding her. She testified that the mother never held or cuddled the baby. After the funeral of the baby sister, R.T.L.P. spent five weeks with an aunt who lived in Idaho. Mother made no contact with R.T.L.P. during this time. The state of Wisconsin continued its involvement with the family, culminating in an award of temporary custody of R.T.L.P. to the grandmother. Mother agreed to this custody arrangement. R.T.L.P. and his mother resided with the mater- nal grandparents from August 1984 until October 1986. During this time the grandparents took care of R.T.L.P. Mother would occasionally leave the home for periods of up to 4 to 6 weeks at a time, and during these absences she maintained little or no contact with her son. When the grandparents moved to Billings mother and R.T.L.P. moved with them. In May 1986, mother moved out of the grandparents' home and moved in with a man whom she later married. R.T.L.P. remained with his grandparents who assumed his total care. After this, mother visited her son only every 10 days to two weeks. In October of 1986, mother and her boyfriend asked the grandparents if they could pick up R.T.L.P. and take him out to get pizza that evening. The grandparents agreed to this and R.T.L.P. left with his mother and her friend. When the child was not returned, the grandparents contacted the po- lice. The State of Montana obtained temporary investigative authority, and it was determined that mother and her boy- friend had taken R.T.L.P. to California, where they were residing with the boyfriend's parents. On November 7, 1986, pursuant to an order granting the State of Montana temporary custody of R.T.L.P., the child was returned to Montana. A guardian ad litem was appointed for R.T.L.P., and on December 4, 1986, a hearing was held in Montana to determine the custody of R.T.L.P. At the close of the hearing, the court ordered that R.T.L.P. be placed in the temporary custo- dy of Social Rehabilitation Services (SRS) for six months. R.T.L.P. resided with foster parents in their home. Tempo- rary custody was extended twice and in April of 1988 the grandparents made a motion to obtain custody of R.L.T.P. As a result of the hearing on this motion, held May 31 and June 1, 1988, the court granted long-term custody of R.T.L.P. until age 18 to the natural grandmother and her husband. Mother appeals. We affirm. Did the District Court err in determining R.T.L.P. to be a youth in need of care? In reviewing a custody order by the Dist-rict Court we have previously stated: [Tlhis Court is mindful that the primary duty of deciding the proper custody of children is the task of the district court. As a result, all reasonable presumptions as to the correctness of the determi- nation by the district court will be made. Due to this presumption of correctness, the district court's findings will not be disturbed unless there is a mistake of law or a finding of fact not sup- ported by credible evidence that would amount to a clear abuse of discretion. (Ci-tation ommitted. ) Matter of C.G. (Mont. 1988), 747 P.2d 1369, 1371, 45 St.Rep. 63, 66. Before the State may become involved in the custody of a youth, the youth must be adjudicated a "youth in need of care", which, pursuant to 5 41-3-102(11), means a youth who is "dependent, abused or neglected." An abused or neglected child is further defined in 5 41-3-102(2) as "a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare." In the present case the District Court determined that R.T.L.P. was a youth in need of care, in that he had been "physically abused, emotionally abused and emotionally neglected." Our review of the record reveals ample evidence to support this finding. The mother voluntarily left R.T.L.P. in the care of her mother and stepfather for two years. During this time, the grandmother assumed responsibility for the child's physical and emotional needs. The evidence showed that mother often left home for days and weeks, without maintaining contact with him. R.T.L.P. called the grandmother "Mamma," and he called his mother by her given name. In fact, grandmother testified that at times the mother directed her son not to call her "Mamma," telling him that the grandmother was his "Mamma. I' The mother and her boyfriend testified that they took R.T.L.P. to California because they wanted to get married and "be a family." However, the testimony elicited from them on cross-examination showed that they never considered the impact of that decision on R.T.L.P. Reports from social workers showed that after this event the youth had nightmares and was fearful of being taken from his grandparents again. When R.T.L.P. was returned to Montana, the mother and her boyfriend also returned and were married. Neither became employed. Mother then began a Service Treatment Program through SRS designed to help her with parenting abilities. Although she was somewhat cooperative in this plan, she missed many appointments. During this time she and her new husband had visits with R.T.L.P. two times per week. After several of these visits. R.T.L.P. was returned to the grand- parents with indications of physical abuse, including a swollen mouth, swollen lip, black eye, chipped tooth, and back and abdominal pain. The court heard testimony from a licensed clinical psychologist. The psychologist determined that mother was capable of parenting. However, he also noted that he only saw her twelve times during a period of two and one half months, and based his evaluation solely on mother's state- ments to him. He acknowledged that he might change his evaluation if her statements were incorrect. He diagnosed two disorders in the mother: post-traumatic stress disorder and dependent personality disorder. The social worker saw mother and R.T.L.P. for a year and a half, from October 1 9 8 6 to April 1 9 8 8 . His testimony emphasized that the child has shown a lack of ability to bond with his mother, but that there is a strong bond with the grandmother. He stated that irreparable damage had been done in regard to R.T.L.P.'s ability to bond with his mother. He testified that the youth was emotionally healthy at the time of the hearing, but that this was a result of being in the grandparents' care. He expressed serious concern about R.T.L.P.'s physical and emotional welfare should he be placed in the custody of mother and her new husband. His recornmen- dation was that R.T.L.P. remain in the grandparents' care. The District Court found that mother was unstable and totally lacked credibility. The record supports this find- ing. Mother gave two different stories as to the origin of the burn on the infant daughter who died. In 1984 she first reported that at a women's shelter in Wisconsin another mother had put Crisco on the baby and left her laying in the sun. At the custody hearing mother testified that her former husband and his friends had broken into the women's shelter, tied her to a chair, and gang raped her. She stated they had put Crisco on the infant and put her under a heat lamp, resulting in the infant's burn. Mother's sister testified that for many years mother had accused various people, including family members, of sexual abuse. She stated that none of these allegations had ever been proven to be true. She also testified to personal knowledge of mother's past drug abuse, including the use of cocaine and heroine during her pregnancies. She testified that she had seen mother chase R.T.L.P. with a vacuum hose, even though the child was terrified of loud noises. Mother contends that the District Court merely consid- ered the child's best interests in awarding custody, and did not first establish that R.T.L.P. was a youth in need of care. Mother is correct in urging that an initial finding of abuse, neglect or dependency is the "jurisdictional prerequi- site for any court ordered transfer of custody," and only after this showing has been made is the best interests test relevant. Matter of M.G.M. (1982), 201 Mont. 400, 407, 654 P.2d 994, 998. However, our review of the record reveals ample evidence to support the District Court's finding that R.T.L.P. was physically abused, emotionally abused, neglect- ed, and therefore a youth in need of care. For four years mother's actions were marked by indiffer- ence to and neglect of her parental responsibilities. She did not assume the physical care of her son, and was insensi- tive to her son's emotional needs. Additionally, the Dis- trict Court gave serious consideration to the circumstances surrounding the death of R.T.L.P.'s infant sister, which strongly suggested mother's neglect of that child also. These facts are certainly relevant to mother's ability to parent. The record demonstrates that mother has not been an adequate parent and that there is substantial potential for harm to R.T.L.P. should he be placed in mother's care. While mother states that she would provide a good home at this point, her past actions and her present instability and lack of credibility are not persuasive. R.T.L.P. does not need to wait longer for mother to improve her parenting skills. Matter of C.A.R. (1984), 214 Mont. 174, 188, 693 P.2d 1214, 1222. We conclude that R.T.L.P. is a youth in need of care whose best interests are served by remaining in the custody of the grandparents. We therefore affirm the District Court. 11 Is the granting of long-term custody until age 18 the equivalent of a termination of parental rights, requiring that the statutory factors of parental termination be met? The court's order awarded custody of R.T.L.P. to his grandparents until he reaches age 18. The grandparents have the right to make decisions regarding the youth's medical, educational, and legal needs. Further, the order states that the mother's visitation rights shall be restricted and super- vised. Mother is allowed visitation only twice a month for one hour at the Montana Department of Family Services. Mother contends that this equates with parental termination and that therefore the factors of fj 41-3-609, MCA, must be fulfilled. The court granted long-term custody pursuant to B 41-3-406, MCA, which states in pertinent part: If a youth is found to be abused, neglected or dependent under 41-3-404, the court after the dispositional hearing may enter its judgment making any of the following dispositions to protect the welfare of the youth: (3) transfer legal custody to any of the following: (c) a relative or other individual who, after study by a social service agency designated by the court, is found by the court to be qualified to receive and care for the youth; Under this statute it is only necessary that the child be a "youth in need of care," defined in 41-3-102(11), MCA, as a youth who is "abused, neglected, or dependent. " Termi- nation of the parent child relationship requires much more stringent criteria. The relevant statute, $ 41-3-609, MCA, lists three requirements which must be established before parental rights may be terminated. Those requirements are 1) that the child is an adjudicated youth in need of care, 2) a court approved treatment plan has not been complied with or been successful, and 3 ) the conduct or condition causing the problem cannot be rectified within a reasonable time. Sub- section (2) of that statute enumerates several factors for guidance in the determination of the third requirement. The effect of a decree terminating the parent-child relationship is explained in 41-3-611, MCA, which states that the decree operates to divest the child and the parents of "all legal rights, powers, immunities, duties, and obliga- tions with respect to each other. . . " Only the child's right to inherit is excepted from this. The effect of termination of parental rights was ex- plained in Matter of V.B. (Mont. 1987), 744 P.2d 1248, 1250, 44 St.Rep. 1838, 1841. In that case we stated that "when parental rights are terminated, the natural parent no longer has - any rights over the child. This includes visitation rights. " This Court has previously acknowledged the difference in an order granting long-term custody until age 18 and an order terminating parental rights. We recognized the distinct nature of each disposition and the differences in statutory requirements in the case of Matter of A.H., (Mont. 1989), 769 P.2d 1245, 46 St.Rep. 395. That case affirmed the termina- tion of parental rights as to one child and the granting of long-term custody until age 18 as to the other two children. In Matter of A.H. we concluded that the district court had terminated parental rights to one child because the statutory factors of § 41-3-609, MCA, were met. We also concluded that the other two children were appropriately put in long-term custody until age 18 because they were determined to be "youths in need of care," pursuant to § 41-3-404, MCA. Thus this Court implicitly recognized that the granting of long- term custody until age 18 is not the equivalent of a termina- tion of parental rights, and that different statutory criteria apply to each disposition. An award of long-term custody does not totally terminate the rights of the natural parent. In the present case, although mother's visitation rights are restricted, she may still visit her child, and may possibly petition for less restricted visitation in the future. Additionally, mother may at some point in the future petition the District Court to regain custody of R.T.L.P. While the record demonstrates a grievous incapacity to parent, it is conceivable that mother could develop as a parent to the point where it would be appropriate to restore custody to her. Possibly there are other factors which could alter the effect of the long-term custody decree. Mother's rights as the parent of R.L.T.P. have not been terminated by the award of long term custody until age 18. The award of custody until the child's age of majority gives stability to the child's future and prevents repeated litigation over custody. The proper inquiry is whether parental rights have actually been terminated. Because parental rights have not been terminated we hold that a grant of long-term custody is not the equivalent of a termination of parental rights. I11 Is mother entitled to effective assistance of counsel at a hearing which granted long-term custody of her son to his grandparents? Mother alleges that her legal representation at the custody hearing was less than effective, citing certain evidence which her attorney did not present. Mother contends that she was entitled to effective assistance of counsel at the hearing which determined the custody of her child, R.T.L.P. This contention fails because it is premised on an incorrect assumption. Mother urges that the parent-child relationship is a fundamental liberty interest entitled to constitutional protection. The cases cited in support of this argument however, involved a termination of parental rights. See, e.g., Matter of R.B. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848, citing Santosky v. Kramer (1982), 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599. In Matter of R.B. we stated that a termination of parental rights must be protected by "fundamentally fair procedures, " and that the court must address each statutory requirement of termination. Matter of R.B., 703 P.2d at 848. In the present case, the procedure followed by the court was fundamentally fair as far as this party is concerned. We find no authority for mother's con- tention that a parent is entitled to effective assistance of counsel in a termination proceeding. Furthermore, as we concluded in Issue I, the present case is not a termination because it does not involve the severing of a parent-child relationship. Therefore, we need not address mother's con- tentions regarding effective assistance of counsel. Affirmed. We Concur: | August 11, 1989 |
33b832e3-1540-428b-8faf-c33de6d031de | PHIL-CO FEEDS INC v FIRST NATIO | N/A | 89-008 | Montana | Montana Supreme Court | No. 89-08 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 PHIL-CO FEEDS, INC., a Montana corporation, Plaintiff and Respondent, -vs- FIRST NATIONAL BANK IN HAVRE, a National Banking corp., Defendant and Appellant. APPEAL FROM: District Court of the Twelfth ~udicial ~istrict, In and for the County of Hill, The Honorable Chan ~ttien, Judge presiding. COUNSEL OF RECORD: For Appellant: Theodore K. Thompson; Thompson & Swenson, Havre, Montana For Respondent: Laura Christofferson; Gallagher, Archambeault and ~nierim, Wolf point, Montana t - Submitted on ~riefs: May 18, 1989 . . L . . . Filed: August 15, 1989 > . - s" Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. The ~ i r s t ~ational Bank in Havre appeals from a judgment rendered against it after jury verdict in the District Court of the Twelfth ~udicial ~istrict, Hill County. The verdict was for the principal sum of $44,787.91, and judgment was entered by the ~istrict Court in favor of Phil-co Feeds, Inc. on September 12, 1988, for the sum of $63,219.75 which includes prejudgment interest. We affirm the judgment of the District Court. We will state the facts generally from the viewpoint of the plaintiff and additional facts as may be necessary for the discussion of each issue. ~hil-Co Feeds, Inc. (Phil-CO) is a Montana corporation located in Malta, Montana, engaged in the business of selling grain and feed supplement, and other animal health care products for use in animal feeding and feedlot operations. Raymond J. Shape, with his wife, Mary Jane Shape, insofar as pertinent here, fed livestock in feedlots located on Shape's ranches at Harlem and Roy, Montana. Shape financed his feedlot operations through ~ i r s t National Bank of Havre by means of various loans for the feedlot operations. It appears that ~ i r s t National was the sole provider of operating funds for Shape. In September of 1981, Shape approached ~ i c Lefdahl, manager of Phil-Co about the purchase of feed for the feedlot operations at Harlem and Roy. An agreement was made between Phil-Co and Shape at that time that Shape would be allowed to charge feed on a monthly basis and then Shape would be billed by Phil-Co on the first of each successive month and that all statements would be paid in full by Shape by the tenth of each month. Shape advised Phil-co that all his financing was being handled by First National Bank. In November of 1981, Phil-Co sent Shape the October bill which required payment through the first few days of November. Shape paid the bill but later complained that he had been required by Phil-Co to pay for feed bills that were not yet due, that is, for the days in November. Shape asked that he be refunded the monies that he had paid beyond his October bill and Phil-Co complied. The feed bills from Phil-co to Shape were averaging $2,000 per day, or $60,000 per month. It was the opinion of ~ i c Lefdahl that Shape "over-reacted" about the amount of the bill related to the November charges. Lefdahl decided to inquire with First ~ational Bank about Shape's financial ability to handle the feed bills. On November 19, 1981, Lefdahl telephoned Randy smith, an officer of ~ i r s t National Bank, and inquired as to Shape's financial ability to pay for the feed that was being furnished to Shape. Randy smith advised Lefdahl that Shape could handle the feed bills under his credit line with First National Bank and also that Phil-Co had no reason for concern about the amount of the feed bill, because ~hil-Co would be paid first out of the proceeds of the sale of the livestock even before the Bank, saying that ~hil-Co had an "automatic first lien" for payment of the feed bill on the cattle being fed. On December 11, 1981, Shape delivered a post-dated check to Phil-Co for payment on the November feed bill in the sum of $40,000. The actual balance due was $53,447.74. The post-dated check bore the date of December 16, 1981. Lefdahl called Randy Smith at the Bank to determine whether the check was good and whether it would be honored by the Bank. Randy Smith told Lefdahl that Shape was in "tough shape," that the check would not be honored, and that Lefdahl should get out of his deal with Shape as quickly as possible. I. Should the District Court have Dismissed the Complaint and the Amended complaint on the Grounds of Res ~udicata? - - - - - - In March of 1982, Shape filed a petition for protection in the United States Bankruptcy Court, Great Falls Division. In the bankruptcy action Phil-Co filed a complaint in the Bankruptcy Court against First National Bank. The Bank in that action filed a motion to dismiss Phil-CO'S complaint and eventually the Bankruptcy Judge, Honorable Orville Gray, issued his order granting Bank's motion to dismiss. Phil-Co appealed Judge Gray's decision to the United States ~istrict Court, Great Falls Division. On May 11, 1983, the U.S. District Court Judge, Honorable Paul at field affirmed the decision of Judge Orville Gray. The Bank contends on appeal here that the decision in the Bankruptcy Court is res judicata as to the issues raised in the present cause before this Court. However, ~hil-co contends that res judicata does not apply because the action in Bankruptcy Court was only for the purpose of determining the priority of right to proceeds left in bankruptcy estate as between the Bank and ~hil-Co. ~hil-Co contends that the Bankruptcy Court decided only the issue of equitable subordination, and that under 11 U.S.C., Section 349, the effect of the dismissal in the Bankruptcy Court was to restore in effect all parties to the status quo before the bankruptcy petition was filed. Judge Orville Gray's order granting the motion to dismiss was on these grounds: 1. That the motion to dismiss filed by defendants be and the same is hereby granted. 2. That for clarification, the court also ruled that even if plaintiff should plead the alleged statements of Mr. Randy Smith, the court would still rule that such statements are not a legal basis for recovery under the principle of equitable subordination. Judge Hatfield's order on appeal to the Bankruptcy Court indicated that "the order of the Bankruptcy Judge dismissing the plaintiff's claim for equitable subordination under 11 U.S.C. Section 510 (c) be accepted in whole by this Court." As counsel for ~ i r s t Bank correctly points out, res judicata applies when the following criteria are met: (1) The parties or their privies are the same; (2) The subject matter of the action is the same; (3) The issues related to the subject matter are the same; and (4) The capacities of the person are the same in reference to the subject matter and the issues between them. See Fox v. 7L Bar Ranch Company (19821, 1 9 8 Mont 201, 206, 645 P.2d 929, 931; Federal Land Bank of Spokane v. Heidema (Mont. 1986), 727 P,2d 1336, 1337; Phelan v. Lee Blaine Enterprises (1986), 220 Mont. 296, 299, 716 P.2d 601, 603. On June 22, 1983, the Bankruptcy Court dismissed Shape's bankruptcy proceedings under Chapter 11 with prejudice upon the grounds that no plan had been filed, that no assets remained in the estate, that the costs of administration exceeded the assets and there was no chance of reorganization under Chapter 11. The dismissal was with prejudice, including all adversary matters pending in relation to the Chapter 11 proceedings. ~hil-Co's complaint and amended complaint in the state court set forth theories of liability based on misrepresentation, equitable estoppel, fraud and bad faith. The issues in the Bankruptcy Court were related to the narrow issue of equitable subordination between competing interests of two creditors of the alleged bankrupt. Thus the claim of res judicata fails with respect to two of the criteria set forth above: the subject matter of the actions are not the same, and the issues relating to them are not the same. We hold therefore the res judicata does not apply in this action based upon the proceedings taken in the Bankruptcy Court, and the appeal to the Federal District Court. ~hil-Co further contends on this issue that under the 11 U.S.C., Section 349, the dismissal with prejudice of the bankruptcy proceedings restores all parties involved in the bankruptcy to status quo. That may well be the effect of the federal statute, but in light of our holding as to res judicata it is not necessary for us to reach any conclusion with respect to the federal statute at this point. 11. Was First National Bank prejudiced by the Filinq o f an Amended - Complaint by the Plaintiff Three Weeks prior - to Trial? rial of this cause in ~istrict Court had been set for August 9, 1988, when, on July 15, 1988, Phil-Co moved the ~istrict Court for permission to amend its complaint. Phil-Co stated that it had "learned of additional facts through the discovery process and justice requires that the amendment be allowed." First National Bank argues that Phil-Co could not have discovered any additional information from discovery that it did not have prior to the original complaint and that the amended complaint dramatically changed factual pleading and theories. One of its reasons was that the complaint had been filed four and one half years earlier. First National points to United Methodist Church v. D. A. Davidson (Mont. 1987), 741 P.2d 794, 797, and McGuire v. Nelson (1973), 162 Mont. 37, 42, 508 P.2d 558, 560, for cases finding an abuse of discretion when the district court grants an amendment to pleading on the eve of trial. First National contends that the original complaint alleged theories amounting to bad faith, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and fraud. It contends that the amended complaint changed the theories to equitable estoppel, fraud, and bad faith. prior to settling instructions, the ~istrict Court on its own motion dismissed plaintiff's claims of equitable estoppel, fraud, bad faith, and punitive damages. The court permitted the case to go forward to the jury on theories of constructive fraud and negligent misrepresentation. First National now contends that the Court injected theories into the case which were not pleaded. The general concept of the Montana Rules of Civil Procedure is to allow a party to obtain such relief as he or she may be entitled to under the testimony and proof. Thus Rule 8(a) allows the plaintiff to set forth a short and plain statement of his claim showing that he is entitled to relief, and a demand for the judgment to which he deems himself entitled. Relief in the alternative or several different types may be demanded. Rule 8 (e) is specific that when two or more statements of a claim or defense are alleged, if any one of them made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. Rule 15(a) states that amendments to pleadings may be given freely "when justice requires." In actions involving multiple claims or involving multiple parties, Rule 54(b) permits the court to revise at any time before the entry of judgment a decision adjudicating all the claims and rights and liabilities of the parties. Especially notable is the last sentence of Rule 54(c) which provides that except in cases of judgment by default, "every final judgment shall grant the relief to which a party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." In this case, the action of the District Judge in limiting through instructions the theories of recovery to constructive fraud and negligent misrepresentation had the effect of removing much of the Bank's claimed prejudice through the allowance of the amended complaint. The facts upon which the theories of constructive fraud, negligence and misrepresentation are based were quite well known to the plaintiff and at all times to the court during the litigation, so that First National is unable to demonstrate any prejudice that resulted from the permitted amendments. We therefore hold against ~ i r s t National on this issue. id the Statute of Frauds ~equire a is missal of the - - - - - - complaint --- in this case? First National Bank contends that since ~hil-Co alleged both in its complaint and amended complaint that the Bank had failed to honor the check which paid Shape's debt to Phil-Co that pursuant to S 28-2-903, MCA, the cause should have been dismissed. Section 28-2-903 (1) (b) , MCA, provides: The following agreements are invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged or his agent: (b) A special promise to answer for a debt, default, or miscarriage of another . . . First ~ational then points to several instances in the testimony when one or another of the witnesses stated that the Bank had "agreed" that it would see to it that Ray Shape's bill was paid. Additionally, Phil-co did not respond to two requests for admission which would therefore be deemed admitted: Request No. 21: ~ d m i t that Phil-Co Feeds, Inc., never received a written agreement from the First ~ational Bank in Havre agreeing to pay Ray Shape's feed bill. Request No. 22: ~ d m i t that no representative of Phil-Co Feeds, Inc., ever requested Raymond Shape to secure an agreement with the First ~ational Bank in Havre to pay his feed bill owed to Phil-Co Feeds, Inc. The Statute of Frauds applies to liabilities based on contract, and not to theories of liabilities based on fraud or negligent misrepresentation. Under the evidence here, Lefdahl called Randy smith and requested information regarding Ray Shape's ability to pay any statement on his extremely large feed bill. Randy smith, a banker, chose to divulge information regarding Ray Shape to ~ i c Lefdahl and did make certain affirmative statements indicating that Shape could pay and that it did not matter if Shape did not pay as Phil-co had an automatic feed lien which would be paid first. Phil-Co relied on this information and extended credit to Ray Shape from November, 1981 to December 11, 1981 when ~ i c Lefdahl again called Randy smith to confirm that the check to Phil-co drawn by Ray Shape on ~ i r s t ~ational Bank was good. At that time, he was advised the check would not be honored and Lefdahl took action to protect Phil-Cots interests. The requests for admission in this case are not pertinent because they relate to written agreements, and plaintiff's case in tort is not based on a written agreement. Therefore the Statute of Frauds does not apply. We uphold the District Court on this issue. IV. Was First National Bank Prejudiced by the District Court's Refusal - to Permit Certain Evidence & Testimony? On the cross examination of Donald Cole, an attorney representing Phil-Co at the time Shape was doing business with him, and who is also representing one of its officers and directors, Lee Robinson, the Bank attempted to elicit testimony from Cole regarding his representation of Lee ~obinson. When objection was sustained, the Bank made an offer of proof which would have shown that Cole had represented Lee Robinson with respect to a claim against Shape for the purchase by Shape from Robinson of a certain Versatile Tractor. Because of his trouble in collecting the debt from Shape, Bank wanted to establish that Lee ~obinson knew prior to the time that ~hil-Co became involved with Shape that Shape did not pay his debts as they became due. Bank contends that this would have shown that ~obinson, as a director of Phil-Co, knew or should have known before Phil-Co began giving credit to Shape that he was a poor credit risk. The court denied the offer of proof upon the ground that any knowledge that Lee Robinson might have had as to the credit record of Shape could not be imputed to the corporation in this case. Plainly the District Court was correct. Bank further raises the issue of the refusal by the District Court to admit the deposition of Sid Boe as evidence in the cause. Bank asserts that the testimony of Sid Boe would have demonstrated that Phil-Co had knowledge that the Bank was not providing operating credit or monies to pay for feed to Ray Shape. This information, however, would be irrelevant to the present action. Under the testimony here, Lefdahl called the Bank and was assured that even if Shape did not receive money from the Bank for feed that nevertheless Phil-Co had an "automatic feed lien," and would be paid before the Bank. Evidence in the cause indicated that there was no such automatic feed lien. The District Court correctly refused this testimony. The ~istrict Court also refused as irrelevant the admission of two security agreements offered by the Bank. The evidence indicated that the agreements were signed in January of 1982, but were back dated to December 8, 1981 and were security agreements which related to arrangements made through the owner of the cattle for payment for the feed after December 11, 1981, when the Bank informed Phil-Co that it would not honor Shape's last check for $40,000. Unless the offered evidence naturally and logically tends to establish a fact in issue, it is not admissible. Britton v. Farmers Insurance Group (Mont. 1986), 721 P.2d 303. The test of relevancy 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. McConnell-Cherewick v. herew wick (1983), 205 Mont. 75, 666 P.2d 742. The evidence in this case, offered by the defendant and refused by the District Court, had no relation to the representations made by the bank's officer, upon which Phil-Co relied. We find no error on these issues. v. Did the ~istrict Court prejudice First National Bank % -- Requiring -- it to Produce Randy Smith for Examination - at ~rial? In the course of the trial before the District Court, counsel for Phil-Co announced that the plaintiff would rest. Immediately thereafter, a colloquy between court and counsel for the Bank ensued as follows: MR. KNIERIM: We will rest. MR. THOMPSON: I know the jury has been like a jumping jack back and forth, but now we are going to put our case on, I wonder if I can have a ten minute break. I anticipated that they would have more witnesses than what they did, and I would like to have about a ten minute recess. THE COURT: I understand that Mr. Smith is present in the court. MR. THOMPSON: No, he is not. THE COURT: In the courthouse? MR. THOMPSON: No. he is not. THE COURT: He is here in Havre. MR. THOMPSON: I would be able to have Mr. Smith available for testimony in a few minutes. THE COURT: I think in the interest of judicial economy, you better have him in here subject to examination by the plaintiff as a possible witness. MR. THOMPSON: Your Honor, we will call him in our case. THE COURT: The court has ordered him called now, Mr. Thompson, and I want to get this case settled out so that there is some understanding by the jury of what is going on. And I want you--we will have a recess. You get a hold of Mr. smith and get him up here so he can be examined by the plaintiff. MR. THOMPSON: Okay. Perhaps we can have a recess for ten or fifteen minutes. THE COURT: ~ i n e . We are in recess for 15 minutes. WHEREUPON, the court took its recess at 2:05 p.m. Randy Smith appeared in court at 2:20 p.m., and the trial resumed, with Randy Smith being examined by the plaintiff as an adverse witness as part of the plaintiff's case in chief. Counsel for the Bank now contend that the record does not show the "volcanic anger" of the District Judge at the time and his demeanor in the course of the discussion. Bank contends that the jury may have been prejudiced by the court in directing the production of Randy Smith for examination. Immediately before the colloquy above reported, there was a conference before the bench, off the record. Because the conference off the record is not reported, this Court can not indulge in speculation as to what the District Court learned at that time. Insofar as the contention of the Bank is now raised, no objection was made by Bank's counsel at the time of the action by the judge nor was there any motion for mistrial. Therefore there was no preservation of any issue of judicial misconduct for appeal. ~vangeline v. ~illings Cycle Center (Mont. 1981), 6 2 6 P.2d 841. We do not find error on this point. VI . Conclusion The foregoing are the issues raised by the appellant in this cause, and our disposition of the same. Because we find no error on the part of the ~istrict Court on the issues raised, we affirm the judgment. n : 7 / ; u a Chief Justlce P V L 42. Justlce | August 15, 1989 |
52a31265-5201-4723-9b75-cf5ee2a7ed3b | DUNCAN v CITY OF MISSOULA | N/A | 89-303 | Montana | Montana Supreme Court | NO. 89-303 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 JOHN DUNCAN, Plaintiff and Appellant, -vs- CITY OF MISSOULA, Defendant and Respondent. , , APPEAL FROM: ~istrict Court of the Fourth ~udicial District, ' In and for the County of Missoula, c ,- - -- The Honorable Ed McLean, Judge presiding. ' COUNSEL OF RECORD: For Appellant: Arthur D. ~gnellino; Due Process Legal clinic, is sou la, Montana For Respondent: Jim Nugent, City Attorney, iss sou la, Montana Submitted on Briefs: Aug. 31, 1989 Decided: September 18, 1989 Filed : Mr. Justice John C. Sheehy delivered the Opinion of the Court. The plaintiff, John Duncan, filed suit against the City of Missoula to prevent the planting of trees in the boulevard area of the sidewalk in front of plaintiff's downtown property. Following submission of motions on briefs, the District Court for the Fourth Judicial District, Missoula County, dismissed plaintiff's complaint for failure to state a cause of action. From that judgment, plaintiff appeals. We dismiss the appeal as frivolous. John Duncan owns various properties in the Missoula downtown central business district. When public sidewalks in front of his building at 227-235 West Main were replaced, two tree we11 openings were left for the planting of two small-leaved honey-locust trees. Similar plantings were made in the downtown area as sidewalks were repaired. Duncan expressed opposition to the planting at a City Council Public Works Committee meeting on April 26, 1988. Duncan's impression from that meeting was that no trees would be planted at Duncan's location, and Duncan was notified that his wish would be honored. Tenants in Duncan's building and others shortly thereafter submitted a petition to the city requesting that trees be planted, the committee recommended planting to the Missoula City Council, which then approved such planting on September 12, 1988. Duncan was informed of the decision, and he proceeded to file a motion for temporary restraining order in the District Court. The temporary restraining order was granted on September 20, 1988. Defendant City of Missoula moved the court to dissolve the temporary restraining order and to dismiss the proceeding. On December 2, 1988, the order was dissolved and the proceedings dismissed. On December 15, 1988, Duncan filed a complaint in the ~istrict Court alleging breach of contract, unreasonable interference with property, and arbitrary action. The city moved to dismiss pursuant to Mont. R.Civ.P. 12 (b) ( 6 ) for failure to state a claim upon which relief can be granted. On March 29, 1989, the ~istrict Court dismissed Duncan's complaint. The ~istrict Court was correct in its dismissal of the case. Duncan argues that the commitment of the public Works committee was tantamount to an oral contract. No facts bear this out. The committee's statement that no trees would be planted if he objected does not create a contract binding upon the City. Not only are the elements of a contract missing here, but no action of the city council itself created a contract as required by S 7-5-4121, MCA. Duncan's argument that the planting of trees on the walkway is not a reasonable use of the public easement also lacks merit. ~ a i n Street here is a dedicated public way, and the City Council has broad powers to alter and maintain streets and avenues. section 7-14-4101, MCA. As such, the city has the right to maintain and improve the street, including the planting of trees. ina ally, Duncan's contention that the city acted arbitrarily and capriciously must fail. ~ction taken by a City Council, well within its power to act, cannot constitute arbitrary or capricious action. ~ccordingly, this appeal is dismissed as frivolous. We Concur: Ip I ~ h / i e F Justice | September 18, 1989 |
c9df8499-e78f-494d-bc2a-fe6fa0f0eed0 | MARRIAGE OF PETERSON | N/A | 89-176 | Montana | Montana Supreme Court | NO. 89-176 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 IN RE THE MARRIAGE OF LEAH D. PETERSON, Petitioner and Respondent, and NORMAN W. PETERSON, Respondent and Appellant. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Henry Loble, Judge presiding. COUNSEL OF RECORD: For Appellant: J. Cort Harrington, Jr., Helena, Montana For Respondent: David N. Hull, Helena, Montana Submitted on Briefs: Aug. 3, 1 9 8 9 Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the First Judicial District Court, Lewis and Clark County. In this marriage dissolution action, the appellant seeks reversal of the trial court's amended judgment and reinstatement of the original judgment which granted respondent a lesser share in the marital estate. We affirm the trial court's amended judgment. The issues on appeal are: 1. Did the District Court abuse its discretion by including premarital assets in the marital estate? 2. Did the District Court award more than 100 percent of the marital estate? Leah Peterson and Norm Peterson met in early 1986. Sometime during the spring of 1986 the parties opened a joint checking account when they became engaged. Norm moved in with Leah in the home she owned. Leah maintained a separate account from which she made payments for this house and paid household bills. From the time the parties began commingling funds in the joint checking account, both parties deposited their paychecks in the joint account. Norm's monthly income was approximately $2,500 and Leah earned about $1,800 per month. After the parties separated Leah withdrew the $1,735 remaining in the joint account, using the monies to pay joint debts nearly equal to the amount she withdrew. Prior to their marriage the parties decided to build a home on Cloverview Drive in Helena. Norm made a $500 down payment on the lot. To finance the new home, Leah agreed to sell her home in Helena and Norm agreed to sell a house he owned in Browning, Montana. Leah sold her home, receiving $13,400 in equity from the sale and deposited $12,600 in the couple's joint account. Of this amount, Norm and Leah used $8,000 as a down payment on the Cloverview home. Norm's house in Browning never was sold. Also prior to marriage, the couple jointly borrowed $4,000 in order to buy their wedding rings, using a boat and boat trailer owned by Norm as collateral. At this time Norm transferred ownership of the trailer from himself to himself and Leah. He also gifted one-half of the boat to Leah. Norm received $7,000 from his insurance company for coverage of a wrecked Datsun 280ZX, which money was deposited in the couple's joint account prior to marriage. This money was used for various expenses including a $2,000 pre-marriage trip taken by Norm. Some of the insurance money was also used to make payments on cars the couple purchased after they were married, including a 1984 Buick Skylark which Leah received and on which she also makes payments. In April 1986, also before the marriage the parties traded a 1980 Honda owned by Leah, having a value of $1,500 for a 1986 Toyota 4 Runner. With the trade the balance owing on the Toyota was $15,000. Norm received the Toyota and continues to make payments on it. Prior to the trade, Leah paid $1,800 to rebuild the motor of the Honda. On October 3, 1986, Norm and Leah were married in Las Vegas, Nevada. The troubled marriage was short-lived and the couple separated in January, 1987. Leah filed a petition for Declaration of Invalidity on March 11, 1987, alleging that she had been induced into the marriage by Norm's fraudulent promises that the parties would share equally in financial contributions to the marriage, he would control his drinking and seek counseling for his temper, and he would sell his house in Browning. In response Norm affirmatively alleged that he too was fraudulently induced to marry because he did not know of the number, nature and extent of Leah's financial obligations prior to the marriage and that Leah failed to tell him one of her daughters from a former marriage would be living with them. Norm also asked for an annulment, stating that had Leah disclosed the above-listed information to him he would not have married her. In a later pleading Norm requested that the trial court grant an annulment or, in the alternative, a dissolution. After the parties separated, the Cloverview home sold with the parties receiving a net of $2,236, all of which was kept by Leah. Norm also paid Leah an additional $3,000 in recognition of the fact that down payment for the Cloverview home came from the proceeds of the sale of her home. Since Norm's Browning property never sold, Leah's contribution to the Cloverview home was disproportionate. The boat and trailer, half of which was now owned by Leah, was sold after the parties separated. Of the $6,000 price received, $5,400 remained after a sales commission was deducted. Norm used $4,300 of the proceeds to pay off the loan remaining on the rings and other joint debts. The annulment/dissolution was originally heard on December 7, 1987. From this trial the District Court judge found it impossible to make a decision because of the manner in which evidence was presented. By stipulation, the case then went before a special master, pursuant to Rule 53, M.R.Civ.P. The special master apportioned the assets and debts of the parties and held that a dissolution rather than an annulment was proper. The special master found Leah's assets, prior to commingling consisting of her home, the 1980 Honda w i t h new m o t o r , a d i a m o n d w h i c h w e n t i n t o N o r m ' s w e d d i n g r i n g , a n d p e r s o n a l p r o p e r t y , t o have a v a l u e of $ 1 8 , 4 5 0 . N o r m ' s assets p r i o r t o c o m m i n g l i n g , i n c l u d i n g money f r o m i n s u r a n c e , boat a n d t r a i l e r , a n d v a r i o u s b u s i n e s s a n d real p r o p e r t y i n t e r e s t s , w e r e v a l u e d a t $ 1 7 7 , 9 5 0 . T h e m a r i t a l estate v a l u e w a s placed a t $ 1 4 , 1 9 1 . I n c l u d e d i n the m a r t i a l estate w e r e : 1. t h e boat a n d t r a i l e r $ 5 , 4 0 0 . 0 0 2. r i n g s ( h i s & hers) 4,520.00 3 . proceeds f r o m t h e c o u p l e ' s C l o v e r v i e w home 2 , 2 3 6 . 0 0 4. cash f r o m j o i n t c h e c k i n g a c c o u n t 1 , 7 3 5 . 0 0 5 . e q u i t y i n t h e T o y o t a 300.00 6 . e q u i t y i n t h e B u i c k 0.00 TOTAL : $ 1 4 , 1 9 1 . 0 0 T h e estate w a s t h e n divided as f o l l o w s : T o Norm V a l u e 1. T o y o t a 3 0 0 . 0 0 2 . R i n g s i n p o s s e s s i o n 2 , 1 0 0 . 0 0 3 . 4 i n t e r e s t i n boat & t r a i l e r 2 , 7 0 0 . 0 0 - (less t j o i n t debts paid f r o m proceeds of sale of boat & t r a i l e r ) ( 2 , 1 5 0 . 0 0 ) TOTAL : $ 2 , 9 5 0 . 0 0 To L e a h V a l u e 1. B u i c k 0.00 2. C a s h f r o m j o i n t a c c o u n t 1 , 7 3 5 . 0 0 (less j o i n t debts paid) ( 1 , 7 3 0 . 0 0 ) 3 . R i n g s i n p o s s e s s i o n 2 , 4 2 0 . 0 0 4 . 4 i n t e r e s t i n boat & t r a i l e r (less 4 j o i n t debts paid f r o m proceeds) ( 2 , 1 5 0 . 0 0 ) TOTAL : $ 5 , 2 1 1 . 0 0 I n a d d i t i o n t o t h e d i s t r i b u t i o n of t h e m a r i t a l assets, t h e special m a s t e r decided Norm s t i l l owed L e a h $ 5 5 0 , o n e - h a l f of t h e amount r e m a i n i n g f r o m sale o f t h e boat a n d t r a i l e r after p a y m e n t of j o i n t debts ( $ 5 , 4 0 0 - $ 4 , 3 0 0 = 1 1 0 0 - 4 = $ 5 5 0 ) . A l s o , N o r m w a s t o p a y L e a h a n o t h e r $ 7 , 6 6 4 t o compensate her for selling her home to enable the couple to make a down payment on the Cloverview home. The figure was arrived at by taking: the amount Leah received for her home $13,400 less the amount Leah received on sale of the Cloverview home (2,236) less additional money Norm gave Leah (3,000) less the down payment Norm paid on the Cloverview lot (500) equals the amount needed to replace the home equity Leah "lost" in the marriage = $7,664 The District Court judge adopted most of the report of the special master, with the exception of the finding regarding Norm's payments to Leah of $7,664 for lost equity. In an opinion dated December 7, 1988, the District Court held that such a payment would have the effect of awarding more than 100 percent of the marital estate. On February 1, 1989, the District Court reassessed its earlier decision and granted Leah's motion for new trial or to alter or amend the December 7 judgment. The effect of the February 1 decision was that the District Court fully adopted the special master's report, ordering Norm to make an additional $7,664 cash payment to Leah. A February 27, 1989 judgment of the District Court ordered Norm to pay Leah $7,664 and $550 for a total judgment of $8,214. The District Court was persuaded by Leah's argument that the court failed to consider that the cash award was in lieu of her interest in Norm's premarital property. Citing the special master's Finding of Fact No. 12, the District Court pointed out that the special master recognized the need to consider premarital assets if there was to be an equitable distribution: In order to value each party's individual property, therefore, it is necessary to consider as nearly as possible the property owned by each prior to commingling of funds. Similarly, joint assets and obligations were acquired after the engagement but before the actual marriage. Therefore, consideration of assets - - of the marriage c a n i m T t e d - - to only assets and obligatirns actually acquired after the date of marriage. Rather, consideration -- must be given to all the parties' mutual -- --- financial transactions. (Emphasis supplied by the District Court.) This, according to the District Court, explains how the special master could distribute more money than was found to be in the marital estate. The marital estate included all assets involved in the parties' joint financial transactions from the time commingling began, not merely from the date of marriage. Did the District Court abuse its discretion by including premarital assets in the marital estate? The standard of review for property distribution has been clarified recently in In re Marriage of Hall (Mont. 1987), 740 P.2d 684, 686, 44 St.Rep. 1321, 1323, where we stated: We have concluded that in a property distribution review in marriage dissolution, this Court will reverse a district court only on a showing that the district court has acted arbitrarily or has committed a clear abuse of discretion, resulting in either instance in substantial injustice. Including the premarital assets in the marital estate is not an abuse of discretion, nor does it result in substantial injustice. There is evidence to support inclusion of the premarital assets in order that an equitable distribution be made. Leah sold her only substantial premarital asset, her home, so that the parties could build the Cloverview home. Norm's contribution was to have been his Browning house, but the house never sold. While Leah was given $2,236 in cash proceeds from the sale of the Cloverview home and an additional $3,000 payment from Norm, she has lost the equity she had in her home. Norm, on the other hand, still owns his Browning house. During their short relationship, Leah did contribute to the maintenance of Norm's Browning property. Money from the joint checking account, to which she contributed, was used to pay taxes and purchase a stove for the Browning property. However brief the interest, these payments evidence Leah's interest in the premarital asset. Inclusion of premarital assets in the marital estate in the case at bar correlates with our previous holding in In re the Marriage of J.J.C. (Mont. 1987), 739 P.2d 465, 44 St.Rep. 1068, where we held it was proper to award a cash payment to the wife rather than force the division of property in which the wife had only a brief interest. In J.J.C, as in the instant case, the marriage lasted only a few months and the wife's financial contributions to property were minimal. While finding that the wife made no contribution to the acquisition or preservation of the husband's estate, this Court held a $15,000 payment to the wife was nonetheless proper to compensate her for her interest obtained in the husband's property through their marriage. It should be noted that a decision requiring payment by one party to the other in a dissolution proceeding also finds support in statutory law. Section 40-4-202(1), MCA, states that a court may "finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both." The statute goes on to list factors which the court must consider in making the property distribution. The record clearly shows that the special master considered these factors in making his findings and that the District Court adopted the master's report in toto in its February, 1989 decision. We hold the District Court properly included premarital assets in the marital estate. 11. Did the District Court award more than 100 percent of the marital estate? Norm argues that by ordering him to pay an additional $7,664 to Leah the District Court is distributing more assets than the marital estate contains. In support of this argument he cites In re the Marriage of Lippert (Mont. 19811, 627 P.2d 1206, 38 St.Rep. 625, which expressly prohibited a district court from awarding more than 100 percent of the marital estate. Lippert is a correct statement of the law. A court cannot distribute what is not there. The District Court, however, explained its reasoning in ordering the additional payment. In the above-cited portion of the February 1 decision, quoting special master's Finding of Fact No. 12, the District Court agreed that the marital estate included assets acquired prior to the date of marriage. Noting that the special master's report was confusing in regard to what was in the marital estate, the District Court recognized that the special master intended to include premarital assets. By including premarital assets, the marital estate is adequate to provide the additional payment from Norm to Leah in compensation for the loss she suffered by selling her home in order to contribute to the couple's Cloverview home. The couple's premarital assets were properly included in the marital estate and we find that the District Court did not distribute more than 100 percent of the marital estate. Affirmed. We concur: | August 23, 1989 |
b451656e-b84c-4e67-934f-cc6a6c41d5d6 | ESTATE OF BARBER | N/A | 89-084 | Montana | Montana Supreme Court | NO. 89-084 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN THE MATTER OF THE ESTATE OF GERALD W. BARBER, Deceased. - - . APPEAL FROM: District Court of the Tenth ~udicial ~istrict, In and for the County of Fergus, The Honorable Peter Rapkoch, Judge presiding. COUNSEL OF RECORD: Filed: For Appellant: ~hillip R. McGimpsey, Billings, Montana For Respondent: Donald E. ~onish, ~ewistown, Montana submitted on briefs: June 8, 1989 Decided: September 14, 1989 Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. Jerry F. Barber, Barbara A. Snooks and Ted L. Barber, the children of the decedent, Gerald W. Barber, appeal from an order of the ~istrict Court, Tenth ~udicial ~istrict, Fergus County, approving and settling the final account of the personal representative, Margaret A. Barber, and directing distribution of the estate of the decedent. The personal representative, Margaret A. Barber, appeals from the same order of the District Court denying further attorney fees for extraordinary services rendered in the administration of the estate. We affirm the order of the District Court insofar as it approves the final account of the personal representative and orders distribution of the estate; and reverse the portion of the order denying attorneys fees for extraordinary services for the reasons hereafter stated. The three appellants here (for want of a better term, hereafter "Objectors") are children of the decedent Gerald W. Barber by a former marriage. The personal representative, Margaret Barber, is the widow of the decedent. The Will -- Gerald W. Barber was a long-time farmer in the Denton area. He died testate on December 4, 1982. At the time of his execution of the will he was competent. On September 16, 1982, the decedent conveyed to his wife, Margaret Barber, 640 acres of his farm, which he considered and treated as one-fourth of his farm holdings. On the same day but after the conveyance to his wife, he executed his last will and testament. His will directed that if his other rural property, which included his interest in the farm, should be sold during his life or during probate of his estate, the payments thereof would be divided among his heirs as follows: One-fourth to his wife for the 640 acres he had deeded to her that day; three-eighths to his children; three-eighths to his wife for life or until she remarried, and the remainder to his children. However, because of matters which occurred during the probate of the estate, hereafter detailed, at the tine of the petition for distribution of the estate, except for joint tenancies, and specifically devised property, the residue of the estate was to be distributed one-half to the widow, and one-half to the surviving children. The Farm Sale --- Pertinent to the disposition of this case is an understanding of the sale of the decedent's farm lands, and what occurred respecting the sale contract in the administration of the estate. On October 18, 1982, the decedent and his wife, Margaret Barber, entered into a contract for deed to sell the farm holdings to Russell E. Senef and ~hyliss L. Senef, for $1,100,000.00. The real property to be transferred under the sale included the 640 acre parcel which decedent had earlier deeded to Margaret A. Barber. The down payment by the Senefs to Barber for the farm property included cash in the net amount of $71,215.00 and 560 acres of land transferred from Senef to the decedent Barber. The decedent deposited the down payment in a joint bank account with his wife, Margaret Barber, and used some of the proceeds to purchase a single premium annuity of which his wife was the owner. When the decedent died on December 4, 1982, the balance due on the contract became an asset of the estate, and subject to the terms of the will. On November 25, 1986, while the estate was in progress, Margaret Barber, as personal representative of the estate, petitioned the District Court for approval of an offer from the buyers under the contract for a full and final payment by the purchasers of $745,794.56. The principal balance on the contract then was $836,960.49. The 1985 payment had been deferred, and accrued interest to the time of the petition for approval brought the total due to $994,392.75. Over the stiff opposition of the objectors, the District Court on December 29, 1986, approved the acceptance of the offer. The factors which led the court to approval will be discussed later in this opinion. The Final Account(s) and petition for ~istribution On January 20, 1987, the personal representative filed her first and final account, petition to fix attorneys fees, and for distribution, and a hearing thereon was duly noticed by the court. On February 18, 1987, the personal representative filed a supplemental account, to report an additional $589.64 in interest. On July 9, 1987, the personal representative filed a further supplemental account to report interest accrued since the date of the first account. In the meantime, the objectors had requested and obtained discovery and eventually the District Court held its hearing on the accounts on July 9 and 10, 1987. On January 12, 1988, the court issued an order settling and approving the first and final account as supplemented by the personal representative. That order also included provisions for distribution of the decedent's estate. This order was appealed by the objectors to the Montana Supreme Court under its Cause. No. 88-230 which appeal was dismissed by this Court on January 10, 1989. On August 8, 1988, the personal representative filed a "Current Account and Petition to Fix Fees" which reported changes in the financial status of the estate after July 8, 1987. Included in the disbursements were three items, a payment to Margaret A. Barber as personal representative of $7,500.00 as part of her fee for representing the estate; further payment to Margaret A. Barber in the sum of $12,000 as part of the principal on loans she had made to the estate; and a payment of $12,000.00 to Donald E. ~onish, as part of his attorney fee in the estate. A hearing was held on August 30, 1988, on the opposition of the Objectors to the account as supplemented and on December 14, 1988, the ~istrict Court issued its order approving "the current account, and actions, proceedings done and conducted in this estate by the personal representative, attorney and accountants." The Court also denied additional attorney fees for legal services and ordered the personal representative to distribute the balance of the estate to the heirs and beneficiaries as petitioned in the final account. The notice of appeal filed by the Objectors which brings the case to this Court recites that it is an appeal from the order of December 14, 1988, of the District Court. Jurisdiction Before we proceed to a discussion of the other issues raised in the case, we will first regard the issue of jurisdiction raised by the personal representative, Margaret Barber. The personal representative first contends that this Court has no jurisdiction to consider matters handled during the administration of the estate that are not included in the order of December 14, 1988, issued by the ~istrict Court. The contention of the personal representative is that the order of the ~istrict Court on January 12, 1988, settling and approving the first and final account was itself an appealable order, and since no appeal was made by the Objectors from that order, the issues that relate to that order cannot be considered on this appeal. The District Court had considered this issue and decided that the matters involving the prior accounting were merged in the final account and that the court had jurisdiction. The District Court is given broad jurisdictional powers in the handling of probates. It has exclusive jurisdiction of all probate matters. section 72-3-111, MCA. In any supervised administration (by order of the District Court this particular estate was a supervised administration), the court is given "continuing authority" in a single in rem proceeding to secure complete administration until the entry of an order approving distribution of the estate and discharging the personal representative. Section 72-3-401, MCA. Moreover, the several accountings filed in the estate proceedings by the personal representative in this case were a continuing report to the court as a first and final accounting for the purpose of obtaining authority for distribution under $ 72-3-101, MCA. A final accounting is required to close an estate, whether it be supervised or not. Section 72-3-1005, MCA. Unless otherwise ordered by the court, a supervised administration may only be terminated by an order of the court with the time restrictions, notices and contents of orders as for other probates set forth in S; 72-3-406, MCA. We therefore hold that all of the matters contested by the Objectors are merged, so that the order of the District Court of January 12, 1988, settling and approving the account, and the order of December 14, 1988 also approving the final account are to be treated as one order for the purpose of determining the right to appeal. A second jurisdictional argument raised by the personal representative is that there was no issue jurisdiction before the District Court and before us, because no written objections were filed by the Objectors to any of the accountings made by the personal representative. Without pleadings, the personal representative argues, no issues were defined, and without issues there is nothing on which an appeal can be based. The provisions of the Uniform Probate Code as adopted in Montana do not provide for the filing of written objections by Objectors to an accounting by a personal representative. Section 72-3-1001, MCA, provides that in a formal proceedings (which includes supervised administration under 5 72-3-406) the petition may request the court to consider the final accounting and approve the same. section 72-3-1001, MCA, also provides that after notice to all interested persons and hearing, the court may enter appropriate orders. Section 72-3-1005, MCA, requires a final accounting before an estate may be finally closed. When notice is required under the Uniform Probate Code, it must be given in conformity with 5 72-1-301, MCA, which notice makes the subject of the order binding as to all persons given notice of the proceedings. Section 72-3-111, MCA. with respect to the accountings here, the ~bjectors, after due notice given, appeared at the times of the hearings (but only by counsel at the August 30, 1988 hearing) and examined witnesses produced by the personal representative, and by themselves. In subsequent briefs provided to the District Court, the Objectors set forth their contentions with respect to the proposed accountings and distribution. Thus the situation relating to issues raised by Objectors in a probate proceeding is much the same as issues raised by any appellants in this Court. The notice of appeal in the appellate case simply vests this Court with jurisdiction. Thereafter, the issues are defined by those stated in the appellant's brief, provided that the issues were also presented to the District Court. Since we have no other statutory authority in the matter, and it appears otherwise proper, we will consider the issues raised by the Objectors in their various briefs before the District Court as the issues for consideration by us. In like manner, as to issues not raised before the District Court and now raised on appeal (there are some) we will follow the usual appellate rule that unless the issue is raised and considered before the District Court, it cannot be considered by us on appeal. We hold therefore that there is issue jurisdiction both before the District Court and before us. Objectors' Issues Having said the foregoing, we find that the issues raised by the Objectors here are somewhat difficult to define. The issues on appeal are stated generally by the Objectors as follows: 1. id the District Court err and abuse its discretion by allowing the August 5, 1988 final account of the personal representative, Margaret A. Barber, to be settled, allowed and approved? 2. considering the nature and the scope of the August 30, 1988, hearing, together with the multitude of unresolved estate tax and income tax issues, did the ~istrict Court err and abuse its discretion by confirming and approving as correct and proper all of the actions and proceedings done and conducted in the estate of Gerald W. Barber by the personal representative, the estate's attorney, and the estate's accountants? The general statements of issues foregoing do little to inform the Court with specificity of the contentions of the Objectors. We are committed, however, by § 3-2-204(5), MCA, in all equity cases or proceedings of an equitable nature to review all questions of fact arising upon the evidence presented in the record, and to determine the same as well as to questions of law. With that statute in mind, we proceed to consider the issues we find raised in the record. Abatement Proportions In its order of January 12, 1988, the District Court concluded that interest earned during the probate be apportioned one-half to the widow and one-half to the Objectors. (Note: This proportion does not offend the provisions of the will; it will be explained in the discussion below of the payoff on the contract for sale.) The ~istrict Court at the same time concluded that the proportional value of the specific devises for abatement purposes would be 55.387 percent for the children (Objectors) and 44.613 percent to the widow (personal representative). Objectors contend on appeal that the latter ruling constituted an "accounting virus" and carried through to the rest of the accountings. They contend that the accountings failed to conform to the statutory requirements of §§ 72-25-403, 72-25-404, 72-25-497, and 72-25-411, MCA. Thus, the appellants' brief reads, "The personal representative and her legion of professional advisers have failed to take all steps reasonably necessary for the management, protection and preservation of the estate in their possession." What the Objectors' appellate brief does not reveal is how the accountings do not conform to statutory requirements or how they abuse the personal representative's duty of management, protection and preservation of the estate. The District Court found that the abatement statute, § 72-3-901, MCA, applied because the residue of the estate and the interest accrued was insufficient to pay all expenses and disbursements. The District Court utilized the values of specifically devised property as between the widow on one hand and the Objectors on the other to determine those proportions to be 55.387 percent for the children, and 44.613 percent for the widow. Section 72-3-901(2), MCA, provides that abatement within these classifications "is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will." It appears that the ~istrict Court followed this statute in determining the proportions for abatement. The Objectors do not show us in any particular that the proportions were wrongly computed. We are unable to fathom how the accountings do not conform to the statutory requirements of §§ 72-25-403, -404, -407, and -411, MCA. These statutes are part of the Revised Uniform Principal and Income Act, applying to estates, trusts, and fiduciary relationships. Section 72-25-404, MCA, provides that in estates, as far as specific legatees are concerned they shall receive the income from the property bequeathed or devised to them respectively, less taxes and ordinary expenses of the estate; and as to all other legatees and devisees, the balance of the income, less taxes and ordinary expenses of management in proportion to their respective interests in the undistributed assets. In this case, the District Court, by providing that all interest shall be divided one-half to the widow and one-half to the children, determined that the interest earned from estate bank accounts should be distributed in accordance with the proportional interest in the residue estate, one-half to the widow, and one-half to the children. The apportionment of income is therefore in accordance with 5 72-25-404, MCA. The apportionment of abatement is in accordance with 5 72-3-901, MCA. These statutes relate to two different subjects and, as in this case, do not necessarily coincide. We uphold the proportions decided by the District Court. The testimony in the case showed that the estate computed the interest earned during the probate based on the money that came in from specific bequests, property and the interest earned thereon. The money from the property specifically devised for the widow exceeded by some $7,000.00 the money which came from the property specifically devised to the Objectors. There were no countervailing computations made by the Objectors. As an aside, we note that the provisions of the revised uniform Interest and Income Act were not raised in the District Court and are raised for the first time on appeal. Payment of Fees; Repayment of Loans -- - On December 30, 1987, the personal representative paid out of funds of the estate $7,500.00 to herself as part of her personal representative fee; $12,000.00 to herself as part of the principal of loans she had made to the estate; and $12,000.00 to Donald E. ~onish as a part of his claimed attorneys fee. At the July 9-10, 1987 hearing, the Objectors challenged the subject of undocumented loans by Margaret Barber to the estate, and challenged the appropriateness of fees and expenses charged by both the personal representative and the estate's attorney. The District Court did not enter its first order approving the final report of the personal representative until January 12, 1988. Thus, the objectors now contend that the payments were improper without the prior approval of the court, and that the payments constituted a distribution of the estate to Margaret Barber, which represented a conflict of interest, self-dealing, and "just plain selfishness," and a violation of the estate attorney's duty to avoid self-serving conduct. The appellants' brief points to the admission of the estate attorney that he had procured the payment to himself in order to accomplish his personal income tax plan for 1987. In the District Court's order of December 14, 1988, it held that the payments to the estate's attorney and the personal representative of the respected fees were merely payments to creditors of the estate and were approved. There isn't any doubt in this case that the personal representative, the widow of the decedent, made loans to the estate. The loans were necessary because the payments on the farm contract were not coming in, federal and state taxes had to be paid, and other expenses made the loans necessary. The District Court eventually found that she had made loans totalling $14,633.00 to the estate, and that she was entitled on those loans to receive interest of $4,730.15 to February 1, 1987, plus $4.01 per day thereafter until paid. Objectors contend that because this was a supervised administration, such payments should not have been made without a prior order from the ~istrict Court. The personal representative, however, in a supervised administration is not so restricted. Section 72-3-404, MCA, provides that a supervised personal representative has, without interim orders approving the exercise of a power, all powers of personal representatives under the code, except that a personal representative may not make a distribution of the estate without the prior order of the court. As the personal representative in brief points out, under S 72-3-613 (18) , MCA, the personal representative has the power to pay her own compensation and other expenses incident to the administration of the estate; under subsection (26) of the same statute, the personal representative has the power to satisfy and sett1.e claims. Section 72-1-103(4), MCA, states that "claims" include liabilities of the estate and "expenses of the administration." The loans were liabilities of the estate which arose after the death of the decedent, and the personal representative fees and attorney fees are expenses of administration. The personal representative has statutory power to pay these amounts without a prior order of the court. Without burdening this opinion with figures, we determine that the compensation of the personal representative eventually allowed by the court was well within the limits prescribed in S 72-3-631, MCA, and that the compensation of the attorney so approved, was within the limits set out in 5 72-3-633, MCA. The part payment of those fees on December 30, 1987, was not improper in this case. We do not find any conflict of interest or violation of ethics by either the personal representative or the attorney. In each case the partial payments were far less than the amounts that they were eventually entitled to, the payments did not affect in any way adversely the administration of the estate, and were just claims against the estate for which there was a right of eventual payment in full. In fact, such expenses of administration enjoy a first priority to the assets of the estate. Section 72-3-807, MCA. The appellants' brief characterizes the payments to the personal representative and to the estate's attorney as "knowing, flagrant acts of conflict of interest, self-dealing and arrogant selfishness," but there is absolutely no substance to such charges. Settling the Personal Representative's Final Accounts The next contention of the Objectors is that the District Court erred in concluding that "all acts and proceedings done or conducted in this estate by the personal representative, the attorney and accountants were correct and proper in the same are hereby confirmed and approved." Objectors also contend that the District Court should not have approved the final accounts of the personal representative before ascertaining that the Federal Internal Revenue Code was complied with. The Objectors shotgunned twelve claimed issues under this caption, which we will take up separately: (1) Whether the estate erred and violated the Federal Internal Revenue Code by reporting that the estate was terminated as of December 31, 1986, when there were still monies to be distributed to the estate's beneficiaries. When the Senef contract was paid off during the probate of the estate, the personal representative had on hand $745,794.56 of which $660,000.00 was allocated to principal, and the balance to interest income. The contract was a principal asset of the estate and when the payoff was received, distribution of part of the major assets was possible. The money received on the Senef contract represented an 85.8 percent capital gain to the estate. The federal tax laws were substantially changed with respect to capital gains, taking effect in 1987. By distributing the proceeds of the Senef sale before December 31, 1986, the estate was able to take advantage of the 60 percent deduction allowed for capital gains up to December 31, 1986 with the balance taxable at 20 percent. The attorney for the estate estimated that if the distribution occurred after December 31, 1986, under the change relating to capital gains in tax laws, an additional substantial amount in federal taxes would be owed by the estate. In addition, it was the intention of the personal representative and the estate attorney to distribute the remaining 15 percent of the estate assets within 65 days from December 31, 1986, which under federal regulations could be construed as having been distributed before December 31, 1986. The objections of the Objectors made use of the 65 day rule impossible. Federal regulations prohibit unduly prolonging estate proceedings for federal income tax purposes and the estate will be deemed closed for that purpose after expiration of a reasonable time for completion of administration and when all property is distributed except a reasonable amount set aside in good faith for payment of unascertained or contingent liabilities and expenses. I. R. S. Regulations, section 1. 641 (b) -3 (a) . Under Montana law, an estate shall be closed within two years of the date of the appointment of the personal representative. Section 72-3-1015, MCA. At the time when this estate was closed for income tax purposes, the estate had been in probate for more than four years. By the end of 1986, all income producing property had been distributed and the amount held back by the personal representative was that amount adjudged necessary to pay the remaining expenses of the estate. Counsel for the Objectors contends that after December 29, 1986, there was money in the estate that was ultimately distributed to the estate's beneficiaries. It contends therefore the estate was not terminated for tax purposes as of December 31, 1986, which would result in a shift of $660,000.00 of taxable income from 1986 to 1987. This contention is completely unexplained or supported by any authority from counsel for the Objectors. (2) Whether the Internal Revenue service form 1041s filed on behalf of the estate of Gerald W. Barber "trust" for the years 1987 and 1988 was a false and fraudulent income tax return? In completing reports for income tax purposes after December 31, 1986, the estate utilized form 1041s which is normally used by trusts and fiduciaries but which had a blank for "estate" which was checked in each of these cases. Objectors contend that no trust had been established under the will or otherwise and therefore the forms were false and fraudulent. This purported issue is nothing more than picayunish nitpicking. The accountant testified that he utilized the forms for the purpose of making required reports of income taxes to the federal government and that these were the forms which were available. (3) Whether all of the assets of the estate of Gerald W. Barber have been properly probated. Specifically, the estate's share of the contractual net down payment in the amount of $71,215.00 received from Rusty Senef on October, 1982, which was not properly classified on the estate's Internal Revenue Service form 706. The use of the term "not properly classified" is not otherwise explained in the Objectors' brief. Before the District Court, the Objectors contended that the $71,215.00 received by the testator during his lifetime was actually a part of the estate, and subject to distribution through the estate. The answer, of course, is that the down payment, received by him during his lifetime, belonged to the decedent to do with it as he wished. This was the item, as reported earlier, that the decedent used before his death, to purchase an annuity in joint tenancy with his wife. No probate court has the power to reverse that transaction or to classify the payment as anything but a payment received by the decedent during his lifetime to be spent at his entire discretion. (4) Whether the failure of the personal representative to design, implement and maintain a fair and accurate accounting system violated generally accepted accounting principles for the matching of income and expense to the proper beneficiary. By failing to do so, the personal representative did not properly segregate the assets, income and expenses relating to each beneficiary's individual share of the estate based on each person's specific bequest and/or devise. There is no statutory or other requirement that a personal representative maintain a separate account for each heir devisee named in a will or entitled to succeed by right of succession. Entirely lacking from appellants' brief is any indication that any devisee received more or less under the general accounting system used by the personal representative than that person deserved. (5) Whether the 1982 Federal and State income taxes for the decedent and his wife, the personal representative herein, were properly allocated between the personal representative and the estate. The 1982 farm income, in the amount of $62,134.00 should have been allocated to Margaret Barber on the basis of her 25 percent ownership in the Senef farm land. When Gerald Barber, the decedent, deeded 640 acres of his farm property to his wife, which was construed to be a 25 percent ownership of Barber's farm holdings, the crops had already been harvested. There was no other income in 1982 accruing to the farm properties after the deed given to Margaret Barber. She was not entitled to any of the income on the crops harvested before her deed, and the estate was not bound to allocate any of that income to her. (6) Whether the undocumented loan by Margaret A. Barber in the amount of $9,983 and the interest charged thereon was an ordinary and necessary expense of the estate if the loan was based on the improper allocation of the 1982 Federal and State estate income taxes. As discussed under paragraph (5) above, the allocation of the 1982 Federal and State income taxes was not improper. The ~istrict Court found a valid loan necessary for the payment of income taxes and that the same was a proper burden of the estate. There is no basis for this contention. (7) Whether the failure of the personal representative to properly consider the 1982 crop insurance proceeds due to her 25 percent ownership in the Senef farm land was a distortion of income and expense. The Objectors fail to show any pertinence to this paragraph. (8) Whether the personal representative failed to properly allocate 1982 Federal self-employment taxes and the recapture taxes between the decedent and herself, resulting in the estate paying part of her personal income tax obligation. The Objectors here are simply ringing the changes on an old theme. (9) Whether the interest paid by the estate on the personal representative's undocumented loans to the estate was an ordinary necessary tax deduction considering that the estate paid an above-market rate of interest when they had the clear and unequivocal cash resources to pay off such advances. The District Court found that the loans were indeed proper, had been made to the estate when it was necessary for the estate to borrow money to pay necessary taxes and expenses and it awarded interest based on statutory amounts. Again, this purported issue has no substance. (10) Whether the estate can take an ordinary, necessary tax deduction for a personal representative's fee and expenses which have not been documented in accordance with Internal Revenue Code 5 274(d). By failing to keep a diary, or submit any other written documentation or reference in this estate, the personal representative's fee and expenses can be questioned as improper, ordinary and necessary expense. We doubt it. (11) Whether the attorney fees paid to Donald E. ~onish is a proper deduction for the following reasons: (a) Because the entire amount of Mr. Ronish's fee was allocated to the estate, even though he served the personal representative in her individual capacity throughout this probate. (b) Because part of the fee could be classified as excessive, and thus nondeductible, considering the relevant factors involved with "reasonable compensation" issues. In this complicated and large estate made more complex by counsel for the Objectors, the District Court approved an attorney fee for services rendered to the estate which was less than the amount that could have been awarded by statute. The ~istrict Court found that the personal representative and the attorney, at the outset of the administration of the estate, entered into an oral agreement for an attorney fee based on the following: On the sum of $120,482.39 of life insurance proceeds, no fee would be charged; On the decedent's one-half of the joint tenancy property, a fee of 2 percent thereof would be charged; On the rest of the estate the statutory schedule set forth in S 72-3-633, MCA, would be charged, namely 45 percent on the first $40,000.00, and 3 percent on the remaining. The District Court found that the fee as computed was less than the statutory fee that could be awarded. We find the fee to be a proper deduction from the assets of the estate. (12) Whether the estate properly calculated its "distributable net income" deduction for its short period tax year ending December 31, 1986. By failing to make a distribution of specifically bequested monies to Jerry F. Barber, Barbara A. Snooks and Ted L. Barber in the amount of $4,000.00 from the Twin Butte Ranch which was received by the estate on December 29, 1986, when the aforementioned persons were by operation of a Personal ~epresentative's Deed, the clear and lawful owners of the income asset in question, the estate erred. There is no explanation in Objectors' brief for this claimed issue. The respondent's brief indicates that the $4,000 represented the estate's share of the 1982 income from the Twin Butte Ranch and so was not an item that went with a deeded distribution. "Segregated crops do not go with a deed to the land," Respondent answered. After concluding the foregoing twelve claimed issues, Objectors' brief contends that the estate should not be settled, allowed and approved until the estate, the personal representative and the Internal Revenue Service have concluded their involvement. The Objectors' ask for the appointment of a special master to handle the estate meanwhile. This, although a closing letter from the Internal Revenue Service had been issued to this estate on April 3, 1985. Conclusions The Objectors have failed to show before the District Court or on appeal any discrepancy or error in the final account of the personal representative; any error in the distribution of the estate; any error in the proportions found by the District Court as to abatement or as to the distribution of income; or any error on the amounts of attorney fees or personal representative fees paid in the estate. In most instances the Objectors raised a completely without weight issue based on some unsupported speculation that someday, somewhere the Internal Revenue Service will come back and find some error in the method of handling this estate. The District Court refused to prolong the proceedings on that premise and so does this Court. We affirm as against the appeal of the Objectors. Cross Appeal The estate cross appeals from the decision of the District Court that additional attorney fees for extraordinary services should not be granted here. The District Court found all of the attorney services in this estate were ordinary services, and did not warrant an additional fee. The question here is whether the attorney rendered extraordinary services in the conduct of this estate for which he should receive further compensation beyond his contract. We so find, and reverse the District Court on this point. The personal representative of an estate can contract for an attorney's services, and the estate is bound by such contract if it is fair and equitable. In Re Estate of Magelssen (1979), 182 Mont. 372, 597 P.2d 90. Such a contract does not preclude the award of additional fees where the services rendered to the estate by the attorney are extraordinary in nature and reasonably necessary for the good of the estate. In the circumstances here, the following consisted of extraordinary services to the estate: The Personal ~epresentative The will of decedent appointed his wife, Margaret A. Barber, to be the personal representative. If she were unable to act, the will appointed Barbara A. Snooks, the decedent's daughter, as personal representative. Pursuant to the will, Margaret A. Barber was appointed personal representative on December 16, 1982. On August 8, 1983, Barbara A. Snooks, the daughter, petitioned the District Court to be co-personal representative, alleging that she had been unable to get information from the personal representative, that the attorneys fee was excessive, and that the personal representative and her attorney had failed to utilize all of the income tax elections available to the estate. After a hearing and briefs submitted, the District Court denied the petition of August 29, 1983 for appointment of a co-personal representative. The Senef Contract On November 25, 1986, the personal representative petitioned the court for approval of the offer of Russel Senef to pay off the balance due on the contract for sale for the Barber farm. As we indicated in the foregoing, the principal balance due at the time on the contract was $836,960.00. The proposed offer came to $745,794.56. This represented 75 percent of the principal balance due and accrued interest to December 1, 1986. In order to facilitate the acceptance of the offer, the personal representative offered to waive her 25 percent of the payment which was due to her under the contract, and to accept instead one-half of the settlement, the other half to be divided between the remaining heirs equally. Thus, what the heirs would receive under the proposed offer, and the agreement by the personal representative to waive her portion, was everything that they would have received under the contract if it had been paid out by the buyer during the lifetime of the widow. The petition for approval of the proposed offer further sets out undisputed facts at the time, that the farm was losing profitability, a farm recession was occurring in the State at the time, and it was to the best interests of the estate to negotiate a settlement of the contract for sale. Further, under the proposal, the personal representative would distribute $660,000.00 of the payment immediately, one-half going to her, and each of the Objectors receiving $110,000.00 cash payment. Eventually the District Court approved the offer, the money was received, and the distribution made and accepted as proposed. This approval was given, however, over the strong objections of the Objectors, acting through their counsel. After the court approved the offer on December 29, 1986, the Objectors filed a Rule 59(g) motion to alter or amend the judgment contending that they were not forewarned about the pending distribution. Counsel for the personal representative filed a brief opposing the Rule 59(g) motion, and the Objectors , purportedly acting under Rule 12 ( f) , M.R.Civ.P., moved to strike portions of the brief as impertinent and scandalous. On February 18, 1987, the ~istrict Court denied the Rule 59(g) motion, and denied the Rule 12(f) motion on the grounds that the latter rule applied only to pleadings and not to briefs. The ~ i n a l Accounts We have chronicled in the first part of this opinion the objections of the objectors to the first and final accounts of the personal representative. Two hearings were required on those objections, one lasting two days and the other a full day in court, and full briefs were required. The District Court found no substance in the objections made by the Objectors. The Appeals In addition, there have been four appeals to this Court, including the present appeal. The first appeal involved an attempt by the objectors to force a partial distribution of the estate, which was denied in the District Court. This Court affirmed on appeal. Estate of Barber (1985), 216 Mont. 26, 699 P.2d 90. Two subsequent appeals to this Court were dismissed. The present appeal has no substance as the foregoing portion as this opinion indicates. The District Court file is a record of obstreperous, obstructive and groundless objections to all steps and proceedings undertaken by the personal representative which required of counsel for the estate continual briefings, correspondence, and court appearances in order to keep the estate moving. We have here a record not of ordinary attorney services in the conduct of an estate proceedings, but rather one involving extraordinary services brought about by the actions of the Objectors. The blame for the detrimental objections to the progress of an ordinary estate can not be laid entirely at the feet of the Objectors. The District Court file, and the appellate record evince that the attorney for the Objectors is essentially responsible for the troubles in this estate. We therefore determine that the extraordinary services rendered by the attorney for the estate require an additional fee of $3,000.00. This, however, shall not be a burden on the estate itself. One-half thereof shall be the joint and several burden of the Objectors , personally, and the other half shall be paid by counsel for the Objectors, Philip P. McGimpsey. Disposition The judgment of the District Court approving and allowing the several accounts of the personal representative, and providing for distribution and the fixing of attorney and personal representative fees for their ordinary services is by this Court affirmed. That portion of the judgment, however, which denies the attorney for the estate an additional fee for extraordinary services is by this Court reversed. On remand the ~istrict Court shall enter judgment in favor of the attorney for the estate for the sum of $3,000.00, one-half thereof to be the joint and several responsibility of the objectors, Ted L. Barber, Barbara A. Snooks, and Jerry F. Barber; and one-half thereof the responsibility of the attorney for the Objectors, Philip P. ~c~impsey. Justice | September 14, 1989 |
35a9e929-4c7c-49de-86a4-9b5a64d9db4e | GROVER R H INC v FLYNN INS C | N/A | 88-441 | Montana | Montana Supreme Court | NO. 88-441 Ib? THE SUPREME COURT OF THE STATE OF MONTANA 1989 R. H. GROVER, INC. ! a Montana corporation, plaintiff, Respondent and Cross-Appellant, -VS- FLYNN INSURANCE COMPANY, a Montanz- corporation, Defe~da.nt and Appellant, APPEAL FROM: ~istrict Court of the Fourth Judicial ~istrict, In and for the County of Missoula, The Honorable James wheelis, Judge presiding. COUNSEL OF RECORD: For Appellant: Jardine, Stephenson, Blewett & Weaver; ~illiam D. Jacobsen argued, Great Falls, Montana For Respondent: Worden, Thane & Haines; arti in King argued, Missoula, , . Montana Submitted: July 20, 1989 ~ecided: July 25, 1989 Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Defendant Flynn Insurance appeals a jury verdict and judgment entered in favor of plaintiff in the Fourth Judicial District, Missoula County. The jury returned a verdict March 22, 1988, in the amount of $106,866, to which the district judge added $54,194.28 in prejudgment interest. The District Court denied Flynn's motions for summary judgment, directed verdicts on many issues and for judgment N.O.V. Flynn appeals. R. H. Grover, Inc. (Grover) cross-appeals the District Court ' s denial of Grover's bill of costs. The District Court found that Grover's bill of costs in the amount of $4,406.50 was not filed timely under section 25-10-501, MCA. We affirm. This case went to the jury on a general verdict form, over the objection of defense counsel, with instructions on the following six separate causes of action: 1) negligent misrepresentation; 2) generalnegligence; 3) negligent failure to procure insurance; 4) contractual failure to procure insurance; 5) breach of third party beneficiary contract ; and 6) promissory estoppel. Defense counsel moved for directed verdicts, which were denied, on each of the last five claims arguing that plaintiff I s only proper claim was negligent misrepresentation and that it was barred as a matter of law. Defendant continues to dispute the applicability of the last five claims sent to the jury. Thus, the issues on appeal as stated by defendant's counsel are as follows: Whether the District Court committed reversible error by: 1. Giving the case to the jury on a general verdict form which contained one or more inapplicable legal theo- ries; 2. Refusing to grant Flynn judgment as a matter of law on Grover's claim of negligent misrepresentation;8 3. Giving Instruction #15 over objec- tion of defense counsel regarding an agent's liability; 4. Refusing Flynn's proposed Instruc- tion #38 instructing that liability could not exceed the policy limits; and 5. Allowing Grover $54,194.28 in pre- judgment interest. The issue on cross-appeal is whether it was error to deny Grover's bill of costs as untimely. The following facts are not contested. Grover is a mechanical and plumbing contractor. In 1978-1979 Grover became associated with Fire Protection Analysis, Inc. (Fire Protection). Grover later subcontracted with Fire Protection for the design of fire protection systems (ceiling sprinklers, etc.) to be installed in four major construction projects around Montana. Problems later arose with these projects. Grover did not pay Fire Protection in full, asserting that it had incurred extensive costs due to Fire Protection's errors and omissions. Fire Protec- tion sued Grover for final payment. Grover counterclaimed for damages due to negligence. As a result, Fire Protection allowed a judgment to be entered in favor of Grover in the amount of $106,866 as compensation for those problems. Prior to design and construction, Fire Protection had procured for Grover a certificate of professional liability insurance (E & 0 coverage) from its insurance agent, Flynn. The certificate was dated August 21, 1979, and listed Grover as the certificate holder, Fire Protection as the insured, policy limits of $400,000 and an expiration date during September of 1980. The certificate specifi- cally listed professional liability insurance issued by CNA Insurance Company as Policy Number AEP 821 357 which covered Fire Protection for its errors and omissions up to $400,000. The certificate was prepared erroneously a by Flynn employee. Fire Protection did not have professional liability insurance and never had any such coverage or policy. In exchange for not executing on the judgment against Fire Protection, Grover was assigned all proceeds which may result from Fire Protection's action against Flynn. Grover then proceeded against Flynn directly. The issues of legal liability, reliance, and damages were disputed and litigated at trial. Grover later stipulated its damages were $106,866 as evidenced by the judgment in the underly- ing suit. I. General Verdict Form Flynn cites Martin v. N.P. Ry. Co. (1915), 51 Mont. 31, 149 P. 89, for the proposition that it is reversible error to let a verdict rendered on a general verdict form stand if one or more of the legal theories was improper. In Martin, the plaintiff plead one cause of action (negli- gence) in four separate counts. The court struck Count I11 as being too indefinite to impose a duty and submitted the remaining three counts of negligence on a general verdict to the jury which returned a verdict for the plaintiff. On appeal, this Court held that Counts I and IV likewise should have been stricken for insufficient evidence. In reversing the verdict based on the general verdict form, this Court stated: We are unable to agree . . . that if the complaint contains one good count . . . the jurors . . . founded their verdict upon it, rather than upon the counts which fail to state facts sufficient to warrant recovery. A fair and impartial trial comprehends a trial upon issues properly submitted, and, when different theories of the same case are placed before a jury, it is impossible to know upon which the general verdict is made to depend. Martin, 149 P. at 91. Flynn argues that this 1915 case is good law in Montana and controls on this issue. Grover maintains that requiring a general verdict form is within the sound discretion of the trial court, pursuant to Rule 49 (a) , M.R. Civ. P. ("a court mav require a jury to return a special verdict") and that reversal requires proof of abuse of discretion. In support of the argument that no abuse of discretion can be shown, Grover argues, first, that all legal theories were properly submitted because credible evidence supported each theory; and second, that if a general verdict contains one viable theory on which the entire verdict could stand, the verdict ought not be reversed. Grover cites Dunlap v. GMC (Ariz. 1983), 666 P.2d 83 ("General verdict will be upheld when several counts, issues, or theories are submitted to the jury if the evidence on one count, issue or theory is sufficient to sustain the verdictw1) ; and Jenkins v. C. & E. Ry. (Ill. 1972), 284 N.E.2d 392 ("where several causes of action have been alleged and a general verdict results, the verdict will be sustained against a general motion for directed verdict or a motion N.O.V. if there are one or more good causes of action or counts to support itw). We do not agree. We conclude that Martin is not controlling on this issue because it was decided prior to the adoption of the new rules of civil procedure in 1961. Therefore, the special verdicts known to courts in 1915 may have been different than those now allowed under Rule 49(a). However, we find the reasoning applied in Martin persuasive and conclude that it was error to submit these six issues to the jury on a general verdict form. The trial court must allow only those claims supported by the evidence to go to the jury. If there is a factual question as to the applicability or validity of particular claims, the preferred solution is to submit the claims to the jury on a special verdict form as allowed under Rule 49 (a). Such procedure makes a record more easily reviewable by this Court, thus protecting the rights of both parties. A motion for directed verdict is properly granted when there is an absence of any evidence to warrant sending the case to the jury. Britton v. Farmers Ins. Group (1986), 221 Mont. 67, 721 P. 2d 303. Under this standard of review we conclude that it was error to submit the last four claims to the jury. As was argued vehemently by defense counsel during motions for directed verdicts on the last four claims, the record is devoid of the critical elements of a contract. Fundamentally lacking was evidence of offer and acceptance, as well as exchange of considera- tion between Flynn and Grover, or even between Flynn and Fire Protection regarding the professional liability insurance policy. The record is clear that in 1979 Fire Protection did not request Flynn to procure professional liability insurance and did not pay any premiums for such a policy. It is impossible to find that Flynnls erroneous certificate created a l'contractll under which they were bound to procure insurance. Thus, the contractual failure to procure insurance claim must fail as a matter of law. We also conclude based on the foregoing analysis that it is impossible to imply that Flynn had a "dutyw to procure insurance under these facts. Issuing the certificate cannot create a lldutyll to procure insurance at a later date. Rather, Montana law requires a client's request to procure certain insurance, followed by an agent's commitment to do the same to put the agent under a llduty" to procure. Lee v. Andrews (1983), 204 Mont. 527, 667 P.2d 919. The claim of negligent failure to procure insurance also fails for want of proof. Absent a duty, there can be no negligent failure to procure insurance. The contractual claim for a third-party beneficiary contract likewise fails for lack of evidence regarding the critical elements of a contract under this analysis. The record is devoid of any evidence regarding offer and acceptance, intent to create a contract for Grover's benefit and consideration. This claim is not supported by the evidence. Grover also asserted a claim of promissory estoppel. Grover claimed that Flynn's certificate was a promise that the insurance policy existed. Once Flynn promised that, Grover argues, it should be estopped from denying the same. We do not agree. The certificate cannot be a contract or a promise. Flynn Insurance has promised nothing by issuing the certificate. The promissory estoppel claim likewise should have been dismissed under defen- dant's motion for directed verdict for lack of evidence of a I1promise. 'I Based on the foregoing discussion, we conclude at least these four claims were submitted erroneously to the jury on the general verdict form. This Court disapproves of counsel pleading and urging the submission to juries of claims for which there is no basis in admissible evidence. More certainly, this Court will find error when a trial court allows juries to consider a claim when no law or fact exists in support thereof. The error committed under the facts of this case was not reversible error. Rule 61, M.R.Civ.P., provides: Harmless error. No error in either the admis- sion or the exclusion of evidence and no error or defect in any ruling or order or in any- thing done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. Our careful review of the record and analysis of the ap- plicable law as stated above leads us to conclude that the trial judge did not commit reversible error in any of the issues raised by appellant. Therefore, we omit any discussion regarding the contested jury instructions. We affirm the District Court's judgment and order in its entirety based on the following analysis. We hold that substantial injustice would occur by denying Grover's jury verdict based on the remaining two claims: general negligence and negligent misrepresentation. Specifically, we note the record as it refers to general negligence. Grover asserted that Flynn Insurance committed general negligence which damaged Grover apart from and in addition to the issuance of the faulty certificate. We agree. The record is replete with such evidence: inadequate supervision of an employee new to the job, failure to follow other established internal office procedures which would have caught the error immediately and failure to notify Grover. The District Court gave the jury instruction No. 40, "You are instructed that Flynn Insurance Agency was negligent." This instruction was equivalent to a directed verdict on the issue of the negligence of appellant Flynn. Having been directed as a matter of law that they will find Flynn negligent in its issuance of the certificate of professional liability insurance, the jury had only left to decide if there was a causal connection between Flynn's negligence and Grover's damages which were stipulated to be $106,866. Based on these facts, we conclude that the jury verdict is based on the law and substantial credible evidence. Reversal of the verdict would constitute substantial injustice to Grover. However, in the absence of a directed verdict on Flynn's negligence, reversal would be mandated under this general verdict form. Thus, under the facts of this case, and under the standard set forth in Rule 61, the errors committed by the trial judge regarding the general verdict form were not reversible error. At this juncture, we must discuss Flynnts contention that the damage award must still be overturned as a matter of law. Flynn argues that notwithstanding the directed verdict, Grover is not entitled to any damages because its claims are barred as a matter of law by the statute of limitations. The jury was instructed on the various claims that the applicable limitations were two years (negligent misrepresentation), three years (neglige- nce), five years (oral contract) and eight years (actions founded upon a written instrument). Flynn argues that these instructions were reversible error because all claims should hinge on the two year limitation, which had expired. Based on our discussions in White v. Lobdell (1984), 208 Mont. 295, 678 P.2d 637, the parties below agreed that the statute of limitations for negligent misrepresentation claims is two years. See White, 678 P.2d at 642 and section 27-2-203, MCA. This limitation begins to run when the plaintiff wdiscoverstt the misrepresentation. Section 27-2-203, MCA. Under Mobley v. Hall (1983) , 202 Mont. 227, 657 P. 2d 604, wdiscovery" occurs when the plaintiff acquires such facts as would reasonably prompt inquiry or action. Grover argues that his March 19, 1984, complaint was filed timely. Regarding the date of discovery, Grover testified to the jury that he did not discover that the certificate was erroneous until 1983, well within the two year limitation. Grover argues that the jury must decide if a claim is time-barred when conflict- ing evidence as to the date of accrual of the action is presented. Hill v. Squibb (1979), 181 Mont. 199, 592 P.2d 1383. The jury found in favor of Grover and he asserts that this verdict should be upheld. Flynn asserts that the verdict should be stricken as a matter of law because "discovery1' occurred at least by January 1982 and thus the claim was time-barred under the two year limitation. Flynn introduced into evidence a letter dated in January 1982 which was written to Grover by Fire Protection's attorney. The letter generally sought a settlement rather than a trial of the dispute between Fire Protection and Grover and stated 'I. . . assuming you win, you will collect nothing since we have no insurance . . . l1 This letter was all that Flynn introduced regarding "disc~very.~~ From there it made only conclusory arguments that the letter necessarily constituted discovery of such facts as would lead a reasonable person to inquiry. (Regarding this letter, Grover testified that he simply did not understand the letter to mean this certificate which he held was inaccurate.) In its appellate brief, Flynn further argued that since all of Grover's claims were based upon Flynn's erroneous representa- tion, all claims are barred by the same two year statute of limitations which expired in January of 1982, two months prior to Grover's complaint being filed. We do not agree. However, we do not find Grover's version of the events persuasive either. The liability of Flynn could be characterized properly as founded on an instrument in writing (thus bearing an eight year limitation on the action), however it need not necessarily be characterized so. The action for general negligence (the record is replete with evidence of Flynn's negligence) is controlled by the three year limitation found in section 27-2-204, MCA. The jury was instructed properly on that limitation. Further, as discussed above, the trial judge directed a verdict on the issue of general or ordinary negligence. We conclude under this analysis that Grover's action is not barred as a matter of law and that the jury verdict was lawful. We reject Flynnts plea to overturn the , '. ' . '. verdict. 11. Prejudgment Interest Prejudgment interest can be awarded by the trial judge pursuant to section 27-1-211, MCA, when the following three criteria are met: (1) there is an underlying monetary obligation; (2) the amount of recovery is certain or capable of being made certain by calculation; and (3) the right to recovery vests on a particular day. Flynn asserts that there is no monetary obligation until the jury determines liability. Palmer v. Farmers Insurance Exchange (Mont. 1988), 761 P.2d 401, 45 St.Rep. 1694 ("when liability is contested . . . the conditions [of section 27-1-2111 fail since no monetary obligation exists until the day the jury determines the degrees of comparative negligence. The right to recover does not vest until the jury returns its verdict.") Flynn also asserts that Grover contested the amount of damages as being above and beyond the $106,866 judgment. Flynn contends that Grover is trying to have its cake and eat it too with regard to whether or not these damages are a fixed amount. Grover distinguishes Palmer in that there are no issues of comparative negligence in the case at bar (thus there would be no later reduction in the damages) and asserts that the fixed amount of the previous judgment on a particular day satisfies this entire statute. The trial court agreed with Grover. We conclude there is no error in the trial court's analysis of this issue. The parties stipulated during trial as to the amount of Grover's damages on the underlying suit (those damages attributable to Fire Protection's negligence regarding the sprink- ler system designs). That amount was reflected in the $106,866 default judgment against Fire Protection. That judgment was rendered December 31, 1982. These facts certainly fulfill all three requirements of section 27-1-211, MCA. Prejudgment interest was awarded properly. CROSS-APPEAL Bill of Costs Section 25-10-501, MCA, reads in pertinent part: The party in whose favor judgment is rendered and who claims his costs must deliver to the clerk and serve upon the adverse party, within 5 days after the verdict or notice of the decision of the court or referee or, if the entry of the judgment on the verdict or deci- sion be stayed, then before such entry is made, a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum must be verified by the oath of the party, his attorney or agent, or the clerk of his attorney . . . Verdict was rendered March 22, 1988, and judgment was entered upon it on March 30, 1988. Grover received the judgment on April 4, 1988, and filed its bill of costs on April 5, 1988. The District Court struck Grover's bill as untimely because it was not filed within five days after the verdict. We agree. Grover relied on Funk v. Robbin (1984) , 212 Mont. 437, 689 P.2d 1215, wherein this Court allowed costs under section 25-10- 501, MCA, the bill for which was filed long after the decision of the court was rendered. That case quoted Poeppel v. Fisher (1977) , 175 Mont. 136, 572 P.2d 912, as follows: This Court has held that the five-day period allowed for filing of a memorandum of costs and disbursements is computed from the day the court enters judgment, not from the day the court orally announces its decision. Poeppel, 572 P.2d at 1221. Funk and Poemel are not controlling on this issue because they involved bench trials. The statute and the case at bar both deal with jury verdicts. By taking matters under advisement, the trial judge has more latitude than a jury as to when it will render its decision. Thus, the announcement of a decision by the bench is not comparable to the jury rendering its decision. Lastly, we note that even in Funk and Poeppel, the bill for costs was filed prior to entry of the judgment. Grover's bill was properly stricken. In summary, we conclude the errors committed by the trial court regarding the general verdict form are not reversible error and therefore, affirm the District Court's judgment based on the jury verdict. We find no error in the District Court's other evidentiary rulings. Likewise, the trial court's rulings awarding prejudgment interest and denying Grover s bill of costs were correct. The District Courtls judgment is affirmed in its entirety. ief ~ustice We concur: z / Justices | July 25, 1989 |
ced19bfb-03c4-42f3-98bc-6883c0f9b350 | MARRIAGE OF MILLER | N/A | 89-149 | Montana | Montana Supreme Court | No. 89-149 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF ROBERT MARTIN MILLER, Petitioner and Respondent, and ELIZABETH ANN MILLER, 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: Sherlock & Nardi; Patrick D. Sherlock, Kalispell, Montana For Respondent: Randall S. Ogle; Murray, Kaufman, Vidal, Gordon, and Ogle, Kalispell, Montana F i l e d : . r - i Submitted on Briefs: July 20, 1989 Decided: August 25, 1989 I I - - ; 1 . . . : Clerk Mr. Justice Fred J. Weber delivered the Opinion of the Court. The parties' marriage was dissolved by decree dated October 28, 1988 in the District Court for the Eleventh Judicial District, Flathead County. Wife appeals various aspects of the decree and the findings of fact and conclu- sions of law contained therein. We reverse and remand for further proceedings consistent with this opinion. We rephrase the issues as follows: 1. Whether the District Court erred in its valuation and distribution of the marital property? We conclude that there was sufficient error to require remand and consideration. 2. Is it appropriate that a different Judge of the District Court consider this case on remand? We conclude that it is. Elizabeth Ann Miller (wife) and Robert Martin Miller (husband) married on January 31, 1959. Four children were born during the marriage, all of whom were adults at the time of trial. The parties separated in November of 1986, with the wife remaining in possession of the family home in Kalispell. Since the date of separation, husband has paid the monthly mortgage payment of $415 on the first mortgage on the residence. In addition, he paid $200 per month temporary maintenance from November 1986 to February 1988. By court order dated February 22, 1988, the maintenance was increased to $400 per month. Husband is employed as an electrician for the Bonneville Power Administration earning approximately $43,000 per year with a regular monthly net income of $2,218.46. At the time of trial, husband had acquired retirement benefits valued at $34,401. The District Court found that husband occasionally worked overtime but that those hours were sporadic and that his overtime compensation was not regular income. In addition to raising the parties' four children and serving as homemaker, the District Court found that the wife worked as a cake baker, cake decorator, and a professional monogrammer. At the time of trial, she was an enrolled student at Flathead Valley Community College pursuing a degree in education. In 1982, the parties mutually acquired the business presently known as Miller Monogramming for $13,000. The business was operated as the joint business of husband and wife through November of 1986, after which time the wife was the sole operator. The business has been operated out of the family residence since its acquisition. In conjunction with the business purchase, the parties received a list of busi- ness clients and a three-year covenant not to compete from the seller. Since 1982, the parties have invested in Miller Monogramming the additional sum of $21,682 which was secured by a second mortgage on the family residence. The District Court found the outstanding second mortgage obligation to be $15,654.38. The District Court valued Miller Monogramming at $22,800 based on the testimony of Thomas Wynne, C.P.A., who evaluated the tax returns and business schedules for 1983 through August 1988. The court awarded the business to the wife and ordered her to assume the second mortgage debt of $15,654.38. The court also ordered the family home to be sold with the proceeds to be divided equally after payment of the first mortgage, which was $6,928.11 at the time of trial. The District Court did not value the family residence, but found that two appraisals were offered a% trial, one of $118,442 and one of $90,000. The court ordered that the residence be appraised by a mutually agreeable appraiser and that the parties accept any offer to purchase within ten percent of the appraised value. The court ordered the second mortgage to be paid by the wife no later than the time of sale of Miller Monogramming or at the time of sale of the residence, whichever occurred first. Husband was awarded his $34,401 of retirement benefits, and the parties' personal property was divided in accordance with a list prepared by the husband. The District Court concluded that wife lacks sufficient property to provide for her reasonable needs and is unable to totally support herself through appropriate employment in the immediate future. The court ordered the husband to continue paying temporary maintenance of $400 per month directly to wife. In addition, the court required husband to pay the first mortgage payments of $415 until the residence was sold, at which time a hearing regarding further maintenance would be held. It is not clear from the court's order whether maintenance payments of $400 per month shall continue after sale of the house. On appeal, wife challenges the court's valuation and distribution of the marital property. In particular, she challenges the valuation of the parties' business, Miller Monogramming, and the court's decision to award her the business in light of the court's duty to equitably apportion the marital property. She also argues that the District Court Judge should have recused himself because of editorial comments made during the divorce proceedings which she con- tends may have affected his impartiality. I. Whether the District Court erred in its valuation and distribution of the marital property? The District Court awarded property valued at $49,443.50, or 52% of the marital estate to the husband, and property valued at $45,041, or 488 of the marital. estate to the wife. Wife contends that while this property division is approximately equal on its face, it is in no way an equitable apportionment of the marital property if the evidence pre- sented is reconsidered by this Court. The District Court has broad discretion in dividing the marital estate. In re Marriage of Luisi (Mont. 1988), 756 P.2d 456, 459, 45 St.Rep. 1023, 1025. In doing so, it is the duty of the District Court to equitably apportion the proper- ty under S40-4-202, MCA. In reviewing the lower court's division of property, this Court will look to see if the judgment is based upon substantial credible evidence, and if so, this Court will not disturb the judgment unless a clear abuse of discretion is shown. In re Marriage of Stewart (Mont. 1988), 757 P.2d 765, 767, 45 St.Rep. 850, 852. In this case, wife contends that the District Court's findings of fact and conclusions of law are not consistent with the evidence presented, thereby constituting an abuse of the lower court's discretion. Wife is particularly critical of the valuation of Miller Monogramming and of the earning capacity of that business as well as the distribution of the business to her. The District Court found that, "Wife has the ability to earn in excess of $1,000 per month from Miller Monogramming." This finding is apparently based on other findings relating to gross income and gross profits which are as follows: 26. The gross income of Miller Monogramming in 1985 was approximately $16,240.00, or an average of $1,353.33 per month. 27. The cost of goods sold from Miller Monogramming in 1985 was $3,175.00. 28. The gross profit (i.e., gross income less cost of goods sold) of Miller Monogramming in 1985 was the sum of $13,064.71 or an average of $1,088.72 per month. 29. The gross income of Miller Monogramming in 1986 was approximately $14,486.00, or an average of $1,207.00 per month. 30. The cost of goods sold from Miller Monogramming in 1986 was $2,007.16. 31. The gross profit (i.e., gross income less cost of goods sold) of Miller Monogramming in 1986 was the sum of $12,478.84, or an average of $1,039.90 per month. 32. The gross income of Miller Monogramming in 1987 was approximately $11,578.00. 33. The cost of goods sold from Miller Monogramming in 1987 was $1,689.00. 34. The gross profit (i.e., gross income less cost of goods sold) of Miller Monogramming in 1987 was the sum of $9,889.00, or $824.08 per month. Despite these extensive findings on gross income and gross profit, the court made no findings which reflect the net earnings of that business for the years in question. The same tax returns which the lower court used to determine gross income also reflect the net income of the business, however, no explanation is given for the absence of these figures in the court's decree. We have reviewed the tax returns received in evidence which set forth the following net earnings figures for the years 1983 to 1987: The findings and conclusions do not address the contradiction between the net earnings as disclosed by the tax returns and the specific findings on gross income as contained in the court's order. As a result, we conclude that there is no substantial credible evidence to support the findings of the District Court that the wife has the ability to earn in excess of $1,000 per month from Miller Monogramming. At trial, wife requested that Miller Monogramming be sold and the proceeds, if any, be divided equally between the parties. She expressed her lack of interest in operating the business and her intent to pursue a degree in education. Instead, the District Court gave the business and the corres- ponding debt to the wife, which she now contends she neither wants nor can afford. The lower court did not state why it chose to award the business to the wife as opposed to honor- ing her request to have the business sold. The value of Miller Monogramming adopted by the lower court was the value offered by husband's expert, who examined the parties' tax returns for the years 1983 through August 1988. The expert admitted that his appraisal did not reflect the fair market value for selling purposes, nor did he consider the business' goodwill or equipment, or the impact of similar businesses in the area upon the marketability of Miller Monogramming. In contrast, the testimony of the real estate broker testifying for the wife showed that it would be very difficult to sell Miller Monogramming because of the local competition in the area. As a result, we are unable to find substantial evi- dence to support the valuation of the business itself. In addition, the findings and conclusions of the Dis- trict Court do not address the request on the part of the wife to have the business sold and to allow her to continue to pursue her college education. It appears that the award of retirement benefits having a value of $34,000 to the husband was basically offset against the award of the busi- ness to the wife. We conclude that the record does not contain substantial evidence to support the evaluation of the Miller Monogramming business itself and its distribution to the wife. We therefore conclude that the valuation and distribution of the marital property should be set aside and returned to the District Court for redetermination. Because the matter is being returned to the District Court for redetermination, we also direct the court to con- sider the question of maintenance of the wife. Is it appropriate that a different Judge of the District Court consider this case on remand? Wife contends that the District Court Judge should have disqualified himself prior to the October, 1988 hearing on the merits due to a series of publications which appeared in the Kalispell Daily Interlake in October of 1987. Wife did not formally move to disqualify the Judge as set forth in S3-1-805, MCA. However, she did express her concern as to the Judge's possible prejudice at the October, 1988 hearing in a Motion for Rehearing dated November 11, 1988. Included in her Motion for Rehearing was an affidavit which established that on October 1, 1987, a news article appeared in the Kalispell Daily Interlake which was critical of the District Judge who tried this cause. The article contained a reference to the wife's pending divorce case in its news analysis of the Judge which stated in part: A couple files for divorce. A hearing on temporary support is held in May. No ruling is forthcoming. The husband, who makes $43,000 a year, voluntarily gives the wife $200 a month. The wife takes in sewing to make ends meet. A local attorney offers this example to back up his complaint that the 11th District Court - and in particular, the department presided over by Judge Michael Keedy - takes too long to resolve cases. In response to this article, the District Court Judge wrote a letter to the editor which appeared in the October 7, 1987 edition of the newpaper, which stated in part: . . . on the very day the hearing was conducted four months ago I ordered the husband to pay his estranged wife $615 per month pending further notice from the court. (She had been a self-em- ployed seamstress for more than a year before the hearing). On October 11, 1987, the wife's own letter to the editor appeared in the newspaper, which stated in part: I am the wife that is mentioned in both the article and letter. . . . My husband and I have been married for over 28 years. He left in October 1986 and filed for divorce a week later. He have (sic) four grown children and three grandchildren. In May my lawyer finally got a "show cause" hearing for more financial support. He was satisfied that Judge Keedy would be handling the case and assured me that he was a fair and just person and we would have a ruling shortly. A ruling was never made though! The $615 mentioned in the article was already being paid when we went to court. The $200 was to me for maintenance and the $415 was for the payment on the house that my husband and I own jointly. . . . I do not envy a judge having to make a deci- sion in a divorce case. But courts are suppose (sic) to show mercy. If I had committed a felony, my case would have already gone to trial, a deci- sion made and my fate decided. But my only crime was agreeing to a divorce. Now I wait. In her Motion for Rehearing, wife alleged that she was denied a fair hearing of her case due to the publications and that the Judge's prejudice was reflected by the manner in which the hearing was conducted and also in the Judge's final order. No ruling was issued on wife's motion within 45 days, so it was deemed denied pursuant to Rule 59 ( g ) , M.R.Civ.P. We do not find it necessary for this Court to make a ruling on the issue of disqualification raised by the wife. We do note that a judge's official conduct is to be free from even the appearance of impropriety and that his personal behavior should be beyond reproach as set forth in Canon IV, Canons of Judicial Ethics. In order to eliminate any ques- tion of impropriety or impartiality, we direct that on re- mand, this proceeding shall be assigned for consideration and redetermination by a District Judge other than the one who previously made the determination. Reversed and remanded. | August 25, 1989 |
45777d73-a710-4c05-bbad-faa135dd4073 | FELSKA v GOULDING | N/A | 88-548 | Montana | Montana Supreme Court | No. 88-548 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 DANIEL J. FELSKA and ADOLPH L. SOLVIE, Plaintiffs, WORLD REALTY LTD., KADON MANAGEMENT CO., LTD, YORK VENTURES, LTD., HELUND FOREST CONSULTANTS, RONALD EDWARD LITTLE, DONALD JOHN HENRY WILLIAMSON, et al., Plaintiffs/Intervenors and Appellants, -vs- BRIAN GEORGE GOULDING, and all other persons, unknown, claiming or who might claim any right, title, estate or interest in or lein or encumbrance upon the real property described in the complaint, adverse to the plaintiffs title thereto, whether such claim or possible claim be present or contingent, Defendants and Respondents. APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Joseph Gary, Judge presiding. COUNSEL OF RECORD: For Appellant: Ben Berg, Jr. argued; Berg, Stokes, Tollefsen & Hayes, Bozeman, Montana For Respondent : J. Robert Planalp argued; Landoe, Brown, Planalp & Kornmers, Bozeman, Montana Rodney Schwasinger argued, Bozeman, Montana Filed: Submitted: May 9, 1989 Decided: July 19, 1989 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This case comes on appeal from the Eighteenth Judicial District, Gallatin County, the Honorable Joseph B. Gary presiding. The District Court quieted title in the plaintiffs, purchasers of certain real property in Bozeman, Montana. Previously, the property had been held by a group of investors (hereinafter referred to as the co-owners) from British Columbia, Canada, each of whom held their respective interests as tenants in common. In addition to the quiet title determination, the District Court awarded defendant Goulding a portion of the sale proceeds in proportion to his initial capital investment. We affirm in part, reverse in part and remand for further proceedings. In December, 1977, Brian George Goulding and other co-owners acquired the real property, personal property, fixtures, furniture, liquor license and other business assets of the Inn of Bozeman (Inn). The parties entered into an agreement for the purpose of setting forth the rights and obligations with respect to their interest in the Inn. Specific provisions of the agreement will be discussed later in this opinion. In December, 1983, citing financial difficulties, the co-owners decided to list the property for sale. Throughout the following year, meetings were held during which the co-owners discussed prospective sales and financial problems of the Inn. Goulding or his attorney, Michael Karton, attended most of these meetings. Between December, 1984, and March 9, 1985, Goulding lived in the Philippines with his family. Goulding did not leave a forwarding address with the other co-owners, nor his instructions with his attorney regarding a potential sale the Inn. On January 3, 1985, fourteen of the sixteen co-owners entered into an agreement with plaintiffs for the sale of the Inn. The co-owners attempted to contact Goulding through his attorney and sent by registered mail letters informing him of the majority decision to sell the property. In accordance with the terms of the co-owners' 1977 agreement, Goulding was informed that his consent would be "deemed" given if written objection to the sale was not received within ten days. (Thereafter, the co-owners petitioned the Supreme Court of British Columbia for an order authorizing appellant Williamson to sign on Goulding's behalf. However, all parties agree the order is void for lack of jurisdiction.) On March 20, 1985, after returning from the Philippines, Goulding visited his attorney and was given a copy of the sale agreement and the registered letter. Goulding did not respond to the letter. However, on April 3, 1985, Goulding attended a meeting of the co-owners. At that meeting the sale documents were signed by all co-owners except Goulding, who abstained. Two days later, Goulding sent a letter to the co-owners setting forth his objections to the sale. Plaintiffs initiated a quiet title action against Goulding, alleging Goulding's claimed ownership interest in the Inn created a cloud on their title. Goulding counterclaimed, stating the co-owners had no authority to transfer his ownership interest in the Inn. Goulding additionally claimed plaintiffs had recorded the deed intentionally and with knowledge of his interest in the property, and thereby depreciated his interest. Later, the other co-owners of the Inn filed a complaint in intervention. On December 3, 1987, the Honorable Joseph B. Gary entered judgment in favor of the plaintiffs. The District Court found the agreement between the co-owners required majority vote for the complete sale of the property. Alternatively, the court ruled Goulding impliedly consented to the sale because he failed to give written objection. Finally, in original Conclusion of Law No. 8, the court ordered that upon delivery of the deed to plaintiffs, all monies in deposit due and owing to Goulding shall be delivered by the escrow agent to Goulding. By order of March 8, 1988, the District Court amended its Findings to include the following: Finding No. 13. During the negotiations for the sale of the principle assets it was necessary that additional capital be infused in the corporation for operating expenses. A Motion was passed at the meeting of December 8, 1983, at which the Defendant Goulding was not present, that any advance of capital would be considered as a loan at the interest rate of twenty-five percent (25%) or at U.S. prime rate plus six/nine percent (6/9%) and that a legal opinion was to be obtained as to whether this was enforceable. No legal opinion was ever obtained and the net effect of this Motion as shown by the evidence would be to completely wipe out the equity of all of the original investors in the business and all monies remaining on hand would be paid to those persons advancing funds. That the effect of wiping out all original investors was done without notice to the members of the partnership that this would be the result taken at the meeting and would amount to an inequitable result and contrary to due process of law. 1 4 . That any investments made a f t e r t h e December 14, [ s i c ] 1983 meeting by t h e members o f t h e p a r t n e r s h i p should be t r e a t e d a s c a p i t a l investments and added t o each p a r t n e r ' s o r i g i n a l c a p i t a l account s o t h a t t h e monies remaining i n escrow a t t h i s t i m e be p a i d o u t pro r a t e d s h a r e on a l l c a p i t a l accounts. Conclusion o f Law No. 8 was amended t o conform t o t h e new f i n d i n g s and r e a d s a s follows: That upon t h e d e l i v e r y o f t h e Deed t o Felska and S o l v i e by e i t h e r Goulding o r a r e f e r e e appointed by t h e Court t o execute a deed, t h a t a l l monies i n d e p o s i t a t S e c u r i t y T i t l e Insurance Company s h a l l be d i s t r i b u t e d t o t h e members o f t h e p a r t n e r s h i p i n proportion o f t h e i r o r i g i n a l investments p l u s any i n f u s i o n of c a p i t a l following t h e December 1 4 , [ s i c ] 1983 meeting. Said payments following t h a t meeting c o n s t i t u t e a c a p i t a l investment and n o t a loan. On A p r i l 13, 1988, co-owners moved f o r r e l i e f under Rule 6 0 ( b ) ( 2 ) , M.R.Civ.P., from t h e March 8, 1988 o r d e r , seeking t o admit a l e g a l opinion w r i t t e n December 9, 1983, which d i s c u s s e d t h e l e g a l i t y o f t h e 25% i n t e r e s t on loans. On A p r i l 18, 1988, t h e D i s t r i c t Court denied t h e motion without opinion. On June 28, 1988, t h e District Court e n t e r e d judgment and decreed t h e p l a i n t i f f s f e e owners o f t h e r e a l property. F u r t h e r , t h e c o u r t ordered t h a t a l l monies held i n escrow be d i s t r i b u t e d t o t h e p a r t n e r s i n p r o p o r t i o n t o t h e i r o r i g i n a l investments p l u s any i n f u s i o n of c a p i t a l . Upon Goulding's motion t o amend f o r a d e f i n i t e amount due him, t h e D i s t r i c t Court, on August 8 , 1988, ordered t h a t he should r e c e i v e 10.26% o f a l l n e t proceeds of d i s p o s i t i o n o r $25,163.70, t o g e t h e r w i t h i n t e r e s t from t h e d a t e o f s a l e , p l u s 10.26% of a l l o t h e r a s s e t s which a r o s e o u t o f t h e o p e r a t i o n and s a l e o f t h e Inn. The following i s s u e s a r e r a i s e d on appeal: 1. Did t h e District Court e r r when it q u i e t e d t i t l e i n t h e p l a i n t i f f s ? 2. Did t h e p l a i n t i f f s and co-owners s l a n d e r Goulding's t i t l e ? 3. Did t h e D i s t r i c t Court err when it adopted Findings Nos. 1 3 and 1 4 and Conclusion o f Law No. 8 , i n which it determined t h e advances made a f t e r December, 1983 were c a p i t a l investments r a t h e r than l o a n s and wherein it awarded a money judgment? 4 . Did t h e D i s t r i c t Court err when it denied t h e co-owners' Rule 6 0 ( b ) ( 2 ) , M.R.Civ.P., motion? Our scope o f review i s such t h a t w e may c o n s i d e r t h e c o n t r a c t language independently. SAS P a r t n e r s h i p v. Schafer (1982), 200 Mont. 478, 653 P.2d 834. Generally, c o n t r a c t a m b i g u i t i e s a r e q u e s t i o n s o f f a c t . S - W Co. v. Schwenk (1977), 176 Mont. 546, 568 P.2d 145. However, t h e determination of whether o r n o t an ambiguity e x i s t s i s one of law, f r e e l y reviewable by t h i s Court. SAS P a r t n e r s h i p ; Martin v. United - S t a t e s ( 9 t h C i r . 1981), 649 F.2d 701; United S t a t e s F i d e l i t y and Guaranty Co. v. Newman ( 9 t h C i r . 1981), 656 F.2d 457. The e n t i r e c a s e focuses upon t h e 1977 agreement e n t e r e d i n t o between t h e 16 co-owners. Therefore, a review o f t h e s i g n i f i c a n t c o n t r a c t p r o v i s i o n s i s i n o r d e r : 15. . . . Voting s h a l l be by hand, w i t h each Co-owner having one v o t e , u n l e s s otherwise demanded by any Co-owner, i n which c a s e v o t i n g s h a l l be according t o t h e e q u i t i e s o f t h e Co-Owners i n t h e Inn. A l l d e c i s i o n s s h a l l be bv m a i o r i t v v o t e RESTRICTIONS OF TRANSFER: 1 6 . No Co-owner s h a l l a s s i g n , o r otherwise d i s p o s e o f , a l l o r any p a r t of h i s i n t e r e s t i n t h e Inn u n l e s s such Co-owner : A. h a s obtained t h e p r i o r w r i t t e n consent o f t h e o t h e r Co-Owners; o r B. has f i r s t o f f e r e d h i s i n t e r e s t i n t h e Inn t o t h e o t h e r Co-Owners 1 7 . No Co-owner s h a l l mortgage, pledge, charge o r otherwise encumber a l l o r any p a r t o f h i s i n t e r e s t o r restrict t h e t r a n s f e r a b i l i t y of h i s co-ownership i n t e r e s t u n l e s s : A. such Co-owner has obtained t h e p r i o r w r i t t e n consent o f t h e o t h e r Co-Owners; and B. t h e holder o f such mortgage, pledge, charge encumbrance o r o t h e r r e s t r i c t i o n a g r e e s t o be bound t o and w i t h t h e o t h e r Co-Owners and t o g r a n t t o t h e o t h e r Co-Owners t h e r i g h t s of f i r s t r e f u s a l and o p t i o n s t o purchase hereby g r a n t e d amongst and between t h e Co-Owners, pursuant t o t h e terms o f t h i s Agreement. BORROWING PROVISIONS: 21. The Co-Owners s h a l l borrow from t i m e t o t i m e a l l t h e sums of money r e q u i r e d i n connection w i t h t h e c a r r y i n g on of t h e Inn, upon t h e s e c u r i t y o f t h e a s s e t s of t h e Inn t o t h e e x t e n t p o s s i b l e . The approval o f a l l Co-Owners s h a l l be acquired when e s t a b l i s h i n g l i n e s of c r e d i t o r financing w i t h any banks o r o t h e r f i n a n c i a l i n s t i t u t i o n s o r p r i v a t e l e n d e r s . L O A N S BY CO-OWNERS: 22. If at any time a Co-owner shall properly determine that, in order to protect or preserve any of the properties or other assets of the Inn, additional funds are required to meet the current cash requirements of the Inn and the same are not available from sources already available to the Co-Owners, then any such Co-owner may, but shall not be obligated to, advance such funds to the Inn or pay such funds to third parties for the benefit of the Inn. . . Any such advances or payments shall during their existence bear interest at a rate determined by the Manager. DISTRIBUTION OF DISTRIBUTABLE FUNDS: 28. . . . Distributable funds shall be distributed as follows: A. Firstly, in repayment of the principal and accrued interest under each temporary loan, if any, to the Inn pursuant to Paragraph 22 hereof which remains unpaid, with all amounts being applied firstly to accrued interest and the balance to principal, and, if more than one such loan remains unpaid, then on a pro rata basis; B. Secondly, the balance if any shall be distributed to the Co-Owners in accordance with their respective interests. 29. In the event that the Co-Owners agree to sell all or any portion of the --- - - interest or properties of the Inn, then - - - in such event, the net proceeds of such sale (except for the amounts thereof required to be paid to any liabilities) shall be deemed to be distributable funds and shall be distributed in accordance with the provisions of the aforesaid. (Emphasis added.) . . . IMPLIED CONSENT: 37. I n any i n s t a n c e under t h i s Agreement i n which t h e consent o r approval o f a CoOwner [ s i c ] t o any proposed a c t i o n a l r e a d y approved by a m a j o r i t y o f t h e Co-Owners is r e q u i r e d , such consent o r approval s h a l l be deemed t o have been given u n l e s s w r i t t e n o b j e c t i o n t o such proposed a c t i o n , s e t t i n g o u t t h e grounds f o r such o b j e c t i o n , i s s e n t by such o b j e c t i n g Co-owner t o t h e General Manager w i t h i n t e n (10) days a f t e r r e c e i p t o f a w r i t t e n r e q u e s t f o r such consent o r approval. An ambiguity e x i s t s when a c o n t r a c t i s s u b j e c t t o two i n t e r p r e t a t i o n s . I n such an i n s t a n c e , par01 testimony may be used t o a s c e r t a i n t h e p a r t i e s ' i n t e n t . S - W Co., 568 P. 2d a t 147. However, i n t e n t o f t h e p a r t i e s i s only looked t o when t h e agreement i n i s s u e i s n o t c l e a r on i t s f a c e . . . Where t h e c o n t r a c t u a l language i s c l e a r and unambiguous on i t s f a c e , it i s t h i s C o u r t ' s d u t y t o e n f o r c e t h e c o n t r a c t a s d r a f t e d and executed by t h e p a r t i e s . ( C i t a t i o n s Omitted. ) Monte V i s t a C o . v. Anaconda Co. (Mont. 1988), 755 P.2d 1358, 1362, 45 St.Rep. 809, 814; c i t i n g G l a c i e r Campground v. Wild Rivers, I n c . (1978), 182 Mont. 389, 597 P.2d 689. I t is fundamental when reviewing c o n t r a c t u a l d i s p u t e s t h a t w e a r e r e q u i r e d t o r e a d t h e e n t i r e c o n t r a c t t o g e t h e r and g i v e e f f e c t t o every p a r t , i f reasonably p r a c t i c a b l e . S e c t i o n 28-3-202, MCA. The 1977 agreement i s s i l e n t concerning t h e s p e c i f i c v o t e r e q u i r e d f o r t h e f u l l s a l e o f t h e property. However, t h e agreement mandates unanimous co-owner consent f o r one owner's s a l e o r encumbrance of h i s i n d i v i d u a l i n t e r e s t and, in connection with the regular business activities, the establishment of lines of credit and financing with banks or financial institutions. Goulding argues that because unanimous consent is required of these activities, unanimous consent must also be required for the sale of the business. In support of his position, Goulding points to comments made during meetings that "the sale agreement requires the signatures of Messrs. Otto and Goulding, both of whom are unwilling to sign" and statements regarding the co-owners' need for "powers of attorney executed by all partners to sell the motel." Further, Goulding contends the void British Columbia court order indicates that the co-owners believed unanimous consent was necessary to effect a full sale of the business. The District Court found the contract language clear and unambiguous and therefore rejected Goulding's attempt to introduce extrinsic evidence. We agree. While the contract does not specifically address the vote required to effect a full sale, the absence of that specific language does not render the contract ambiguous. First, the provisions requiring unanimous consent address specific circumstances, unrelated to the sale in issue. Because the unanimous consent provisions are definite, we refuse to stretch their applicability. Additionally, the parties contemplated the full sale of the business, as evidenced by Paragraph 29, which discusses the distribution of proceeds in the event of a sale. More importantly, however, the agreement states that all decisions are to be determined by majority vote, unless otherwise specified. We interpret this provision to limit the instances which require unanimous consent, because it indicates the co-owners' intent to maintain majority vote for all other decisions. When a contract is clear and unambiguous, this Court must enforce the agreement as written by the parties. We conclude that Paragraph 15, which allows for majority vote, governs the sale of the property. The District Court concluded that Goulding's letter of April 5, 1985, did not specifically object to the sale, as required under Paragraph 38 of the agreement. Rather, Goulding expressed concern over management problems, the repayment of loans to various co-owners, amounts held in escrow, and legal questions of warranties. Because we uphold the sale on other grounds, we need not address the matter. However, we state simply that it is clear to this Court that Goulding did not act promptly to protect his interest in the Inn. Next, Goulding contends that because the co-owners maintained their interests as tenants-in-common, a majority vote of the co-owners is ineffective to divest him of his property. However, Paragraph 38 of the agreement provides: The Co-Owners shall and will sign such further and other papers and documents, shall cause such meetings to be held and do and cause to be done and perform such further and other acts or things that may be necessary or desirable from time to time in order to give full effect to this Agreement and each and every part hereof. Further, Paragraph 42 states: Any decision of the Co-Owners made in the manner herein before described shall be fully and faithfully carried out by all Co-Owners as if all Co-Owners had - - - - unanimously consented to such decision, and all Co-Owners shall execute such documents and things as may be necessary or advisable for the full carrying out of the true intent of such decision. (Emphasis added.) The agreement is sufficient to control the rights of the various co-owners. Hence, by signing the agreement, Goulding expressly agreed to abide by all decisions rendered by the majority. We conclude Goulding is required to comply with the will of the majority. In light of the above, Goulding's slander of title counterclaim against the plaintiffs must necessarily fail. In First Security Bank v. Tholkes (1976), 169 Mont. 422, 427, 547 P.2d 1328, 1331, we defined slander of title as "[olne who maliciously publishes false matter which brings in question or disparages the title to property, thereby causing special damage to the owner . . . " See, 50 Am.Jur.2dI Libel and Slander, S 541. Since we upheld the sale and rejected Goulding's claimed interest in the property, plaintiffs' actions were not slanderous. Next, we consider the apportionment of funds addressed in the District Court's amended order of March 8, 1988. Based on plaintiffs' Exhibit 2, a summary of investments and advanced funds at 10% and 12% interest rates, the District Court found that "[tlhe net effect of allowing interest on the advancements after the December 8, 1983 payments, . . . is to completely wipe out all the original investors and giving all of the remaining assets to those persons that advanced monies." The court concluded the equitable manner of disbursing the funds would be to add the contributions to the original capital investment of the respective co-owners and distribute the funds on a pro rata basis. The standard of review for a case in equity is that the judgment of the trial court is presumed correct, and all legitimate inferences will be drawn to support this presumption. This Court's inquiry into the evidence is limited to whether the findings of the trial court are clearly erroneous. Rule 52, M.R.Civ.P.; and Citizens State Bank v. Bossard (Mont. 1987), 733 P.2d 1296, 44 St.Rep. 468. With this standard in mind, we review the evidence, dividing our discussion into post- and pre- December, 1983 advancements. The co-owners contend the evidence indicates an intent to treat the advancements as loans with an accrued interest, not as capital investments. We agree in part. The evidence supports a loan designation for the post-December, 1983, advancements. First, in his letter of April 5, 1985, Goulding acknowledged the monies advanced were loans. The record indicates Goulding objected to an interest rate of 59%, but stated that a "usual bank rate is reasonable." Second, Paragraph 22 of the agreement provides for loans, at a rate of interest determined by the manager, by the various co-owners of the Inn, if necessary to protect or preserve the assets. Paragraphs 28 and 29 provide for distribution of sale proceeds first to the repayment of principal and accrued interest, and thereafter the balance to the co-owners according to respective shares. Third, minutes of the co-owners ' meetings indicate complete discussions took place regarding the poor financial condition of the Inn. During these meetings, management requested additional funds for the Inn which included an interest rate commensurate with the risk and a repayment preference upon distribution of the sale proceeds. However, it is not clear what rate of interest the parties contemplated: (25%; 6%/9% over U.S. prime; or the "highest legal rate") . Nor is it clear what reasonable rate could be applied. We leave these specific questions to the District Court upon remand. The District Court's findings related solely to advancements made after December, 1983. However, plaintiff's Exhibit 2 indicates that the co-owners contributed funds in January 1982 and 1983. I n a d d i t i o n , t h e co-owners expressed a d e s i r e t o r e t r o a c t i v e l y d e s i g n a t e t h e s e monies a s l o a n s , a s evidenced by t h e minutes o f t h e i r December 8 , 1983, meeting: MOTION: A l l funds c o n t r i b u t e d a f t e r t h e i n i t i a l investment accrue i n t e r e s t a t U . S . Prime r a t e p l u s 6%/9% and t h a t t h i s i n t e r e s t should be paid o u t monthly. A l l monies advanced s i n c e t h a t t i m e should be secured, i f p o s s i b l e , and be t r e a t e d a s loans from p a r t n e r s . I n t e r e s t accrued on funds c o n t r i b u t e d b e f o r e December 31, 1983, be t r e a t e d a s a p o r t i o n of t h e p a r t n e r s [ ' ] loans. (Emphasis added. Neither p a r t y presented argument regarding t h e s e funds. The D i s t r i c t Court must make s p e c i f i c f i n d i n g s regarding t h e pre-December, 1983, advancements by determining t h e l e g a l i t y o f t h e r e t r o a c t i v e d e s i g n a t i o n o f t h e s e funds a s loans. W e conclude t h e co-owners' f i n a l i s s u e regarding t h e District C o u r t ' s d e n i a l o f t h e Rule 6 0 ( b ) ( 2 ) motion, i s moot. Upon remand, t h e D i s t r i c t Court may g i v e t h e evidence whatever weight it deems a p p r o p r i a t e . Affirmed i n p a r t , reversed i n p a r t and remanded f o r proceedings c o n s i s t e n t w i t h t h i s opinion. Ch-ef J u s t i c e 7 n Justices Mr. Justice John C. Sheehy, dissenting: I dissent and would affirm the District Court in total. This case is an example of the minor investors ganging up on one of the two largest investors by passing resolutions in his absence which in effect take away his investment and leave nothing of the net proceeds in which the larger investor will participate. Judge Gary saw through this obvious raid o r , the net proceeds and refused to agree. I would affirm judge Gary. Justice Mr. ~ u s t i c e William E. Hunt, Sr., dissenting: I concur i r , the foregoing dissent of Justice Sheehy. / ' Justice | July 18, 1989 |
bf1d3bcd-5b2f-4a97-ac34-be0cbe00eb21 | STATE v LORASH | N/A | 88-585 | Montana | Montana Supreme Court | NO. 88-585 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Respondent, -vs- ROBERT LORASH, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable G. Todd Baugh, Judge presiding. COUNSEL OF RECORD: For Appellant: Allen Beck, Billings, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Paul Johnson, Asst. Atty. General, Helena Harold Hanser, County Attorney, Billings, Montana Brent Brooks, Deputy County Attorney, Billings Filed: Submitted on Briefs: May 18, 1989 Mr. Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the District Court of the Thirteenth Judicial District, Yellowstone County, State of Montana, the Honorable G. Todd Baugh presiding. The appellant appeals the imposition of his two-year suspended prison sentence for criminal mischief. We affirm. In June of 1987, the appellant, Robert C. Lorash, (Lorash) and his companion, Dennis S. Hegg, were driving a pickup truck which was towing a large trailer filled with trees and debris. At the intersection of 24th Street West and Broadwater Avenue in Billings, Montana, they became involved in altercation with Mark Richardson. Lorash and Hegg followed Richardson to a Billings residence where Richardson exited his car and went inside. Lorash and Hegg then got out of the pickup and proceeded to hit and kick Richardson's car causing over $1,800 in damage. Several months later, on September 4, 1987, the State filed its affidavit and motion for leave to file information with the District Court, basing felony jurisdiction on the provisions of § 45-6-101, MCA, which provides: (1) A person commits the offense of criminal mischief if he knowingly or purposely: (a) injures, damages, or destroys any property of another or public property without consent; (3) . . . If the offender commits the offense of criminal mischief and causes pecuniary loss in excess of $300, . . . he shall be fined an amount not to exceed $50,000 or be imprisoned in the state prison for any term not to exceed 10 years, or both. On July 25, 1988, Lorash plead guilty to the charge. A presentence investigation report was then prepared which noted that on October 10, 1973, Lorash had been convicted of possession of marijuana, and given a three-year deferred sentence. The presentence investigation report recommended: Due to the fact the subject has a previous felony and sentencing was deferred, the sentence must be suspended under MCA 46-18-201 (6) . After receiving Lorash's guilty plea to the criminal mischief charge, the District Court sentenced the appellant to two years in the Montana State Prison, but suspended the sentence and placed him on probation for two years. At sentencing, the court noted that the reason the appellant did not receive a deferred sentence as did his co-actor, Hegg, was because of the language in S 46-18-201(6), MCA, which provides in part: [Ilmposition of sentence in a felony case may not be deferred in the case of a defendant who has been convicted of a felony on a prior occasion whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended. The issue on appeal is whether § 46-18-201(6), MCA, is violative of Article 11, section 17 of the Montana Constitution, which provides that no person shall be deprived of life, liberty or property without due process of law. At the time of sentencing, Lorash, through counsel, argued that he should receive a deferred imposition of sentence despite his prior felony conviction and the limitation on deferred sentences imposed by S 46-18-201(6), MCA. The court responded that the legislature, in passing S 46-18-201(6), MCA, had limited its sentencing options since that statute requires there shall be no deferred sentence once a previous deferred sentence has been imposed. We note that Lorash, through counsel, agreed at his sentencing hearing that he had received a deferred sentence in 1973 and that he did not attempt to have the 1973 conviction dismissed, or expunged, pursuant to S 46-18-204, MCA . This Court has held that the proper standard of review by this Court is: [TI he constitutionality of a legislative enactment is prima facie presumed, and every intendment in its favor will be made unless its unconstitutionality appears beyond a reasonable doubt. T & W Chevrolet v. Darvial (1982), 196 Mont. 287, 292, 641 P.2d 1368, 1370. We have also held that the burden of demonstrating an alleged constitutional infirmity in a legislative enactment rests upon the party raising the challenge. Matter of Kujath's Estate (1976), 169 Mont. 128, 130, 545 P.2d 662, 663; State v. Henrich (1973), 162 Mont. 114, 121, 509 P.2d 288, 292. Deferral of a sentence is a significant option given to the sentencing judge. It offers the possibility that an offender may later obtain a dismissal of the charges that have been filed against him. At the time the information was filed in this case, September 4, 1987, Lorash was informed that if he had served that sentence with good behavior the charges could be dismissed. Section 46-18-204, MCA (1985), states: Whenever the court has deferred the imposition of sentence and after termination of the time period during which imposition of sentence has been deferred, upon motion of the court, the defendant, or the defendant's attorney, the court may allow the defendant to withdraw his plea of guilty or may strike the verdict of guilty from the record and order that the charge or charges against him be dismissed. Shortly after Lorash's sentencing, an amendment was made to 5 46-18-204, MCA, which became law on October 1, Upon dismissal of the charges, the court shall send an order directing the department of justice to expunge the defendant s record. The order must adequately identify the defendant, such as by sex, race, date of birth, and the current status of the charges to be expunged. This amendment was repealed on April 6, 1989, and replaced by the following language: A copy of the order of dismissal must be sent to the prosecutor and the department of justice, accompanied by a form prepared by the department of justice and containing identifying information about the defendant. After the charge is dismissed all records and data relating to the charge are confidential criminal justice information as defined in 44-5-103 and public access to the information can only be obtained by district court order upon good cause shown. It should be noted that under 1989 Mont. Laws, chapter 463, all information concerning a charge that has been dismissed under the first sentence of 5 46-18-204, MCA, becomes confidential criminal justice information (5 44-5-103(3), MCA), and dissemination is thereby limited to criminal justice agencies. Section 44-5-303, MCA. The definition of criminal justice agency includes "any court with criminal jurisdiction, " S 44-5-103 (7) (a) , MCA. Courts with criminal jurisdiction are therefore entitled to receive and consider information concerning prior charges which are dismissed under § 46-18-204, MCA. Here Lorash's argument attacking the constitutionality of § 46-18-201(6), MCA, is moot because the 1987 amendment to § 46-18-204, MCA, was stricken and became ineffective on April 6, 1989, by approval of Chapter 463, Mont. Laws. (1989). We find that Lorash has not sustained his heavy burden of demonstrating that $j 46-18-201 (6) , MCA , is unconstitutional beyond a reasonable doubt, and for that reason, and all the reasons stated above, we uphold the constitutionality of § 46-18-201(6), MCA. The decision of the District Court is affirmed. | August 7, 1989 |
5ef569b0-0d2e-4a06-9833-e3c9359a3fe6 | STATE v BROWN | N/A | 88-595 | Montana | Montana Supreme Court | No. 88-595 IN THE SUPREME COURT OF THE STATE OF MONTANA 3= - 0 CO STATE OF MONTANA, z w m 0 z w - Plaintiff and Respondent, E; v, - - I -vs- '05 2 ; C -4 -0 L T . rn WARREN DEAN BROWN, - 0 mc-l 3 r r Defendant and Appellant. pl PI C--' ; o a g'" P C QD P -4 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: Randi Hood, Public Defender, Helena, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana George Schunk, Asst. Atty. General, Helena Mike McGrath, County Attorney; Carolyn A. Clemens, Deputy County Atty., Helena, Montana Submitted on Briefs: Sept. 21, 1989 Decided: October 24, 1989 e Filed: Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from a conviction of felony assault. Defendant appeals a judgment of the First Judicial District of the State of Montana, Lewis and Clark County, contending that the evidence presented to the jury is insufficient to sustain the jury's verdict finding him guilty of felony assault. We affirm the the trial court's judgment. On March 7, 1988, Kathy Brown, the wife of defendant Warren Brown, had asked the defendant to watch their two children---Amber, age 3, and Crystal, age I--- for the day. The couple had been separated for approximately one month. Kathy was scheduled to return for the children around 5:00 p.m. but did not return until approximately 6:30 p.m. Shortly after her arrival, the couple began arguing. The testimony conflicts as to the nature of this argument. Kathy testified that during the argument the defendant slapped her in the face and hit her in the nose with his fist causing her nose to bleed. Kathy then testified that the defendant forced her to clean the blood from the floor and held his pocketknife to her neck while she was cleaning. He then elongated a wire coat hanger, wrapped it around her wrist, and led her around by it. According to Kathy's testimony, the defendant then took her in the bedroom, removed a .22 caliber pistol from a cardboard file and loaded it. When he next told her to dress the children to go for a ride, she hesitated going to the car, and the defendant pointed the gun at her side. Kathy testified that the family went outside the apartment and she began screaming and resisting her husband. She testified that the defendant then struck her two or three times with the gun, at least once on the forehead and then on the top of her head. She dropped Crystal, whom she was carrying at the time, and fell to the ground. The defendant got on top of her, attempting to put one hand over her mouth and choke her with the other. Kathy then testified that she managed to get free from the defendant, grab their oldest child and flee to a neighbor's apartment. As she fled she saw the defendant pick up Crystal, point the gun at her side and return to his apartment. Kathy's testimony then indicated that the neighbor, Tamrny Stoke's, assisted with Kathy's bleeding and called the police. Upon arriving, the police treated the disturbance as a hostage situation. The officers unsuccessfully attempted to contact the defendant in the apartment by pounding on the door, using a bullhorn, shining spotlights in the windows, and using a listening device to pick up sounds within the apartment. At 1:00 a.m. officers entered the apartment, finding the defendant and the child sleeping in the bedroom. The defendant was placed under arrest. When asked by officer's where the gun was he directed them to the .22 pistol located in the file cabinet. Meanwhile, Kathy Brown was taken to the emergency room of St. Peter's Hospital in Helena and examined by Dr. James Burkholder. She informed the doctor that she had been struck on the forehead and top of the head with the butt of a pistol and punched in the nose. Dr. Burkholder testified that his examination revealed a broken nose, a superficial laceration on the forehead consistent with being struck by the butt of a gun, and linear abrasions on her left wrist consistent with being drug by a coat hanger. At trial, Melissa Templin, an eight year old neighbor child testified that she heard a scream, looked out her window and saw Kathy on the ground with the defendant over her. She saw Kathy get up and flee from the defendant but d i d not s e e t h e defendant holding anything o t h e r than Crystal. J u l i e Long, a f o r e n s i c s e r o l o g i s t from t h e Montana S t a t e Crime Laboratory t e s t i f i e d t h a t t h e . 2 2 c a l i b e r p i s t o l had an amount of human blood on t h e b a r r e l . I n h i s testimony, t h e defendant acknowledged having an argument with h i s wife. He denied slapping h e r , p u t t i n g a k n i f e t o h e r t h r o a t , leading her around h i s apartment with a coathanger, arming himself with h i s p i s t o l , leaving t h e apartment with h i s family, and pistol-whipping h i s wife. Regarding Kathy's broken nose, t h e defendant t e s t i f i e d t h a t during t h e course of t h e argument he reached f o r h e r t o t r y t o g e t by h e r and due t o t h e s l i c k n e s s of t h e m a t e r i a l of her blouse, h e r nose might have s t r u c k h i s forehead. He did acknowledge t h a t she had a bloody nose, and t e s t i f i e d t h a t he a s s i s t e d her i n stopping t h e bleeding. The defendant t e s t i f i e d t h a t a f t e r t h e argument abated Kathy took Amber and l e f t t o v i s i t a neighbor. He then put C r y s t a l t o s l e e p and went t o s l e e p himself. Because of a hearing impairment he was unable t o hear and d i d not respond t o t h e p o l i c e ' e f f o r t s t o c o n t a c t him within t h e apartment. He t e s t i f i e d t h a t he w i l l i n g l y gave t h e p o l i c e t h e p i s t o l , which he was c u r r e n t l y r e f u r b i s h i n g and which lacked p a r t of t h e f i r i n g mechanism. Additionally, Arnold Garay, an acquaintance of both t h e defendant and Kathy Brown t e s t i f i e d t h a t Kathy frequently s t a r t e d arguments with t h e defendant, had once threatened t h e defendant with a k n i f e , and o f t e n t r i e d t o claw h i s face and eyes. M r . Garay a l s o t e s t i f i e d t h a t Kathy had a poor r e p u t a t i o n f o r t r u t h f u l n e s s . The s o l e i s s u e r a i s e d by t h e defendant on appeal i s whether t h e evidence a t t r i a l was s u f f i c i e n t t o s u s t a i n t h e conviction f o r felony a s s a u l t . Defendant contends t h a t t h e evidence is sufficient at most to sustain a conviction for domestic abuse. A person commits the offense of domestic abuse if he (1) purposely or knowingly causes bodily injury to a family member or household member; or (2) purposely or knowingly causes reasonable apprehension of bodily injury in a family member or household member. Section 45-5-206 (1) , MCA. The purpose to cause reasonable apprehension or the knowledge that reasonable apprehension would be caused shall be presumed in any case in which a person knowingly points a firearm at or in the direction of a family member or household member, whether or not the offender believes the firearm to be loaded. Section 45-5-206 (1) , MCA. To convict the defendant of the offense of felony assault the jury was required to find that the defendant purposely or knowingly caused (1) bodily injury to Kathy with a weapon, or (2) reasonable apprehension in Kathy of serious bodily injury by use of a weapon. Section 45-5-202(2), MCA. If, in fact, the defendant purposely or knowingly caused serious bodily injury to the victim, the offense would rise to the level of aggravated assault. Section 45-5-202(1), MCA. Thus, in cases where bodily injury is inflicted to a family or household member, the distinction between felony assault and domestic abuse is that felony assault requires use of a weapon. In cases involving reasonable apprehension of bodily injury in a family or household member, felony assault, in comparison to domestic abuse, requires two additional elements: use of a weapon and that the bodily injury apprehended is of a serious nature. Sections 45-5-206, 45-5-202, MCA. Here, the State offered proof of felony assault in that defendant caused bodily injury with a weapon by striking the victim with a handgun. The State's proof could also establish the elements of felony assault if the jury found it reasonable for Kathy to apprehend that the defendant might shoot her or stab her with his pocketknife. The well established standard of review regarding sufficiency of the evidence is: "Whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Tracy (Mont. 1988), 761 P.2d 398, 400, 45 St.Rep. 1705, 1707; State v. Cox (Mont. 1987), 733 P.2d 1307, 1309, 44 St.Rep. 496, 498. "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573. "The weight of the evidence and credibility of the witnesses is exclusively the province of the trier of fact. If the evidence conflicts, it is within the province of the trier of fact to determine which shall prevail." State v. Oman (1985), 218 Mont. 260, 265, 707 P.2d 1117, 1120. The issue of the sufficiency of the evidence in this case is raised because of the conflict between the testimony of the defendant and the victim. With respect to this conflict, defendant's appeal is analogous to the appeal in State v. Roberts (Mont. 1981), 633 P.2d 1214, 38 St.Rep. 1551, where we said: The issue of sufficiency of the evidence boiled down to the credibility of the State's witnesses vis-a-vis the defendant's testimony. The jury by its verdict resolved this conflict in favor of the State. Roberts, 633 P.2d at 1218, 38 St.Rep. at 1556. Here the jury weighed the credibility of the conflicting evidence and chose to believe the State's witnesses, which clearly established with substantial evidence the essential elements of felony assault. Affirmed. / f l ~ & ~ , $ g & y / d Justice L;/ | October 24, 1989 |
0a042604-8c9c-411a-94e4-fb602431a825 | KANSAS CITY LIFE INSURANCE COMPANY | N/A | 89-048 | Montana | Montana Supreme Court | No. 89-48 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 KANSAS CITY LIFE INSURANCE COMPANY, a corporation, Plaintiff and Respondent, -vs- BRATSKY FARMS, a Montana corporation, Defendant and Appellant. APPEAL FROM: District Court of the ~hirteenth ~udicial ~istrict, In and for the County of Carbon, The Honorable ~illiam J. Speare, Judge presiding. COUNSEL OF RECORD: For Appellant: L. R. Bretz, In propria Persona, ~illings, Montana For Respondent: Byron H. Dunbar, U.S. Attorney; Frank D. Meglen Asst. U.S. Atty., ~illings, Montana Submitted on Briefs: July 7, 1989 Decided: August 11, 1989 4) < 8 ; P ? ( : 9 % ~ - jNd ? , c , & . : z * > ; + < ,./Yac , &?.$ Clerk . . , ' < - - - 7 Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. L.R. Bretz appears pro per as the sole stockholder of Bratsky Farms, Inc. He appeals from an order of the District Court for the Thirteenth Judicial District, Yellowstone County, which denied his motion to vacate an October 31, 1988, order denying a motion to quash or vacate a writ of assistance. We affirm. Bretz raises five issues relating to the validity of a foreclosure sale of property owned by Bratsky Farms, Inc. Bratsky Farms, Inc., owned a ranch in Carbon County, Montana, on which Kansas City ~ i f e Insurance Company held a mortgage. The individuals named as defendants in this action held stock in Bratsky Farms, Inc., at the time this action was filed. On March 19, 1984, the ~istrict Court issued a Judgment and Decree of Foreclosure against the defendants. On the same date, the court issued an order of sale of the property. Also on that date, Bratsky Farms, Inc., filed for bankruptcy, resulting in an automatic stay of the foreclosure proceedings. On February 26, 1985, after the stay was lifted by order of the bankruptcy court, the Carbon County Sheriff issued a certificate of sale to Kansas City Life Insurance Company. On February 20, 1986, the Farmers Home ~dministration (FmHA), a junior lienholder, redeemed the property by paying Kansas city Life Insurance Company the sum of $337,384.77. The Bratskys made application to lease the property from FmHA, but their application was rejected and their right to appeal that decision has been exhausted. Bretz claims sole shareholder status in Bratsky Farms, Inc., beginning January 15, 1988. On June 1, 1988, FmHA filed a mot..on for an order for writ of assistance, asking for assistance to obtain immediate possession of the ranch, which Leo C. and ~ouise J. Bratsky still occupied. The writ was issued June 1, 1988. It commanded the sheriff of Carbon County to enter the property and eject the Bratskys. Bretz filed a motion to quash the writ of assistance. The ~istrict Court denied the motion and Bretz appeals. I. Was the sheriff's sale void because it was based on improper statutory notice? Bretz argues that the publication notice of the February 26, 1985, sheriff's sale did not comply with $ 3 25-13-701, MCA. He also argues that due process was denied him because actual notice of the sale was never given to Bratsky Farms, Inc., or to its trustee in bankruptcy. section 25-13-701, MCA, requires that notice of sale on execution be given (c) in case of real property, by posting a simi- lar notice, particularly describing the property, for 20 days in three public places in the county where the property is situated and also where the property is to be sold, which may be either at the courthouse or on the premises, and publishing a copy thereof once a week for the same period in some newspaper published in the county, if there be one, which notice shall be substantially as fol- lows: . . . The affidavit of publication shows that notice was published on February 7, 14, and 21, 1985. The sheriff's sale took place on February 26, 1985. Bretz points out that only 19 days passed between the date of the first posted notice and the date of the sale. The District Court cited Burton v. ~ i p p (19041, 30 Mont. 275, 76 P. 563. In that case, this Court held that the notice requirement in the antecedent to the above statute is directory only and that the failure to observe it does not avoid the sale as to a purchaser who is free from fault. Burton, 76 P. at 566. The Court also held that the remedy provided in what is now S 25-13-702, MCA, (that a sheriff selling without the required notice is liable for $500 to the aggrieved party) must be deemed exclusive. Bretz cites several cases involving sheriff's sales of personal property, but those cases do not apply here, as this was a sale of real property. He also cites Sink v. Squire (Mont. 1989), 769 P.2d 706, 46 St.Rep. 352, which discussed service of process, not notice of a sheriff's sale. We hold that Burton controls and that the provision days ' notice instead of 20 days' notice does not invalidate the sheriff's sale. 111. Is the FmHA notice of redemption deficient? Bretz argues that the FmHA notice of redemption is deficient in that it does not set forth exactly what was owed on the judgment, what the purchase price was, what interest had been paid, what taxes had been paid, or what the purchas- er's lien debt was. He also points out that the notice erroneously gives the date of the foreclosure sale as April Section 25-13-806, MCA, sets forth the requirement for a notice of redemption: Notice of redemption, liens, and taxes and assess- ments pzd. Written notice of redemption must be given to the sheriff and a duplicate filed with the county clerk, and if any taxes or assessments are paid by the redemptioner or if he has or acquired any liens other than that upon which the redemption was made, notice thereof must in like manner be given to the sheriff and filed with the county clerk, and if such notice be not filed, the proper- ty may be redeemed without paying such tax, assess- ment.~, or lien. The statute does not require that the notice include any of the information Bretz lists. The notice of redemption given in this case provided a description of the real property, the date of the judgment and decree of foreclosure, and the amount of the judgment. It gave the total amount paid in redemption and was signed by an agent of FmHA as redemption- er. It is true that the date given in the notice as the date of the foreclosure sale is incorrect; it is the date of the originally-scheduled sale, before the bankruptcy. However, the statute does not require that the date of the foreclosure sale be stated in the notice. We conclude that the informa- tion provided was sufficient for the purpose of giving no- tice. We hold that the notice of redemption is not deficient. Is the sheriff's deed void and invalid as a basis for the writ of assistance? Bretz argues that a sheriff's deed cannot be issued until 60 days after a notice of redemption has been given. The redemption by FmHA occurred in February 1986 and notice of redemption was dated June 17, 1986. The sheriff's deed is dated July 7, 1986. Section 25-13-810, MCA, provides: When purchaser entitled - to conveyance. If no redemption be made within 1 year after the sale, the purchaser or his assignee is entitled to a conveyance; or if so redeemed, whenever 60 days have elapsed and no other redemption has been made and notice thereof given and the time for redemp- tion has expired, the last redemptioner or his assignee is entitled to a sheriff's deed; but in all cases, the judgment debtor shall have the entire period of 1 year from the date of the sale to redeem the property. The statute allows a sheriff's deed to be issued when 1) 60 days have elapsed after the redemption, 2) no other redemption has been made, 3 ) notice of redemption has been given, and 4) the time for redemption has expired. The statute gives no time requirement related to the notice. We hold that the sheriff's deed is valid as a basis for the writ of assistance. IV. Did the failure to provide Bratsky Farms, Inc., with actual notice of the setting of the judicial sale of the property deny due process? Bretz cites Peterson v. Montana Bank of Bozeman, N.A. (1984), 212 Mont. 37, 687 P.2d 673, as authority that actual notice must be given to the mortgager before a judicial sale may be held. However, the holding in Peterson was limited to the situation presented there. Factors included no court record of posting of notice of the sale, inadequacy of the purchase price at the sale, and a sale of realty treated as a sale of personal property. Peterson, 687 P.2d at 680. Section 25-13-701, MCA, set forth above under Issue 11, does not require personal notice to the mortgager in sales on execution of judgment on real property. In the present case, the stockholders of Bratsky Farms, Inc., were represented by counsel and appeared in person at the proceedings leading up to the judgment against them, before the execution sale. We hold that the failure to provide Bratsky Farms, Inc., with actual notice of the judicial sale did not deny due process of the law. v. Did the District Court err in issuing a Writ of Assis- tance because the record fails to show that FmHA was entitled to the writ? Bretz argues that the following defects were present in the motion for an order of writ of assistance: the affidavit in support of the FmHA motion showed the wrong dates for the sheriff's sale and the certificate of sale; no judgment was properly obtained; there was no proper notice of redemption, no proper publication of notice of sale, and no actual notice of sale; the redemption time was exceeded according to the dates given on the notice; and the sheriff's deed was issued too early. Many of the defects claimed under this issue are dis- cussed under the other issues in this appeal. It is true that the dates given in the affidavit as the dates of the sheriff's sale and the certificate of sale were incorrect. We admonish respondent's counsel, who executed the affidavit in support of the motion for the writ, to exercise caution in insuring the accuracy of his filings. For a writ of assistance to properly issue, there must be a judgment, a sale conducted according to the judgment, and a sheriff 's deed to the property. Federal Land Bank of Spokane v. Heidema (Mont. 1986), 727 P.2d 1336, 43 St.Rep. 2020. The record shows that those elements were present here and met the statutory requirements. We hold that the Dis- trict Court did not err in issuing the Writ of Assistance. Affirmed. We concur: | August 11, 1989 |
dc45feef-0718-43e3-8ddd-96b46f1a1d58 | HILBIG v CENTRAL GLASS COMPANY | N/A | 88-613 | Montana | Montana Supreme Court | No. 88-613 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 RONALD F. HILBIG, Claimant and Appellant, -vs- CENTRAL GLASS COMPANY, 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: R. V. Aottomly; Bottomly Law Offices, Great Falls, Montana For Respondent: R. Scott Currey, Agency Legal Services, Helena, Montana ( ' i . . 4 . < . . . . . . . -4 LL- r-4 Submitted on Briefs: June 30, 1 9 8 9 Decided: August 11, 1989 Filed: :: Mr. Justice Fred J. Weber delivered the Opinion of the Court. Ronald Hilbig appeals a decision of the Workers' Compen- sation Court denying a lump sum conversion of his benefits because the parties failed to enter into a binding agreement. Mr. Hilbig also appeals the lower court's denial of his petition for a larger award of domiciliary care. We affirm and remand for further proceedings consistent with this opinion. The issues are: 1. Did the Workers1 Compensation Court err in conclud- ing that the parties' oral negotiations did not establish a binding contractual agreement? 2. Did the Workers' Compensation Court err in its award of domiciliary care? Ronald Hilbig had been employed as a glazier for 24 years when he fell from scaffolding approximately 12 to 15 feet to the ground while on the job on November 17, 1983. As a result of this fall, Mr. Hilbig suffered a severe head injury and was rendered permanently totally disabled, a fact which the State Fund does not dispute. On July 17, 1985, two meetings were held between claim- ant's counsel, and State Fund representatives in an attempt to negotiate a settlement agreement. The Workers' Compensa- tion Court found that during these meetings, the parties agreed that claimant was permanently totally disabled and could receive a lump sum payment of $179,549.63 if claimant's counsel could "put together" a justification for the lump sum conversion. It is the parties' understanding of the phrase "put together1' which is the subject of this appeal. The Workers1 Compensation Court made the following findings in this regard: 5. Mr. Bottomly [claimant's attorney] understood the phrase "put together" to mean that he would send Mr. Strizich [State Fund claims manaserl a d - petition and affidavit of justification, Mr. Strizich would then concur by signing and then submit it to the Insurance compliince -~ureau for approval. 6. Mr. Strizich understood the term "put together" to mean that Mr. Bottomly would present documenta- tion that would be acceptable to the State Fund and the Insurance Compliance Bureau to justify a lump sum conversion. Following the initial meeting, claimant's counsel pre- pared and submitted a written petition to the State Fund proposing that $120,000 of claimant's benefits be placed in an annuity to draw interest. This proposal was rejected by the State Fund. Another meeting was held between Mr. Bottomly; Mr. Currey, attorney for the State fund; and Mr. Strizich, in an attempt to settle the dispute. At the meet- ing, a social security offset was also discussed. The Work- ers' Compensation Court found that the parties' testimony conflicted as to what was resolved at that meeting, because Mr. Bottomly testified that an agreement was made on the social security issue at that time, Mr. Strizich denied the making of any agreement, and Mr. Currey was not able to recall. The second meeting resulted in a written lump sum proposal dated January 21, 1987, in which, after a dispute over the social security offset language, the State Fund would not concur. Claimant then filed a petition in the Workers' Compensa- tion Court seeking to enforce the lump sum conversion which he contended was agreed to by the parties. The Workers' Compensation Court denied claimant's petition based on a finding that there was no enforceable agreement reached by the parties regarding a lump sum settlement. The lower court did grant claimant's claim to payment for 24-hour domiciliary care, however, the payments were limited to a four-month period from December 1986 to April 1987. Claimant appeals the limitation of this award along with the lower court's denial of his petition. I Did the Workers' Compensation Court err in concluding that the parties' oral negotiations did not establish a binding contractual agreement? Claimant argues that a valid and enforceable agreement was created as a result of the parties' oral negotiations during the two meetings. He bases this contention on the fact that the intentions of the parties are discernable to a reasonable degree and that the material elements of the agreement were stated, citing Thrasher v. Schreiber (1926) , 77 Mont. 221, 227, 250 P. 600, 602, and Somont Oil Co., Inc. v. Nutter (Mont. 1987), 743 P.2d 1016, 1019, 44 St.Rep. 1685, 1689. The State Fund concedes that the parties did in fact agree to claimant's disability status as permanently totally disabled and that claimant could receive biweekly benefits in the form of a lump sum payment. Despite these points of agreement, the State Fund argues that the parties' under- standing of how those terms were to be acted upon is at issue and prevents the formation of a valid, enforceable agreement. As pointed out by the hearing examiner, this issue hinged upon the parties' understanding of what it meant to "put together" a justification for a lump sum conversion. The Workers' Compensation Court's findings reflect that claim- ant's counsel assumed a lump sum payment would be forthcoming upon submission of the written proposal, while the State Fund representative understood that further approval would be necessary. The record supports these findings and the par- ties do not disagree as to the source of the misunderstanding, but only as to its effect. In order for a valid and enforceable contract to exist, the following elements must be present: (1) identifiable parties capable of contracting; (2) their consent; (3) a lawful object; and (4) a sufficient cause or consideration. Section 28-2-102, MCA. The Workers' Compensation Court concluded that a lack of consent precluded the formation of a binding contract requir- ing the insurer to concur in the written petition later submitted by the claimant. We agree. The facts here indi- cate that there was no meeting of the minds on the basic elements of an enforceable agreement. Claimant's counsel assumed that mere preparation of the terms in written form was sufficient. This assumption, however, is not consistent with the statutory procedure for conversion of biweekly benefits to a lump sum payment as set forth in $ 39-71-741, MCA. That statute was amended retroactively in 1985. Howev- er, this Court reinstated all pre-1985 injuries under the language of the statute prior to the 1985 amendment in Buckman v. Montana Deaconess Hospital (Mont. 1986) , 730 P.2d 380, 43 St.Rep. 2216. The relevant statute, therefore, is § 39-71-741, MCA (1983), which reads: Compromise settlement and lump-sum payments --division approval required. The biweekly pay- ments provided for in this chapter may be convert- ed, 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 all compromises of claims under this chapter. All settlements and compromises of compensation provided in this chap- ter are void without the approval of the division. Approval of the division must be in writing. . . . The statute requires written application by the worker (Mr. Hilbig) with the concurrence of the insurer (State Fund). Claimant failed to prove the concurrence of the State Fund to the satisfaction of the Workers' Compensation Court. The record contains substantial evidence to support that conclusion. We therefore affirm the Workers' Compensation Court on this issue. As a result claimant is not entitled to the claimed twenty percent penalty under § 39-71-2907, MCA. I1 Did the Workers' Compensation Court err in its award of domiciliary care? On January 9, 1987, the parties agreed upon a pretrial order which included the following issue: Whether the State Fund has paid all medical expens- es of which payment is required pursuant to section 39-71-704, MCA. The trial took place on January 16, 1987. Prior to the entry of judgment, the State Fund sent a letter to claimant's counsel dated April 8, 1987, stating that: The State Fund will authorize Mr. Hilbig to obtain domiciliary care from the Northern Rocky Mountain Easter Seals Society for a period of 6 months, 8 hours per day, at $7.50 per hour. This offer was rejected by the claimant by letter dated April 20, 1987, which stated: The offer of limited home care which you have extended comes after this case, and that particular issue, is before the Workers' Compensation Court, and the issue has been submitted for the Court's decision. The Workers1 Compensation Court now is the exclusive forum to deal with the issue of the need and extent of home care services. Mrs. Hilbig has been supplying home care services for 16 hours five days a week and 24 hours two days a week, since November 17, 1983, and of course, expects to be compensated for her services, both in the past and in the future. On April 14, 1987, prior to receipt of the above letter, the State Fund filed a motion to clarify issues relating to domiciliary care. The State Fund contended that due to its offer of April 8, 1987, the issue of future benefits had been resolved and was no longer an issue before the court. The court determined that clarification of the issue was not necessary because: Both parties have agreed that the question of domiciliary care to April 8, 1987, is an issue. Whether or not future domiciliary care is necessary depends upon the evidence presented and the court will not create new issues at this late date. Issues not decided at this hearing can return by the petition of either party should disputes not be resolved by the parties. The court also noted that "[alt the end of the time period (six months from the date payment began) consideration would be given to future needs of the claimant." The court's findings of fact, conclusions of law and proposed judgment were entered on June 20, 1988. The court determined that Mr. Hilbig was entitled to 24 hour-a-day home health care, and awarded domiciliary care payable to claim- ant's wife in the amount of $7.50 per hour for 24 hours a day from December 18, 1986, to April 8, 1987. The date which payment was ordered to begin was the date the lower court found the employer first had knowledge of the need or demand for domiciliary care, citing Carlson v. Cain (1985), 216 Mont. 129, 140, 700 P.2d 607, 614. Regarding the April 8, 1987 cutoff date, the court concluded that: The defendant State Fund has acknowledged claim- ant's entitlement of domiciliary benefits of $7.50 per hour for eight hours a day to claimant's wife beginning April 8, 1987, but not before that date. No other justification appears in the court's order why home health care benefits were limited to a four-month period or the need for future domiciliary care. On June 20, 1988, claimant filed a petition with the Workers' Compensation Court requesting that the court revise its order of June 17, 1988, to provide for domiciliary care, past and future, based on the court's finding that claimant is entitled to 24 hours of domiciliary care. Claimant's petition was denied by order dated July 12, 1988, which stated: The issues decided by the hearing examiner were those presented by the parties and there is clearly no basis for the claimant to now request additional issues beyond those submitted to the Court. The record amply supports the findings of the hearing examiner and the Judgment of this Court. Claimant now appeals both the above order and the judgment rendered on the issue of domiciliary care. First he disputes the court's finding that the employer did not have knowledge of claimant's need for domiciliary care until December 18, 1986. He argues that the evidence clearly establishes con- structive notice on the part of the employer from the date of claimant's discharge from the hospital on December 6, 1983. Claimant also disputes the court's limitation of home health care benefits to April 8, 1987, arguing that such a conclusion is inconsistent with the court's finding that claimant requires 24 hours of care each day and that his condition is "not improving and is likely to decline." Claimant requests that this Court reverse the lower court's imposition of a cutoff date and order that home health care benefits be paid, at the rate of 24 hours per day, unless and until the State Fund demonstrates that such care is no longer needed. We will address these claims separately. LIMITATION OF BENEFITS AS COMMENCING ON DECEMBER 18, 1986: The employer ' s knowledge of the employee ' s need for medical services at home resulting from the industrial injury is one factor which must be met when considering eligibility for domiciliary care. Larson v. Squire Shops, Inc. (Mont. 1987), 742 P.2d 1003, 1008, 44 St.Rep. 1612, 1619. The Workers' Compensation Court determined that December 18, 1986, was the date the employer first knew of the need or demand for domiciliary care. On that date, the Workers' Compensation Court found that a pretrial conference was held in which the claimant first requested domiciliary care. The court further found that the medical reports prior to tha.t date did not recommend home health care for the claimant. Claimant argues that the employer had constructive knowledge of his need for home health care based on medical reports demonstrating the severity of head injury and the effects upon claimant, such as a memory loss, headaches, depression and anxiety. Claimant contends that this con- structive knowledge dates back to December 6, 1983, when he was released from the hospital, and that Mrs. Hilbig should be reimbursed for 24 hour per day health care from that date. The conclusion of the Workers' Compensation Court will not be disturbed if there is substantial evidence in the record to support its findings. Giacoletto v. Silver Bow Pizza Parlor (Mont. 1988), 751 P.2d 1059, 1061-62, 45 St.Rep. 536, 537. We conclude that the record supports the lower court's findings and conclusions that there was no knowledge on the part of the employer until December 18, 1986, when domiciliary care was first requested by the claimant. We affirm the Workers' Compensation Court as to the commencement date of domiciliary care. LIMITATION OF BENEFITS TO APRIL 8, 1987: It is not clear from the court's findings why it placed this cutoff date on benefits payable to Mrs. Hilbig. In its Order Denying Defendant's Motion to Clarify the Domiciliary Care Issue, the court stated: On April 8, 1984, [I9871 State Fund claims examiner, Larry Thomas, informed the claimant's counsel, R.V. Bottomly, that the State Fund is authorizing domiciliary care for a period of six months, at eight hours per day, at $7.50 per hour. At the end of that time period, consideration would be given to future needs of the claimant. The record shows that the Workers' Compensation Court limited domiciliary care to benefits due prior to April 14, 1987, the date of the State Fund offer of 8 hours per day of such care at $7.50 per hour. The court assumed that benefits after that date would be decided at some later date following a six-month observation period during which claimant's needs would be monitored and evaluated. We note that more than one year had expired from the April 14, 1987 offer to the June 20, 1988 court order. The six-month period had long expired. In addition, we note that the pretrial order of January 9, 1987 provided that the issue was whether the State Fund had paid all medical expenses under 5 39-71-704, MCA, which included the domiciliary care issue. We affirm the Workers' Compensation Court award of domiciliary care of $7.50 per hour, 24 hours a day, from December 6, 1986, to April 8, 1987. We remand this cause to the Workers' Compensation Court for such additional proceed- ings as it shall determine to be necessary in order that the court may determine the extent of the domiciliary care to which claimant i.s entitled from and after April 8, 1987. We Concur: A | August 11, 1989 |
39b4abd7-eb2a-4f54-82b3-7aa9943bc4b7 | SCHRAPPS v SAFEWAY STORES INC | N/A | 88-522 | Montana | Montana Supreme Court | No. 8 8 - 5 2 2 I N THE SUPREME COURT OF THE STATE O F MONTANA 1 9 8 9 MICHAEL E . SCHRAPPS, C l a i m a n t and A p p e l l a n t , -vs- SAFEWAY STORES, I N C . , E m p l o y e r , and HOME INSURANCE COMPANY, D e f e n d a n t and R e s p o n d e n t . APPEAL FROM: T h e Workers' C o m p e n s a t i o n C o u r t , T h e H o n o r a b l e T i m o t h y R e a r d o n , Judge presiding. COUNSEL OF RECORD: F o r A p p e l l a n t : L e o n a r d J. H a x b y , B u t t e , M o n t a n a For R e s p o n d e n t : A l a n L. Joscelyn; G o u g h , S h a n a h a n , Johnson & Water- m a n , 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 : June 1, 1 9 8 9 a ' C l e r k Mr. Justice John Conway Harrison delivered the Opinion of the Court. This case comes on appeal from a judgment entered by the Workers' compensation Court, the Honorable ~imothy Reardon presiding, which concluded the claimant, ~ichael Schrapps, was not entitled to permanent partial disability benefits under § 39-71-703, MCA. We affirm. Claimant injured his lower back on December 20, 1977, while employed by Safeway Stores, Inc., as a forklift operator at its Butte, Montana warehouse. The injury occurred when Mr. Schrapps was pinned between his forklift and an iron beam. After the accident, claimant was taken to St. James Community ~ospital and treated for injuries to his stomach and back. The employer accepted liability for the injury and paid temporary total disability compensation and medical benefits from the date of injury through July 4, 1978. In February, 1978, the claimant returned to his job with Safeway. However, he was able to work only four hours, and claimed lower back pain prevented him from performing his usual job duties. Since the accident, claimant has been employed as a car salesman. After his initial hospitalization and doctor's release to return to work, claimant complained of radiating lower back pain and numbness in his left leg. Thereafter, claimant sought treatment with numerous physicians, orthopedic surgeons, neurosurgeons and chiropractors. He also underwent an extensive evaluation at the university of Washington Medical Center in Seattle, Washington. Claimant filed a petition for hearing against Safeway Stores, Inc. and its insurer in March, 1987, alleging a continued physical limitation due to his 1977 injury. On July 25, 1988, the Workers' Compensation Court entered judgment, in which it concluded the medical evidence shows claimant's reduction in earnings was not due to his 1977 industrial injury. The court stated the medical reports uniformly failed to reflect objective evidence to support the claimant's contention. On review, claimant challenges the Workers' compensation Court's decision. He argues the judgment is not supported by substantial evidence. We disagree. c his Court will not substitute its judgment for that of the Workers' Compensation Court concerning the credibility of the witnesses or the weight to be given their testimony. Where the findings are based on conflicting evidence, our function of review is confined to determining whether there is substantial evidence to support such findings. ide en our v. ~quity Supply Co. (1983), 204 Mont. 473, 483, 665 P.2d 783, 788. However, the instant case deals primarily with deposition testimony, which allows this Court to examine the evidence more closely: " [W] hen the critical evidence, particularly medical evidence, is entered by deposition, we have held that 'this Court, although sitting in review, is in as good a position as the Worker's [sic] Compensation Court to judge the weight to be given to such record testimony, as distinguished from oral testimony, where the trial court actually observes the character and demeanor of the witness on the stand.'" Frost v. Anaconda Co. (1985), 216 Mont. 387, 389, 701 P.2d 987, 988, quoting Shupert v. Anaconda ~luminum Company (1985), 215 Mont. 182, 187-88, 696 p.2d 436, 439. Initially, claimant has the burden of proving a causal connection by a preponderance of the evidence. "Evidence demonstrating only a medical possibility 'does not mandate the conclusion that the claimant has met his burden of proof under the Act. ' " Brown v. Ament (Mont. 19881, 752 P.2d 171, 174, 45 St.Rep. 508, 512, citing Currey v. 10 Minute Lube (Mont. 1987), 736 P.2d 113, 116, 44 St.Rep. 790, 793. The medical evidence does not reveal structural or neurological abnormalities which support claimant's subjective complaints. A brief examination of the medical reports illustrates this point : IMPRESSION: (1) No evidence of organic neurologic disorder. (2) Low back pain and leg paresthesias described, etiology undetermined. The distribution of the lumbar pain might suggest a low back strain but this is not supported by the lack of any relationship to physical activity or posture and the lack of muscle spasm, etc. Also the duration of symptoms unchanged approaching six months suggests low back strain as unlikely. [Report of Dr. Johnson, June 7, 1978.1 Mr. Schrapps has been seen by me on numerous occasions with a vague complaint of low back pain over the entire back. I have examined him on numerous occasions and find no reason for his low back pain. [Report of Dr. Murphy, June 19, 1978.1 In my opinion, on his last visit there was no permanent impairment, and I could find no organic basis to substantiate his subjective complaints at that time. [Report of Dr. Blom, September 22, 1978.1 As a result of my examination, I am not able to find any significant orthopaedic impairment in this patient. He does have significant nonorganic signs e . , overreaction and nonanatomical sensory change . . . I feel that no further treatment is indicated. [Report of Dr. ~riedrick, September 16, 1987.1 After an extensive examination, the University of Washington Medical Center was also unable to locate an objective cause for claimant's complaints. Claimant's only support rests with the testimony of Dr. Baggenstos, a neurosurgeon who first examined the claimant in 1985. Dr. Baggenstos stated that claimant had chronic back pain with localized back tenderness. However, in accord with the other physicians, Dr. Baggenstos could not identify solid, objective evidence to support the claimant. Dr. Baggenstos' diagnosis did not result from diagnostic studies, such as myelograms and x-rays, but rather from claimant's statements to him during the various medical examinations. Numerous physicians examined the claimant following his industrial injury, and without exception all were unable to medically explain claimant's complaints. We find that the claimant has not proved by a preponderance of the evidence that his lower back problems were caused by the 1977 industrial injury. Affirmed. We concur: | August 8, 1989 |
28222dea-b1e7-4256-9c0b-1862fff498a5 | ALDRICH COMPANY v DONOVAN | N/A | 89-107 | Montana | Montana Supreme Court | No. 89-107 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ALDRICH & COMPANY, Plaintiff and Respondent, -vs- DAN J. DONOVAN, d/b/a D.J. DONOVAN CONSTRUCTION, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable G. Todd Baugh, Judge presiding. COUNSEL OF RECORD: For Appellant: Dan J. Donovan, pro se, Denver, Colorado For Respondent: Thomas J. Stusek; Work Law Firm, Billings, Montana Submitted on Briefs: June 30, 1989 Mr. Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from a judgment for amounts due and owing on a promissory note and a customer's job-by-job account. Dan Donovan, d/b/a D.J. Donovan Construction (Donovan) , is a building contractor. Aldrich & Company (Aldrich) , is a retailer of building supplies. Donovan executed a promissory note for approximately $5,400 owed to Aldrich on an "open" account. He also maintained a "job-by-job" account with Aldrich, each item charged being assigned to a specific project. Due to nonpayment of amounts due on the note and the account, Aldrich brought suit in the District Court of the Thirteenth Judicial District, Yellowstone County. Donovan counterclaimed for fraud and breach of warranty regarding building materials purchased from Aldrich. Both sides moved for summary judgment. Aldrich obtained a summary judgment in its favor. On appeal, Donovan argues procedural matters and there are questions of material fact which exist as to Aldrichls claim. We affirm the District Court's judgment. Donovan presents three issues for review: 1. Did the District Court1 s denial of summary judgment to Donovan, in violation of Rules 8(d) and 36(a) and (b), M.R.Civ.P., constitute an abuse of judicial discretion and/or clear error requiring reversal and entry of judgment for Donovan? 2. Did the District Court's grant of summary judgment to Aldrich, in spite of its failure to file an Answer to the First Amended Counterclaim, constitute an abuse of discretion requiring reversal? 3. Should the District Court's judgment be reversed, and the cause remanded for trial? While working as a contractor in Billings, Donovan concentrated on residential and commercial remodeling. He maintained an "open" charge account with Aldrich. Donovan encountered problems in making payments on his open account. When the account reached approximately $5,200, Aldrich informed Donovan that he would have to execute a promissory note in that amount before any further credit could be extended to him. In July of 1984, Donovan executed such a note. Aldrich then agreed to open a "job-by-job" charge account for Donovan. Charges to the account included items used in a remodeling job for a Mr. Graff. Graff and Donovan had a disagreement during the course of the job, and Donovan refused to charge any more materials for Graff to the job-by-job account. Graff then agreed to open his own account with Aldrich, which he used to charge items for the work being done by Donovan. Due to nonpayment of mounting sums owed on the Graff project, Aldrich eventually placed a mechanic's lien on Graff's house. The lien was later foreclosed, and according to Aldrich, the proceeds were used to pay off both Graff's own account and the charges in Donovan's job-by-job account related to the Graff job. Donovan continued to have problems paying Aldrich. In January of 1986, Aldrich initiated this action for nonpayment against Donovan, seeking collection of the note. In February of 1986, Aldrich amended its complaint to add a claim for the unpaid balance of Donovan's job-by-job account. The pleadings and motions in this case are a morass. The case reached a point where the matters to be addressed by the District Court were: (1) Aldrich's renewed motion for summary judgment, with attendant briefs, affidavits and exhibits; and (2) Donovan's combined motion for (a) leave to amend his counterclaim a second time, (b) summary judgment, and (c) to reopen and compel discovery, also accompanied by briefs, affidavits and exhibits. The court granted Donovan's motion to amend his counterclaim, but denied his discovery and summary judgment motions. The court granted Aldrich's motion for summary judgment. This appeal followed. At the outset, our review of the record in this case has shown that the District Court is to be commended, both for its patience and its persistence in examining the record to arrive at its ruling. I. Donovan's arguments on appeal are essentially those he raised in the District Court, and fall into two categories. The first is based on procedural rules, and the second is based on substantive law. Donovan's procedural arguments assign error to the District Court's decisions to grant summary judgment in favor of Aldrich and deny summary judgment in favor of Donovan for the same reasons. According to Donovan, Aldrich's failure to file discovery responses within the time specified in Rule 36, M.R.Civ.P., resulted in Donovan's requests for admissions being deemed admitted. Donovan also invokes Rule 8, M.R.Civ.P., for the proposition that Aldrich's failure to respond to his first amended counterclaim means that the allegations of fraud found there are also deemed admitted. We disagree. The District Court's Memorandum and Order notes that Aldrich's delay in responding to discovery was not the result of bad faith on Aldrich's part, which afforded the court discretion to allow the responses to be filed late. The court cited Heller v. Osburnsen (1973), 162 Mont. 182, 510 P.2d 13, as authority for its exercise of discretion. In Heller, this Court noted that the purpose of Rule 36, M.R.Civ.P., is to alleviate delay in trials by removing uncontested issues; if no prejudice would ensue, a court could allow untimely filing in its discretion. Aldrich's delay in filing its response was at least in part due to the fact that after this action began Aldrich's counsel moved to New York City. He was served there with Donovan's requests for admissions and interrogatories. According to the affidavit of the Vice President of Aldrich, he did not have knowledge of the requests until shortly before Aldrich's new counsel filed the response. The record does not disclose any bad faith on Aldrich's part, and given the fact that Donovan received Aldrich's responses nearly a year before the court's Memorandum and Order was issued, Donovan was not prejudiced by the delay. The discretion granted courts under Rule 36 in Heller applies with equal force to Donovan's Rule 8 argument regarding his amended counterclaim. In fact, the procedural rules relied on by Donovan, if enforced strictly, could have worked against him. Donovan's amended counterclaim was not filed until after Aldrich filed an answer to Donovan's original counterclaim. Because Aldrich had filed its answer to the original counterclaim, Donovan was required under Rule 15, M.R.Civ.P., to seek leave of court before filing his amendment. He did not do so until he filed the combined motion ruled on by the court in the Memorandum and Order appealed here. The court technically did not grant leave to file the amendment until it granted summary judgment in favor of Aldrich, thereby obviating the need for a response by Aldrich. Moreover, most of the documents in this case were untimely filed. Strict construction of procedural rules could have resulted in judgment against Donovan for failure to file a timely response to Aldrich's complaints. The court's leniency allowed for consideration of the merits of both Aldrich's claims and Donovan's counterclaims. Donovan therefore was not prejudiced by the court's exercise of discretion. 11. Donovan's substantive arguments first address his counterclaim, and then Aldrich's claim. Donovan's original counterclaim for breach of warranty alleged that certain vinyl siding he purchased from Aldrich was not fit for its intended purpose. After installation, the siding warped and blistered, requiring replacement. Donovan alleged the replacement costs as his economic loss. The District Court addressed this claim only briefly, because it found that Donovan had not shown damages. He had walked off the job by the time the siding was replaced; the contractor who took over the job purchased the replacement siding. On appeal, Donovan relies on his argument that the procedural rules discussed above rendered his requests for admissions and the allegations in his counterclaims deemed admitted, thereby proving his case. We have held Donovan's procedural arguments insufficient, and our review of the record shows the District Court to be correct. Donovan made no showing of damages to the District Court. We therefore affirm the District Court on this question. Donovan's fraud claim alleged that two payments he made to Aldrich were not properly credited. In his briefs filed with the District Court, Donovan admits that the payments at first were credited, but alleges that these same amounts were later included in the lien filed by Aldrich against Graff. Donovan thus alleges that the statements of account sent to him by Aldrich were known by Aldrich to be misrepre- sentations, which Donovan relied on to his detriment by filing an action for labor and materials costs against Graff. The District Court held this claim insufficient, because the "facts" alleged by Donovan (e.g., Aldrich's knowing misrepresentations) were mere conclusory statements rather than evidence. The court held that Donovan had presented virtually no evidence to support his claim, which therefore failed as a matter of law. On appeal, Donovan again relies on allegations supposedly deemed admitted by the procedural rules discussed above to prove his case. We have held that these allegations were not deemed admitted, so this argument fails. However, even if the allegations in Donovan's fraud counterclaim were deemed admitted, his claim would fail. The two payments at issue were in the approximate amounts of $500 and $2,300. The record shows that the first payment was credited to Donovan's note, and the second to Donovan's account for the Graff job. Donovan admitted in his briefs below that these credits were correct. The record also shows that when the payments were made, Donovan did in fact owe the money to Aldrich. The gravamen of Donovan's claim is that these amounts were included in Aldrich's lien against Graff, which somehow worked to Donovan's detriment in asserting his claim against Graff. We disagree. First, no misrepresentations were made to Donovan regarding these payments. The sum sought by Aldrich on the note reflects credit for that payment, and no sum is sought for Graff materials charged to Donovan's account. Any misrepresentation that may have been made by Aldrich regarding amounts owed on the Graff job would have been made in its lien action against Graff. Second, any reliance by Donovan on the credits shown in Aldrich's statements was irrelevant. The note at issue has nothing to do with the disputed Graff sums. The note was signed in July of 1984, and concerned amounts charged by Donovan prior to that date. The record, including the lien filed by Aldrich against Graff, shows that Aldrich began supplying materials for the Graff job in September of 1984, two months after the note was signed. Donovan therefore could not have included the note payment in any claim against Graff. The record also shows that approximately $16,000 worth of materials were supplied by Aldrich for the Graff job. It would be illogical to assume that Donovan's decision to bring a claim against Graff for a remodeling job of this size turned on the $2,300 payment he made to Aldrich. While Donovan's action against Graff was the subject of arguments to the District Court in this case, the record does not show that the disputed $2,300 payment had anything to do with Donovan's failure to obtain judgment. Donovan would have had to show nine separate elements to obtain a judgment for fraud. Selvidge v. McBeen (Mont. 1988), 750 P.2d 429, 45 St.Rep. 168. The District Court correctly held that Donovan's arguments alleged conclusory statements rather than facts. Our review has also shown that the facts in the record do not support two key elements of fraud, misrepresentation and reliance. We therefore affirm the District Court on this question. We now turn to the issue of Aldrich's entitlement to summary judgment for sums sought on Donovan's note and charge account. Only two of Donovan's arguments remain to be addressed at this point, the others having been discussed above. On the question of the note, Donovan admits he executed the note, but asserts that he did so under economic duress. He alleges duress in that Aldrich would not extend him further credit unless he signed the note. A claim of economic duress requires a showing that the contract at issue was made under circumstances evincing a lack of free will on the part of the contracting parties. It is not sufficient to show that consent was secured by the p r e s s u r e o f f i n a n c i a l circumstances, o r t h a t one o f t h e p a r t i e s merely i n s i s t e d on i t s l e g a l r i g h t . S h i p l e t v. F i r s t S e c u r i t y Bank o f Livingston (Mont. 1 9 8 8 ) , 762 P.2d 2 4 2 , 45 St.Rep. 1816. The n o t e a t i s s u e h e r e evidenced an e x i s t i n g d e b t owed by Donovan t o Aldrich. Aldrich d i d n o t f o r c e Donovan t o i n c u r t h e d e b t . Aldrich had a l e g a l r i g h t to r e q u i r e s e c u r i t y of some s o r t b e f o r e extending f u r t h e r c r e d i t t o Donovan. H e was t h e r e f o r e "pressured" only by h i s need f o r f u r t h e r c r e d i t , n o t by any d u r e s s imposed by Aldrich. Aldrich was t h e r e f o r e e n t i t l e d t o summary judgment on t h e note. Donovan argues t h a t t h e amount sought on h i s account had been p a i d i n f u l l . Aldrich submitted account statements showing t h e amount it sought a s being owed by Donovan on two s p e c i f i c jobs. Donovan's argument a l l e g e d t h a t he had "paid i n f u l l " , b u t l i s t e d two d i f f e r e n t jobs. Donovan never denied owing money f o r t h e two jobs l i s t e d by Aldrich. A l d r i c h was t h e r e f o r e e n t i t l e d t o summary judgment a s t o t h e s e amounts as w e l l . W e a f f i r m t h e judgment o f t h e D i s t r i c t Court. W e Concur: , / | August 15, 1989 |
3a6d6454-bfc7-4b3b-a6f9-eb3bdface790 | STATE v HALTER | N/A | 88-610 | Montana | Montana Supreme Court | No. 88-610 I N T H E SUPREME COURT O F T H E STATE O F MONTANA 1989 STATE O F MONTANA, P l a i n t i f f and Appellant, -vs- WINIFRED P. "JERRY" HALTER, Defendant and Respondent. APPEAL F R O M : ~ i s t r i c t Court of t h e Twelfth 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 Chouteau, The Honorable Chan E t t i e n , Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: Hon. Marc ~ a c i c o t , Attorney General, Helena, Montana Betsy Brandborg, Asst. A t t y . General, Helena Thomas J. Sheehy, County Attorney, F o r t Benton, Montana For Respondent : - Robert D. Morrison; Morrison, Young, Melcher and C'J Brown, Havre, Montana Submitted on ~ r i e f s : May 11, 1989 Mr. Justice John C. Sheehy delivered the opinion of the Court. The State of Montana appeals from an order of the District Court, Twelfth ~udicial ~istrict, Chouteau County, dismissing with prejudice an information charging the defendant, ~infred P. "Jerry" Halter with two felonies upon the grounds that the State had allowed exculpatory evidence to be destroyed to the prejudice of the defendant. We affirm the District Court. The information filed March 16, 1988, charged the defendant in two counts, (1) felony theft, committed between September, 1986, and February 23, 1988, and (2) illegal branding, committed between May, 1987, and February 23, 1988. The subject of the branding was a red Limousin bull that on February 22, 1988 was found in the cow herd of Earl Sluggett on his ranch southeast of ~ i g Sandy, Montana. Subsequent investigation revealed that the bull was owned by Ruth Owens and her daughter, Betty Donner, and that the bull had been missing since May 22, 1987. They resided on a ranch on the south side of the ~issouri ~ i v e r and in reporting the bull missing, stated that they believed that the bull had crossed the Missouri River to the north side and might be found in the general area where the defendant's ranch is located. Earl Sluggett informed the inspectors that the bull had been in his herd on a previous occasion and at that time did not have the brand belonging to the defendant. his was probably in May, 1987. Sluggett also stated that on another occasion, the same bull had been on a ranch owned by Larry Jappe, who resides in the same area. When Sluggett reported the discovery of the bull on his ranch on February 27, 1988, the bull carried two brands. The brand on the bull's right hip was identified as belonging to Merritt Pride, from whom the bull had been purchased by Ruth Owens' husband, the late Cecil Owens. The brand on the left hip of the bull appeared to be that of the defendant Halter. Halter was arrested and entered a plea of not guilty to the charges. Thereafter, an omnibus hearing was held in the District Court at which counsel for the defendant moved for and was granted discovery of all of the State's written or recorded statements, names of the State's witnesses, copies of any statements, inspection of all physical and documentary evidence in the State's possession and discovery of all special or additional information coming thereafter into the State's possession. At the same hearing, the State indicated that it would call expert witnesses whose names would be supplied to the defendant, as well as copies of reports of any scientific tests and experiments which the State might conduct. On July 6, 1988, the defendant moved the court for an order allowing the inspection of the red Limousin bull for the purpose of utilizing an expert of defendant's choice to inspect the brands. The motion indicated that the county attorney had told the defendant's counsel that the bull had been sold. The motion requested that the State take whatever action was necessary to locate the bull and allow the inspection. On July 25, 1988, the county attorney moved the court to set a trial date. On July 26, 1988, defendant filed a written objection to the motion for trial date stating that the State had not responded to defendant's motion for inspection of the bull and indicating that the county attorney had advised the defendant by letter that the bull "may have been slaughtered. " On August 1, 1988, the county attorney filed a reply to the motion for inspection stating that the bull had been sold at auction on May 20, 1988, and thereafter, the bull had been slaughtered. In the reply, the county attorney advised that the defendant had had an opportunity to examine the animal and that photographs of the bull were taken by the defendant. The District Court set the cause for trial on September 21, 1988. The defendant moved to vacate the trial setting on the grounds that the bull had been slaughtered, that the animal was unavailable for inspection by the defendant's expert and that the expert's testimony was critical to support the defendant's contemplated motion to dismiss by reason of destruction of exculpatory evidence. On October 7, 1988, defendant's counsel filed a motion to dismiss the charges against Halter because of the State's failure to preserve exculpatory evidence in the possession and control of the State's agents. Counsel for the defendant also filed an affidavit from Dr. Anthony Stannard, a doctor of veterinary medicine of the University of California, and a Ph.D. in veterinary pathology. His affidavit related that he had, at the request of attorneys for Halter, reviewed nine skin samples obtained from the branded pelts of nine head of cattle taken by a Havre veterinarian, conducted experiments on the same, and determined the ages of the brands, to which he could certify within 60 days. The affidavit stated that evidence from Halter would show that defendant was not in possession of the red Limousin bull from at least November 1, 1987, through February 25, 1988, and from the early spring of 1987 through June, 1987. The affidavit related that if Dr. Stannard could have inspected a skin sample from the red ~imousin bull prior to its destruction, he could have determined if the brand in question was placed on the bull during the time periods set forth. The contentions of the defendant's counsel at the time of the motion to dismiss charges against Halter were that the slaughter of the bull prevented defendant from establishing that it was branded at a time when it was in the possession of others; that inspection would reveal the type of branding iron used which could be compared to those used by the defendant; that the slaughter prevented a direct comparison of defendant's branding irons with the brand on the bull; and that the defendant was denied a comparison of the weight of the bull in question with the weight of the bulls previously owned by defendant. In objecting to the motion to dismiss, the State contended before the District Court that the motion to dismiss did not meet the necessary legal standards for dismissal, that defendant had let three to four months elapse before demanding inspection of the bull, that an evidentiary hearing was necessary to determine whether the evidence was in fact exculpatory, and that otherwise, without an evidentiary hearing, the defendant's motion should be denied. On November 28, 1988, the ~istrict Court filed its order dismissing the charges against Halter with prejudice. In its findings, the court noted that at the omnibus hearing on May 2, 1988, when the court ordered all physical evidence in the possession of the State to be made available for inspection by defendant, the State also informed the court that it was going to use expert witnesses and scientific tests and experiments and comparisons, which indicated to the court that the State intended to preserve the red Limousin bull. The court agreed that the slaughter of the bull made it impossible for defendant's experts to determine the age of the brand on the bull, and for making comparisons of the defendant's branding irons with the brand that appeared on the bull. The court found defendant was also prevented from making comparisons of the weight and physical characteristics between the red Limousin bull, and red Saler bulls which defendant also owned. The court found a duty in the State to preserve the primary physical evidence of the case and that the destruction of the bull constituted destruction of exculpatory evidence which was prejudicial to an effective defense. The court further found that an evidentiary hearing was not necessary in that it would not assist the court and that the arguments of the State for an evidentiary hearing merely went to the weight of the evidence. The court stated, "The defendant, having wrongfully been denied an opportunity to inspect the bull, is unable to develop the evidence which counsel for the state indicates he is able to rebut through cross-examination or contradictory testimony." On appeal, the State points to the case of united States v. Agurs (1976), 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, in which the United States Supreme Court said that the "mere possibility" that an item of undisclosed information might help the defense or affect the outcome of the trial does not establish "materiality" in the constitutional sense. Thereafter, in ~alifornia v. Trombetta (1984), 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413, 422, the Supreme Court said: Whatever the duty the constitution imposes on the state to preserve evidence, that duty must be limited to those that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, see united States v. Agurs, 427 U.S. at 109, 110, 49 L.Ed. 342, 96 S.Ct. 2392, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. In State v. Ronald Lee Craig (1976), 169 Mont. 150, 545 P.2d 649, this Court held that when the State, due to negligence, loss, replacement or destruction, is unable to produce certain physical evidence in the prosecution of the case, reversal of a conviction is not necessary where the actual objects were not vital to the defense, were not exculpatory in nature, and the result would not have been affected by their introduction. The essential issue raised by the State on appeal is that the District Court should have held an evidentiary hearing in order to determine the materiality of the ability of the defendant and his agents to inspect the bull. It is true, however, as the District Court noted, that the evidentiary hearing after the slaughter would have been of little value because the slaughter prevented defendant from establishing, through his experts, the age of the brand, its comparison with defendant's branding irons and the weight and physical characteristics of the red ~imousin bull. Dr. Stannard's affidavit establishes that he would have been able to establish, within 60 days, the age of the brand. In other words, as Dr. Stannard noted, if he found the brand were six months old, his certainty was sufficient to fix the brand anywhere from five months of age to seven months of age. In view of the fact that this bull, after its departure from its owner's ranch, was not always on the defendant's lands, but was present twice on Sluggett's lands and once on Larry Jappe's, the age of the brand was critical evidence for the defendant. In addition, destruction of the pelt meant that no comparison could be made by experts between the brand itself and the branding irons owned by the defendant. It appears from the file therefore that (1) the evidence destroyed had an exculpatory value to the defendant, ( 2 ) the exculpatory value of the evidence was apparent before the destruction of the evidence because the State itself indicated it would conduct experiments and use experts with respect to the brands, (3) comparable evidence is not now within the defendant's ability to obtain by other reasonably available means, and (4) there was an expectation that the lost evidence would play a significant role in the defense of the defendant. We determine here that the slaughter of the bull was not the intentional or deliberate purpose of the State but rather that the State was negligent in preserving necessary evidence in the cause. In view of the circumstances here, the long periods when the bull was not on Halter's lands, and was in fact finally discovered in Sluggett's cow herd, the preservation of the bull was as critical to the State's case to obtain a conviction as it was to the defendant to obtain an acquittal. This factor distinguishes this case from State v. Craig, supra; State v. Heth (Mont. 1988), 750 P.2d 103, 45 St.Rep. 194; State v. Palmer (1983), 207 Mont. 152, 673 P.2d 1234; and State v. Amaya (Mont. 1987), 739 P.2d 955, 44 St.Rep. 1173, all of which are relied on by the State. In the circumstances here, the ~istrict Court was correct in determining that an evidentiary hearing is not necessary because that which could develop from an actual inspection of the bull by experts was never developed because of the slaughter. At that point the State had nothing to rebut in an evidentiary hearing. We therefore affirm the District Court. / / Justice / Justices | August 15, 1989 |
cc2e1607-fcc0-4a3f-ba5e-086de6d8624a | WEIBLE v RONAN STATE BANK | N/A | 88-526 | Montana | Montana Supreme Court | NO. 88-526 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ROY WEIBLE, plaintiff and Appellant, -vs- RONAN STATE BANK, Defendant and Respondent. APPEAL FROM: District Court of the ~wentieth ~udicial ~istkict, In and for the County of Lake, The Honorable C. B. ~ c ~ e i l , Judge presiding. COUNSEL OF RECORD: For Appellant: ~ichael F. ~ailey; Joseph M. Goldman Law offices, Missoula, Montana For Respondent: Sam E. Haddon; Boone, Karlberg & Haddon, h is sou la, Montana Ingraham Law Office, Ronan, Montana submitted on ~riefs: ~ p r i l 6, 1989 Decided: July 19, 1989 Filed: Mr. Justice ~illiam E. Hunt, Sr. delivered the Opinion of the Court. Plaintiff Roy Weible appeals from an order of the Twentieth Judicial District Court, Lake County, dismissing his complaint against defendant Ronan State Bank. We affirm. The dispositive issue raised on appeal is as follows: Were the claims asserted by ~eible in his complaint based solely on a tort action for injury to or trespass on property, and, as such, barred by a two-year statute of limitations? ~eginning in 1973, Roy Weible and his wife, Alta Weible, executed several new and renewal promissory notes to Ronan State Bank. As collateral securing the performance of the notes, the Weibles executed and delivered to the Bank an assignment of their buyers' interest in certain real property, a mortgage upon that property and a security agreement covering personal property. As of September 9, 1985, the promissory notes were in default. The Bank initiated an action to obtain judgment upon the notes and a decree of foreclosure of the real property. On May 28, 1986, a hearing on the Bank's motion for summary judgment was held, at which time counsel for the Weibles stipulated to the summary judgment and agreed no defenses could be raised. The formal judgment and decree of foreclosure was entered on August 4, 1986. On June 3, 1986, after the hearing on summary judgment but prior to the entry of judgment, agents of the Bank entered onto Roy Weible's real property and removed farm machinery used as collateral in the personal property security agreement. On August 3, 1988, more than two years after the removal of the machinery, Weible filed a complaint against the Bank and Stedje Brothers, Inc., alleging that the Bank breached the security agreement by failing to give ten days notice prior to seizure of the farm machinery as required by the agreement, trespassing upon his property and wrongfully removing the equipment. On August 5, 1988, Weible filed an amended complaint, dropping Stedje Brothers as a defendant. In response to the complaint, the Bank filed a motion to dismiss. After a hearing, the District Court granted the Bank's motion on the grounds that Weible's claims were barred by the statute of limitations, the doctrine of res judicata and the compulsory counterclaim rule. On appeal, Weible contests each of the grounds upon which the District Court based its determination. We will not discuss the res judicata and compulsory counterclaim questions, however, because the statute of limitations issue is dispositive of the appeal. Weible argues that the District Court erred in concluding that the action against the Bank was barred by the statute of limitations. The District Court held that ~eible's complaint rested solely on the tort theories of trespass on and injury to real and personal property, and, therefore, the complaint was barred by § 27-2-207, MCA, the two-year statute of limitations pertaining to actions involving injury to property. Weible argues that his complaint was also based on breach of the security agreement, and, therefore, the action was governed by 27-2-202(l), MCA, the eight-year statute of limitations pertaining to actions involving breach of a written contract. In determining which statute of limitations applies, the court will look to the substance of the complaint. If the gravamen of the action rests strictly on tort theories, the statute of limitations pertaining to torts will apply. Likewise, if the gravamen of the action rests strictly on contract theories, the statute of limitations pertaining to contracts will apply. ~astillo v. Franks (1984), 213 Mont. 232, 239, 690 P.2d 425, 428; Quitmeyer v. Theroux (19641, 144 Mont. 302, 311, 395 P.2d 965, 969. If the gravamen of the action is such that it may rest either in tort or contract, the injured party may elect the theory he will pursue and the statute of limitations governing the elected theory will apply. Unruh v. Buffalo Bldg. Co. (Mont. 1981), 633 P.2d 617, 618, 38 St.Rep. 1156, 1158. If doubt exists as to the gravamen of the action, the longer statute of limitations will apply. hi el v. Taurus ~rilling Ltd. 1980-11 (1985), 218 Mont. 201, 212, 710 P.2d 33, 40. In his amended complaint, Weible alleged the following: That on or about the 3rd day of June, 1986, Defendant Ronan State Bank through two (2) of its acting agents . . . trespassed upon the farm property of Plaintiff's and wrongfully removed the Plaintiff's farm machinery. [TI he security agreement . . . states that a ten (10) day notice shall be given to the party in default to surrender the collateral at a mutually agreed time and place. That the Defendant Ronan State Bank breached this security agreement in trespassing upon Plaintiff's property and wrongfully removing his farm machinery. his was done before final judgment was made and entered in the real property foreclosure and done without the required notice to the party in default. Defendant Ronan State Bank willfully and maliciously trespassed upon Plaintiff's farm property and with willful and malicious intent, wrongfully removed Plaintiff's farm machinery. This was done in an oppressive way and/or manner which violated the rights of Plaintiff with unnecessary harshness and/or severity as Defendant Ronan State Bank misused and abused their [sicl authority and power when they [sic] breached the security agreement. Weible argues that these allegations set out a breach of contract action. Indeed, viewed in the light most favorable to Weible, the complaint does allege a breach of the security agreement for failure to give notice. However, the injuries claimed as a result of the breach of contract--the trespass and wrongful removal of farm machinery--constitute tort theories of action. Although the injuries to Weible may have originated in breach of contract, the acts causing his damages sound in tort. Therefore, the gravamen of the action is in tort, not contract, and the tort statute of limitations applies. Quitmeyer, 144 Mont. at 311, 395 P.2d at 969. A two-year statute of limitations governs actions arising from trespass to and conversion of property. Section 27-2-207, MCA. The injury in question occurred on June 3, 1986. The complaint was filed in August, 1988--over two years later. The action is barred by the two-year statute of limitations. Af firmed. | July 19, 1989 |
14aac944-206d-461b-be31-0c4ac347cc32 | CITY OF MISSOULA v PRINKKI | N/A | 89-215 | Montana | Montana Supreme Court | No. 89-215 IN THE SUPREME COURT OF THE STATE OF MONTANA CITY OF MISSOULA, Plaintiff and Respondent, -vs- RICHARD DALE PRINKKI, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Jack L. Green, Judge presiding. COUNSEL OF RECORD: For Appellant: Richard Dale Prinkki, pro set Missoula, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Clay R. Smith, Solicitor, Helena, Montana Donald Louden, City Attorney's Office, Missoula, Montana Filed: Submitted: Sept. 7, 1 9 8 9 Decided: September 27, 1989 Justice R. C. McDonough delivered the Opinion of the Court. This is an appeal from a judgment of the District Court of the Fourth Judicial District, Missoula County, finding defendant Richard D. Prinkki (Prinkki) guilty of two counts of driving while his license was suspended, driving under the influence, failure to drive on the right side of the road, and driving with no insurance. We affirm. Prinkki raises two issues on appeal: 1. Did the trial court err in ruling that Prinkki was not entitled to a jury of twelve persons in a trial de novo in District Court on appeal from a conviction in Municipal Court? 2. Did the District Court improperly deny Prinkkits motion to sever the charges? On January 20, 1988, Prinkki was arrested and charged with driving under the influence in violation of § 61-8-401, MCA; failure to drive on the right side of the road in violation of S 61-8-321, MCA; and driving with no insurance in violation of S 61-6-301, MCA. Subsequently, on May 16, 1988, Prinkki was convicted by a jury in Municipal Court for each of these offenses. After his arrest on January 20, Prinkki was issued two separate citations for driving while his license was revoked in violation of $ 61-5-212, MCA. These violations occurred on February 1 and February 2, 1988. Upon a different trial, held on May 17, 1988, Prinkki was convicted of both of these offenses. Following the convictions, Prinkki filed a combined notice of appeal to the District Court appealing all of the convictions. At an omnibus hearing, Prinkki made a motion to sever the charges, which was denied. The new trial was set for a twelve person jury. The trial court later determined that, because the case was an appeal from Municipal Court, the defendant was only entitled to a six person jury. Trial by a six person jury was held. and Prinkki was convicted of all charges on October 24, 1988. This appeal followed. I Prinkki argues that the trial court erred in ruling that he was not entitled to a twelve person jury. We disagree. Procedure in municipal court is set forth at Title 46, Chapter 17, Part 4, MCA. Section 46-17-403, MCA, provides that: "In criminal cases . . . either party shall be entitled to a jury trial as provided in justices' courts. . , " In justice court, a defendant is entitled to a jury of no more than six persons. Section 46-17-201(1), MCA. Upon appeal to District Court, the defendant is entitled to ". . . be tried anew . . . and may be . . . tried before a jury of six." Section 46-17-311 (1) , MCA. Because criminal defendants in muncipal courts are afforded the same rights as those in justice courts, they, likewise, are only entitled to a six person jury. See § 46-17-403, MCA. Prinkki next argues that the District Court improperly denied his motion to sever the charges. We disagree. In support of his argument, Prinkki relies upon State v. Orsborn (1976), 170 Mont. 480, 555 P.2d 509. In Orsborn we examined federal case law on the potentialities of prejudice resulting from the joinder of two crimes of the same class. This examination led us to the conclusion that three types of prejudice may result upon joinder of similar offenses. First, the jury may consider a defendant who is subject to multiple charges to be a "bad man. " Second, proof of guilt of one offense may be used to convict the defendant of another offense even though such proof may be inadmissible at trial. And finally, prejudice may result where the defendant wishes to testify on his own behalf on one charge but not on the other. Orsborn, 555 P.2d at 514-515. A district court must consider these three elements when faced with a motion to sever offenses. However, we fail to find any actual prejudice which resulted from a denial of his motion. This Court has accorded the trial courts a wide breadth of discretion in their determinations regarding separate trials. Joint trials are often necessary to preserve judicial economy. The defendant, therefore, must show actual and substantial prejudice. State v. Campbell (1980), 189 Mont. 107, 615 P.2d 190. Prinkki argues, in substance, that the facts surrounding the violations of driving while his license was revoked would tend to lead the jury to believe that he was a "bad man" who ignored the laws. The violation of February 2, occurred when a police officer discovered his car outside of a Missoula bar. Prinkki was arrested as he left the bar. These facts, Prinkki maintains, may have prejudiced the jury by leading it to believe that he was an alcoholic who continued to drive despite the fact that his license had been revoked. In State v . Slice (1988), 753 P.2d 1309, 45 St.Rep. 752, we upheld a district court's denial of a motion to sever charges. In Slice, the defendant was tried on sixteen criminal counts. In upholding the conviction, we noted that reversal of a decision not to sever criminal charges is seldom granted. Slice, 753 P.2d at 1311. Generally, in order to be entitled to a reversal, a defendant must show the prejudice was so great as to prevent a fair trial. The evidence asserted by Prinkki, which he argues led the jury to view him as- a "bad man," fails to meet the high standard of proof necessary to overturn his conviction. The offenses of February 1st and 2nd are regulatory in nature. We therefore do not agree that they substantially prejudiced Mr. Prinkki by casting him in a bad light. Given the deference afforded to the discretion of the trial court's judgment in these matters, we decline to reverse its decision. Prinkki's conviction is affirmed. ' Chief Justice Justices I \ | September 27, 1989 |
4ba267b7-5835-4150-940a-17adafbc4f54 | FIRST FEDERAL SAVINGS LOAN ASS N | N/A | 89-002 | Montana | Montana Supreme Court | No. 89-002 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF MISSOULA, a Corporation, Plaintiff and Appellant, -vs- STEVE R. ANDERSON and JEAN M. ANDERSON, Defendants and Respondents. APPEAL FROM: District Court of the Fourth Judicial ~istrict, In and for the County of iss sou la, The Honorable James B. Wheelis, Judge presiding. COUNSEL OF RECORD: For Appellant: David J. ~ietrich, Boone, Karlberg & Haddon; is sou la, MT For Respondent: Samuel M. Warren, Worden, Thane & ~aines; w is sou la, MT Submitted on ~riefs: April 6, 1989 Decided: ~ u l y .25, 1989 I ~iled: / ._ I Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. First Federal Savings and Loan Association of Missoula appeals from an order of the ~istrict Court, Fourth Judicial ~istrict, is sou la County, dismissing ~ i r s t Federal's complaint to foreclose on a Deed of Trust on real property against Steven R. and Jean M. Anderson. The principal issue in this case is whether the decision of this Court in ~ i r s t State Bank of Forsyth v. Chunkapura (1987) - Mont. - , 734 P.2d 1203, is applicable to the facts of this case. We hold that Chunkapura applies, and that ~ i r s t Federal Savings and Loan may not procure from the ~istrict Court a deficiency judgment on foreclosure of the Deed of Trust in this case. There is a procedural problem that needs our first attention. First Federal filed its verified complaint in the District Court on November 23, 1987. The complaint alleged that Steve R. Anderson and Jean M. Anderson had delivered over to First Federal Savings and Loan a promissory note for $38,250.00. As security for the note, the Andersons delivered to the American Land Title Company of Missoula, as trustee, a Deed of Trust to real property in the city of iss sou la, conditioned on the full performance of the obligations of the promissory note and the Deed of Trust by the Andersons. The Andersons had defaulted in their payments on the note, and on the date of the filing of the complaint, owed to First Federal $34,365.45 with interest at 10% per annum from June 1, 1987. The verified complaint asked for judgment against the Andersons in the amount of the indebtedness not paid, accrued interest, late charges, costs of the suit, and attorney fees. The verified complaint further prayed that the Deed of Trust be foreclosed as a mortgage on the real property, and that the real property be sold by the county sheriff; that the purchasers at the sale have the right of immediate possession thereto, subject only to the redemption rights of the Andersons; and that if the proceeds of the sale be insufficient to satisfy the judgment as prayed for, that any deficiency remaining be entered as a deficiency judgment against the Andersons. The Andersons responded to the verified complaint, through their counsel, by filing a motion to dismiss under Rule 12(b)(6), M.R.Civ.P. upon the grounds that the complaint failed to state a claim against the defendants upon which relief could be granted. Further responding to the motion to dismiss, the Andersons filed an affidavit in which they recited that they had purchased the property in 1978 through a loan procured from First Federal; that for seven years, commencing 1978 and ending January, 1986, the Andersons had used and occupied the dwelling as a principal residence; that for approximately 18 months, while the property was for sale, they had rented the real estate to various individuals to continue to make payments to ~ i r s t Federal; and that in June, 1987, the Andersons decided they could no longer keep the property and requested ~ i r s t Federal to accept a deed in lieu of foreclosure. In the meantime, the Andersons had purchased a second home. First Federal filed a memorandum objecting to the motion to dismiss and in it relied on facts in the Anderson affidavit, including (1) that commencing in January, 1986, the Andersons no longer used or occupied their dwelling as a principal residence; (2) that for approximately 18 additional months they had rented the property to various individuals; and (3) that First Federal's role was not as a "vendor" but as a lender for the purchase of the property by the Andersons. First Federal further requested a hearing on the motion to dismiss which the District Court granted and set for November 4, 1988. In the meantime, however, the court issued its opinion and order dismissing the complaint on November 1, 1988. In rendering its opinion of dismissal, the District Court obviously relied on references to the Andersons' affidavit, including that the Andersons had offered to give a deed in lieu of foreclosure; that the Andersons resided in the property for over seven years; and that First Federal was not entitled to a deficiency judgment although the real property was no longer occupied by the original obligors, who were using the real estate as rental property. The order of dismissal entered b l 7 the ~istrict Court does not specifically refer to Rule 56, M.R.civ.P. It is, however, obvious that the ~istrict Court had converted a Rule 12(b) (6) motion to dismiss into a Rule 56 motion for summary judgment. This Court has held that when a district court intends to convert a Rule 12 motion to dismiss into a Rule 56 motion for summary judgment, that it should give notice to the parties of its intention to consider materials outside the pleadings. Gebhardt v. D.A. avids son and Company (1983), 203 Mont. 384, 661 P.2d 855. It is true that in ordinary circumstances this Court requires that when a district court intends to treat a motion to dismiss as a motion for summary judgment under our Rules of Civil Procedure, that it must first give notice to the parties of its intention to do so. Gebhardt, supra. The reason for our requirement is that opportunity is then given to the party opposing summary judgment or the motion to dismiss to produce additional facts by affidavit or otherwise which would establish a genuine issue of material fact and so preclude summary judgment under Rule 56. In this case, however, First Federal, in responding to the motion to dismiss and the affidavit supplied in connection therewith, adopted -- from and relied on certain facts from the affidavit - on which to base their argument to the District Court that Chunkapura does not apply to this case and that ~ i r s t Federal was entitled to a summary judgment. Trust indentures (or as they are sometimes known, deeds of trust or trust deeds), used as security instruments in Montana, are creatures of the "Small Tract ~inancing Act of Montana", §§ 71-1-301, -321, incl., MCA. From the verified complaint, the facts alleged in the Anderson affidavit as relied on and adopted by ~ i r s t Federal and the applicable statutes gave the court sufficient basis on which to rule as to whether Chunkapura applied in this case. In like manner, these facts are sufficient for this Court to make a ruling on appeal. Although the District Court erred in not giving the notice required that it intended to treat the motion to dismiss as a motion for summary judgment, the matter will not be reversed or remanded to the District Court when the eventual result in the District Court would be the same. In Re ~arriage of Cannon (1985) , - Mont . , 697 P.2d 901; Kirby Company of Bozeman, Inc. v. Employment security Division of Montana (1980), 189 Mont. 1, 614 P.2d 1040. We proceed now to the principal issue in this case, whether our decision in Chunkapura precludes a deficiency judgment against the Andersons. The deed of trust in this case was issued pursuant to the authority of the Small Tract ~inancing Act of Montana, enacted in 1963. In Chunkapura, this Court had occasion to interpret that. Act as to whether a deficiency of judgment could be obtained against the borrowers, after a sale of the mortgaged property (for want of a better term, we will refer to the real estate in this case as the "mortgaged property"; under 5 71-1-305, MCA, a trust indenture is deemed to be a mortgage on real property and subject to all laws relating to mortgages on real property except to the extent that such laws are inconsistent with the Small Tract Financing Act of Montana). Before the adoption of the Act, there was only one form of mortgage foreclosure in Montana ( 5 71-1-222, MCA) and that procedure allowed a deficiency judgment against the mortgagor unless a power of sale was utilized under 5 71-1-223, MCA. Chunkapura noted: The banking and lending industry came to the legislature in 1963, contending that the "one action rule1' 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 during the period of redemption. A quid pro quo was proposed to the legislature: the legislators would give up their deficiency rights on default, if the borrowers would give up their rights of possession and redemption. The result was the adoption by the legislature of the Small Tract Financing Act of Montana, originally limited to tracts of three acres, but now may involve tracts as large as fifteen acres. This Court held in Chunkapura, that under the Small Tract Financing Act, even though the beneficiary of a trust indenture could foreclose on the trust indenture by judicial procedure as provided by ( S 71-1-304(3), MCA). Nevertheless, the provisions of 5 71-1-317, MCA, providing that a deficiency judgment was not allowed, applied to all uses of the trust indenture. On rehearing, we modified that holding saying: In Chunkapura, we have before us only a trust deed related to an occupied, single family residential property. It is suggested by amicus First Interstate Bank of Missoula that our opinion should be limited in effect to the kind of security before us in Chunkapura, and similar cases involving residential property. We agree. 734 P.2d at 1210-1211. First Federal argues that because the Andersons no longer occupy the property themselves, and in fact, rent the premises, that they are not entitled to the benefit of the Chunkapura holding that deficiency judgments are not allowed. On that point, we disagree with First Federal, and uphold the decision of the District Court that Chunkapura does apply. When First Federal accepted a trust indenture for the mortgaged property, the trust deed related to an occupied, single-family residential property. At the time of its proposed foreclosure by First Federal, the property remained a single-family residential property, albeit sometimes occupied by renters. The property fits the Chunkapura exception and we hold that First Federal may not obtain a deficiency judgment against the Andersons after the sale of the mortgaged property. Hand in hand with that holding, as in Chunkapura, the Andersons are not entitled either to a right of possession after 10 days from the sale, or to a right of redemption for a period of one year. First Federal also argues that dismissal of its foreclosure action was improper because First Federal may have wished to foreclose on personal as well as real property, and that the foreclosure action was the vehicle for such action. However, nothing of this appears of record, or in the pleadings, and we give no weight to that argument. The Andersons also argue that because First Federal supplied the finances which enabled the Andersons to enter into the purchase of the subject property that Andersons are entitled to the protection of § 71-1-232, MCA, which precludes a deficiency judgment on foreclosure of a purchase money mortgage. Our interpretation of that statute is that a mortgagee who is not the vendor of the property, but who assumes the status of a mortgagee to secure a loan used for the purchase is not prohibited from a deficiency judgment under 5 71-1-232, MCA. Aetna Life Insurance Company v. Slack (19881, - Mont. - , 756 P.2d 1140. There is a side issue to this case relating to attorney fees. The Andersons contend that the appeal by ~ i r s t Federal in this case was premature, and that First Federal should have waited to appeal until the court determined the Andersons' rights to attorney fees after the dismissal. ~ i r s t Federal, on the other hand, contends that the issue of attorney fees was not necessary to the final judgment and that the appeal is not premature. ~either party is entirely correct on this issue. Under S 71-1-320, MCA, in the event of a foreclosure of a trust deed by advertisement and sale, the total of the reasonable attorney fees and trustee fees shall not exceed 5% of the amount due on the obligation, both principal and interest, at the time of the trustee's sale. In this case, ~ i r s t Federal had requested attorney fees and alleged the sum of $2,500 as a reasonable fee, in addition to further fees if the case was contested. That request would exceed the 5% limitation in § 71-1-320, MCA. On the basis of reciprocity, § 28-3-704, MCA, the Andersons are entitled to reasonable attorney fees in the District Court and on appeal, to be fixed by the District Court, in addition to the usual costs. On foreclosure, First Federal is entitled to its attorney and trustee fees granted by S 71-1-320, MCA. The order of dismissal by the District Court is affirmed. We Concur: \ / .i Justice t Mr. Justice Fred J. Weber specially concurs and dissents as follows: I have reviewed Chunkapura. While I dissented, I agree with the majority conclusion that a deficiency judgment is not allowed in the present case under the precedent of Chunkapura. The majority opinion quotes from that portion of Chunkapura which noted that the banking and lending industry came to the legislature in 1963 and proposed a quid pro quo under which the banking industry would give up deficiency rights in return for the giving up by borrowers of the right of possession and redemption. I conclude that the record in the present case and the record in Chunkapura do not demon- strate the presence of any such exchange. I have reviewed the Small Tract Financing Act and find nothing to indicate any such quid pro quo. I dissent from the conclusion based - on a claimed exchange of benefits which is not substantiated by the record. I also dissent from the conclusion that First Federal is only entitled to attorney fees and trustee fees in the aggre- gate not exceeding 5% of the amount due on the obligation. Section 71-1-320, MCA, in relevant part states: Reasonable trustees' fees and attorneys' fees to be charged to the grantor -- in the event of foreclosure bv advertisement and sale shall not exceed. in the f. -- aggregate, 5% of the amount due on the obligation, both principal and interest, at the time of the trustee's sale. (Emphasis supplied.) The statutes demonstrate that the 5% limitation applies only where the lender seeks to foreclose by advertisement and sale through a trustee under a deed of trust. That was not the procedure followed in the present case. Here the complaint was filed in the District Court for judicial foreclosure. The statutes allow First Federal to proceed through judicial foreclosure as described in S 71-1-311, MCA. First Federal here was entitled to proceed with judicial foreclosure even though Chunkapura may establish a limitation on deficiency judgment. The summary judgment denied that procedure to First Federal. The effect of the decision is to dismiss the judicial foreclosure which does not have a 5% limitation and then to apply the limitation. I do not agree with that reasoning. Justice L. C. Gulbrandson joins in the/foregoing dissent. ,/ Justice | July 25, 1989 |
b0b8fb31-11b8-472f-a021-ee024f549af1 | HEDEGAARD v KNIFE RIVER COAL MININ | N/A | 88-583 | Montana | Montana Supreme Court | No. 88-583 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 JAMES P. HEDEGAARD, Claimant and Appellant, -vs- KNIFE RIVER COAL MINING CO., Employer, and STATE COMPENSATION INSURANCE FUND, Defendant and Respondent. APPEAL FROM: The Workers' Compensation Court, The Honorable ~imothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Lloyd E. Hartford, ~illings, Montana For Respondent: ~atricia Bell; Crowley Law Firm, ~illings, Montana Filed: , . Submitted on Briefs: ~ p r i l 27, 1989 Decided: July 25, 1989 Mr. Justice John Conway Harrison delivered the Opinion of the Court. Claimant James P. Hedegaard appeals from the workers' Compensation Court's limited conversion of his biweekly benefits to a lump sum award. We affirm in part, reverse in part and remand for proceedings consistent with this opinion. Claimant is permanently totally disabled as the result of a back injury he suffered in 1980 and for which he has been receiving biweekly disability benefits. In May of 1986, claimant petitioned the Workers' Compensation Court for a partial lump sum award of $9,181.27 to enable him to pay off the loan on his 1984 Ford LTD. Before the petition was heard, the 1984 Ford was repossessed. Claimant and his wife were left without reliable transportation when their 1980 Ford Pinto was destroyed by fire. In December, 1987, claimant financed the purchase of a new Buick automobile for approximately $12,900. Additionally, during this time claimant retained new counsel. Claimant's new attorney failed to amend the petition request of $9,181.27 for an amount sufficient to pay off the new Buick. During the hearing, the Workers' Compensation Court refused to allow any amendment of the $9,181.27 petition request. However, the court concluded that the claimant was entitled to a lump sum award for the purchase of the 1987 Buick: [Finding of Fact] 8. If the claimant is not awarded the requested lump sum, the 1987 Buick will be repossessed. Claimant and his wife need reliable transportation. . . . [Conclusion of Law] 2. Claimant is entitled to receive an advance on his compensation in the amount of $9,181.27. The insurer may recover the advance by reducing his weekly compensation by $20.00 per week. Claimant requested attorney's fees based upon an hourly fee of $225 multiplied by 171.05 hours which his attorney claims were spent in pursuit of the lump sum award, notwithstanding that his attorney missed at least three deadlines for exchanging exhibits, preparing a final pretrial order and following the court's orders relative to the issues to be tried. The court denied the request of $38,486.25 in attorney's fees and awarded an attorney fee based upon the 33% contingent fee agreement. Claimant presents the following issues for our review: 1. Did the Workers' Compensation Court abuse its discretion by awarding a partial lump sum advance of $9,181.27, rather than the $12,900 needed to pay off the 1987 Buick? 2. Did the Workers' Compensation Court abuse its discretion by granting respondent a weekly recoupment of $20 per week from the claimant's disability benefits? 3. Did the Workers' Compensation Court abuse its discretion by refusing to award attorney's fees without considering the documentation at an evidentiary hearing? Issue No. 1 Did the court abuse its discretion by refusing to award sufficient funds to pay off the 1987 Buick? We conclude it did. The amount awarded, $9,181.27, was initially requested by claimant's original counsel to pay off the 1984 Ford LTD which was subsequently repossessed. This sum originally included $1,836.25 in attorney's fees. Claimant financed the purchase of a new automobile for an amount the court concluded was not unreasonable. The court also concluded claimant was entitled to a lump sum award because the claimant needed reliable transportation. Additionally, the court awarded the full $9,181.27 for the purchase of the automobile, and made a separate award of attorney's fees, even though the court earlier refused to allow any amendment of the petition request. While we recognize the court's need to require adherence to pretrial orders, the facts of this case do not justify a denial of funds sufficient to pay off the automobile loan. This purpose of the lump sum request was known to the respondent since May of 1986, and no prejudice would have resulted had the court allowed the claimant to amend his petition. Additionally, the court did amend the petition, without objection by respondent, when it awarded the full $9,181.27 toward payment of the automobile loan. The parties agree that, under these facts, the "best interest" of the claimant test determines whether the lump sum award is proper. In light of the court's determination that the claimant's best interests dictate that he is entitled to a lump sum award to pay off his automobile loan, we conclude it was unreasonable and an abuse of discretion to limit the award to an amount which is insufficient to meet that need. Issue No. 2 Did the Workers' Compensation Court abuse its discretion in granting respondent a weekly recoupment of $20 per week from the claimant's disability benefits? Claimant argues the insurer is only entitled to recoup advances at the distal end of the claim or at the time of full and final settlement. We disagree. The Workers' Compensation Court concluded the insurer should be able to recover the advance through a reduction of the biweekly payments. This same conclusion was reached earlier by the Workers' Compensation Court in Lecher v. Montana Physician's Service and Fireman's Fund, WWC No. 8503-2956, Volume VI, No. 325 (filed August 21, 1985). There the court reasoned at Conclusion of Law No. 5: It is not sufficient for a claimant to simply request a lump sum with credit to the defendant from the distal end of the claimant's entitlement. There may be factual situations in the past and in the future where that is an appropriate Court ordered award. However, most claimants are already on an extremely tight budget and simply planning on having a greatly reduced income or no income at some point in the distant future is not debt management nor is it a plan. Generally, claimant should anticipate a biweekly repayment to the defendant over their estimated lifetime entitlement. A claimant is not entitled to double recovery of both a lump sum advance and the biweekly payments. Since a lump sum advance is merely the whole or partial conversion of a claimant's biweekly payments, the insurer is entitled to recover the advance. Additionally, the Workers' Compensation Judge considered the claimant's best interests, including his present and future income, and concluded the lump sum advance, offset by a $20 per week recoupment would meet the claimant's best interests. The Workers' Compensation Court, quoted Willoughby v. Arthur G. McKee and Co. (19801, 187 Mont. 253, 257, 609 P.2d 700, 702: "The criteria determinative of the advisability of conversion to a total or partial lump sum award have generally been held to be ' . . . the best interests of the claimant, his family and for the best interests of the public. . . ' [Citations omitted.] The existence of a 'pressing need' and/or 'outstanding indebtedness' has likewise been held to be relevant criterion. . . [Citation omitted.]" We conclude the court's decision was supported by substantial evidence and did not constitute an abuse of discretion when it allowed the insurer a weekly recoupment of the lump sum advance prior to a final settlement. Issue No. 3 Did the Workers' Compensation Court abuse its discretion by refusing to award attorney's fees without considering the documentation at an evidentiary hearing? On November 3, 1988, the court entered its findings of fact, conclusions of law, and judgment in which it awarded claimant reasonable costs and attorney's fees pursuant to § 39-71-612, MCA. The order read in part: If the defendant or the claimant believes the amount due the claimant's attorney is unreasonable, then each has 30 days from the date of this Order to file a Motion for Evidentiary Hearing Regarding Reasonableness of Attorney Fees Thus, unless counsel can convince the Court otherwise, we are inclined to award the 33 percent contingency fee . . . On November 23, 1988, claimant's attorney filed a Memorandum of Time and Costs in which he requested $38,486.25 in attorney's fees and $993.50 in costs, but he did not request an evidentiary hearing. Respondent filed an objection to the Memorandum and requested an evidentiary hearing. On December 8, 1988, the court awarded attorney's fees based upon the contingency fee agreement and stated that the claimant had not convinced him that any greater fee should be awarded. Claimant now argues the court abused its discretion because it did not hold an evidentiary hearing on the requested attorney fees. Claimant relies on our recent decision in Honey v. Stoltze Land and Lumber Co. (Mont. 1989), 769 P.2d 42, 46 St.Rep. 202, as requiring an evidentiary hearing before attorney's fees above the contingency agreement may be denied. We disagree. The requested attorney's fees in Honey were denied by the Workers' Compensation Court, without any consideration, simply because the attorney did not request an evidentiary hearing. We reversed because we concluded the claimant's attorney was not required to request an evidentiary hearing before the court could consider the evidence under the Wight guidelines. Wight v. Hughes Livestock Co., Inc. (1983) , 204 Mont. 98, 664 P. 2d 303. In the present case, however, the evidence was considered and the court determined the requested fees were unreasonable. There was no abuse of discretion in denying the requested attorney's fees. Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion. I. We concur: /,Istice | July 25, 1989 |
98ec7597-75c5-4c20-b8e6-2db0b7b40fce | AMERICAN FEDERAL SAVINGS LOAN ASS | N/A | 88-432 | Montana | Montana Supreme Court | No. 88-432 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 AMERICAN FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff and Respondent, -vs- A. LEE BUCKLAND, THE MONTANA POWER COMPANY, LES MORRISON, d/b/a CITY SIGN, EDWARD C. AND MARILYN EBERLY, et al., Defendants and Appellant. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Thomas Honzel, Presiding Judge. COUNSEL OF RECORD: For Appellant: Jackson & Rice; Gregory A. Jackson, Helena, Montana For Respondent: Alan 1 , . Joscelyn; Gough, Shanahan, Johnson & Waterman, Helena, Montana Filed: :- -( , -. : ..".. - . . . i ' , . ) i 1 ., - -.- Submitted on Briefs: June 1, 1 9 8 9 Decided: Allgust 11, 1989 Mr. Justice William E. Hunt delivered the Opinion of the Court. A. Lee Buckland, defendant and appellant, appeals from the foreclosure of a trust indenture on his property entered in favor of American Federal Savings and Loan Association, plaintiff and respondent, by the District Court of the First Judicial District, Lewis and Clark County. American Federal cross-appeals on the issue of a mechanic's lien entered in favor of Buckland. We affirm in part and remand for a recal- culation of amounts due under the trust indenture. The issues raised on appeal are: 1. Whether American Federal improperly carried forward a mechanic's lien from one property to another. 2. Whether American Federal breached its duty of good faith and fair dealing by mismanaging rental property. 3. Whether the District Court properly found that American Federal was entitled to foreclosure of its note secured by a trust indenture on Buckland's property. In 1978, Buckland, a real estate broker, purchased an apartment building on Rodney Street in Helena, Montana, on a contract for deed. Buckland refinanced the property by obtaining a loan with American Federal. Originally, the loan was secured by a trust indenture on the property for $35,000.00 but it was later refinanced for $45,000.00. In 1981, Buckland hired Blackfoot Electric to rewire the building. Blackfoot submitted a written bid for the job at $4,700.00 but raR into unanticipated problems. Conse- quently, Blackfoot billed Buckland for over $9,000.00. Because Buckland did not pay the bill, Blackfoot filed a mechanic's lien against the property in January of 1982 for $9,148.74. In 1983, Buckland arranged an exchange transaction involving his Rodney Street property, a Warren Street proper- ty, also located in Helena, and a fifteen-acre tract portion of a subdivision located in Lewis and Clark County known as Sunny Vista. The exchange involved Buckland, as owner of the Rodney Street property, Thomas Fenton, as the owner of the Warren Street property, American Federal, as the holder of a first trust indenture on the Rodney Street property and the holder of a first trust indenture on the Warren Street prop- erty, Edward Eberly, as the holder second trust indenture on the Warren Street property, and Robert King, as the owner of the Sunny Vista tract. However, before the exchange could take place, the Blackfoot mechanic's lien needed to be settled. Since Ameri- can Federal held a security interest in Buckland's Rodney Street property, its approval was necessary to settle the mechanic's lien and complete the exchange of properties. Consequently, American Federal acted as pointman, with Buckland's input, in the mechanic's lien negotiations. The mechanic's lien was settled for $10,500.00, which totaled $11,700.00 with interest. Buckland objected to settling the lien for that amount which included the original $9,148.74 lien plus costs. American Federal paid the settlement and took assignment of the lien. On July 22, 1983, the properties were exchanged and, as part of the exchange, American Federal loaned Buckland $11,700.00, the amount paid by American Federal on the me- chanic's lien, which was secured by a trust indenture on Buckland's newly acquired property. The trust indenture, when added to a previous debt owed American Federal, totaled $29,700.00. Further, Buckland's Sunny Vista property was subject to a trust indenture securing a $29,700.00 debt due American Federal; Ruckland assumed responsibility for Fenton's $9,479.37 debt to Eberly; Buckland took on a third trust indenture for a $5,000.00 debt he owed to King; and the mechanic's lien, settled at $10,500.00, was carried forward. Subsequently, Buckland traded his Sunny Vista property for a Billings Avenue duplex located in Helena, valued at $48,500.00 and owned by Sharon Hubbell. Hubbell owned the Billings Avenue property subject to a contract for deed which was transferred upon the exchange. The holders of the first, second and third trust indentures against the Sunny Vista property agreed to transfer their trust indentures to the Billings Avenue property in order to facilitate the Buckland-Hubbell exchange. The mechanic's lien was also carried forward. In addition, on August 3, 1983, American Federal loaned Buckland $4,477.00. The loan was secured by a fourth trust indenture on the Billings Avenue property. Hence, Buckland's Billings Avenue property was subject to the following trust indentures: (1) A first trust indenture of July 22, 1983, to First Montana Title, as trust- ee, and in favor of American Federal Savings and Loan Association, as benefi- ciary, to secure payment of $29,700.00, with interest at 13-112 percent per annum, payable - in monthly installments. (2) A second trust indenture of July 22, 1983, to First Montana Title, as trust- ee, and in favor of Edward C. and Marilyn Eberly, as beneficiaries, to secure payment of $9,479.37, with inter- est at 11 percent per annum, payable in semiannual installments. (3) A third trust indenture of July 22, 1983, to first Montana Title Insurance Company, as trustee, and in favor of Robert King and Margaret King, as bene- ficiaries, to secure payment of $5,000.00, with interest at 10 percent Per annum, payable in annual installments. (4) A fourth trust indenture, of August 3, 1983, to First Montana Title Insur- ance Company, as trustee, and in favor of American Federal Savings and Loan Association, as beneficiary, to secure payment of $4,477.00, with interest at 15 percent per annum, payable in October 1983. The security for this payment was "the proceeds of real estate commissions." The first and fourth trust indentures are the subject of this dispute. Buckland's payments to American Federal under the first trust indenture (the July note) were $358.60 per month to begin on August 1, 1983. The fourth trust indenture (the August note) was due, in full, in October of 1983. American Federal notified Buckland by letter that the July and August notes had gone into default--the July note in September of 1983 and the August note in October of 1983. In 1983, Buckland made payments on the July note in the total amount of $3,644.46. In January of 1984, Buckland made only two payments towards the July note--one in the amount of $291.60 and the other in the amount of $67.00. In June of 1984, Buckland moved to Georgia and ar- ranged for Kelly Patzer to manage the Billings Avenue proper- ty and remit rents collected to American Federal for application to the July and August notes owed on the Billings Avenue property. On September 24, 1984, American Federal received a letter from Buckland informing it of Buckland's instruction to Patzer to bring American Federal the rents, "to be applied to the loans." On October 29, 1984, American Federal sent Buckland a letter informing him it was applying rents received on his account to satisfy the August note first and then to satisfy the July note. In July of 1984, American Federal advanced monies for the payment of taxes and insurance due on the property. Early in 1985, Patzer turned management of the Billings Avenue property over to Steve Schmitz. Under Schmitz ' s management, rents were not remitted to American Federal. In August of 1985, Schmitz turned management of the property over to American Federal at which time American Federal advanced monies towards maintenance, utilities and repairs. At that time, one rental unit was vacant and the other was four months delinquent. American Federal reduced the rent on the vacant rental and shortly thereafter found a tenant. Rents received under American Federal's management were not. applied to the July note but were documented in a general ledger non-interest bearing account which totaled $9,734.81 through November 22, 1987 ($1,114.49 of the rents collected were applied to the August note which was paid off in Septem- ber of 1985). In January of 1986, American Federal commenced foreclo- sure proceedings on its trust indenture securing the July 1983 note. Buckland returned to Helena in May of 1986. American Federal had originally scheduled a trustee's sale but it was cancelled due to the insistance of Buckland, Eberly and King. American Federal settled the claims of Eberly and King prior to trial but commenced with a judicial foreclosure in District Court against Buckland. Buckland counterclaimed on the issue of breach of American Federal's duty of good faith and fair dealing. On November 23, 1987, the case was tried in the Dis- trict Court, sitting without a jury. The court's findings of fact and conclusions of law included the following: 1. American Federal is entitled to foreclo- sure of its security interests in the property but was not entitled to a deficiency judgment nor attorney fees; 2. The money paid to satisfy the mechanic's lien on the Rodney Street property should not have been carried forward to the Billings Avenue property; 3. Buckland did not establish by a prepon- derance of the evidence that American Federal breached the implied covenant of good faith and fair dealing; 4. Rents received by American Federal begin- ning in August of 1985 should not have been put in the general ledger account; and 5. There should be a recalculation of amounts due American Federal. On April 11, 1988, Buckland filed a post-trial motion to amend the findings of fact and conclusions of law and a motion for a new trial. On April 14, 1988, American Federal filed cross-motions on the same subject matter. The motions were denied under Rule 59 (dl , M. R.Civ. P. Buckland appeals and American Federal cross-appeals. In Dennis v. Tomahawk Services, Inc. (~ont. 19891, 767 P.2d 346, 347, 46 St.Rep. 69, 70, we provided: The standard of review for a civil case for a judge sitting without a jury is whether or not the Dis- trict Court's findings are clearly erroneous. (Citation omitted. ) . . . this Court will not substitute its judgment for that of the trial court's absent that showing, even where there is evidence in the record to support appellant's contentions. The first issue raised on appeal is whether American Federal improperly carried forward a mechanic's lien from Buckland's Rodney Street property to his Billings Avenue property. The July 22, 1983, $29,700.00 note, secured by a trust indenture, originally applied to Buckland's Rodney Street property. The note was transferred to the Sunny Vista prop- erty and eventually to the Billings Avenue property under a complicated property exchange. Buckland argues, and correctly so, that the $29,700.00 figure was inflated because it included the $10,500.00 ($11,700.00 with interest) mechanic's lien which, according to the Rodney Street closing statement, was paid from the proceeds of the $65,000.00 sale price received from Fenton on the Rodney Street property. (No actual money changed hands as the transaction was on an exchange basis.) Thus, the July note need be reduced by the amount of the mechanic's lien lest American Federal recover twice. The second issue raised on appeal is whether American Federal breached its duty of good faith and fair dealing by mismanaging the Billings Avenue rental property. Buckland contends that for numerous reasons, American Federal breached its duty as set forth in S 30-1-203, MCA: Every contract or duty within this code imposes an obligation of good faith in its performance or enforcement. In June of 1984, Buckland moved to Georgia, leaving management of the Billings Avenue property in the hands of Kelly Patzer. Patzer was instructed to remit rents received to American Federal as payments on Buckland's July and August notes. On September 24, 1984, American Federal received a letter from Buckland which read in part: "I have instructed Kelly to bring the rent into you to be applied toward the loans. " On October 29, 1984, American sent Buckland a letter informing him that it was applying rents received. first to satisfy the August note and next to satisfy the July note. Ruckland argues that this was a breach of American Federal's duty of good faith and fair dealing since it had an obliga- tion to apply rents to July note before the August note. We disagree. The relationship between bank and customer is that of debtor-creditor. Under $ 28-1-1106 (2) , MCA, when a debtor owes more than one debt and does not direct the creditor as to how payment is to be applied, the creditor may apply the payment to any obligation owing. See also, National Rank of Montana v. Bingham (1931), 91 Mont. 62, 5 P.2d 554. In the present case, Buckland never instructed American Federal as to which note to apply rents to and he never objected to the order of application of rents until threat- ened with foreclosure. American Federal duly notified Ruckland of its intention to apply rents as it did and cannot now be said to have breached its duty of good faith and fair dealing for doing so. Further, in 1985, Patzer turned management of the Billings Avenue property over to Steve Schmitz who turned management of the property over to American Federal in August of 1985. Buckland argues that when American Federal took over management it breached its duty of good faith by arbi- trarily reducing rents and failing to qualify a delinquent renter for Helena Housing Authority guaranteed payments. American Federal notes, however, that it reduced rent on a vacant apartment in order to find a renter and shortly there- after found one. Further, the record indicates that American Federal did attempt to qualify the delinquent tenant for the Helena Housing Authority guaranteed payments but Helena Housing required Buckland's signature which American Federal could not obtain due to Buckland's absence from the state. There was no breach of duty by American Federal on this contention. Buckland also argues that American Federal breached its duty of good faith by placing payments, which should have applied to the July note, in a non-interest bearing general ledger account presently totaling $9,734.81 ($3,092.51 as of the date the complaint was filed). He argues that interest on the note accrued at a higher rate because the amount had not been reduced. The trust indenture provided that when the lender is in possession, rents received shall apply to the cost of manage- ment and then to the sums secured by the trust indenture. Instead of applying the sums in this manner, sums were merely documented in the ledger. Under the terms of the agreement, American Federal had the authority to apply rents received to the cost of management. Although American Federal expended $4,636.95 paying taxes, (not including an additional $433.29 on the first half taxes due in November of 1987), insurance, maintenance, utilities and repair expenses on the property, it did not deduct these costs from the general ledger account as provided for in the trust indenture. On the same note, it did not so apply the funds toward the interest nor the prin- cipal owed by Buckland on the July note. American Federal argues that it let the funds lay dormant in the account because there were never enough rental receipts at any one time to pay off interest accrued on the note. While we do not condone the handling of the funds in the general ledger account, the evidence under these circumstances is insuffi- cient to hold that American Federal breached its duty of good faith on this allegation. Buckland also contends that American Federal breached its duty of good faith and fair dealing in settling the mechanic's lien for $10,500.00. The original bid for rewir- ing the Rodney Street building was $4,700.00. Due to unan- ticipated problems, Blackfoot billed Euckland $9,148.74. Buckland, who proposed to sell the property, needed American Federal's approval since it had a security interest therein. Hence, American Federal negotiated the settlement, with Buckland's input, for $10,500.00, which included the lien plus costs. Buckland objected to this amount. However, the settlement of the lien was necessary before the exchange could take place since a mechanic's lien is prior to a trust indenture. See Home Interiors, Inc. v. Hendrickson (1984), 214 Mont. 194, 692 P.2d 1229. Buckland, an experienced real estate broker, opted to go through with the settlement, although he found it objectionable, in order to facilitate the Rodney Street property exchange and admitted that the settlement was in his own best interests. We cannot, there- fore, hold that a breach of American Federal's duty on this contention is founded. Buckland did not establish by a preponderance of the evidence that American Federal breached its duty of good faith and fair dealing. The evidence is insufficient. The last issue raised on appeal is whether American Federal was entitled to foreclosure of its July 1983 note secured by a trust indenture on Buckland's Billings Avenue property. As noted, Buckland's Billings Avenue property was subject to four trust indentures upon transfer. A first trust indenture secured the payment of the July note in the amount of $29,700.00 with interest at 133 percent per annum, payable in monthly installments at $358.60. Payments were to begin August 1, 1983. On September 2, 1983, American Federal sent Buckland a letter stating that the loan payment had not been received. Buckland proceeded to make payments in the total amount of $3,644.46 for 1983. In January of 1984, Buckland made only two payments toward the July note--one in the amount of $291.60 and the other in the amount of $67.00. No further payments were made by Buckland toward the July note. On April 5, 1984, American Federal once again sent a letter to Buckland informing him that his loan payment was delinquent. On September 19, 1984, American Federal sent Buckland a letter which broke down amounts due on both the July and August notes. The letter also stated that American Federal was willing to work with Buckland on the notes but required a response by September 30, 1984, or it would pro- ceed with foreclosure. Buckland did respond on September 24, 1984, stating that rents from his Billings Avenue property were to be deposited by the current manager of the building, Patzer, and were to be "applied to the loans." On October 29, 1984, American Federal responded that it would first apply the rents to the August note until paid off and then to the July note. American Federal added that as long as "rent continues to come on a regular basis the foreclosure will be held off." However, early in 1985, management of the property w a s turned over to Steve Schmitz. Under his management, there were vacancies and problems with remitting rents collected to American Federal. In August of 1985, Schmitz turned manage- ment over to American Federal. American Federal applied the rents first to the August note, which was paid in full in September of 1985, and the trust indenture was released. Through November of 1987, American Federal collected rents in the amount of $9,734.81 which were placed in a non-interest bearing general ledger account. As noted, the funds could have been used towards American Federal's costs of managing the Billings Avenue property but were not. Although we disagree with the handling of the funds, the funds, if ap- plied to the July note, would still have been insufficient to bring the note current. The foreclosure was proper. Neither Buckland in his appeal nor American Federal in its cross-appeal proved the District Court's findings to he clearly erroneous. We will not disturb the court's findings. A problem remains as to the amount due on the July 1983 note. The note was for $29,700.00 which included sums im- properly carried forward on the Blackfoot mechanic's lien. A recalculation on the amount due by Buckland is necessary. We note that when recalculation occurs consideration must be given to principal, interest, late charges, expenses of managing the Billings Avenue property, and sums remaining in the general ledger account. Affirmed in part and remanded for a recalculation on amounts due under the trust indenture. We Concur: / 7 d Justice | August 11, 1989 |
261024d1-cbc9-4d50-903b-fb22146bc7d1 | STATE v FITZGERALD | N/A | 88-572 | Montana | Montana Supreme Court | NO. 88-572 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Respondent, -vs- MAURICE FITZGERALD, Defendant and Appellant. APPEAL FROM: ~istrict Court of the ~hirteenth ~udicial ~istrict, In and for the County of Yellowstone, The Honorable Russell ~illner, Judge presiding. COUNSEL OF RECORD: For Appellant: Allen Beck, ~illings, Montana For Respondent: Hon. Marc ~acicot, Attorney General, Helena, Montana John Paulson, Asst. Atty. General, Helena Harold Hanser, County Attorney; Brent Brooks, Deputy County Atty., ~illings, Montana Submitted on Briefs: June 30, 1989 . . ~ecided: July 24, 1989 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Defendant appeals his conviction in the District Court for the Thirteenth Judicial District, Yellowstone County, of four counts of sexual intercourse without consent. We affirm. The issues are: 1. Did the District Court violate the defendant's right of confrontation by limiting his cross-examination of the victim named in Count I of the information? 2. Did the District Court err in admitting evidence of other crimes or wrongs as to Count I1 of the information? Defendant was charged with four counts of sexual inter- course without consent, each count alleging a separate inci- dent and a different victim. After a five-day jury trial, he was found guilty on all four counts and sentenced to a prison term of 40 years on each count, the terms to be served con- currently. He appeals on issues relating to two of the four counts against him. He argues that the errors relating to those two counts tainted the entire case. Did the District Court violate the defendant's right of confrontation by limiting his cross-examination of the victim named in Count I of the information? Count I of the information alleged an incident of sexual intercourse without consent on October 4, 1987, from 12:00 to 1:30 a.m. The victim testified at trial as follows: During the late evening hours of October 3, 1987, she was at the Machine and Pool Palace in Billings, Montana, with her roommate Collette. Defendant, to whom she had been intro- duced before, asked her to go outside and. talk with him. When they were outside, the defendant stated that he wanted to move his car across the street, and asked the victim to get in the car so that they could continue their conversa- tion. She did so. Instead of driving across the street, the defendant drove to a deserted industrial area and stopped. He refused her requests to take her back to the Machine and Pool Palace. He then fondled her and forced her to perform oral sex. Afterwards, the defendant dropped the victim off near her home and threatened to get revenge if she told anyone. The victim waited for her roommate Collette to get home, told Collette what had happened, and decided to make a police report. On the way to the police station, the two stopped at Collette's boyfriend's house and at the house where the defendant was staying. During both brief stops, the victim remained in the car. Defendant attempted to elicit from the victim on cross-examination that Collette was a prostitute and that her "boyfriend" was actually her pimp. The defense's theory was that the victim was also a prostitute, that the acts between the defendant and the victim were consensual, and that the victim fabricated the rape story so that she would not have to face her pimp with no earnings for the evening. The District Court refused to allow this line of questioning. The Sixth Amendment to the United States Constitution provides that a criminal defendant shall enjoy the right "to be confronted with the witnesses against him." The Montana Constitution also guarantees the right of the criminally accused to meet the witnesses against him face to face. Art. 11, Sec. 24, Mont. Const. Defendant argues that in the absence of physical evidence or other evidence corroborating the victim's testimony, his proposed line of questioning was relevant to the victim's veracity and essential to his right of confrontation. Section 45-5-511(4), MCA, provides: No evidence concerning the sexual conduct of the victim is admissible in prosecu- tions under this part except: (a) evidence of the victim's past sexual conduct with the offender; (b) evidence of specific instances of the victim's sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution. Neither of the two statutory exceptions applies in this case. This Court has considered whether the restrictions codified at 5 45-5-511 (4) , MCA, deny a defendant his consti- tutional right to confront witnesses. State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043. There the Court stated that the "rules limiting inquiry into sexual conduct of the victim are essential to preserve the integrity of the trial and to prevent it from becoming a trial of the victim," and found no denial of a defendant's rights in these limitations. Higley, 621 P.2d at 1050-51. Defendant maintains that the line of questioning he wishes to pursue is permissible under State v. Anderson (1984), 211 Mont. 272, 686 P.2d 193. In that case, this Court stated that: [dl espite the general policy against sordid probes into a victim's past sexual conduct, we conclude that the policy is not violated or circumvented if the offered evidence can be narrowed to the issue of the complaining witness' veracity. Anderson, 686 P.2d at 200. (Citation omitted.) In Anderson, the offered evidence was that the child victim had made a prior false charge of sexual assault. The Court concluded that the trial court correctly excluded this evidence as unduly prejudicial compared to its value probative of the victim's truthfulness, under Rule 403, M.R.Evid. Anderson, 686 P.2d at 201. In the present case, although the defense argues that the testimony about prostitution would go toward the victim's veracity and motivation to fabricate a rape story, we con- clude that the District Court did not err in ruling that the prejudicial effect of that testimony on the credibility of the victim would outweigh its probative value. As the State points out in its brief, the defense did not offer any wit- nesses, other than possibly the defendant, who could testify that the victim and Collette were prostitutes. It did not offer testimony that the victim had solicited defendant to engage in sexual intercourse for money. Further, even if it were proven that the victim was a prostitute, that would not have proven consent. We hold that the District Court did not violate the defendant's right of confrontation by refusing to allow the desired cross-examination. 11. Did the District Court err in admitting evidence of other crimes or wrongs as to Count I1 of the information? Count I1 of the information alleged that at about 11:OO p.m. on November 4, 1987, the defendant knowingly had sexual intercourse without consent with the second victim. The victim testified at trial as follows: She had lived with the defendant off and on from Janu- ary 1986 until July 1987. In August 1987, a son was born to them. She allowed the defendant to visit his son from time to time. At about 11:OO p.m. on November 4, 1987, the defen- dant came to the victim's house claiming he had brought some diapers for the baby. The victim allowed defendant in. When she learned that he did not have diapers or wish to see his son, she asked him several times to leave. He pretended to do so, but then came back and tried to force her to perform o r a l sex. She struggled u n t i l she heard t h e baby crying. Then she gave up and t o l d him t o "get it over so I can go see m y son." Defendant forced vaginal i n t e r c o u r s e . Defendant threatened t h e victim t h a t i f she reported t h e i n c i d e n t , he would come t o g e t her. She went i n t o t h e bedroom t o tend t h e baby and stayed t h e r e u n t i l t h e defendant l e f t t h e house a t about 6:00 a.m. The victim reported t h e i n c i d e n t t o t h e p o l i c e about a month a f t e r it happened. She s t a t e d t h a t she delayed i n t e l l i n g anyone because of t h e defendant's t h r e a t s and because she feared no one would b e l i e v e h e r , given h e r former r e l a t i o n s h i p with t h e defendant. O n d i r e c t examination, t h e S t a t e e l i c i t e d testimony from t h i s victim about previous physical a s s a u l t s which t h e defendant had committed a g a i n s t her. She t e s t i f i e d about i n c i d e n t s i n May 1986, March 1987, and J u l y 1987. The defen- dant objected t o t h e admission of t h i s testimony on t h e grounds t h a t t h e a s s a u l t s w e r e not s i m i l a r t o t h e crime charged here. The S t a t e successfully argued t h a t t h i s evi- dence was r e l e v a n t t o t h e i s s u e of consent and showed t h a t t h e v i c t i m had good reason t o be a f r a i d of t h e defendant. I n general, evidence of o t h e r crimes, wrongs, o r a c t s i s n o t admissible t o prove t h e c h a r a c t e r of a person. Rule 404 (b) , M.R.Evid. Such evidence may be admissible f o r other purposes, however. - Id. I n S t a t e v. J u s t (1979), 184 Mont. 262, 269, 602 P.2d 957, 961, t h i s Court s e t f o r t h a four-factor t e s t t o d e t e r - mine whether evidence of other crimes o r a c t s i s admissible i n a criminal prosecution. The f a c t o r s a r e : 1. S i m i l a r i t y of crimes o r a c t s ; 2 . nearness i n time; and 3 . tendency t o e s t a b l i s h a common scheme, plan, o r system; and 4 . t h e probative value of t h e evidence i s not s u b s t a n t i a l l y outweighed by t h e prejudice t o t h e defendant. Defendant argues t h a t t h e o t h e r crimes i n t h i s case, a s e r i e s of domestic a s s a u l t s , a r e not s i m i l a r t o t h e crime charged. He a s s e r t s t h a t t h e evidence of t h e a s s a u l t s should not have been admitted. However, a s t h e S t a t e argues, t h e o t h e r crimes on which testimony was permitted were s i m i l a r t o t h e offense charged i n s e v e r a l p a r t i c u l a r s . They were crimes by t h e defendant a g a i n s t t h e same victim. They a l l occurred i n t h e v i c t i m ' s home. They a l l followed arguments between t h e defendant and t h e victim i n which t h e defendant was angry about some per- ceived s l i g h t . W e conclude t h a t t h e D i s t r i c t Court d i d not abuse its d i s c r e t i o n i n allowing t h e testimony about p r i o r physical a s s a u l t s of t h e victim i n Count 11. The defendant has not appealed any i s s u e s r e l a t i n g t o t h e remaining two counts on which he was found g u i l t y . Because we have concluded t h a t t h e defense has not shown r e v e r s i b l e e r r o r , we need not consider wh t a i n t e d t h e t r i a l on those two counts. Affirmed. | July 21, 1989 |
820a4997-958e-46e9-9e36-50e7689071f5 | MARRIAGE OF MILLER | N/A | 88-557 | Montana | Montana Supreme Court | No. 8 8 - 5 5 7 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 I N RE THE MARRIAGE OF MARY LOU MILLER, P e t i t i o n e r and A p p e l l a n t , and DALE LEE MILLER, R e s p o n d e n t and R e s p o n d e n t . APPEAL FROM: D i s t r i c t C o u r t of t h e F i f t e e n t h J u d i c i a l D i s t r i c t , I n and for t h e C o u n t y of R o o s e v e l t , T h e H o n o r a b l e M . J a m e s Sorte, Judge presiding. COUNSEL OF RECORD: For A p p e l l a n t : Joan M e y e r N y e ; N y e & M e y 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 : J a m e s D. R e c t o r ; R e c t o r & M c C a r v e l , G l a s g o w , M o n t a n a S u b m i t t e d on B r i e f s : M a y 11, 1 9 8 9 D e c i d e d : J u l y 1 8 , 1 9 8 9 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of the Court. This i s an appeal from t h e F i f t e e n t h J u d i c i a l D i s t r i c t Court, Roosevelt County, Montana, t h e Honorable M. James Sorte presiding. I n t h i s marriage d i s s o l u t i o n a c t i o n , a p p e l l a n t appeals t h a t portion of t h e D i s t r i c t Court's findings of f a c t , and conclusions of law p e r t a i n i n g t o t h e property d i s t r i b u t i o n of t h e m a r i t a l e s t a t e . W e reverse and remand. Mary Lou and Dale M i l l e r were married on March 7, 1964 and remained married f o r a period of some twenty-four years. Three c h i l d r e n were born of t h e marriage, two sons, both of l e g a l age a t t h e time of t h e d i s s o l u t i o n , and one daughter who has s i n c e reached majority. Respondent Dale M i l l e r ( h e r e i n a f t e r r e f e r r e d t o a s t h e husband) has been a farmer/rancher most of h i s l i f e . The a p p e l l a n t , Mary Lou M i l l e r ( h e r e i n a f t e r r e f e r r e d t o a s t h e wife) cared f o r t h e family home, r a i s e d t h e t h r e e c h i l d r e n , a s s i s t e d with various farm d u t i e s and worked o u t s i d e t h e home a t a s s o r t e d jobs. Those jobs included work a s a s u b s t i t u t e school teacher, school bus d r i v e r and r e t a i l s a l e s c l e r k . The wife f i l e d h e r p e t i t i o n f o r d i s s o l u t i o n of marriage on A p r i l 5 , 1985, and requested t h e c o u r t divide t h e m a r i t a l and personal property equally between t h e p a r t i e s . The husband answered t h e p e t i t i o n on April 18, 1985, and admitted t h a t t h e c o u r t should d i v i d e t h e property equally. However, two years l a t e r , t h e husband f i l e d with t h e D i s t r i c t Court two r e p o r t s , one on June 1, 1987 and one on June 29, 1987, regarding h i s p r e m a r i t a l property. These r e p o r t s claimed t o t a l l y d i f f e r e n t m a r i t a l a s s e t s . The husband a s s e r t e d i n t h e s e two r e p o r t s t h a t he had owned various personal property and land prior to the marriage. The husband requested the District Court deduct the value of his premarital property from the total of the marital estate before it made its determination and distribution, and that the value of his premarital property should be awarded solely to him. In addition, the husband asserted that part of the value of the land the parties acquired during the marriage should also be deducted from the marital estate prior to division and be awarded to the husband as his sole premarital and gifted property. On August 23, 1988, the District Court entered its Findings of Fact, Conclusions of Law and Decree and found the net worth of the marital estate to be: Total assets: $318,936.50 Total liabilities: $12,950.00 Total (net) marital estate: $305,986.50 The District Court distributed the total net estate as follows: $70,812 to the wife (or 23% of the total marital estate) and $235,174.50 to the husband (or 77% of the total marital estate). On appeal the wife claims the District Court's division of property was not supported by the record. She takes specific objection to the court deducting, prior to division, the following: the present value of all personal property the husband claimed he owned at the time of the marriage but did not own at the time of the dissolution; the full value of land both parties received by gift in 1970 from the husband's mother; the claimed discount below market value in the purchase price at which the husband's parents sold certain land to the parties during the marriage; and all premarital land of the husband. The husband claimed that, with personal funds owned prior to the marriage, he paid for all land the parties purchased during the marriage, specifically from the husband's parents. In addition to land the husband purchased in 1954, he claimed sole personal ownership, prior to the marriage of the following items: 1958 MM GB tractor; 1956 Oliver 88 tractor and loader; 1952 Ford 8N tractor; 1957 Ford 2-ton truck; 1954 Oliver 33 combine; 1953 MF 10 baler; 1957 IHC swather; 1958 Cockshutt tool bar; 1957 John Deere disk; John Deer plow; 1961 Farmhand rake; 1963 Ford pickup; 1954 Ford pickup; pickup camper; Aluma Craft boat and trailer with 40 hp Johnson motor; water well; 85-90 head of cows; 12 bulls; 2 horses; saddle; 500 bushels alfalfa seed; hay, oats and barley; cow shed; buildings moved from other place; fences; two 1100-bushel steel bins; 2 fuel tanks; cattle chute; tools and chain saws; approximately 9 guns; and $7,000 in savings bonds. It should be noted that the wife's original attorney dropped out of the case a month or two prior to the case being heard by the District Court and certain matters were stipulated or allegedly stipulated to prior to new counsel taking the case. Part of the alleged stipulation went to the above-listed premarital property. The wife's counsel objected, alleging a stipulation as to the deduction of premarital assets was never entered. Testimony at trial concerning the value of the husband's premarital property was not supported by qualified estimates or appraisals, as reflected in the husband's testimony on cross-examination: Q [By wife's attorney] Do you know what the price of registered cows were on March 7th, 1964? A No. Q So that this figure of a thousand dollars is just a guess, isn't it? A Yes. Q Is the camper, boat, motor and trailer still in existence? A It was traded in since then. Q And you don't have any appraisal or no written documents to reflect what its value was on March 7th, 1964, do you? A No. Q So then that value is speculation as well. A Yes. The extent of the wife's contribution to the farm operation and its many related tasks, was disputed by both parties. The District Court heard testimony regarding the wife's contribution to the farm operation from the husband, the wife, one of their sons and various friends and neighbors. After hearing the testimony, the District Court found that the wife made a "negligible contribution" to the farm and the ranch operation. This Court finds error with the District Court finding the wife made a "negligible contribution." The record reveals just the opposite; she raised the parties' three children, was a helping hand on the ranch, was primarily responsible for the ranch home and town home, and worked outside of the home at various jobs. The wife objects to the District Court's findings of fact, specifically Nos. 15, 16, 19 and 20. In finding No. 15 the wife objects to the court's finding that while she had received a $3,700 settlement for a personal injury, an injury incurred prior to the marriage and the settlement received after the marriage, that the District Court found " [tlhe $3,700.00 was not used for any land payments or as contribution towards the marital estate." In finding No. 16 the wife objects to the court's finding that the husband paid for the land purchased from his parents during the marriage with money " [dl irectly traceable and attributable to the premarital assets of the [husband] . " In finding No. 19 the wife objects to the court's finding that the she " [dloes have an opportunity for future acquisition of substantial capital assets through inheritance" from her father if she out-lives him. The District Court did not note that she is one of eight children in her family, and according to the wife's testimony at trial the oil wells owned by her father were not in operation due to the shutdown of many of the oil fields in eastern Montana. In finding No. 20 the wife objects to the court's finding that the husband " [hlas little or no opportunity for the acquisition of capital assets or income," even though the record indicates that he received money from mineral leases on the property and that during the years of the parties' marriage, he has received substantial income from those mineral leases. Following trial, the wife moved for a new trial, presenting bank documents to show that findings 15 and 16 were clearly erroneous. Her motion for a new trial was denied and the District Court adopted the summary order prepared by the husband's attorney. The wife now appeals that distribution. Numerous issues have been presented on appeal, but in view of the fact that we are returning this matter to the District Court, only two issues will be discussed to clarify the matter on remand. Those issues are: 1. Did the District Court err in applying the "not unconscionable" standard of 5 40-4-201, MCA, instead of the "equitable" standard under 5 40-4-202, MCA, for division of property by the court where the parties had no agreement on division of property? 2. Did the District Court abuse its discretion in setting over $218,220 of the marital estate to the husband before dividing the marital property, without properly considering the wife's contributions to the marriage, resulting in an inequitable division of the marital estate? The "not unconscionable" standard is contained in § 40-4-201, MCA, which in pertinent part states: (2) [tlhe terms of the separation agreement . . . are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties . . . that the separation agreement is unconscionable. The foregoing section limits the application of the standard of unconscionability to the case where a separation agreement is presented to the court. No agreement was proposed in the present case. As a result, the appropriate standard required of the court is contained in 5 40-4-202, MCA, which states in pertinent part: (1) In a proceeding for dissolution of a marriage, . . . the court, without regard to marital misconduct, shall, . . . finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage . . ., the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; . . . and the opportunity of each for future acquisition of capital assets and income. Clearly, the standard of equitable apportionment set forth in 5 40-4-202, MCA, is not comparable to the standard of unconscionability set forth in 5 40-4-201, MCA. In the present case, the District Court adopted without significant change the property description proposed by the husband, and in doing so applied a standard that the proposal was not unconscionable. That does not meet the statutory test of § 40-4-202, MCA. In the present case, the court was required to "finally equitably apportion" the property and assets and was further required to take into consideration a number of factors which are not even mentioned in the other code section. We conclude that the District Court ' s "not unconscionable" finding does not constitute a finding of equitable apportionment. We conclude that the District Court must review all of the elements contained in 5 40-4-202, MCA, and make a determination of equitable apportionment following the provisions of that section. We hold that the application of the "not unconscionable" standard of § 40-4-201, MCA, in the present case constitutes reversible error. The second issue is whether the court abused its discretion in setting over $218,220 of the marital estate to the husband before dividing the marital property, without considering the wife's contributions to the marriage. This Court in In re Marriage of Brown (1978), 179 Mont. 417, 422, 587 P.2d 361, 364, noted the standard of review where we set forth the following: The standard for reviewing the property division in a dissolution decreed by a District Court is well settled in Montana. The apportionment made by the District Court will not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantially inequitable division of the marital assets resulting in substantial injustice. In re Marriage of Blair (1978), Mont., 583 P.2d 403, 405, 35 St.Rep. 1256; Vivian v. Vivian (1978), Mont., 583 P.2d 1072, 1074, 35 St.Rep. 1359; Eschenburg v. Eschenburg (1976) , 171 Mont. 247, 557 P.2d 1014, . . . Porter v. Porter (1970), 155 Mont, 451, 473 P.2d 538. In addition, in In re Marriage of Hall (Mont. 1987), 740 P.2d 684, 686, 44 St-Rep. 1321, 1323, we noted: We have concluded that in a property distribution review in marriage dissolution, this Court will reverse a district court only upon a showing that the district court has acted arbitrarily or has committed a clear abuse of discretion, resulting in either instance in substantial injustice. the case bar, the District Court ' s findings setting over to the husband all premarital property and all property derived from his parents, are very similar to the district court's findings in Brown. We note, however, the unfairness of the order herein where the gift of land by the husband's mother to the parties was not made to just one party but to both the husband and the wife, and such land has been in both of their names. Here the duration of the marriage was substantial, twenty-four years, considerably longer than the fourteen years in Brown. We note in the case at bar the District Court went further than the district court in Brown. The court here gave full credit for unappraised personal property which the husband claimed he owned at the time of the marriage. As a direct result, the court divided the property with 77% going to the husband and only 23% to the wife. The record does not disclose evidence which establishes that the unappraised personal property was still in existence at the time of the dissolution or that it was "acquired in exchange" for such property, as referred to and described in S; 40-4-202, MCA. The District Court also did not grant any value to the wife's contribution to the ranch and marriage. With regard to the 640 acres of land, the court did not have valuations or appraisals as of the date of dissolution. The only values given were those in effect prior to the marriage. With regard to the property owned by the husband prior to marriage, there is no evidence that any part of this property is still in existence. There were no adequate appraisals of the values of such property, only estimates. The court valued the property at $129,900 without substantiated appraisals. We also conclude that in the absence of evidence disclosing that such $129,900 worth of property was in existence or was traceable to property now in existence, such property could not be considered. As stated in Glasser v. Glasser (1983), 206 Mont. 77, 87, 669 P.2d 685, 690, "if inheritance funds are not traceable, then they may not be considered as separate property of the spouse." While the trial court has discretion to select or reject appraisal values, provided there is substantial credible evidence to support the values, there must be evidence to support the trial judge. See In re Marriage of Williams (Mont. 1986), 714 P.2d 548, 554, 43 St. Rep. 319, 327. We conclude that it was an abuse of discretion to set over to the husband $129,900 in value of property on the basis of the alleged premarital personal property brought into marriage by the husband. In addition, we find that the trial court abused its discretion in setting over to the husband the full value of land deeded by the husband's mother: 240 acres - gift from mother in 1970 108 acres of farmland at $155 per acre . . $16,740 132 acres of grassland at $35 per acre. . . 4,620 Total gift - $21,360 It is undisputed that the husband's mother transferred title to both the husband and the wife. There is no evidence that the gift was intended entirely for the husband, nor did testimony indicate whether $20,000 of the parties' marital savings was paid to the husband's mother for this land. The court failed to make any findings as to a claim by wife of payment for the land. While the couple separated in early 1985, we note the husband was in full possession of all cropland, some of which had been in the names of both husband and wife, because the mother gave it to the parties jointly. Yet, the wife received no proportionate share of income from that land between the time of the separation and the time of the final dissolution decree. During the husband's testimony under cross-examination, he admitted that the wife had some interest in the land by virtue of her name appearing on the deed. In 1987, during the period between the separation and the final decree, the income from the land (which included government payments and total crop production) was declared for tax purposes at $38,895. In 1986, the total farm income, calculated for taxation purposes, including depreciation, government payments, etcetera, showed a cash flow in excess of $20,000 after taxes. Additionally in 1985, the year the parties separated, the farm had a cash flow of approximately $11,000. We conclude the District Court erred by inequitably dividing the marital property. Reversed and remanded for proceedings consistent with this opinion. We concur: Chief Justice Justices 12 Mr. Chief Justice J. A. Turnage, dissenting: I respectfully dissent from the majority decision finding error in the division of the marital estate and remanding this cause for further proceedings. I would affirm the decree of the District Court. The majority, in part, appears to be concerned about valuation of certain marital property. In Finding of Fact No. 12, the court found that the parties had prepared and filed a stipulation as to the value of the marital estate. In light of that finding, there should be no dispute about valuations. The standard of review needs no citation. However, as a reminder, we have adopted this standard: A District Court has far-reaching discretion in dividing the marital property. Our stan- dard of review is that the District Court's judgment, when based upon substantial credible evidence, will not be altered unless a clear abuse of discretion is shown. In Re Marriage of Stewart (Mont. 1988), 757 P.2d 765, 767, 45 St.Rep. 850, 852. The obvious reason for adopting this standard of review in marital cases was the recognition that the District Court inevitably is called upon to exercise its discretion based upon the court's opportunity to personally observe the witnesses and hear the testimony in relation to the discrete circumstances of the marriage of the parties. This opportunity afforded the District Judge is not available to this Court, and we should not presume to second-guess the District Judge. The findings of the District Court fairly establish that the wife has, for a considerable period of time during the marriage, found employment away from the farm and the husband has continuous- ly devoted his time to the management of the farm. The result of the individual effort of the parties in their separate endeavors produced almost equal incomes over a five-year average with the wife's income exceeding somewhat that of the husband. Recent agricultural history would indicate operations com- parable to that of the husband's farm are barely break-even propositions. If the agricultural assets were to be distributed in part to both parties, it would be almost inevitable that this family farm would cease to exist. Chief Justice Mr. Justice L. C. Gulbandson and Mr. Justice William E. Hunt, Sr., join in the foregoing dissent of Mr. Chief Justice J. A. 2 fl / Turnage. ,' // / | July 18, 1989 |
7a6cb604-54c6-49f6-8f36-3c0af2af9dc1 | GETTEN v LIBERTY MUTUAL INSURANCE | N/A | 89-286 | Montana | Montana Supreme Court | No. 89-286 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 FRANK EDWARD GETTEN, S Claimant and Appellant, -vs- LIBERTY MUTUAL INSURANCE COMPANY, Defendant and Respondent. APPEAL, FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge Presiding. COUNSEL OF RECORD: For Appellant: Jack E. Sands argued, Billings, Montana For Respondent : Robert E. Sheridan argued, Garlington, Lohn & Robinson, Missoula, Montana Filed: Submitted: October 31, 1989 Decided: November 28, 1989 Clerk Justice John Conway Harrison delivered the Opinion of the Court. This case presents an appeal from the Workers' Compensation Court which affirmed a determination by the Division of Workers' Compensation regarding subrogation rights. The Division determined that respondent was entitled to a subrogation right in tort claim proceeds recovered in a wrongful death action brought by appellant. We affirm. Appellant raises the following issues for review: 1. Does the Division of Workers' Compensation have jurisdiction over this subrogation claim? 2. Did Liberty Mutual Insurance establish that the claimant was provided full legal redress in its third party claim so that Liberty's subrogation claim extends to the settlement award? 3. Did Liberty Mutual Insurance establish that the insurer responded to claimant's invitation to participate in the lawsuit in a manner that was "explicit, immediate and without reservation," so as to be entitled to the full subrogation amount authorized by the Workersf Compensation Act? 4. Did Liberty Mutua, Insurance establish that fifty percent of the amount of the settlement was related to economic damages or to damages which had their source in the earnings of the decedent, and thus subject to its claim for subrogation? a. Was Getten's settlement brochure in the third-party action protected by the attorney work product rule? b. Should deposition testimony of two adjustors for insurers in the third-party action have been admitted in evidence? c. Did Liberty Mutual Insurance establish the amount of economic damages that represents reasonable contributions to the heirs derived from the earnings of the decedent? 5. Was the subrogation entitlement computed correctly? 6. Did the Division fail to make findings of fact essential to the question to be decided? Frank Getten worked as a truck driver for Ryan Wholesale Foods. On December 18, 1984, he was killed in a truck accident in Utah. He died instantly during a head-on collision with another semi-truck owned by Zip Trucking. The driver of the other semi, Terry Osborne, an employee of Zip Trucking, was later convicted of automobile homicide because his negligence caused the accident. Mr. Getten was survived by two children from a prior marriage. Liberty accepted liability for Getten's death and began payment of death benefits to Getten's children. Subsequently, Getten's estate initiated a wrongful death action against Osborne and Zip Trucking. The wrongful death action resulted in a structured settlement which included a cash payment and an annuity for the surviving children. The settlement was well within the available policy limits. When claimant's counsel initiated the third-party suit, he wrote to the adjuster for Liberty and requested that Liberty share costs and attorney's fees for the third-party suit. The adjuster wrote to counsel and requested some information about the third-party suit and estimated costs. Claimant's counsel did not reply to this letter. The adjuster then wrote to claimant's counsel and informed him that Liberty would participate in the third-party suit. Liberty agreed to pay its share of attorney's fees at the time the third-party claim settled in accord with claimant's counsel's contingency fee agreement. Later, claimant's counsel forwarded a bill to respondent's adjustor for costs which Liberty paid minus some costs the adjuster decided were not related to the third-party suit. Liberty demanded that it be subrogated to the third-party claim. Appellant disputed Liberty's claim, contending that Liberty had no subrogation right or alternatively only a right to 50% subrogation because Liberty did not participate in the third-party suit. Issue I Appellant contends that jurisdiction of the subrogation claim properly lies with Workers' Compensation Court for two reasons. First, appellant contends that 5 39-71-414, MCA, does not give the Division jurisdiction because respondent's liability was fully determined prior to the third-party settlement. Secondly, the Division lacked jurisdiction, the appellant claims, because the third-party action was a wrongful death suit. We disagree. The statute at issue is 5 39-71-414, MCA (1985), which sets out an insurer's subrogation rights. The disputed language appears in subparagraph (5) which states: If the amount of compensation and other benefits payable under the Workers' Compensation Act have not been fully determined at the time the employee, the employee ' s heirs or personal representatives, or the insurer have settled in any manner the action as provided for in this section, the division shall determine what proportion of the settlement shall be allocated under subrogation. The division ' s determination may be appealed to the workers' compensation judge. (Emphasis added. ) Appellant interprets S 39-71-414 (5) , MCA, to require only that a final determination of benefits have been made prior to the third-party settlement. In the instant case, the Division entered its order awarding the beneficiaries compensation on March 20, 1985, prior to the third-party settlement. We addressed S 39-71-414(5), MCA, and the Division's jurisdiction in subrogation claims, in First Interstate Bank of Missoula v. Tom Sherry Tire, Inc. (Mont. 1988), 764 P.2d 1287, 1289, 45 St.Rep. 2150, 2152. We stated the following: Third, only in those cases where the benefits are not determined at the time the third-party action is settled does the Division resolve the question of subrogation . . . However, the total amount of benefits and compensation payable by the insurer must be known to specify the amount of subrogation to which the insurer is entitled. Where the total amount of benefits and compensation are not known, the Montana legislature delegated to the Division the power of determining what proportion of the settlement is to be allocated under subrogation. (Emphasis added. ) This language clearly requires the Division to assume jurisdiction of subrogation claims when the total dollar amount of benefits is not determined prior to the third-party settlement. In the instant case, respondent's total liability could not have been determined on March 20, 1985, because of contingencies that affect the duration of benefits to the minor children. These contingencies, which relate to the effect of marriage and school on the duration of the benefits, necessarily cannot he resolved until the future. Therefore because its total liability was not fully determined prior to the third-party settlement, § 39-71-414(5), MCA, gives the Division jurisdiction to compute the amount of subrogation. We affirm the Workers' Compensation Court's decision that the Division had jurisdiction over the subrogation claim. Appellant's second ground for attacking the Division's jurisdiction is that because the third-party action was a wrongful death action, neither the action nor the subrogation right arises under the Workers' Compensation Act. Our hol-ding in Swanson v. Champion Internat'l Corp. (1982), 197 Mont. 509, 646 P.2d 1166, confirms that an insurer has a subrogation right in the economic portion of wrongful death recoveries. We reject appellant's argument. Issue I1 Appellant contends that respondent is not entitled to subrogation because the third-party settlement did not provide appellant with full legal redress and argues that Hall v. State Compensation Ins. Fund (1985), 218 Mont. 180, 708 P.2d 234 is analogous to this case. We disagree. In Hall this Court held that when "a claimant is forced to settle for the limits of an insurance policy which, together with claimant's workers' compensation award, do not grant full legal redress to claimant, the insurer is not entitled to subrogation rights under S 39-71-414, MCA." Hall, 708 P.2d at 237. The Hall opinion distinguishes the Hall case from Brandner v. Travelers Ins. Co. (1978), 179 Mont. 208, 587 P.2d 933. This Court, in Brandner, found that the claimant was made whole by "a voluntary settlement in satisfaction of all claims" for an amount "not dictated by the upper limits of the insurance policy." Hall, 708 P.2d at 236. The instant case presents a voluntary settlement (approximately 1.5 million dollars) for less than the upper limits of the applicable insurance policy (six million dollars). We hold that appellant received full legal redress. Issue I11 Appellant contends that the Workers' Compensation Court erred in finding that Liberty adequately responded to appellant's invitation to participate in the lawsuit. This Court's task in reviewing a Workers' Compensation Court decision is to determine whether substantial evidence supports the Workers ' Compensation Court's findings of fact and conclusions of law. Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 347, 704 P.2d 1048, 1050. Although appellant acknowledges that respondent did agree to participate in the lawsuit, appellant argues that respondent's participation was not "explicit, immediate, and without reservation" because respondent refused to advance attorney's fees despite a clear request to do so. Section 39-71-414(2) (b), MCA, does not require that the insurer advance attorney's fees. While § 39-71-414 (2) (b) , MCA, does not specifically require the insurer to advance attorney's fees, it does not prohibit insurers from either advancing attorney's fees or sharing attorney's fees in losing cases. Under proper circumstances and supported by a clear record, a request to "pay a proportionate share of the reasonable cost of the action, including attorney's fees" could require an insurer to advance attorney's fees. Appellant's counsel pursued the third-party claim on a contingency fee basis. There is no advance of attorney's fees on a contingency fee contract. Further, the record contains conflicting evidence regarding when and how claimant's counsel requested advance payment of attorney's fees. We find that the Workers' Compensation Court's decision that respondent adequately responded to appellant's request that it participate in the lawsuit is supported by substantial evidence. Issue IV Appellant contends that the evidence does not establish that fifty percent of the settlement amount was related to economic damages and thus subject to subrogation. As well, appellant claims that the evidence does not establish the amount of economic damages that represents reasonable contributions to the heirs derived from the decedent's earnings. A review of the record discloses that the Division's finding that $750,000 of the third-party settlement was subject to subrogation is supported by substantial evidence. Appellant also objects to the admission into evidence of the settlement brochure and the depositions which she contends are hearsay. Section 39-71-2903, MCA ( 1 9 8 5 ) , provides that workers' compensation proceedings are not bound by formal rules of evidence. Regarding appellant's evidentiary objections, the Workers' Compensation Court held them to be without merit. The Workers' Compensation Court found that the deposition testimony was properly noticed and that the deponents lived beyond the jurisdictional limits. As to the settlement brochure, both the Division and the Workers' Compensation Court found that it was not privileged. The Division noted that the appellants had not reserved any rights regarding the settlement brochure in disseminating i t . to the third-party insurer. We affirm the Workers' Compensation Court's decisions regardinq appellant's evidentiary objections. Issue V Appellant contends that the Division incorrectly calculated the subrogation amount and that the Workers' Compensation Court used the wrong formula to review the Hearing Examiner's calculations. The Workers' Compensation Court used the formula found in Tuttle v. Morrison-Knudsen Co., Inc. (Mont. 1978), 177 Mont. 166, 580 P.2d 1379. Appellant asserts the formula in Swanson v. Champion Internat'l Corp. (1982), 197 Mont. 509, 646 P.2d 1166, should have been used. Further, the appellant asserts that no basis exists in 5 39-71-414, MCA, for respondent to be reimbursed for its mandatory $1,000 payment to the uninsured fund. Although appellant implies that the Swanson and - - - Tuttle formulas are different, the formulas are identical. The Division did calculate the subrogation amount in accordance with Swanson and Tuttle. Section 39-71-414 (1) , MCA, provides for "subrogation for all compensation and benefits paid or to be paid or to be paid under the Workers' Compensation Act." Appellant argues that the $1,000 contribution to the uninsured fund required by statute is neither compensation nor a benefit to the estate of the deceased. However, because the workers' compensation statute requires the $1,000 payment, it falls .under 5 39-71-414, MCA. We hold that the Division computed the subrogation amount correctly. Issue VI Appellant's main contention regarding the Division's findings of fact appears to be that the Division essentially adopted the respondent's proposed findings of fact. Appellant offers no real argument beyond this contention. The standard of review for findings of fact is whether there is credible evidence to support the finding. Further, this Court holds that reliance on counsel's proposed findings of fact is not automatic error. Moore v. Hardy (Mont. 19881 , 748 P.2d 477, 45 St.Rep. 108. W e reject appellant's contention. We affirm the Workers' Compensation Court. We concur: Justice John C. Sheehy did not participate in this decision. | November 28, 1989 |
71fe95c3-9128-4659-849e-e0b87afffa71 | LARRY S POST CO INC v UNEMPLOY | N/A | 88-510 | Montana | Montana Supreme Court | No. 88-510 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 LARRY'S POST COMPANY, INC., Appellant, -vs- UNEMPLOYMENT INSURANCE DIVISION, CONTRIBUTIONS BUREAU, Respondent. 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: C. Eugene ~hillips; Murphy, Robinson, Heckathorn and Phillips, Kalispell, Montana For Respondent : Karl Nagel, Dept. of Labor & Industry, Helena, Montana Submitted on Briefs: Feb. 3, 1989 Decided: July 18, 1989 Mr. Justice William E. Hunt, Sr., delivered the Opinion of the Court. Larry's Post Company, Inc. appeals from a judgment of the District Court of the Eleventh Judicial District, Flathead County, which affirmed the determination of the Board of Labor Appeals that services performed by individuals who contracted with Larry's to harvest timber constituted employment within the meaning of the unemployment insurance laws. We affirm. Larry's raises the following issues on appeal: 1. Were the facts found by the appeals referee and adopted by the Board of Labor Appeals supported by the evidence? 2. Do the facts substantiate the finding of an employment relationship for the purpose of unemployment insurance? Appellant Larry's Post Company, Inc. operated a post yard in Flathead County near Columbia Falls. It was engaged in the business of procuring, cutting, pointing, curing, treating and selling fence posts, poles and rails. Larry's arranged with landowners to cut and remove timber from certain private properties. In exchange for the right to harvest timber, Larry's paid each landowner a stumpage fee. When the right to harvest a particular tract was procured, Larry's contracted with woodcutters to cut and remove the timber. Tom Finch, whose claim for unemployment insurance benefits initiated this matter, contracted with Larry's to cut timber for approximately four weeks in 1986. Finch performed services for Larry's after quitting his job at the Superior Lumber Mill and while awaiting the completion of contractual arrangements with the state of Montana to begin harvesting timber on state lands. Although Larry's usually executed written contracts with its woodcutters, a written contract was not entered into with Finch. The evidence indicates, however, that Larry's dealt with Finch on the same terms that it dealt with woodcutters who signed written agreements. Each cutting agreement granted the woodcutter the exclusive privilege of cutting post and pole timber from areas designated by Larry's. The woodcutter was required to conform to performance specifications stipulated by the contract, the landowner and statutes. Any failure to conform to these specifications constituted cause for termination. The woodcutters were allowed to set their own hours. They could also provide services to others, although no evidence was submitted showing that any woodcutter was under contract with any other firm while under contract with Larry ' s . The woodcutters were permitted to hire assistants or subcontract out all or part of the work. Tom inch was assisted by his son, whom he paid for that assistance. However, no evidence was introduced regarding whether inch or any other woodcutter paid employment taxes or whether they withheld taxes from the earnings of their assistants or subcontractors. The woodcutters were permitted to sell to other buyers the timber cut under the contract with Larry's. When a woodcutter sold his posts and poles to another, he was obliged to pay stumpage fees to Larry's. Larry's paid the woodcutters on a regularly scheduled basis--every two weeks--for cut posts and poles. All contractors were paid the same rate. The woodcutters did not negotiate prices, nor was the work awarded on the basis of competitive bids. Certain costs, including stumpage fees paid to the landowner, were deducted from each woodcutter's paycheck. The woodcutters provided their own transportation to and from the cutting site. They also furnished their own tools and equipment, usually a chain saw and other tools common to the woodcutting trade. However, if a woodcutter did not own the appropriate tools, he could rent them from Larry's. The rental cost was deducted from his paycheck. Other than equipment and transportation, the woodcutters did not make a significant investment in the job. They did not purchase stumpage prior to harvest; they paid only for the stumpage they cut; they were under no liability if they were unwilling or unable to complete their contracts; they faced little opportunity for profit or loss other than their success or failure in performing efficiently. Each contract provided that the agreement could be terminated at any time by either party. Tom Finch's agreement with Larry's ended in June, 1986, when the property on which he was working was sold by the landowner and was no longer available for timber harvesting. From that time until September, 1986, Finch was self-employed, buying stumpage and cutting timber on state lands. In October, 1986, Finch filed a claim for unemployment insurance benefits. His claim was denied because he left the Superior Lumber Mill to engage in self-employment. In November, 1986, he sought a redetermination of the claim, this time including his earnings from Larry's as requalifying wages. The Unemployment Insurance ~ivision then initiated an investigation, resulting in the Division's determination that, as the services performed by inch for Larry's constituted employment, he was eligible for unemployment insurance benefits. In May, 1987, Larry's appealed the decision. A hearing was held before an appeals referee from the Department of Labor and Industry. The appeals referee also concluded that the work performed by Finch constituted employment. In August, 1987, Larry's again appealed, this time to the Board of Labor Appeals. In the absence of a request for oral argument, the Board reviewed the matter and affirmed the referee's decision. Larry's then sought judicial review of the determination. After briefing, the District Court dismissed the petition and affirmed the agency decision. Larry' s appeals to this Court. The standard of review of decisions by the Board of Labor Appeals is set out in S 39-51-2410(5), MCA, which provides in pertinent part: (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. Thus, as mandated by statute, we are bound by those facts found by the Board of Labor Appeals that are supported by the evidence. "Supported by the evidence" means supported by substantial evidence, that is, more than a scintilla of evidence but less than a preponderance. Gypsy ~ighview Gathering Sys. v. Stokes (19861, 221 Mont. 11, 15, 716 P.2d 620, 623. Larry's argues that several of the findings made by the appeals referee and adopted by the Board are not supported by the evidence. Specifically, Larry's refers to those findings i r , which the appeals referee stated that no evidence was presented regarding certain matters. Larry's argues that "no evidence" is not the same as "substantial evidence" and cannot be the basis of any finding of fact. The so-called "non-findings" that Larry's challenges are : [I] [Tlhere was no evidence or testimony submitted showing that any woodcutter was ever under contract with any other firm while under contract with Larry's Post Company. [21 [Tlhere is no evidence or testimony on the record that the woodcutters pay any employment taxes (workers ' compensation, unemployment insurance, social security) . Nor was any evidence or testimony submitted showing that the woodcutters withhold taxes from their assistants/subcontractors earnings. [31 There is no testimony or evidence in the record showing that woodcutters post a hazard reduction bond as required by Section 76-13-408, et. seq., MCA. [4] There was no evidence or testimony submitted showing that the woodcutters negotiated prices or that work is awarded on the basis of competitive bids. These "non-findings" are especially pertinent to the present case. Each reflects an element indicative of an individual's status as an independent contractor. The appeals referee's finding of a lack of evidence on these points tends to demonstrate that an employment relationship existed between Larry's and the woodcutters. Furthermore, Larry's, as the employer, had the burden of proving that the services performed by the woodcutters did not constitute employment. Section 39-51-203(4), MCA (1985). The very fact that Larry's neglected to introduce evidence indicating that the woodcutters were independent contractors--evidence showing that not only did the woodcutters have an ~pportunity to work elsewhere, they actually did so; evidence showing that while the woodcutters occasionally had other individuals assist them, those individuals were actual employees of the woodcutters; evidence showing that the price of the posts was negotiated between two entities of similar bargaining power or that the contracts were awarded on the basis of competitive bids; evidence showing that the woodcutters were required to invest in hazard reduction bonds--established that Larry's failed to meet its burden. Under the circumstances, the challenged findings were appropriate. Larry's next argues that the facts found by the appeals referee do not substantiate the finding of an employment relationship. Larry's contends that the facts establish that the woodcutters were independent contractors and, therefore, not covered by the unemployment insurance laws. The formula for determining whether individuals are independent contractors or employees within the meaning of the unemployment insurance laws is commonly known as the ABC Test. The test is delineated in S 39-51-203 ( 4 ) , MCA ( 1 9 8 5 ) , which provides: (4) Service performed by an individual for wages is considered to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that: (a) such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract and in fact; (b) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and (c) such individual is customarily engaged in an independently established trade, occupation, profession, or business. Under the statute, employment is presumed. Refore an individual will be deemed an independant contractor, elements of all three subsections of the statute must be proven. Pioneer Baseball League v. Friedricks (Mont. 1988) , 760 P.2d 93, 95, 45 St.Rep. 1573, 1576; Standard Chem. Mfg. Co. v. Employment Sec. Div. (1980), 185 Mont. 241, 245, 605 P.2d 610, 613. The first and most crucial element of the ABC test is the right of the individual who performs services to retain control and direction over his labor. Pioneer Baseball, 760 P.2d at 95, 45 St. Rep. at 1576. Control is necessarily implied in every contract that gives the employer the right to insist that services be performed according to specifications. St. egis Paper Co. v. Unemployment Compensation Comm'n (1971), 157 Mont. 548, 553, 487 P.2d 524, 527. Evidence of Larry's control over the woodcutters was demorlstrated by the written contracts, which enumerated several performance specifications. Further evidence of Larry's control was illustrated by testimony indicating that Larry's had the right to specify and change the size of the posts to be cut, depending on the orders the post company needed to fill. In addition, Larry's monitored the cutting area to assure that the woodcutters followed all stipulations. If a woodcutter failed to comply, Larry's could withhold from the woodcutter's pay any amounts necessary to bring the worker into compliance. ~ailure to comply could also result in dismissal. Evidence of employment was also found in the method by which the wooClcutters were paid. Larry's paid the woodcutters r twc weeks for the number of posts cut, rather than by the job. Moreover, each woodcutter was paid the same amount per post, in accordance with a price list attached to the written contract. The woodcutters did not negotiate the price to be paid per post, nor were the contracts awarded on the basis of competitive bids--both factors that, if present, would indicate an independent contractorship. See pioneer Baseball, 760 P.2d at 95, 45 St.Rep. at 1576. Further evidence of employment was indicated by the fact that the woodcutters continued their relationship with Larry's through a succession of jobs. heir contracts were not renewed each time they were granted a new area in which to cut--a factor that, if present, would point to independent contractorship. Perhaps the most important indication that Larry's retained control over the woodcutters was the fact that the relationship between the two was terminable at will without liability on the part of either party. This fact signified the existence of an employment relationship. ~ i r b y Co. of Bozeman v. Employment Sec. D ~ V . (1980), 189Mont. 1, 9, 614 P.26 1040, 1044. The above combination of factors demonstrated that Larry's retained control over the woodcutters, thereby establishing that their relationship was one of employment. As Larry's failed to establish the first leg of the ABC Test, we need not consider the remaining two branches. As noted earlier, if the employer fails to prove all three elements of the AEC test, the services performed will be considered employment. Affirmed. | July 18, 1989 |
bdc43922-538f-40b9-9aee-52a761958858 | GUARANTY NATIONAL INS CO v STATE | N/A | 88-248 | Montana | Montana Supreme Court | NO. 88-248 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 GUARANTY NATIONAL INSURANCE COMPANY, a Colorado Corporation, Plaintiff and Respondent, STATE FARM INSURANCE COMPANY, Defendant and Appellant. APPEAL FROM: ~istrict Court of the ~ i f t h ~udicial ~istrict, In and for the County of Jefferson, The Honorable Frank ~avis, Judge presiding. COUNSEL OF RECORD: For Appellant: Michael J. McKeon; Anaconda, Montana For Respondent: Gary L. Walton, Poore, Roth & ~obinson; Butte, Montana Submitted: April 25, 1989 Decided: August 3, 1989 . i - 8 (rD . .- *+---<. : . 3 : : ,if ~- ~ i l e a : . . C * - i i : ; , ,d j4&@ $ J J ,,ppAM2!~ . . : . , . . i \ y j , $ 4 4 ~ " , ~ 3 ; : ? i-. , ! , ;.,. .. , $9 ' y , 2 ; . . " : 1 & ' . e ,-". . L ' I.. Pfm $ h L 1 3 L<".iV ~4 ~$3 c-, --. c--, > . - , .'> j * - - Clerk Mr. Justice William E. Hunt, Sr., delivered the Opinion of the Court. State Farm Insurance Company (State Farm), defendant and appellant, appeals from a partial summary judgment entered in favor of Guaranty ~ational Insurance Company (Guaranty National), plaintiff and respondent, by the District Court of the ~ i f t h Judicial District, Jefferson County. We affirm and remand for a resolution of issues pending before the District Court. The following issues are raised on appeal: 1. Was ~utte-silver Bow, Guaranty ~ational's insured, an additional omnibus insured under the State Farm insurance policy issued personally to Mario ~icone, a ~utte-silver Bow employee? 2. id the District Court properly prioritize insurance policies by finding State Farm the primary insurance carrier and Guaranty ~ational the excess insurance carrier? 3. Was Guaranty National a volunteer when it negotiated a settlement? Guaranty National was the insurer of Butte-Silver Bow on January 9, 1979, when an automobile accident occurred involving Mario Micone, the Chief ~xecutive of ~utte-silver Bow, and Wilford and Anna Hibbs. ~ilford died and Anna sustained injuries as a result of the accident. At the time of the accident, Micone was acting in the course and scope of his employment as a ~utte-silver Bow employee and was driving his personal vehicle insured by State Farm. In February of 1980, Anna Hibbs, individually, and Arlene Pratt, as personal representative of the ~ilford Hibbs estate, brought an action against Butte-silver Bow and ~icone for the resulting damages. In July of 1981 a jury was empaneled and evidence submitted, however, a settlement was reached before a verdict was returned. At the commencement of the trial, State Farm defended Micone and Guaranty National defended Butte-Silver Bow. At the conclusion of evidence, the District Court granted Micone's motion to dismiss under 5 2-9-305, MCA (19791, because he was indemnified by ~utte-Silver Bow as an employee when acting in the course and scope of his employment. Immediately following dismissal of Micone, Guaranty National. moved to join State Farm to aid in the defense of Butte-Silver Bow. The motion was granted. Guaranty National settled the case on the eve of the last day of trial. State Farm had been advised of the settlement negotiations but did not participate. Subsequently, Guaranty National brought this declaratory judgment action in order to adjudicate the obligations and rights of the insurance companies under their respective insurance policies. Guaranty National moved the ~istrict Court for partial summary judgment. The motion was granted and the court ruled that (1) ~utte-Silver Bow was an additional omnibus insured under Micone's State Farm policy; (2) State Farm was the primary insurer and Guaranty National the excess insurer; and (3) Guaranty ~ational was not a volunteer when it negotiated the settlement. The order was certified as final under Rule 54(b), M.R.Civ.P. The first issue raised on appeal is whether ~utte-Silver Bow, Guaranty National's insured, was an additional omnibus insured under the State Farm policy issued personally to ~ a r i o Micone, a Butte-Silver Bow employee. State Farm's insurance policy issued to Mario Micone contained an omnibus clause that provided in part: Insured--the unqualified word "insured" includes (1) the named insured, and . . . (5) . . . any other person or orqanization, but only with respect to his or its liability for the . - use of such owned motor vehlcle by an insured as defined . . . (Emphasis ours.) Omnibus coverage is required under S 61-6-103(2) (b), MCA. In its argument, State Farm ignores the omnibus clause and relies on the indemnification provisions set forth in the State Tort Claim Act (the Act) under S 2-9-305, MCA (1979). The 1979 Act provided for the indemnification of public employees sued for their actions occurring during the course and scope of employment. In Oregon, the appeals court stated that the basis for a Tort Claim Act is to eliminate a public employee's liability concern for a good faith failure to use reasonable care in executing employment responsibilities. united Pacific ~eliance Ins. Co. v. Horace Mann Ins. Co. (0r.App. 1983), 670 P.2d 172. Because ~ i c o n e was acting in his capacity as a ~utte-Silver Bow employee at the time of the accident, he was indemnified by his employer. State Farm argues that it should stand in the shoes of its insured, ~icone and, therefore, be free from liability. We disagree. Authority from other jurisdictions hold, that the employer is an additional omnibus insured--under a similar policy provision--notwithstanding the employees' indemnification. See Govt. Employees In. Co. v. ~ibraltar Casualty Co. (Cal. 1986), 229 Cal.Rptr. 57, 184 Cal.App.3d 163; ~arleysville Ins. Co. v. united States (E.D.Pa. 19731, 363 F.Supp. 176; Taggert v. united States (M.D.Pa. 1967), 262 F.Supp. 572; united States v. Myers (5th ~ i r . 1966), 363 F.2d 615; united States v. State Farm Mutual Automobile Ins. Co. (D.Or. 19651, 245 F.Supp. 58; Govt. Employees Ins. Co. v. united States (10th Cir. 19651, cert.den., 382 U.S. 1026, 86 S.Ct. 646, 15 L.Ed.2d 539, 349 F.2d 83; Rarker v. united States (N.D.Ga. 1964), 233 F.Supp. 455; and Gahagan v. State Farm Mutual Automobile Ins. Co. (W.D.La. 19641, 233 F.Supp. In Harleysville, a United States postal employee was making mail deliveries in his personal vehicle when he was involved in an accident. The scenario in Harleysville is comparable to the case at issue. Both controversies involved a public employee who, while driving his personally insured vehicle in the course and scope of employment, caused an accident; in both, the employee's insurance policy contained an omnibus clause; in both, the employee's insurance company entered the defense of the government after the employee was dismissed from the suit; in both, the cases were settled before trial proceedings concluded. Also, in ~arleysville, suit was brought under the Federal Tort claim Act, which, like the State Tort claim Act in the present case, indemnified the government employee from liability. In both instances the employee's personal insurance carrier argued that a Tort Claim Act shielded it from liability. The court in ~arleysville held that the United States, as an organization, was an additional insured under a govern- ment employee's private insurance policy when the employee was acting in the course and scope of employment, since the omnibus clause was an express provision in the employee's personal insurance policy. We follow the rationale set forth in Harleysville and hold that ~utte-Silver Bow is an additional insured under the omnibus clause contained in Micone's State Farm insurance policy and, therefore, State Farm is not afforded the insulation provided to Micone under the Act. The second issue raised on appeal is whether the Dis- trict Court properly prioritized the insurance policies in question by finding State Farm the primary insurance carrier and Guaranty National the excess insurance carrier. The crux of the issue is determined by the clauses utilized in the insurance carriers' respective policies. See ~iberty Mutual Ins. Co. v. United States ~idelity & Guaranty Co. (D.C.Mt. 1964), 232 F.Supp. 76. Guaranty National's insurance included an "excess insurance" clause. It read as follows: With respect to a hired automobile, or a non-owned automobile, this insurance shall be excess insurance over any other valid and collect- ible insurance available to the insured. (~mphasis ours. ) An excess insurance clause provides that the primary insurance must be exhausted before the excess coverage can be reached. In ~ountain States Mutual Casualty Co. v. ~rnerican Casualty Co. (1959), 135 Mont. 475, 342 P.2d 748, we estab- lished the applicable rule regarding excess and primary coverage where one insurance company was an additional omni- bus insured under a personal insurance policy of an employee. In Mountain States, the McBee Company loaned a truck it owned to the ~ilands Golf Club. The McBee Company had an insurance policy issued by Mountain States which contained an omnibus clause similar to the State Farm clause in question. The policy contained pro rata coverage in its other insurance clause as did the State Farm policy. The American Casualty policy also contained an excess insurance clause for non-owned automobiles similar to the clause included by Guaranty National in the present case. An employee of Hilands Golf Club injured a third party while driving the truck in the course and scope of his employment. Hilands Golf Club was sued by the injured party. A declaratory judgment action was brought to determine priority of coverage between the two insurance companies. We held that American Casualty, as the employer's insurance company, was the excess insurer while Mountain States, as the truck owner's insurance company, was the primary insurer. In Mountain States, 135 Mont. at 482, 342 P.2d at 751, we held: . . . where the owner of a . . . [car] has a policy with an omnibus clause and the additional insured - - also has a nonownership policy which provides that it shall constitute excess coverage -- over and above, any other valid, collectible insurance, the owners insurer has the primary liability. (Parenthetical inserts omitted; emphasis ours.) See also American Surety Co. of N.Y. v. Canal Ins. Co. (4th ~ i r . 1958), 258 F.2d 934, and Aetna Casualty & Surety Co. v. Buckeye union Casualty Co. (1952), 157 0hio St. 385, 105 State Farm, however, argues that under its "other insurance" clause its policy provided for excess insurance coverage only. The clause read as follows: . . . if the insured has other insurance against liability or loss covered by this policy, the company shall not be liable for a greater propor- tion of such liability or loss than the applicable limit of liability bears to the total applicable limit of liability of all collectible insurance against such liability or loss. (Emphasis ours.) Further, in ~ountain States, 342 P.2d at 752, we stated that where there is a nonownership clause with an excess provision--such as in the Guaranty ~ational policy--it does not constitute "other insurance" as State Farm contends. his was so in ~ountain States even though the primary insurer had a pro rata clause. Moreover, the insurance provided for in Guaranty National's excess clause would not become available until the primary policy coverage was exhausted. We hold that the District Court did not err when it found State Farm the primary insurance carrier and Guaranty National the excess insurance carrier under the rationale we set forth in Mountain States. The last issue raised on appeal is whether Guaranty National acted as a volunteer when it negotiated the settlement with the plaintiff's in the original action. On the eve of the last day of trial, Guaranty National settled the case. At that time, State Farm had been joined in ~utte-silver Bow's defense. State Farm argues that because it did not participate in the settlement, Guaranty National acted as a volunteer and thus, had no subrogation or indemnification rights from State Farm. State Farm and Guaranty ~ational were, at the time of the settlement, contractually obligated to defend the interests of Butte-Silver Bow--not merely the interests of the individual insurance companies. In Montana, the duty to settle is a "fidiciary duty running from the insurer to the insured" under the insurance policy. Klaudt v. link (1983), 202 Mont. 247, 250, 658 P.2d 1065, 1066. "In determining whether to settle, the insurer must give the insured's interest as much consideration as it gives its own interest." ~ibson v. Western ire Ins. Co. (1984), 210 Mont. 267, 275, 682 P.2d 725, 730. State Farm conceded that Guaranty ~ational settled the case due to the insistence of ~utte-silver Bow, the insured. Further, State Farm, in response to Guaranty National's request for admissions, admitted that it had knowledge of the settlement conference in question. As counsel, Guaranty ~ational was bound by a fiduciary duty to settle the case and will not now be penalized for fulfilling its contractual and fiduciary obligations by deeming it a volunteer. Guaranty National, as the excess insurer, is entitled to indemnification and subrogation by State Farm, the primary Insurer. We affirm in this case that State Farm is the primary insurer and that Guaranty National is the excess insurer and remand for a resolution of issues pending before the District Court. We Concur: | August 3, 1989 |
1242730a-7cde-4615-82ef-2a79d602e126 | MARRIAGE OF JOHNS | N/A | 88-527 | Montana | Montana Supreme Court | No. 88-527 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF SYLVIA GAY JOHNS, petitioner and Appellant, and WILLIAM J. JOHNS, Respondent and Respondent. APPEAL FROM: District Court of the Second Judicial ~istrict, In and for the County of Silver BOW, The Honorable Frank Davis, Judge presiding. COUNSEL OF RECORD: For Appellant: ~enningsen, Purcell, Vucurovich & ~ichardson; Mark A. ~ucurovich, Butte, Montana For Respondent: W. M. Hennessey, Butte, Montana . . c3 - > CQ -*. 4 , - Submitted on ~riefs: May 11, 1989 < 7 *--. Decided: July 24, 1989 Mr. Justice William E. Hunt, Sr., delivered the opinion of the Court. Sylvia Johns, petitioner, appeals from the property distribution mandated in the dissolution of marriage decree entered by the District Court of the Second Judicial District, Silver Bow County. We affirm. The issues raised on appeal are: 1. Whether sufficient evidence supported the District Court's valuation of the parties' real property. 2. Whether the ~istrict Court adequately determined the parties' net worth. Sylvia and William Johns were married on September 11, 1965. On June 12, 1987, wife filed a petition for dissolution of the marriage and for the equitable distribution of the marital estate. A hearing was held on April 15, 1988, which dissolved the marriage and reserved all other issues. On July 25, 1988, the District Court issued its findings of fact and conclusions of law and decree dividing the marital property. When dividing the martial property, the ~istrict Court considered several factors as required under 5 40-4-202, MCA. The factors were enumerated in the court's findings of fact and conclusions of law as follows: the duration of the marriage, real and personal property acquired during the marriage, the age of the parties, the employment and pension plans of each, the IRA accounts of each, the wife's inheritance, a debt on the family home, a debt for their adult daughter's wedding, and miscellaneous property. The District Court noted that in addition to wife having a higher monthly net income than husband, wife's pension plan had a present value in excess of $24,000 while husband's pension plan had only a future potential value of $247 per month upon retirement. Although it is unclear from the record how the valuation of the pensions was made, the parties did not raise the specific issue. Upon consideration of the parties' assets, the District Court decreed that each party retain as their separate property their IRA accounts, pension plans, deferred savings and motor vehicles. The family home valued at $40,000 was awarded to husband conditioned on payment of a $2,000 debt remaining on the home as well as a $2,300 debt incurred on the parties' adult daughter's wedding. The court also considered wife's inheritance and decreed that it should be wife ' s sole property. In addition, wife was awarded miscellaneous property. The District Court stated, in comment to its findings, that the distribution was practical, equitable and in the best interests of both parties. The first issue raised on appeal is whether sufficient evidence supported the ~istrict Court's valuation of the parties' real property. Specifically, wife argues that the family home awarded to husband in the distribution was undervalued by the District Court at $40,000. Both parties employed qualified appraisers to give expert opinions as to the present value of the home. The deposition testimony of both appraisers was introduced as evidence in court. wife's appraiser valued the home at $56,000 while husband's appraiser valued it at $40,000. The District Court accepted the $40,000 appraisal and explained in its findings that it accepted husband's appraisal because the value was more realistic for a one-bedroom home. Wife argues that there was no justification for the valuation and thus, the District Court abused its discretion. The District Court's findings of fact must be viewed as a whole. In re the Marriage of Hockaday (Mont. 1989), - P.2d , 46 St.Rep. 910. The standard of review 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 ~arriage of Stewart (Mont. 19881, 757 P.2d 765, 767, 45 St.Rep. 850, 852; In re the ~arriage Watson (Mont. 1987), 739 P.2d 951, 954, 44 St.Rep. 1167, 1170. We will not reverse the ~istrict Court on a property distribution determination without such a showing. See In re the Marriage of LeProwse (1982), 198 Mont. 357, 362, 646 P.2d 526, 529. Moreover, the ~istrict Court has far reaching discretionary powers when valuing property for distribution. The valuation need only be reasonable in the light of the evidence submitted. In re ~arriage of the ~ilesnick (Mont. 1988), 765 P.2d 751, 755, 45 St.Rep. 2182, 2187; In re the Marriage of ~ u i s i (Mont. 1988), 756 P.2d 456, 459, 45 St.Rep. 1023, 1026. In the present case, the ~istrict Court predicated its $40,000 valuation on the expert testimony of an appraiser. We held in Milesnick, 765 P.2d at 755, that expert testimony is a reasonable premise for which the ~istrict Court may base a valuation. Wife, however, argues that she too presented expert testimony that the home had a value of $56,000 and that there was no rationale given by the court for its $40,000 valuation. However, in ~ilesnick, 765 P.2d at 755, we stated: When confronted with conflicting evidence, the court must use its fact-finding powers to determine which evidence is more credible.. . . Unless there is a clear preponderance of the evidence against the District Court's valuation, its findings, where based on substantial though conflicting evidence, will not be disturbed on appeal. The District Court's $40,000 valuation of the parties' home was reasonable in light of the testimony presented and the rationale set forth in the District Court's findings. There was no abuse of discretion. The second issue raised on appeal is whether the District Court adequately determined the parties net worth. Specifically, wife alleges that the determination was improper since the ~istrict Court considered wife's $30,000 inheritance as her property in the distribution. The net worth of a marital estate must be determined prior to division of the estate. In re the ~arriage of Shultz (1980), 188 Mont. 363, 365, 613 P.2d 1022, 1024. In determining the net worth, the District Court must make complete findings and include all assets and liabilities. In re the Marriage of ~irnberger (Mont. 1989), 773 P.2d 330, 46 St.Rep. 898. In this case, the ~istrict Court set forth wife's $30,000 inheritance in its findings of fact as a marital asset. In Dirnberger, we held that the ~istrict Court was required to take inheritance into consideration when dividing marital assets. In fact, the Court may have erred had it not made such a consideration. In re the ~arriage of Alt (19851, 218 Mont. 327, 334, 708 P.2d 258, 262. We hold that the District Court properly considered wife's inheritance when it determined the parties net worth. Affirmed. / Justices Mr. Justice L. C. Gulbrandson dissenting. I respectfully dissent. The majority sets forth correctly the duty imposed upon a trial judge to determine the net worth of a marital estate prior to entry of a decree dividing said estate. However, the majority has ignored the fact that the net worth was not determined in this case, and there is no adequate basis for this Court to review the property division. Specifically, I am unable to determine if the trial judge correctly characterized wife's $24,000.00 deferred savings plan as a better pension plan than husband's vested pension plan of $247.00 a month upon retirement, where there was no testimony regarding ages of the parties or costs of a comparable annuity. I would remand for additional net worth findings and reconsideration of the treatment of wife's inheritance, which was found to be wife's sole property, but was treated as marital property for division purposes. 1 | July 24, 1989 |
73e1f359-6008-4a1a-8396-9c907963cc00 | AMUNDSON v WORTMAN | N/A | 88-564 | Montana | Montana Supreme Court | No. 88-564 I N THE SUPREME COURT O F T H E STATE O F M O N T A N A GAR 1 2 . A M U N D S O N , P l a i n t i f f and Respondent, -vs- RICHARD A. W O R T M A N , Defendant and Appellant. APPEAL F R O M : D i s t r i c t Court o f t h e E i g h t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County of G a l l a t i n , The Honorable Joseph B. Gary, Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: Morrow, ~ e d i v y & Rennett, P.C.; Lyman H . Rennett, 111, and T e r r y Schaplow, Bozeman, Montana For Respondent: Drysdale, McLean, Nellen & Nellen; ~ i c h a r d C. g ell en, Boze~nan, Montana Submitted on B r i e f s : June 8, 1989 Filed-: ~ . -- Decided: J u l y 18, 1989 M r . J u s t i c e R. C. McDonough d e l i v e r e d t h e Opinion o f t h e Court. This i s an appeal from an a c t i o n f o r breach o f a con- t r a c t t o buy a business. Defendant Richard A. Wortman ap- p e a l s from t h e judgment o f t h e D i s t r i c t Court o f t h e Eighteenth J u d i c i a l D i s t r i c t , G a l l a t i n County, f i n d i n g him i n breach o f t h e c o n t r a c t and awarding t h e balance o f t h e pur- chase p r i c e , plus i n t e r e s t , t o p l a i n t i f f Gar L. Amundson. W e a f f i r m on t h e s u b s t a n t i v e i s s u e s regarding t h e breach, b u t remand f o r f u r t h e r proceedings. Wortman p r e s e n t s t h r e e i s s u e s f o r review: 1. Did t h e D i s t r i c t Court err i n f a i l i n g t o f i n d t h e e x i s t e n c e o f c o n s t r u c t i v e fraud? 2 . Did t h e D i s t r i c t Court err i n equating "customer l i s t s " w i t h "mailing l i s t s " ? 3 . Did t h e D i s t r i c t Court err i n awarding a t t o r n e y ' s f e e s without holding an e v i d e n t i a r y hearing? Amundson was t h e p r o p r i e t o r o f a b u s i n e s s c a l l e d I n f o r - mation Processing i n Bozeman, Montana. Information Process- ing produced a product known a s t h e Direct School Marketing Program, a series o f computer-generated b o o k l e t s designed t o l i s t t h e names, a d d r e s s e s and telephone numbers o f school o f f i c i a l s , f a c u l t y and coaches, t o g e t h e r with d a t e s and l o c a t i o n s o f v a r i o u s conferences and s t u d e n t e v e n t s t a k i n g p l a c e during a given season o r school y e a r . The b o o k l e t s were s o l d t o businesses--chiefly i n t h e lodging and r e s t a u - r a n t i n d u s t r i e s - - i n t e r e s t e d i n making c o n t a c t w i t h t h e l i s t e d o f f i c i a l s i n o r d e r t o o b t a i n t h e i r patronage during a confer- ence o r event. Information Processing a l s o o f f e r e d a f o l - low-up s e r v i c e , which involved p u t t i n g i t s s u b s c r i b e r s i n touch w i t h school o f f i c i a l s by mail. Amundson set up t h e business himself, which included writing the computer program that compiled the booklet. In 1987, Wortman approached Amundson with a proposal to buy the Direct School Marketing Program. While negotiating terms of the sale, Amundson made various representations to Wortman concerning subjects such as projected earnings from the program, the costs involved and opportunities for new business. Pursuant to these negotiations, Wortman drew up a contract in longhand. Amundson read the contract and pre- pared a typed version. The contract was executed on April 7, 1987. The price for the business was $18,000, to be paid with a $2,000 down payment and two annual installments of $8,000. Among other provisions, the contract called for Amundson to deliver to Wortman the computer equipment, software and other items listed in an appendix to the contract, as well as the copyright and logo for the Direct School Marketing Pro- gram and all documents related to its course of business. Amundson was also to provide Wortman with "whatever assis- tance is deemed necessary" in the preparation, marketing and distribution of the Fall 1987 edition of the program. The contract called for Wortman to pursue the business in a diligent, businessman-like manner, and. pay all expenses of doing business. Wortman began operating the business, but was dissatis- fied with the results of his efforts. He sought to rescind the contract and return the business, but Amundson did not agree to the rescission. Wortman did not pay his first installment. On September 17, 1987, Amundson made a written demand through his attorney for payment of the installment. When Wortman did not do so, Amundson filed this action on October 21, 1987. The complaint sought payment of "all monies owing now or in the future" under the contract, or return of the business and damages for waste due to Wortman's actions in running it. Wortman raised an affirmative de- fense, alleging that Amundson had made several misrepresenta- tions during negotiation of the sale that amounted to constructive fraud and entitled him to rescission. The case was tried before the District Court, sitting without a jury. On August 10, 1988, the court issued its Findings of Fact and Conclusions of Law with Memorandum, in which Wortman was adjudged to be in breach of the contract. Judgment was entered awarding Amundson the balance of the contract price plus interest, together with attorney's fees and costs, and Amundson's attorney filed a Notice of Judg- ment. This appeal followed. I. On appeal, Wortman challenges the District Court's Findings of Fact. When reviewing the findings of fact in a civil action tried by a district court without a jury, this Court will not substitute its judgment for that of the trier of fact. Rather, our review is confined to determining whether the findings of fact are clearly erroneous. Although the evidence may conflict, the court's findings will be presumed correct if supported by substantial evidence. Meridian Minerals Co. v. Nicor Minerals, Inc. (Mont. 19871, 742 P.2d 456, 461, 44 St.Rep. 1516, 1523-24. The District Court's Findings of Fact relevant to Wortman's appeal read as follows: 12. That the Montana Supreme Court discusses constructive fraud in the case of Moschelle v. Hulse, 622 P.2d 155 (Mont. 1980). The Court spoke in terms of "a pattern of repeated concealments of the true state of affairs" and "withholding rele- vant facts," all of which created a false impres- sion to the purchaser. 13. That the Court does not find constructive fraud by the seller to the buyer. 14. That the evidence did not show that past profits of the Plaintiff were falsely stated, that he made repeated concealments in promoting the business sale, that an intentional lack of full disclosure created a false impression, or that there was deliberate misleading of the facts which crossed the threshold of "puffing" and entered the realm of constructive fraud. 15. That the Court finds a customer list was provided, but any mailing list undergoes a constant rollover, and use of such a list in a business requires aggressive and continual updating. 16. That a sales person leaving the employment upon the sale of a business is not reason to invoke constructive fraud. 17. That the Contract was very vague regarding what "assistance" was to be provided by the seller, and compelling evidence has not been presented to this Court justifying a lack of assistance to the point of constructive fraud. Wortman argues that the court's Finding of Fact No. 13 was in error and contrary to the evidence in this case. Wortman also argues that the court confused "customer lists" with "mailing lists", which rendered its Finding of Fact No. 15 erroneous. Constructive fraud is defined at 5 28-2-406, MCA, as any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him ... In cases such as the one at bar, the "duty" involved is the duty to disclose material facts to the purchaser, a breach of which is an essential element of constructive fraud. Mends v. Dykstra (1981), 195 Mont. 440, 637 P.2d 502. The Mends case addressed the issue of when such a duty arises. While the defendants in Mends asserted that no duty arose absent a fiduciary or confidential relationship, it was pointed out that this Court had found "special circumstances" surrounding some transactions which give rise to the duty to disclose. One such set of circumstances was the "pattern of repeated concealments" found in the Moschelle case cited by Wortman in support of his position and included in the District Court's Findings of Fact quoted above. Wortman argues that Amundson repeatedly concealed the true state of affairs concerning the business. According to Wortman, Amundson failed or refused to provide business records detailing the financial history of the business and did not disclose important details concerning its current status. Wortman thus asserts that his negotiations with Amundson created a false impression about the desirability of purchasing the Direct School Marketing Program. We disagree. The business records Wortman complains of are ledgers and tax records for the years preceding the purchase. He argues that he was unable to gauge the true performance of the business without them, and was forced to rely on repre- sentations Amundson made in income projections prepared during their negotiations. Wortman also argues that the projections presented an inflated notion of the profit, that could be made selling booklets. Both sides introduced income projections into evidence. According to testimony by Amundson, as many as five or six such projections were prepared for various possible approach- es Wortxnan might take in operating the business. Amundson also testified that the figures for such things as materials costs, labor and net profit per booklet were based on the past performance of the business. The projections introduced at trial as Wortman's Exhibit "A" include a statement of annual net profit for the years Amundson ran the business, which Amundson testified he had taken from the ledgers at issue. The projections state net profit forecasts that closely approximate the actual figures from past operation, although some projected profits are actually lower than past performance. Amundson also testified that Wortman never requested tax records during negotiations. Wortman complains that Amundson also concealed facts about the status of the business that worked to Wortman's detriment. After the contract had been executed, Amundson and Wortman met with Amundson's salesman, Tim Barrett, in Butte to go over Barrett's role in the business. At this meeting, Barrett informed Wortman that he would be quitting his job to pursue other business interests. Wortman alleges that Amundson knew this before the meeting and concealed it, leading Wortman to believe that he was buying a business employing an active salesman. The testimony cited by Wortman on this point bears examination. Barrett testified that he did in fact tell Amundson of his decision to quit prior to the meeting. However, Barrett said, "I believe I told Mr. Amundson the day he called me and he said he had sold the business ...." This testimony indicates that Amundson did not know of Barrett's departure until after the sale was consumated. He therefore could not have concealed it to Wortman's detriment in decid- ing on the purchase. Furthermore, Wortman himself testified that the presence or absence of a hired salesman was not crucial to his plan for operating the business. Wortman also complained that Amundson did not disclose the "considerable ill will" he had generated among his cus- tomers, or their complaints that the booklets were ineffec- tive. However, Wortman testified that the sluggish sales he experienced could have been the result of his own shortcom- ings as a salesman. Wortman's Exhibit "I", a file folder containing returned sales letters introduced in support of his contention of customer animosity does not lend support to his claim. The file contains 12 letters sent out by Wortman and l a t e r r e t u r n e d . On one o f t h e envelopes i s w r i t t e n " n o t i n t e r e s t e d , " b u t t h e o t h e r 11 were r e t u r n e d because t h e addressee had moved. The only l e t t e r a c t u a l l y w r i t t e n by a customer s t a t e s t h a t t h e booklet p r e v i o u s l y purchased "helped a g r e a t d e a l " and a s k s t h a t t h e customer be r e t a i n e d on Wortman's mailing l i s t . When t e s t i f y i n g about t h e letters, Wortman admitted t h a t t h e drop i n s a l e s could have been a t t r i b u t e d t o o t h e r causes, such a s a g e n e r a l l y slow b u s i n e s s c l i m a t e . S t i l l another o f Wortman's claims was t h a t Amundson f a i l e d t o supply a s s i s t a n c e with business o p e r a t i o n s t h a t he promised during n e g o t i a t i o n s and i n t h e c o n t r a c t i t s e l f . I n response, Amundson t e s t i f i e d t h a t he had volunteered a s s i s - t a n c e , and s u p p l i e d a r e c o r d of h i s a c t i v i t i e s . While t h e examples above do n o t a d d r e s s every claimed concealment, t h e y a r e s u f f i c i e n t t o i l l u s t r a t e t h a t evidence i n t h i s c a s e s u p p o r t s t h e D i s t r i c t C o u r t ' s conclusion t h a t c o n s t r u c t i v e f r a u d was n o t p r e s e n t . W e have found no "pat- t e r n o f r e p e a t e d concealments" i n t h e r e c o r d , and a f f i r m t h e District Court on t h i s i s s u e . Wortman's second challenge concerns "mailing l i s t s " v e r s u s "customer l i s t s " . One o f t h e i t e m s purchased by Wortman a s p a r t o f t h e business was a "customer l i s t " com- p i l e d o v e r t h e course o f t h e Direct School Marketing Pro- gram's e x i s t e n c e . Wortman's b r i e f t o t h i s Court makes much o f t h e d e f i n i t i o n o f "customer" a s one who r e p e a t e d l y makes purchases o r has b u s i n e s s d e a l i n g s w i t h a tradesman. According t o Wortman, t h e l i s t s u p p l i e d was a misrepre- s e n t a t i o n , because he was a b l e t o make o n l y approximately 80 s a l e s t o over 300 l i s t e d "customers". A t t r i a l , Amundson t e s t i f i e d a s t o how t h e l i s t was compiled. According t o Amundson, businesses w e r e placed on t h e l i s t when t h e y pur- chased a booklet. E n t r i e s were a l s o made f o r each purchaser i n d i c a t i n g such t h i n g s a s method o f payment. The names on t h e l i s t were t h u s "customers" i n t h a t each business had made a t l e a s t one purchase. While n e a r l y every business s t r i v e s f o r r e p e a t customers, t h e r e is no guarantee t h a t a customer w i t h an e s t a b l i s h e d r e c o r d of repeated purchases w i l l n o t t a k e h i s b u s i n e s s elsewhere o r simply s t o p purchasing f o r any number o f reasons. W e a l s o see nothing i n t h e r e c o r d t o i n d i c a t e t h a t Amundson made such a guarantee t o Wortman. The manner i n which t h e l i s t was r e f e r r e d t o was t h u s i r r e l e v a n t , and w e a f f i r m t h e c o u r t on t h i s i s s u e . Wortman c h a l l e n g e s t h e D i s t r i c t C o u r t ' s award o f a t t o r - n e y ' s f e e s , arguing t h a t it d i d s o on t h e b a s i s o f t h e a f f i - d a v i t o f Amundson's counsel a s t o t h e amount o f such f e e s , without holding an e v i d e n t i a r y hearing. Wortman i s c o r r e c t i n t h a t a t t o r n e y ' s f e e s cannot be awarded s o l e l y on t h e b a s i s o f an a t t o r n e y ' s a f f i d a v i t . An e v i d e n t i a r y hearing i s re- q u i r e d . S t a r k v. Borner (Mont. 1988), 762 P.2d 857, 860, 45 St.Rep. 1885, 1888. Wortman's argument has placed t h i s Court i n an unusual s i t u a t i o n . When t h e District Court e n t e r e d i t s Findings o f F a c t and Conclusions o f Law w i t h Memorandum, counsel f o r Amundson was i n s t r u c t e d t o d r a f t a judgment i n conformity w i t h t h e c o u r t ' s r u l i n g . P a r t o f t h a t r u l i n g , and conse- q u e n t l y p a r t of t h e "Judgment" signed and f i l e d by t h e c o u r t , was an award o f "reasonable a t t o r n e y ' s f e e s and c o s t s , which s h a l l be determined a t a s e p a r a t e hearing." S h o r t l y a f t e r t h e "Judgment" was f i l e d and n o t i c e d , b u t b e f o r e t h e t i m e f o r t h e h e a r i n g , counsel f o r Wortman f i l e d h i s Notice o f Appeal. The problem a r i s e s because counsel f o r Wortman f i l e d h i s Notice o f Appeal prematurely. A judgment t h a t awards c o s t s and a t t o r n e y ' s f e e s t o be determined a t a l a t e r hearing i s n o t f i n a l and appealable u n t i l t h o s e c o s t s and f e e s a r e determined. Roles v. Ler (1984), 213 Mont. 265, 692 P.2d 1. However, n e i t h e r p a r t y r a i s e d t h i s i s s u e i n t h e i r b r i e f s , and it only became apparent upon our review of t h e record, a f t e r a l l b r i e f s had been f i l e d and t h e record deposited with t h i s Court. Therefore, i n t h e i n t e r e s t s of j u d i c i a l economy, and f o r t h e purposes of -- t h i s case only, we a f f i r m t h e decision of t h e D i s t r i c t Court on t h e i s s u e s discussed above, and remand t h e cause t o t h e c o u r t f o r proper determination of c o s t s and a t t o r n e y ' s f e e s , both a t t h e D i s t r i c t Court l e v e l and upon appeal. Affirmed and remanded. Wy Concur: @ ~ - a J u s t i c e | July 18, 1989 |
4a1e7c4f-6511-40a9-b5aa-8b896d837f86 | MATTER OF A B | N/A | 89-126 | Montana | Montana Supreme Court | No. 89-126 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN THE MATTER OF A.R., Youth in Need of Care. C ! - 1 -. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, 7 - , The Honorable Joel Roth, Judge presiding. COUNSEL OF RECORD: r" For Appellant: 7 - -3 Bell & Marra; Antonia P. Marra, Great Falls, Montana For Respondent : Hon. Marc Racicot, Attorney General, Helena, Montana James Yellowtail, Asst. Atty. General, Helena Patrick L. Paul, County Attorney; Tammy Plubell, Deputy, Great Falls, Montana Billy Miller, Great Falls, Montana (Mother) June Lord, Great Falls, Montana (A.B) Leota Standing Rear, Box Elder, Montana (Tribal Rep.) Filed: Submitted on Briefs: Aug. 24, 1989 Decided: September 29, 1989 Justice John Conway Harrison delivered the Opinion of the Court. This is an appeal from the District Co.urt of the Eighth Judicial District, Cascade County, State of Montana. The. appellant/father appeals the District Court's December 20, 1988 order terminating his parental rights in regard to his daughter, A.B. We affirm. On September 25, 1987, approximately one week before A.Bts first birthday, the Montana Department of Family Services, (Family Services) filed for temporary legal custody of A.B. The petition alleged that A.B. was abused, neglected or dependent within the meaning of $ 41-3-102, MCA. The petition requested that A.B. be declared a youth in need of care and that A.B. 's temporary legal custody be granted to Family Services until further order of the court. The District Court on September 28, 1987, issued its order and granted temporary legal custody of A.R. to Family Services until further order of the court. The District Court's September 28, 1987 order further ordered A.B.'s father and mother to appear before the court on October 14, 1987, "to show cause, . . . why they . . . have not complied with this Order." The order also stated that "An Adjudicatory Hearing will be held in conjunction with the Show Cause hearing. " Two attempts were made by a deputy county attorney to serve A.B.'s natural parents with a citation for them to appear in court for the show cause hearing. However, the deputy county attorney was unable to make service due to the unknown addresses of A.B. 's parents. Therefore, A.B.'s parents were served by publication. The adjudicatory hearing was held November 17, 1987. During that hearing pediatrician, Jack Haling, M.D., and a county social worker testified as to the cause of A.B.'s injuries being the result of physical abuse of the child. The following facts were testified to by Dr. Haling during that adjudicatory hearing: Q When you saw her [A.B.] in May [I9871 when she was transferred from Missoula, can you briefly summarize for the Court what you discovered from your examination of her? A [By Dr. Haling] Sure. The history was that the child was allegedly well until she had an episode on the 17th of May, [I9871 and the child at that time was found by her father to be gasping and choking and had no respiratory effort. She allegedly was resuscitated by hitting her on the back several times and given mouth to mouth resuscitation and taken to White Sulphur to see Dr. Laurence Casazza . . . Dr. Haling testified further to the extent of A.B. 's injuries, including: [Tlhe workup in the hospital essentially showed she had a closed head injury which really couldn't be explained by any kind of single traumatic event. She had cerebral edema brain swelling and we did X-rays of her entire body, and she was found to have fractured or dislocated the left elbow, and there were some fractures of the right fourth, fifth, sixth and seventh ribs. She had some fractures of the tibias . . . and had some evidence of trauma to the right femur which possibly could be from old fractures, and she had a fracture of the shaft or midportion of the left forearm. And, all of these X-ray findings of this boney [sic] trauma was of varying stages and various stages of healing. Finally, Dr. Haling testified as to A.B.'s prognosis: Well, her prognosis is very regarded because . . . of the brain damage which is the main problem. The boney [sic] things will heal up pretty well, but she has significant brain damage. She has brain atrophy, and that her brain has been damaged to the point that it's becoming smaller instead of growing which it is supposed to do at this age. She is an abnormally -- she has consultations in Helena, and the child is doing well with the rehab program, but certainly does not appear that she will ever have a perfectly normal life neurologically. A.B.'s parents, although served by publication did not appear at the November 17, 1987, hearing. The District Court on November 23, 1987, issued its order and declared A.B. a youth in need of care and granted temporary custody of A.B. to Family Services until further order of the court. The court also set the disposition hearing to be held on December 11, 1987 at which time Family Services was ordered to submit for the court's approval a proposed treatment plan for A.B.'s mother and father. The disposition hearing was held on December 11, 1987, and a treatment plan was ordered and counsel appointed for A.B.'s mother and father. The treatment plan for A.R.'s mother and father was approved on December 28, 1987, neither the father nor counsel objected to the treatment plan nor attempted to modify its terms. The father failed to comply with a single requirement of the plan, despite the efforts of social worker Lorna Antonsen to explain its requirements and assist the father in compliance. The father failed to comply with the treatment plan when he failed to maintain contact with the social worker assigned to A.B.'s case; and failed to maintain both reasonable visitation of A.B. and knowledge of her medical condition. Finally, the father attempted to visit A.R. only one time during the eighteen month period of time between A.B.'s hospitalization on May 21, 1987 and the termination hearing on December 9, 1988, another failed compliance to his treatment plan. On behalf of both parents, appointed counsel, Billy B. Miller, filed motions with the District Court on June 27 and July 5, 1988. On July 26, 1988, a review hearing was held, counsel Miller appeared for the mother, June Lord appeared on A.B.'s behalf, and, at the State's request, the District Court appointed counsel, Michael R. Tramelli, to represent the father in any further proceedings. Thereafter, on August 29, 1988, a petition for permanent legal c,ustody and termination of parental rights of the father was filed with the court. Counsel Tramelli was permitted to withdraw as counsel for the father by order of the District Court filed October 5, 1988, and Antonia Marra was appointed to represent the father on that date. On December 9, 1988, the hearing on the petition for termination of the father's parental rights was held in the District Court. Testimony was presented by Bill J. Tacke, M.D., a physician specializing in physical medicine and rehabilitation; Lorna Antonsen, social worker with Blaine County Human Services; and Randy Koutnik, social worker for Family Services in Cascade County. Also, Deputy Cascade County Attorney Tamrny K. Plubell, counsel Marra, for the father, and counsel Lord on behalf of A.B. were present. The father was not present, as he was serving a twenty-year prison sentence in the Montana State Prison. He had been convicted in Flathead County for aggravated assault of his daughter, A.B. Thereafter, on December 20, 1988, the District Court entered its findings of fact and conclusions of law and order terminating the parental rights between the father and A.B. The father now appeals from the December 0 , 1988, order and presents three issues on appeal: 1. Whether a parent has a statutory or constitutional right to appointed counsel at every stage of child protective proceedings resulting in termination of parental rights. 2. Whether the treatment plan was impossible to complete and therefore an abuse of discretion. 3. Whether § 41-3-609 ( 2 ) (el , MCA , authorizes consideration of criminal convictions and sentences of long-term incarceration unconfirmed by appellate review. On appeal the father alleges he has a constitutional right to appointed counsel at every stage of a child protective proceeding which resulted in the termination of his parental rights. Throughout the proceedings upon the petition for permanent legal custody and termination of his parental rights, the father was represented by appointed counsel. For the October and November, 1987 hearings, the father was served by publication because his whereabouts were unknown despite efforts to locate him. However, he claims that the absence of appointed counsel during the initial phases of the child custody proceedings violated his rights and was prejudicial to him. He also alleges that his rights were violated because he was not personally served with notice of the October and November, 1987, hearings. In child protective proceedings culminating in the termination of parental rights, due process of law requires only that the parents have counsel prior to the permanent custody hearings. Due process does not require that the parents have counsel durinq the initial stages of the proceedings. Matter of M.F. (19821, 201 Mont. 277, 653 P.2d 1205. In sc, holding, this Court relied upon the United States Supreme Court in Lassiter v. Department of Social Services (1981), 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640. The record indicates that counsel was appointed to represent both parents December 14, 1987. The father had the benefit of appointed counsel almost one full year prior to the termination of his parental rights. Furthermore, at the father's termination of parental rights hearing on December 9, 1988, the father was represented by appointed counsel. The test approved by the court under the circumstances of this case does not warrant the conclusion that the appointment of counsel at the inception of this case was necessary or mandatory. Every effort was made to provide legal assistance at appropriate times and several times it was necessary to locate the parents, parents who showed little or no interest in their child, A.B. We find no merit in the father's first issue. The second issue raised by the father is that the court's treatment plan was impossible to complete and therefore an abuse of discretion. The father objects that the plan's timetable was too short, roughly one and one-half months. He also contends that when the plan was submitted, the State was aware that he had advised counsel of his disagreement with its central objective, that is of course the removal of the child. Parental rights of the father were terminated ,under S 41-3-609(1) (c) , MCA. Under that statute the court may order a termination of the parent-child relationship upon the finding that "an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; . . ." Section 41-3-609 (1) (c) (i) , MCA. In Matter of C.L.R. (1984), 211 Mont. 381, 685 P.2d 926, this Court made clear its preference for the use of a treatment plan: [W]e sound a stern warning that this Court will not permit the termination of parental rights without first establishing a treatment plan unless a showing of facts clearly proves the impossibility of any workable plan. Matter of C.L.R., 211 Mont. at 386, 685 P.2d at 928. Here, the treatment plan was approved by the District Court on December 28, 1987. It required the father to obtain psychological and alcohol dependency evaluations by January 15, 1988, and to comply with the associated recommendations. It also required that the father visit A.B., meet with A.B.'s doctors, and maintain contact with the social worker and keep the social worker informed of his current address. The plan also advised the parents that noncompliance by February 15, 1988, could result in the potential loss of their parental rights. In view of the District Court's finding that the father failed to comply with a single requirement of the plan, we find the District Court did not err when it ordered treatment objectives of the plan completed by February 15, 1988. Further, the father claims that because of the criminal charges he was facing in Flathead County, and under the advice of his criminal defense counsel, he did not comply with the psychological evaluation. We find no merit in this contention. The record indicates that the father was represented by at least three different attorneys throughout these proceedings and the record is completely devoid of any objection to the terms of the treatment plan, and equally devoid of any attempt to modify its requirements or time limits. The final objection is that S 41-3-609 (2) (e) , MCA, authorized consideration of criminal convictions and sentences providing for long-term incarceration. The father argues that the trial court may not, in the termination of parental rights, rely upon a criminal conviction and sentence of imprisonment unconfirmed by appellate review. No authority is offered in support of the foregoing proposition. We find no provision authorizing consideration of "long-term confinement" under the provisions of S 41-3-609 (2) (e) , MCA. Therefore we find no abuse of discretion. The judqrnent is affirmed. We concur: .,,---'Y | September 29, 1989 |
879ad912-ea67-440f-80ee-ce6771fd2a8d | SHARKEY v ATLANTIC RICHFIELD COMPA | N/A | 87-366 | Montana | Montana Supreme Court | No. 87-366 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 WILLIAM F. SHARKEY, Claimant and Appellant, -vs- ATLANTIC RICHFIELD COMPANY, operating as ANACONDA MINERALS COMPANY, a/k/a, THE ANACONDA COMPANY, Defendant and Respondent. APPEAL FROM: The Workers' Compensation Court, In and for the Area of Helena, MT, The Honorable Timothy W. Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Gene B. Daly, Helena, Montana For Respondent: Andrew J. Utick, Helena, Montana Submitted on Briefs: May 4, 1989 c ' .-z ' I . " Decided: July 13, 1989 - - 3 t,- -3 9 Filed:._ I a " - ' - - 2 f J . . < " t > . . 'Clerk Mr. Justice Fred J. Weber delivered the Opinion of the Court. This appeal arises from an order by the Workers' Compen- sation Court, concluding that the claimant did not incur a new industrial injury in 1981 and that claimant is properly receiving permanent partial benefits according to rates applicable to a 1978 injury. From this order, the claimant appeals. We affirm. The issues are: 1. Did the Workers' Compensation Court err in conclud- ing that the claimant did not sustain an industrial injury in 1981? 2. Did the Workers' Compensation Court err in conclud- ing that the statute of limitations was not tolled on the basis of equitable estoppel? 3. Did the Workers' Compensation Court err in conclud- ing that the statute of limitations was not tolled because the employer made payments in lieu of compensation? 4. Did the Workers' Compensation Court err in conclud- ing that the reduction in benefits was not unreasonable? 5. Did the District Court err in awarding attorney fees and costs pursuant to S 39-71-612, MCA (1978)? Mr. William Sharkey suffered an industrial accident on September 10, 1978, while employed by the Atlantic Richfield Company (ARCO) , when he fell from a ladder approximately twelve feet to the ground. His left arm hooked into the ladder as he fell, and he sustained injuries to his left shoulder. Mr. Sharkey was treated by Dr. Losee for this injury. This treatment included surgery on the shoulder in December of 1978. Mr. Sharkey returned to work for ARCO in May of 1979 with no physical restrictions. ARC@ accepted liability for this injury and paid tempo- rary total disability benefits while Mr. Sharkey was unable to work. ARC0 also paid medical expenses. In December of 1979 the parties negotiated a final settlement for this injury for the sum of $3,948.00, which represented 42 weeks of permanent partial disability benefits at the rate of $94.00 per week. In late 1981, Mr. Sharkey began experiencing problems with his left shoulder again. He contends that these prob- lems stemmed from a new work-related injury which occurred on December 16, 1981. Mr. Sharkey claims that on that date he was lifting the hood on a fuel truck when his left shoulder "gave out," causing the hood to fall on him. He claims that his left shoulder was re-injured in this accident. Mr. Sharkey testified that he reported the accident to his supervisor, Mr. Johnson, who made out a written report in Mr. Sharkey's presence. Mr. Sharkey also testified that he told Mr. Bugni, ARCO's Workers' Compensation Coordinator, that he hurt his shoulder. Also, in December of 1981, Mr. Sharkey obtained author- ization to see Dr. Losee for his shoulder problem. This authorization was obtained from Ms. Nelson, a claims adjuster for the insurer, E.S.I.S., Inc. Dr. Losee referred Mr. Sharkey to Dr. Matsen at the University Hospital in Seattle, Washington, who performed surgery on Mr. Sharkey ' s shoulder in March of 1982. Ms. Nelson reopened Mr. Sharkey's 1978 injury claim following the January 1982 examination by Dr. Losee. Begin- ning in February 1982 Mr. Sharkey began receiving Workers' Compensation temporary total benefits at the same rate he had received for his 1978 injury. These benefits amounted to $188 per week and continued until they were reduced to per- manent partial benefits of $94 per week, in February 1983. I Did the Workers' Compensation Court err in concluding that claimant did not sustain an industrial injury in Decem- ber of 1981? In reviewing a decision of the Workers' Compensation Court, the standard of review is whether substantial credible evidence exists to support the findings and conclusions of the Workers' Compensation Court. Stangler v. Anderson Meyers Drilling Co. (Mont. 1987), 746 P.2d 99, 101, 44 St.Rep. 1944, 1947. Findings of fact are not clearly erroneous if they are supported by substantial credible evidence. Tenderholt v. Travel Lodge Intern. (Mont. 1985), 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1794. Additionally, in Wight v. Hughes Livestock Co., Inc. (1981), 634 P.2d 1189, 1191, 38 St.Rep. 1632, 1635, rev'd on other grounds, 204 Mont. 98, 664 P.2d 303 (19831, this Court stated: "If the Workers' Compensation Court's findings are based on conflicting evidence . . . this Court's function on review is confined to determining whether there is substantial evidence on the whole record supporting such findings." Harmon v. Deaconess Hospital (1981), Mont., 623 P.2d 1372, 1374, 38 St.Rep. 65, 67-68, and cases cited therein. The Workers' Compensation Court found that Mr. Sharkey did not sustain a new industrial injury on December 16, 1981. Although Mr. Sharkey claims that he injured his left shoulder when the hood fell on him in December of 1981, there is no evidence in the record from either written documents or oral testimony, to corroborate Mr. Sharkey's assertion. At trial, aside from Mr. Sharkey's assertion, the evidence indicated that the 1981 shoulder problem stemmed from the 1978 injury. While M r . Sharkey t e s t i f i e d t h a t he r e p o r t e d t h i s i n j u r y t o h i s s u p e r v i s o r , M r . Johnson, who f i l l e d o u t a w r i t t e n r e p o r t , M r . Johnson d i d n o t t e s t i f y a t t r i a l and no a c c i d e n t r e p o r t was e v e r f i l e d . M r . Sharkey claims t h a t he r e p o r t e d h i s shoulder i n j u r y t o M r . Bugni i n person on t h e day o f t h e a c c i d e n t . However, M r . Sharkey could n o t remember i f he t o l d M r . Bugni how he h u r t h i s shoulder. I n t e s t i f y i n g a t t r i a l , M r . Bugni r e f e r r e d t o n o t e s he had t a k e n d u r i n g h i s c o n v e r s a t i o n w i t h M r . Sharkey. Accord- i n g t o t h o s e n o t e s , t h e conversation occurred t h e day a f t e r t h e a c c i d e n t , and was over t h e telephone. M r . Bugni testi- f i e d t h a t M r . Sharkey d i d n o t mention a new a c c i d e n t o r i n j u r y ; r a t h e r , M r . Sharkey t o l d him he was having more problems w i t h h i s shoulder from h i s previous 1978 i n j u r y . There i s no evidence i n d i c a t i n g t h a t M r . Sharkey i n - formed e i t h e r D r . Losee o r M s . Nelson of a new a c c i d e n t ; i n s t e a d , t h e evidence i n d i c a t e d t h a t both D r . Losee and M s . Nelson understood t h a t h i s 1981 shoulder problems had devel- oped o v e r a p e r i o d o f months. D r . Losee, i n h i s letter t o D r . Matsen, i n d i c a t e d t h a t t h e shoulder problems had devel- oped over a p e r i o d o f s e v e r a l months. He t e s t i f i e d t h a t he had no r e c o r d o r r e c o l l e c t i o n t h a t M r . Sharkey informed him o f a new i n j u r y t o h i s shoulder. M s . Nelson s t a t e d t h a t she had no knowledge t h a t M r . Sharkey was claiming a new i n j u r y u n t i l 1985. Both M r . Bugni and M s . Nelson t e s t i f i e d regard- i n g t h e r e c o r d s which would have been made, had M r . Sharkey r e p o r t e d a new and s e p a r a t e i n j u r y i n 1981. T h e i r f i l e s , however, contained no records t o c o r r o b o r a t e M r . Sharkey's claim. M r . Sharkey contends t h a t ARCO has made a j u d i c i a l admission i n t h i s c a s e , admitting t h a t M r . Sharkey indeed s u s t a i n e d a new i n j u r y i n 1981. I t i s t r u e t h a t a t t r i a l , ARCO a l s o argued f o r a determination t h a t M r . Sharkey had sustained a work-related injury in 1981. Such a finding, combined with a determination that no notice was given of the injury, would have meant the statute of limitations had run for this claim, thereby preventing a recovery. In fact, the Workers1 Compensation Division might have been entitled to a reimbursement from Mr. Sharkey for benefits already paid. The Workers' Compensation Court properly considered the actual facts which were presented at trial through witnesses and exhibits. What ARC0 may have contended is irrelevant to the factual determination made by the court. When the testi- mony is conflicting, it is the trial court which judges the credibility of the witnesses and this Court defers to that assessment. "Ordinarily, this Court will not substitute its judgment for that of the Workers1 Compensation Court in determining the weight and credibility to be given testimo- ny " Rule 52(a), M.R.Civ.P.; Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 146, 639 P.2d 1140, 1144. The court found the facts to compel a conclusion that Mr. Sharkey did not sustain a new injury in 1981. Our review of the record demonstrates that there is substantial credible evidence to support the findings of the Workers1 Compensation Court. We conclude that the court was correct in determining that no new injury occurred in 1981. We affirm the holding of the Workers' Compensation Court. 11 Did the Workers1 Compensation Court err in concluding that the statute of limitations was not tolled on the basis of equitable estoppel? The elements of equitable estoppel were enunciated in 1,indblom v. Employers Liability Assur. Corp. , (1930) , 88 Mont. 488, 494, 295 P. 1007, 1009 as follows: Generally speaking, the following are the essential elements which must enter into and form a part of an equitable estoppel in all of its appli- cations: "1. There must be conduct--acts, lan- guage, or silence--amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. 3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when it was acted upon by him. 4. The conduct must be done with the intention, or a least with the expec- tation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. * * * 5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it. 6. He must in fact act upon it in such a manner as to change his position for the worse; in other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his con- duct and to assert rights inconsistent with it. Mr. Sharkey contends that ARCO is equitably estopped from asserting the statute of limitations defense. He con- tends that the employer's silence in not notifying Mr. Sharkey that he was being paid according to 1978 rates meets the first element of equitable estoppel. Our holding in the first issue, however, resolves this dispute. To constitute an estoppel, it would be necessary for ARCO to have knowledge or imputed knowledge of material facts entitling Mr. Sharkey to 1981 benefits. ARCO would then have to conceal these facts. As in Devlin v. Galusha, Higgins and Galusha (1982) , 202 Mont. 134, 138-39, 655 P.2d 979, 981, neither the employ- er in the present case nor the insurer engaged in any conduct which would amount to a representation or concealment of a material fact. It was the claimant's omission which brought about a failure to file a claim. This court has previously held that estoppel does not apply where the omissions of the party claiming estoppel caused the problem. Additionally, the third element of estoppel, that the claimant was unaware of the truth, is questionable. Mr. Sharkey had previously been paid benefits based on his 1978 wages. These benefits were reinstated and were still based on the 1978 rates. Mr. Sharkey must be imputed with knowl- edge that his benefits should reflect the alleged 1981 date of injury. However, he accepted benefits based on the 1978 rates. Thus equitable estoppel is inapplicable because the first three elements are not met. We affirm the holding of the Workers' Compensation Court in concluding that equitable estoppel does not apply. Mr. Sharkey also contends that ARC0 violated S 39-71-204, MCA (1978), by reinstating Mr. Sharkey's 1978 benefits after a final settlement without obtaining a written order from the Workers' Compensation Division, and without notifying the claimant in writing. This contention fails because S 39-71-204, MCA (1978), does not require that the Division approve in writing of the reopening of a claim, or that it notify the claimant in writing. Did the Workers' Compensation Court err in concluding that the statute of limitations should not be tolled because the employer made payments in lieu of compensation? Mr. Sharkey contends that the payments he received through the reinstatement of 1978 benefits tolled the statute of limitations on filing a workers ' compensation claim. According to this theory, the statute may be tolled where an employer makes voluntary payments which are substantially comparable to or greater than benefits available through workers' compensation. See generally 3 A. Larson, The Law of Workers' Compensation § 78.43 (1987). The concern is that an employer may lull the claimant into a "false sense of securi- ty by apparently acknowledging the validity of his claim, paying remuneration in lieu of compensation, and then invok- ing the statute after the lapse of one year." Frost v. Anaconda Co. (1982), 198 Mont. 216, 221, 645 P.2d 419, 422, citing Cupit v. Dancu Chemical Co. (Okla. 1957), 316 P.2d 593 at 595. In Frost we also stated that to toll the statute under this theory, the employer should have some knowledge of the effect of what he is doing. Frost, 645 P.2d at 423, quoting Buxbaum v. Cumberland Provision Co. (1961), 14 A.D.2d 425, 221 N.Y.S.2d 339, at page 342. Claimant relies on Frost to support his contention but the cases are not comparable. In Frost, the employer paid compensation from an employee benefit plan, which was totally separate from workers' compensation benefits. The payments were comparable to or greater than workers' compensation benefits. This created a false sense of security in the employee, leading him to believe it was unnecessary to file a workers' compensation claim. Tn the present case the payments were clearly workers' compensation disability benefits, and the amounts were based on 1978 rates. Neither the payments nor the conduct of the employer would mislead Mr. Sharkey into believing he did not need to file a claim for the alleged new injury. We conclude that the payments made to Mr. Sharkey did not toll the stat- ute of limitations. We affirm the ruling of the Workers' Compensation Court on this issue. IV Did the Workers' Compensation Court err in concluding that a reduction in benefiks to the claimant was not unreasonable? In 1983, Ms. Nelson reduced Mr. Sharkey's benefits from temporary total benefits of $188 per week to permanent par- tial benefits of $94 per week. Mr. Sharkey contends that this reduction was "unreasonable." He further contends that if the reduction was unreasonable, he is entitled to an increased award pursuant to 5 39-71-2907, MCA (1978) , which provides for a 108 penalty when benefits are unreasonably refused or delayed. Mr. Sharkey contends that the reduction was unreason- able, apparently because he was enrolled in a rehabilitation program through Social Rehabilitation Services with a goal of obtaining certification as a vo-tech teacher. Mr. Sharkey's contention may be attributable to the fact that $ 39-71-116 (19) , MCA, the statute defining temporary total benefits, was amended in 1985 to state that temporary total benefits were appropriate during a period of retraining. However, this amendment was not in effect when Mr. Sharkey was injured, and we have previously stated that the statute in effect on the date of injury controls. Homme v. Rauenhorst (Mont. 1987), 740 P.2d 1110, 1113, 44 St.Rep. 1261, 1265. We also point out that this amendment has subse- quently been deleted. Thus, the Workers' Compensation Court is not obligated to reach a finding of total disability simply because the claimant is in a retraining program. Homrne, 740 P.2d at 1113; Phillips v. Spectrum ~nterprises (Mont. 1986), 730 P.2d 1131, 1135, 43 St.Rep. 2288, 2292. Temporary total disability is defined in § 39-71-116 (19), MCA (1978), as follows: "Temporary total disability" means a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit. Permanent partial disability is defined in 5 39-71-116(12) , MCA (19781, as follows: "permanent partial disability" means 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 workman is as far restored as the permanent character of the injuries will permit. Additionally, in Anderson v. Carlsons Transport (1978) , 178 Mont. 290, 294, 583 P.2d 440, 442, we stated: "'[Tlemporary total disability ceases when the workman's physical condition is as far restored as the permanent character of the injuries will per- mit. When the claimant has reached this stage in his healing process temporary total disability ceases, and partial disability begins if there is permanent partial impairment.'" (Quoting McAlear v. McKee (1976), Mont., 558 P.2d 1134, 1137, 33 St.Rep. 1337, 1340.) At trial, Ms. Nelson testified that she made the deci- sion to reduce Mr. Sharkey's benefits to permanent partial based on a medical report and a Work Capacity form from Dr. Losee, a medical report from Dr. Baggenstos, and rehabilita- tion reports. These reports indicated that Mr. Sharkey was medically stable and that there was work available for him. A review of the record demonstrates that claimant was as far restored as the permanent character of his injuries would permit. The record also demonstrates that work was available which Mr. Sharkey could perform. This evidence fulfills the definitional requirements of permanent partial disability and indicates that the change was properly made. See, McDanold v. B.N. Transport, Inc. (1984), 208 Mont. 470, 475, 679 P.2d 1188, 1191. Mr. Sharkey cannot properly contend that perma- nent partial benefits are not appropriate merely because he was involved in a rehabilitation program. To prevail under § 39-71-2907, MCA (1981), the claimant must show unreasonableness. Paulson v. Bozeman Deaconess Foundation Hosp. (1984), 207 Mont. 440, 444, 673 P.2d 1281, 1283. Additionally, whether the insurer's conduct was unrea- sonable is a factual question and this ruling by the Workers' Compensation Court will not be overturned if supported by substantial credible evidence. Coles v. Seven Eleven Stores (1985), 704 P.2d 1048, 1052, 42 St.Rep. 1238, 1242. The Workers' Compensation Court determined that the reduction was not unreasonable and we conclude that there is substantial credible evidence to support that determination. We there- fore affirm this ruling. v Did the District Court err in awarding attorney fees and costs pursuant to § 39-71-612, MCA (1978)? The Workers' Compensation Court allowed attorney fees and costs pursuant to § 39-71-612, MCA (1978), which allows fees when the amount of benefits is in controversy. Mr. Sharkey contends that attorney fees and costs should have been allowed pursuant to 39-71-611, MCA (1978), which allows fees when benefits are denied or terminated. The record demonstrates that the Workers' Compensation Fund paid temporary total benefits of $188 per week until February of 1983, at which time the award was reduced to permanent partial benefits of $94 per week. As a result, it is clear that attorney fees cannot be awarded under § 39-71-611, MCA (1978), which applies only where benefits are denied or terminated. Mr. Sharkey was awarded 500 weeks of permanent partial benefits by the Workers' Compensation Court. The Division had argued for an award of only 280 weeks of permanent partial, or in the alternative, for no benefits based on a statute of limitations defense. Clearly t h e amount of b e n e f i t s was i n controversy, and M r . Sharkey received an award i n excess of what t h e Division offered. W e t h e r e f o r e conclude t h a t a t t o r n e y f e e s and c o s t s were properly awarded pursuant t o 5 39-71-612, MCA ( 1 9 7 8 ) . Affirmed. W e Concur: - ' . Chief Jug | July 13, 1989 |
a2a61f6c-48a8-4ec9-bfa4-90ce48c1b33c | MARRIAGE OF MILLER | N/A | 89-087 | Montana | Montana Supreme Court | No. 89-87 IN THE SUPREME COURT O F THE STATE O F MONTANA 1989 I N RE THE MARRIAGE O F GENE G. MILLER, (Deceased) P e t i t i o n e r and Appellant, and NANCY G. MILLER, Respondent and Respondent. 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 James Wheelis, Judge presiding. C O U N S E L O F RECORD: For Appellant: D. R. Matthews, Missoula, Montana H. L. Garnaas, Missoula, Montana For Respondent: Michael Sol; Sol & Wolfe, Missoula, Montana I . . Submitted on Briefs: May 1 8 , 1989 r -. C ' :.- L Decided: J u l y 6 , 1989 ... , . i. 3 -A " Clerk Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Gene Miller appeals from an order of the Fourth Judicial District Court, Missoula County, denying his motion to amend the order issued November 14, 1988, which had set aside a prior decree of dissolution. We reverse. The parties married June 14, 1985. The husband filed a petition for legal separation three months later, contending that the marriage was irretrievably broken. On October 4, 1985, the wife was personally served with a copy of this petition and with a summons requiring her to answer the petition. The wife failed to file an answer or make any other appearance. Consequently, the husband moved for a default judgment. Following a brief hearing on November 8, 1985, the court entered a default judgment granting the husband's petition for a decree of legal separation. On September 2, 1986, attorney for the wife, Larry Meyer, filed and served upon the husband's attorney a motion for entry of a decree of dissolution. The motion was based on the fact that more than six months had passed, without reconciliation, since the decree of legal separation. Hearing on this motion was indefinitely continued per the request of attorney Meyer, who did not take any further action in this matter. Meyer moved to California prior to issuance of notice of the petition for dissolution. The husband filed a similar motion for entry of decree of dissolution on May 6, 1988. This motion was served on attorney Meyer, who remained the attorney of record for the wife; Meyer did not notify the wife of this motion. A hearing on husband's motion was held on May 27, 1988. Neither the wife nor an attorney acting on her behalf were present at this hearing. The District Court entered a decree of d i s s o l u t i o n a t t h e conclusion of t h i s hearing. N o n o t i c e of e n t r y of t h i s decree was f i l e d o r served by e i t h e r p a r t y . The husband died i n t e s t a t e on June 19, 1988. Thereafter, on August 22, 1988, t h e wife f i l e d a motion t o s e t a s i d e t h e decree of d i s s o l u t i o n and t o s u b s t i t u t e t h e personal r e p r e s e n t a t i v e of t h e e s t a t e of Gene Miller f o r t h e deceased i n t h i s matter. By a f f i d a v i t o f f e r e d i n support of t h i s motion, t h e wife alleged. t h e D i s t r i c t Court e r r e d i n g r a n t i n g t h e decree of d i s s o l u t i o n a s t h e marriage was not i r r e t r i e v a b l y broken. She contends t h i s a l l e g a t i o n is supported by t h e f a c t she and t h e deceased were t r a v e l i n g t o Missoula t o remarry when t h e husband suffered a h e a r t a t t a c k and died. O n September 2 , 1988, a t t o r n e y f o r t h e husband's e s t a t e f i l e d a motion t o dismiss t h e w i f e ' s August 2 2 , 1988 motion. A memorandum i n support of t h i s motion was f i l e d on September 13, 1988. The D i s t r i c t Court d i d not e n t e r judgment on e i t h e r motion u n t i l November 1 4 , 1988, a t which time t h e c o u r t granted t h e s u b s t i t u t i o n motion and ordered t h e decree of d i s s o l u t i o n s e t a s i d e f o r t h e following reasons: 1) t h e decree was void f o r lack of any testimony o r evidence t h a t t h e p a r t i e s had l i v e d a p a r t f o r more than 180 days o r t h a t t h e marriage was i r r e t r i e v a b l y broken; 2 ) t h e wife had not received proper n o t i c e of t h e motion f o r d i s s o l u t i o n of t h e marriage; and 3) t h e c o u r t deemed t h e w i f e ' s a l l e g a t i o n s t o be well taken s i n c e t h e a t t o r n e y f o r t h e e s t a t e f a i l e d t o f i l e a b r i e f i n support of h i s motion t o dismiss within t h e time required by Rule 2 of t h e Uniform D i s t r i c t Court Rules. Notice of e n t r y of t h i s judgment was f i l e d t h e same day. The D i s t r i c t Court subsequently denied t h e e s t a t e ' s motion t o amend t h i s November 1 4 , 1988 judgment, and t h e p e t i t i o n e r t h e r e a f t e r f i l e d t h i s appeal. The following i s s u e s a r e submitted upon appeal: 1. Did t h e D i s t r i c t Court l o s e j u r i s d i c t i o n by f a i l i n g t o r u l e w i t h i n 45 days o f t h e d a t e t h e motion t o set a s i d e t h e d e c r e e o f d i s s o l u t i o n was f i l e d ? 2. Did t h e D i s t r i c t Court err i n holding t h a t t h e p e t i t i o n e r ' s l a t e f i l i n g o f h i s b r i e f i n o p p o s i t i o n t o t h e motion t o s e t a s i d e t h e d i s s o l u t i o n warranted a summary r u l i n g i n favor o f t h e wife? 3. Did t h e D i s t r i c t Court err i n holding t h a t no testimony e x i s t e d i n d i c a t i n g t h a t t h e marriage was i r r e t r i e v a b l y broken? 4 . Did t h e D i s t r i c t Court e r r i n determining t h a t t h e wife was n o t r e p r e s e n t e d by counsel a t t h e t i m e of d i s s o l u t i o n and t h a t s e r v i c e o f t h e motion f o r d i s s o l u t i o n upon a t t o r n e y Meyer f a i l e d t o give h e r proper n o t i c e ? The w i f e contends t h a t t h e husband's f a i l u r e t o f i l e a response b r i e f w i t h i n t h e mandatory t i m e l i m i t s a u t o m a t i c a l l y deemed t h e motion t o set a s i d e t h e judgment admitted a s w e l l taken. The w i f e argues t h a t t h i s admission "cannot t h e n be undone by subsequent a p p l i c a t i o n o f Rule 60 ( b ) o r Rule 59 ( g ) , M.R.Civ.P." Rule 2 of t h e Uniform D i s t r i c t Court Rules d i d i n f a c t r e q u i r e t h e husband, a s t h e adverse p a r t y , t o f i l e a response b r i e f t o t h e w i f e ' s motion w i t h i n t e n days a f t e r t h e wife f i l e d h e r motion and supporting b r i e f . The husband f a i l e d t o f i l e h i s b r i e f w i t h i n t h i s period. This f a i l u r e i s deemed an admission by t h e husband t h a t t h e motion i s w e l l taken. See Rule 2 ( b ) , U.D.C.R. The D i s t r i c t Court then could, w i t h i n i t s d i s c r e t i o n , g r a n t a summary r u l i n g i n favor o f t h e wife. The c o u r t , however, f a i l e d t o immediately g r a n t such a r u l i n g . I n s t e a d , t h e c o u r t waited approximately 7 4 days b e f o r e s o r u l i n g . The c o u r t ' s r u l i n g , p e r Rule 2 , U.D.C.R., t h u s was n o t a p r i o r r u l i n g , a s argued by t h e w i f e , which would automatically preempt any subsequent application of Rules 60 (b) and 59 (9) , M.R.Civ.P. The wife next contends that the 45 day limit specified in Rules 60(c) and 59(g)., M.R.Civ.P., during which a district court must rule on a motion properly before it or the motion will be deemed denied, had not expired prior to the November 14, 1988 ruling. She asserts that a notice of entry of judgment begins the running of all jurisdictional time limits. Because such a notice had not been filed after the May 8, 1988 dissolution decree, she contends that none of the post-trial motion time limits had even begun to run, let alone expire, when the court issued its November 14, 1988 order setting aside the decree. This argument, which goes beyond the clear and unambiguous language of the statute, finds no support in law. A court is required to rule on a post-judgment motion to set aside (Rule 60 (b) , M.R.Civ.P. ) or to amend (Rule 59 (9) , M.R.Civ.P.) a judgment within 45 days of the date the motion is filed. Rules 60 (c) and 59 ( g ) , M.R.Civ.P., expressly state - that this 45 day limit is the same as that respecting motions for a new trial as set forth in Rule 59(d), M.R.civ.P.: If the court shall fail to rule on a motion for new trial within 45 days from the time the motion is filed, the motion shall, at the expiration of said period, be deemed denied. (Emphasis added. ) The rules clearly state that the 45 day time limit for ruling on such post-trial motions begins on the actual date the motion is filed. No statutory provision exists, unlike that provision existing for a notice of appeal, which states that this 45 day period, in cases in which a post-judgment motion is filed prior to notice of entry of judgment, shall be treated as beginning on the day of the notice of entry of judgment. - Cf. Rule 5 ( a ) ( 2 ) , M . R . A ~ ~ . P . ( e x p r e s s l y s t a t i n g t h a t a p r i o r n o t i c e o f appeal w i l l b e t r e a t e d a s f i l e d on t h e subsequent d a t e t h a t n o t i c e o f e n t r y of judgment i s f i l e d ) . W e t h e r e f o r e hold t h a t a n o t i c e o f e n t r y o f judgment, i n r e g a r d t o post-judgment motions, w i l l n o t a f f e c t t h e time w i t h i n which a c o u r t must r u l e on t h e motion. However, i f t h e n o t i c e i s never f i l e d , a moving p a r t y p o t e n t i a l l y would have an u n l i m i t e d t i m e w i t h i n which t o f i l e t h e r e s p e c t i v e motion. Once t h e motion i s made, however, t h e t i m e frame w i t h i n which t h e c o u r t must a c t begins. See, e . g . , Winn v . Winn (1982) , 200 Mont. 402, 408, 651 P.2d 51, 5 4 . When t h e c o u r t f a i l e d t o r u l e on t h e w i f e ' s motion t o set a s i d e t h e judgment w i t h i n 45 days o f t h e d a t e t h e motion was f i l e d , t h e m a t t e r was deemed denied and t h e c o u r t l o s t j u r i s d i c t i o n o f t h e p a r t i c u l a r i s s u e . Having s o r u l e d , we need n o t d i s c u s s t h e o t h e r c h a l l e n g e s t o t h e v a l i d i t y o f t h e November 8 and December 16, 1988 o r d e r s i s s u e d by t h e D i s t r i c t Court. W e r e v e r s e and r e i n s t a t e t h e decree o f d i s s o l u t i o n e n t e r e d May 27, 1988. W e concur: | July 6, 1989 |
a8db503d-fa32-4bd5-a53e-3683996cacdc | ST EX REL GREAT FALLS TRIB v 8T | N/A | 89-094 | Montana | Montana Supreme Court | No. 89-67 89-94 IN THE SUPREME COURT OF THE STATE OF MONTANA - - .- -- NO. 89-67 STATE, ex rel., GREAT FALLS TRIBUNE COMPANY, INC., a Montana corporation, Applicant, -vs- MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY, HON. JOHN M. McCARVEL, DISTRICT JUDGE, Respondent. - No. 89-94 STATE, ex rel., GREAT FALLS TRIBUNE COMPANY, INC., a Montana corporation, Applicant, -vs- DISTRICT COURT, CASCADE COUNTY, HON. JOHN M. McCARVEL, DISTRICT JUDGE, Respondent. ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Applicant: Peter Michael Meloy argued, Helena, Montana For Respondent: Hon. Marc ~acicot, Attorney General, Helena, Montana Dorothy McCarter argued, Asst. Atty. General, Helena patrick L. Paul, County Attorney, Great Falls, Nontana Russell H. Jones and ~ e i t h Douglass, Spokane, washington Submitted: July 1 3 , 1989 Decided: July 26, 1989 Mr. Justice John C. Sheehy delivered the Opinion of the Court. In these consolidated cases, we conclude that under Montana law, the public and press have a right of access to attend judicial hearings conducted to determine whether probation rights of convicted persons should be revoked; but that in a proper case such as this, a district court may close such a judicial hearing to the public and press under state law without thereby offending the federal constitution. When such hearings are properly closed to the public and press, no member of the public or representative of the press may interrupt the due course of such a hearing in a manner which might defeat the reason for closure. Such an interruption of a properly closed judicial hearing constitutes a contempt of the court. Cause no. 89-067 arises from an underlying judicial proceeding in the District Court, Eighth Judicial District., Cascade County, wherein the Hon. John M. McCarvel, was presiding. On a date purposely not specified here, District Judge McCarvel ordered that a proceeding for the revocation of the probation of a certain person be closed to the public. After the incidents occurred v~tlich are reported hereafter, the Great Falls Tribune, a corporation distributing a newspaper in Great Falls, Montana, filed its application in this Court for a writ of supervisory control directed against the ~istrict Court to order the transcript of the revocation hearing to be made available to the Tribune, and to direct the district judge to refrain and desist from closing future revocation proceedings, subject to the rulings of this Court on circumstances which might justify closure. Cause no. 89-094 is based on an application by Great Falls Tribune Company, Inc. for a writ of review of an order issued by District Judge McCarvel requiring the Tribune reporter, Melody Perkins, to appear before him to show cause why she should not be held for direct contempt of the court. The application in this Court was filed while the contempt proceedings in the District Court were pending but the hearing on contempt was held as scheduled and in the District Court Judge McCarvel adjudged Melody Perkins guilty of contempt and fined her in the sum of $300.00. We ordered the two cases consolidated for oral argument and decision. Essentially, the issues presented in the consolidated cases are these: 1. Whether the public and press have a right of access to attend probation revocation hearings. 2. Whether the District Court erred in closing the probation revocation hearing without first conducting an evidentiary proceeding in which the public and press could participate and without making findings of the reasons for closure as required by the state and federal constitutions. 3. Whether Melody Perkins was properly found in contempt. The transcript of the revocation proceedings in this particular case has been, and still is, under seal. The following facts, however, may be stated, either from express disclosure ordered by us or from a transcript of the contempt proceeding. Melody Perkins, a reporter for the Great Falls Tribune, assigned to cover the county courthouse, entered District Judge McCarvel's courtroom to observe a probation revocation proceeding already underway. Before she entered, and before the revocation proceeding commenced, court and counsel had met in chambers concerning the probation proceeding, and thereafter, in open court, the following occurred: MR. JONES: Thank you, Your Honor. The first matter, I request this be a closed hearing, that all non-necessary persons leave the courtroom, and that the bailiff maintain the security of the courtroom during the hearing. We have stated our reasons previously to Your Honor. THE COURT: Do you want to put them on the record now, or do you prefer not to? MR. JONES: I prefer not to. I would be happy tc make a record, but I prefer not to do it in open court. Your Honor is aware of our reasons, I believe. Thank you. THE COURT: You are concerned for the safety of the person involved; is that it? MR. JONES: Yes, Your Honor. THE COURT: All right. All those in the courtroom who are not going to participate in this hearing will be asked to leave. MS. SCHULKE: Does that include the members of our office, Your Honor? THE COURT: No, not the County Attorney's office. MS. SCHULKE: Can other members of Probation and Parole be here if they wish to? THE COURT: Yes. Mary Fay, you can stay if you want. MR. JONES: Who is Mary Fay? MS. SCHULKE: A probation and parole officer here in Great Falls. MR. JONES: All right. Thank you, Your Honor. At the time that Melody perkins had entered the courtroom, the decision to close the proceeding, as reported above, had already been made and the probation revocation hearing itself was ongoing. When she entered, the following occurred : MS. SCHULKE: Your IIonor, I recognize a member of the press here. I don't know her name, but she's from the Tribune. THE COURT: This hearing is closed. MS. NELODY PERKINS: Okay. Melody Perkins left the court and thereafter telephoned her employer. She was instructed by the city editor of the Tribune, Tom Kotynski, to return to the court and there make a request for the grounds of the closure and for a continuance of the proceeding so that the Tribune could contact its attorney. perkins returned as instructed, and re-entered the courtroom, accompanied by Tom Grirnm, a television reporter. At this point, the following occurred: THE COURT: Just a minute-- MS. MELODY PERKINS: Excuse me. As a representative of the Great Falls ~ribune, I would like to know on what grounds this hearing has been closed. THE COURT: Will you step out? Both of you step out. MS. MELODY PERKINS: Your Honor, as a representative-- THE COURT: Do you want me to call the sheriff and have him put you out? MS. MELODY PERKINS: The ~ribune requests-- THE COURT: Will you call the bailiff? MS. MELODY PERKINS: We will leave, Your Honor. Our attorney is being consulted, however. MR. JONES: Your Honor, I also noticed video-tape cameras at the doors here. I don't know if that 's-- MR. DOUGLASS: It's a concern how sound-proof the doors are. If the video cameras are right up to the doors with microphones, if they can hear through, or-- THE COURT: I d ~ n ' t know. MS. SCHULKE: Someone from the sheriff's office will be here. THE COURT: Get ahold of that guy with the TV camera there. See him out there, the guy with the TV camera? THE BAILIFF: Yes. THE COURT: I want to find out if he recorded a n 1 7 of this testimony, and tell him he had better not be using it. THE BAILIFF: Yes. THE COURT: Have him brought in here, will you? MR. TON GRIMM: I'm Tom Grimrn, Channel 3. THE COURT: Do you have a recorder on that camera? MR. TOM GRIMM: I haven't captured anything that happened in this room. THE COURT: Oh, all right. MR. JONES: You are just looking through your lens? MR. TOM GRIMM: I can't hea.r anything in the hall what's going on inside here, THE COURT: Okay. MR. TOM GRIMM: Can I go? THE COURT: Yes. MR. PAT PAUL: That other gentleman was an attorney with another firm in town, and I told him it was closed. THE COURT: What? MR. PAT PAUL: The other gentleman, he was an attorney with one of the firms in town, and I asked him to leave. Do you want these guys to stick around [referring to staff members of the sheriff's office] ? THE COURT: Yes. When the Great Falls Tribune filed its application in this Court for a writ of supervisory control, the Attorney General responded by filing a motion for a review of the transcript of the probation revocation proceeding - in camera. The transcript covered the proceeding in court and also the discussions which had occurred in chambers with the court before the revccation hearing. The Tribune objected to the consideration of the sealed transcript by this Court on the grounds that the Tribune would be at a disadvantage as to the argument regarding the propriety of the closure. Later this Court excerpted and made available to all parties the portions of the sealed transcript above quoted. Ten days after the revocation hearing, ~istrict Judge McCarvel issued an order directed to Melody Perkins requiring her to show cause why she should not be cited for contempt. Tom G r i r n r n , the television reporter was not cited. Melody Perkins appeared before Judge McCarvel on the date required, where after a hearing, she was found guilty of contempt and fined $300.00. RIGHT OF ACCESS TO PROBATION REVOCATION -- HEARINGS The united State Supreme Court recognizes a ~ i r s t Amendment right of public access to criminal trials. Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973; Globe Newspaper Company v. superior Court (1982), 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248. The Supreme Court has also held that the sixth Amendment right to a fair trial is a right personal to the defendant and not to the public. Gannett Company, Inc. v. DePasquale (1979), 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608. Although the Supreme Court has not yet interpreted the First Amendment to require public access to civil trials, several federal courts of appeals have taken that step. ~ublicker ~ndustries, Inc. v. Cohen (3d ~ i r . 1984) , 733 F.2d 1059, 1070; Matter of Continental ~llinois securities Litigation (7th Cir. 1984), 732 F.2d 1302, 1308; Brown and ~illiamson Tobacco Corp. v. F.T.C. (6th Cir. 19831, 710 F.2d 1165, cert.den. 104 S.Ct. 1595 (1984). Here, the Attorney General points out that a probation revocation hearing is not a criminal proceeding, State v. Watts (Mont. 1986), 717 P.2d 24, 43 St.Rep. 670; State v. Robinson (1980), 190 Mont. 145, 619 P.2d 813, and argues that because a probation revocation proceeding involves neither the guilt of the defendant nor the imposition of sentence, the interest of the defendant in obtaining a fair trial plays no part in such a proceeding. ~ccordingly, the Attorney General contends that the primary interest that competes with the public right to know in this type of proceeding is the probationer's right of privacy. The state constitution of Montana contains in Art. 11, S 9, the "right-to-know" provision as follows: 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 demands of individual privacy clearly exceed the merits of public disclosure. We held in State ex rel. Tribune v. District Court (1980), 186 Mont. 433, 608 P.26 116, that the foregoing constitutional provision speaks for itself and applies to all persons and all public bodies of the state and the subdivisions without exception. Moreover, the provisio~ applies to civil judicial proceedings, Cox v. Lee Enterprises, Inc. (Kont. 1986), 723 P.2d 238, 43 St.Rep. 1476. Since the days of the Bannack statutes, the sittings of all courts by statute in Montana have been required to be public. Section 3-1-312, MCA. It is clear to us, therefore, that the public and the press have the right under state law to attend and observe with limited exception the hearings of the courts of this state. The press also enjoys this right through its individual representatives and because of its surrogate role for the public. Richmond Newspapers, Inc. v. ~irginia (1980), 448 U.S. at 572, 573, 100 S.Ct. at 2825, 65 L.Ed.2d at 987. The state exception to this right occurs only in cases in which the demands of individual privacy clearly outweigh the merits of public disclosure. Art. 11, $ 9, supra. RIGHT OF THE PUBLIC AND THE PRESS TO PARTICIPATE IN THE CLOSURE DECISION - This Court received the transcript of the probation revocation proceeding from the District Court under seal. The transcript was examined by us - in camera and upon such examination we determined not to grant the motion of the Great Falls Tribune to unseal the transcript record. Instead, we directed the parties to brief the issues in these cases by assuming as a premise the following facts: The District Court closed the revocation hearing to the press and public to protect a person from harm which might otherwise occur if the revocation was made public. In the stated premise, we did not use the term "physical harm" hut counsel for the Tribune interpreted correctly that that was what was meant. Counsel conceded on oral argument that such an assumed premise would be a proper reason for the court to order closure of the proceeding. The Tribune, however, argues along other lines as to the propriety of the closure. It contends that before the closure was ordered, the court should have provided some notice to the public of its intention to close; then conduct an evidentiary hearing in which the public and press can participate; and, make express findings of fact as to the reasons for the closure. The Tribune points to the rule in the Court of Appeals of the Third Circuit, where no order closing civil or criminal proceedings may be entered by any federal district court judge until notice of the closure is given to the press and public. U.S. v. Criden (3d Cir. 1982), 675 F.2d 550. The lack of such a rule here, contends the Tribune, causes the ~ribune to bear the burden of attacking the propriety of the District Court's decision to close, when that burden should have remained on the particular defendant involved. The argument of the Great Falls Tribune finds precedent in State ex rel. Daniel Paul smith v. District Court, ~ighth ~udicial District (1982), 201 Mont. 376, 386, 654 P.2d 982, 988. In Smith, v 7 e dletermined that a closure of a pretrial suppression hearing should occur only if there were a "clear and present danger" to defendant's fair trial and no reasonable alternative means could be utilized to avoid the prejudicial effect of such information. The holding in smith modified, to some extent, our previous holding in Great Falls Tribune v. ~istrict Court, supra, which adopted a strict and irreparable necessity standard for closure, "where the demands of individual privacy clearly exceeded the merits of public disclosure." 186 Mont. at 441, 608 P.2d at 119. However, with respect to the right-to-know provision of the Montana ~onstitution, t-his Court stated in The ~issoulian v. Board of Regents of Higher ÿ ducat ion (1984), 207 Mont. 513, 529, 675 P.2d 962, 971: However, the right to know is not absolute. The more specific closure standard of the constitutional and statutory provisions requires this Court to balance the competing constitutional interests in the context of the facts of each case, to determine whether the demands of individual privacy clearly exceed the merits of public disclosure. Under this standard, the right to know may outweigh the right of individual privacy, depending on the facts. (Emphasis in original.) Whenever the court must determine whether a privacy interest is protected under the state constitution, we apply a two-part test: (1) whether the person involved had a subjective or actual expectation of privacy; and, (2) whether society is willing to recognize that expectation as reasonable. Montana Human Rights ~ivision v. city of ~illings (1982), 199 Mont. 434, 441, 649 P.2d 1283, 1287. ~pplying that test here, when the ~istrict Court determined that the person involved must be protected from physical harm arising from participation in the proceeding, the subjective expectation of that person to privacy was established. The second prong of the test is met because the risk to the person's individual safety from disclosing adverse information to the public would compel a reasoneble person to recognize the expectation of privacy. It should be noted that the competing interests here differ in large respect from competing interests involved in other cases. Thus, in Great Falls Tribune, supra, the right to know was weighed against the defendant's right to a fair trial. In State ex rel. Daniel Smith, supra, this Court held -- that the defendant's right to a fair trial would be paramount to the public's right to know if disclosure of the pretrial suppression hearing ~rould affect his fair trial-. In The Missoulian v. Board of Regents (1984), 207 Mont. 513, 675 P.2d 967, the Board of Regents was required to balance the public's right to know against the individual's right of privacy with respect to employment evaluations. There the right of individual privacy was held to be paramount. It is true, however, that the law requires that if closure of a portion of a judicial proceeding is necessary, the procedure imposing the least restriction on the public right to know should be followed. In The Missoulian v. Board of Regents, supra, this Court did address possible alternatives to closure of job performance evaluation meetings, and determined that there was no adequate alternative which would preserve the privacy of the individual and at the same time prevent the evaluations from being effective. That kind of consideration applies to the case at bar. Any leaking out of the information would endanger the physical safety of a person involved. There were no reasonable alternatives that the ~istrict Court could follow here. For that reason, we hesitate to adopt the ~hird circuit rule that notice must be given of all potential closure decisions, and would rather allow the district courts to proceed on an ad hoc basis to make the decision in - - accordance with the facts and circumstances facing the district courts at the time. ~ustice ~ehnquist (now Chief Justice) in Gannett Company, Inc. v. DePasquale (1979), 443 U.S. at 405, 99 S.Ct. at 2918, 61 L.Ed.2d at 637, in cautioning that there was no set procedure to be employed by a trial court to determine whether or not a part of the trial court should be closed, stated: . . . To the contrary, in my view, and, I think, in the view of the majority of this Court, the lower courts are under no constitutional constraint either to accept or reject these procedures. They remain, in the best tradition of our federal system, free to determine for themselves the question of whether to open or close the proceeding. Hopefully they will decide the question by accommodating competing interests in a judicious manner but as far as the constitution is concerned, the question is for them and not us to resolve. From the foregoing discussion, it will be seen that there is no reason now for this Court to reverse the closure order of the District Court. The Tribune concedes that the reason for closure was proper. The additional relief requested by the Tribune in the application for supervisory control is likewise not suitable in the present context. The application for supervisory control must therefore be denied. We come, therefore, to the question of whether the decision of the District Court in the conternpt proceedings should be affirmed, modified or reversed. Usually on a petition for a writ of certiorari to review a contempt order, if we did not have before us the aggrieved person, we would be constrained to dismiss the application. Here, however, we adopt as a premise that through the contempt order, the Great Falls Tribune itself is the aggrieved entity. On an application of a writ of certiorari to review a contempt order of the District Court, our review is limited to an examination of the record to determine whether the District Court acted within its jurisdiction, and whether the evidence supported the finding and order of contempt. Schneider v. Ostweld (1980), 617 P.2d 1293. In such a review, we are limited to the record compiled before the District Court. State ex rel. Sell v. District Court (1916), 52 Mont. 457, 158 P. 1018. The record here is clear. The District Court had ordered a closure for a probation revocation proceeding because of the possibility that if information developed in the proceeding became known to the public, there was danger of harm to a person involved. All sides admit that the order of closure was providently granted. Melody Perkins, as a reporter for the Great Falls Tribune, entered the courtroom where the revocation hearing was ongoing, and was then advised by the District Court that the proceedings had been closed. The reporter said, "Okay," and retreated from the courtroom. At this point, no person, including representatives of the press, had any right to intrude further upon the judicial proceeding unless within the number of those persons excepted under the closure order of the court. Notwithstanding, Melody Perkins, on the direction of her editor, re-entered the court in the company of another person, interrupted the judicial proceeding, and eventually left the courtroom on the threat of expulsion by the ~istrict Court through a bailiff. Other options were open to Melody perkins and the Great Falls ~ribune when first she learned of the closure and left the courtroom. She, or a representative of the Tribune, could have gone to the district judge, in chambers or in open court following the closed hearing, and requested the reasons for closure. A letter could have been written to the district judge following the closed hearing requesting the reasons. A petition for a writ filed in this Court (a procedure followed here by the Tribune) would have resulted, as it did, in disclosure of the reasons for closing the hearing. We affirm the right of the public and the press to learn from the ~istrict Court the reasons for closure when the demands of individual privacy clearly exceed the merits of public disclosure. That right, however, is not so broad as to include interruption of the closed proceeding itself, especially when interruption at a critical time might void the reason for the closure. Under S 3-1-402, MCA, every judicial officer has the power to preserve and enforce an order in his immediate presence and in a proceeding before him when he is engaged in the performance of an official duty, and to compel obedience to his official orders. For the effectual exercise of those powers, a judicial officer may punish for contempt. Section 3-1-403, MCA. Contempt of a court of justice or a proceeding therein occurs through "disorderly, contemptuous or insolent behavior toward a judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding;" "a breach of the peace tending to interrupt the due course of a trial or other judicial proceeding;" or "disobedience - of any lawful judgment, order or process of the court." Section 3-1-501, MCA. (Emphasis added.) Under the statutes, the District Court Judge here acted within his jurisdicticn on a contempt charge for a disorderly action that occurred before him which tended to interrupt his judicial proceeding and which appeared to be in disobedience to his order that the hearing was closed. The penalty is within the provisions of S 3-1-519, MCA. Under the circumstances, the judgment of contempt must be sustained, as no grounds can be found to justify the issuance of a writ of certiorari directing otherwise. Accordingly, both the application for writ of supervisory control and the application for writ of certiorari are denied. -\ We Concur: A - Justices Justice R. C. McDonough specially concurs. I concur with the majority opinion. However, inasmuch as most hearings are closed at the request of both parties, or without objection by the non-requesting party, some accountability for such a grave discretionary step is warranted in the interest of participatory government. I favor the adoption of a rule which in essence would require the District Court Clerk to file an annual public report with this Court, stating at a minimum: (1) the number of discretionary closings, (2) the type of each case, and ( 3 ) the judge presiding. A copy of this report would be available to the public in each clerk's office. Mr. ~ustice ~illiam E. Hunt, Sr, dissenting. I dissent and would reverse and throw out the contempt charges against the reporter. This nation was founded upon the idea that all governmental proceedings should be conducted in the open under the scrutiny of the public eye. I therefore cannot sign the eloquent and thorough majority opinion because, however practical its reasoning, it reinforces the trend toward excluding private citizens from participation in their government. When a judge determines that a closed hearing is appropriate, as the judge did here, it is up to him or her to ensure that members of the public cannot enter the courtroom. A member of the public entering an ineffectively closed courtroom would certainly disturb the proceedings and each entry would require a statement of the judge that the hearing was closed. Any inquiry by the citizen as to why he or she had to leave would subject him or her to contempt of court charges. If the judge in this case had positioned a bailiff at the courtroom door or had posted a sign notifying the public that the proceeding was closed, this incident could have been prevented. If the newspaper editor, when notified of the closure, had followed the procedures set forth in the majority opinion to determine the purpose of the closure rather than sending his reporter back into the skirmish, the confrontation could have been averted. I fear that Melody perkins was merely a pawn in the game between the press and the court. And the consequence of this game? A case that holds that any member of the public can be ousted from a secret governmental meeting that appears to be an open meeting and subsequently cannot return to what still appears to be an open meeting and ask why. Whatever her motive or reason for returning, when she respectfully and quietly reentered the courtroom, Melody perkins was exercising a right she had as a citizen. The exercise of that right in that manner cannot be contempt. I would dismiss and throw the whole affair out of court. | July 26, 1989 |
1762a7f3-cd3b-4abd-983d-d36259733da2 | GUNNING v GENERAL MOTORS CORP | N/A | 89-276 | Montana | Montana Supreme Court | No. 89-276 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 - - SUZANNE KRUEGER GUNNING, Plaintiff and Appellant, -vs- GENERAL MOTORS CORPORATION, a Delaware Corporation, Defendant 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: Dennis Patrick Conner, Great Falls, Montana Erik Thueson, Helena, Montana For Respondent: Curtis G. Thompson and John Stephenson, Jr.; Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana Kent Hanson, Richard A. Bowman, Kim M. Schmid; Bowman and Brooke, Minneapolis, Minnesota Filed: Submitted on Briefs: Aug. 10, 1989 Decided: September 7, 1989 L - \ n / Clerk Justice R. C. McDonough delivered the Opinion of the Court. Appellant Suzanne Krueger Gunning appeals the order of the District Court of the Eighth Judicial District, Cascade County, denying her motion for a new trial. The District Court found the record supports the jury's zero damages verdict on her claim for loss of consortium. We affirm. Suzanne frames one issue for appeal: May a jury award no damages on a loss of consortium claim where the injured party has suffered significant injuries, has been awarded damages for those injuries, and the injured party's spouse brings a claim for loss of consortium? On February 11, 1985, Andrew Krueger and Suzanne Krueger Gunning filed this action against General Motors Corporation (GM) . Andrew was injured in an accident involving a General Motors ' vehicle that rendered him a quadriplegic. Andrew's claim was based on strict product liability for failure to warn and unreasonably dangerous design; Suzanne's claim was a derivative action for loss of consortium arising out of Andrew's injuries. Suzanne and Andrew met in Texas in 1979. The couple exchanged vows informally, Suzanne began using Andrew's last name, and they held themselves out as married. They had a child in June 1980 and moved to Montana shortly afterward. At the time .of the accident, the couple and their child were all living together in Great Falls. Thirteen days after the accident, Andrew and Suzanne formalized their marriage in a civil ceremony performed while Andrew was in the hospital. The evidence presented at trial demonstrated that because of the severity of his injuries, Andrew requires a daily minimum of eight to ten hours of hands-on attendant care with someone available to him on a 24-hour basis. After the accident, Suzanne took an eight month leave of absence from her job in order to care for Andrew. After returning to work, she continued to take care of him until November, 1985, when they were legally separated. The dissolution of their marriage became final on April 3, 1986, a little over a year after the filing of this action. After Suzanne left, Andrew's care was taken over by his parents. At the close of trial, GM moved for a directed verdict based on lack of evidence to support the existence of a marriage relationship prior to the couple's formal marriage in the hospital. The District Court denied the motion, held there was a common law marriage, and instructed the jury that if they reached a verdict favoring Andrew they could assign a value to Suzanne's loss of consortium in a separate verdict. Although there was much evidence presented at trial regarding the type of care Andrew required and Suzanne provided following the accident, there was little testimony regarding the nature of the marital relationship enjoyed by Andrew and Suzanne prior to the accident. At trial, the jury awarded Andrew $1,293,430.00 in damages on his personal injury claim and zero damages to Suzanne on her claim for loss of consortium. Suzanne moved the District Court to grant a new trial to reconsider the amount of her damages, the court denied her motion and upheld the jury's verdict. The issue is now before this Court on appeal. In making our determination, we review this case in accordance with the appropriate standard. It is well established that when determining whether the evidence supports the trial court's verdict the reviewing court will only review the evidence to decide if the verdict is supported by substantial evidence. Tope v. Taylor (Mont. 1988), 768 P.2d 845, 45 St.Rep. 2242; Weinberg v. Farmer's State Bank of Worden (1988), 752 P.2d 719, 45 St.Rep. 391; Wyman v. Dubray Land Realty (Mont. 1988), 752 P.2d 196, 45 St. Rep. 621; Clark v. Norris (Mont. 1988), 734 P.2d 182, 44 St. Rep. 444. This Court will not substitute its judgment for that of a jury with respect to the amount of damages unless it appears that the award is so grossly out of proportion to the injury received so as to shock the conscience of this Court. Kelleher v. State (1972), 160 Mont. 365, 503 P.2d 29; Salvail v. Great Northern Ry. Co. (1970), 156 Mont. 12, 473 P.2d 549; Sheehan v. DeWitt (19671, 150 Mont. 86, 430 P.2d 652. A cause of action for loss of consortium of the deprived spouse is separate and distinct from the claim of the injured spouse and the basis for such a claim lies in the Montana statutes in which the husband and wife contract for obligations of mutual respect, fidelity, and support. Bain v. Gleason (1986), 223 Mont. 442, 726 P.2d 1153. Section 40-2-101, MCA. Thus, a woman by her marriage obtains a contractual right to consortium. Dutton v. Hightower and Lubrecht Construction Co. (D.Mont. 1963), 214 F.Supp. 298, 300. Consortium includes a legal right to the aid, protection, affection and society of the other spouse. Bain, 726 P.2d at 1155; Dutton, 214 F.Supp. at 300; Wallace v. Wallace (1929) , 85 Mont. 492, 516, 279 P. 374, 382. Suzanne established to the trial court's satisfaction a valid marriage, Suzanne then was entitled to offer proof that her contractual right to the aid, protection, affection, and society of Andrew was adversely affected by the accident. During trial, Suzanne testified concerning the care she provided Andrew and the emotional hardship it caused her. Very little evidence was presented concerning the nature of their marital relationship prior to the occurrence of the accident. The only evidence on the record of this relationship consists of the following testimony: Question: What sort of marriage did you and Andy have before his accident occurred? Answer: We had a very happy and healthy marriage. Very active. We went fishing and camping and hunting and swimming and dancing a lot. Assessing any damages to Suzanne's consortium necessitates some proof of the established marital lifestyle of the couple prior to the accident. See generally, Am.Jur. 30 POF 73 89 17-18. As established in Bain, 726 P.2d at 1154-55, a claim for loss of consortium is based on the husband and wife contracting for obligations of mutual respect, fidelity, and support; thus it follows that the claimant must offer proof that these mutual obligations were fulfilled prior to the other spouse's injury, and that due to the injury fulfillment of these obligations has been impaired. In this case no evidence other than the testimony quoted above was offered to establish the nature of the marital relationship enjoyed by Andrew and Suzanne prior to the accident. The only evidence that intimates that this relationship was impaired by the accident is Suzanne's testimony, "we were constantly fighting. The stress was too much. I had to get out of there for our daughter's sake. We did no longer get along." This cursory testimony does not rise to the level of substantial credible evidence upon which the jury could base an award of damages for Suzanne's alleged loss of consortium. Suzanne relies on several cases from other jurisdictions in contending that an award of zero damages for her claim is improper, thus entitling her to a new trial. - See, e.g., Fleming v. Albertson's, Inc. (Fla.Ct.App. 1988), 535 So.2d 682; Stroud v. Govreau (Mo.Ct.App. 1973), 495 S.W.2d 682; Nelson & Budd, Inc. v. Brunson (1985), 173 Ga.App. 856, 328 S.E.2d 746. However, these cases hold that a zero damages verdict on a consortium claim is improper when there was substantial, undisputed, and unrebutted evidence concerning the impact the injury had on the marital relationship, Fleming, 535 So.2d at 684, when there was substantial evidence to support the claim for loss of consortium, Stroud, 495 S.W.2d at 684, (overruled on other grounds), and when the spouse has presented unrefuted evidence as to loss of consortium. Nelson, 328 S.E. 2d at 749. (Emphasis added. ) In the present case there was no substantial and unrefuted evidence regarding the injury's impact on the marriage, thus Suzanne's reliance on these cases is misplaced. While some negative effects on the marriage of Andrew and Suzanne may be implied as a result of the accident, a jury does not base an award of damages on implication or speculation, an award must be based on the substantial evidence presented at trial. We must review the record to decide if the verdict is supported by substantial evidence, - Tope, 768 P.2d at 849; Weinberq, 752 P.2d at 721-722; Wyman, 752 P.2d at 199; Clark, 734 P.2d at 184, and we must review the evidence in the light most favorable to the prevailing party, here the defendant. Stewart v. Fisher (Mont. 19891, 767 P.2d 1321, 46 St.Rep. 116; Rogers v. Hilger Chevrolet Co. (1970), 155 Mont. 1, 465 P.2d 834. In light of the lack of any substantial evidence on the record concerning both the nature of and injury to the Krueger's marital relationship, the jury was entitled to conclude that Suzanne had not met her burden of proving damages on her claim, and the District Court properly denied the motion for new trial. We affirm the District Court. We Concur: ' Chief' Justice b " | September 7, 1989 |
9a03e0b1-cc71-4968-b599-9ccbf23c1b32 | JACKSON v STATE | N/A | 14362 | Montana | Montana Supreme Court | No. 14362 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979 ALICE E. JACKSON et al., Plaintiffs and Appellants, -vs- STATE OF MONTANA: HOLLY SUGAR CORPORATION, et al., Defendants and Respondents. Appeal from: District Court of the Seventh Judicial District, Hon. L. C. Gulbrandson, Judge presiding. Counsel of Record: For Appellants: Moses, Tolliver and Wright, Billings, Montana Joel Guthals argued, Billings, Montana For Respondents: Habedank, Cumming & Best, Sidney, Montana Otto Habedank argued, Sidney, Montana David W . Woodgerd argued, Helena, Montana Submitted: February 8, 1979 Decided: MAR 16 llylg Filed: bjAR l ? . ' 1979 M r . J u s t i c e John Conway Harrison delivered t h e Opinion of t h e Court. This is an appeal from a q u i e t t i t l e a c t i o n involving c e r t a i n land lying w e s t of t h e Yellowstone River i n Section 36, adjacent t o Section 35, Township 23 North, Range 59 East, County of Richland, Montana. After a nonjury t r i a l , t h e Honorable L e s l i e G. Gulbrandson entered a judgment f o r defendants. P l a i n t i f f s appeal. The diagram below is f o r i l l u s t r a t i v e purposes, as- s i s t i n g i n t h e explanation of a complicated f a c t s i t u a t i o n . Ye //OWS fo e r A R~cord,'~ 9 0 4-,yna 1 survey i h 1 g 8 ~ I n 1923 Andrew Jackson, S r . , and h i s w i f e A l i c e began purchasing land i n t h e S1/4 of Section 35, Township 23 North, Range 59 E a s t , of Richland County. During t h e next 1 5 y e a r s they acquired 240 deeded a c r e s i n Section 35. I n 1933 they acquired, by q u i e t claim deed, a p i e c e of prop- e r t y , h e r e i n a f t e r r e f e r r e d t o as t h e "Meadors Property," located i n t h e southeast corner of Section 35. Immediately north of t h e Jacksons' property i n Section 35 a r e t w o l o t s now known as t h e " S t e i n b e i s s e r Property." When t h e Jacksons acquired t h e Meadors Property, t h e Yellowstone River, a t high w a t e r , overlapped t h e S t e i n - b e i s s e r Property and crossed a t a diagonal i n t o t h e Meadors Property. A t t h i s t i m e only a small corner, Lot 2 , was high and dry. This l o t w a s leased t o t h e Jacksons by t h e S t a t e of Montana. Since 1933 t h e Yellowstone River has gradually moved e a s t , exposing land i n Section 35, f i l l i n g i n t h e Meadors Property t o t h e s e c t i o n l i n e , and exposing land i n Section 36 which a d j o i n s t h e e a s t e r n s e c t i o n l i n e of Section 35. By 1976, a survey i n d i c a t e d t h a t land c r e a t e d by t h e eastward movement of t h e r i v e r t o t a l s some 171 a c r e s i n Section 36. A s t h e r i v e r moved eastward and more land became usable, t h e Jacksons fenced t h e a r e a and began farm- i n g it. I t i s t h e t i t l e t o t h i s "accreted" land t h a t i s i n d i s p u t e . The l e a s e between t h e Jacksons and t h e S t a t e of Montana was renewed every t e n years. It w a s modified i n 1951 t o show t h a t t h e Jacksons had become a business e n t i t y known a s Andrew Jackson and Sons. I n 1961 t h e d e s c r i p t i o n of t h e lands was changed from t h e f i v e acres of Lot 2 t o 153 a c r e s described as Lot 2 and a l l t h e land w e s t of t h e ell ow stone River i n Section 36. The Jacksons signed t h e l e a s e but a l l e g e t h a t they continued t o pay taxes on t h e same. Section 36 belongs t o t h e S t a t e of Montana. I t i s set a s i d e f o r public education and i s administered by t h e Montana Department of S t a t e Lands. I n 1931 t h e Jacksons began leasing Lot 2 , Section 36, from t h e S t a t e . A s t h e years passed, they renewed t h e l e a s e , including t h e lands t h a t were accreting. The Jacksons argue t h a t except f o r Lot 2, a l l t h e land t h a t accreted i n Section 36 belongs t o them s i n c e they were t h e owners of adjoining property i n Section 35. I n 1963 Andrew Jackson, S r . , died. I n t h e d i s t r i b u t i o n of h i s e s t a t e no mention was made of t h e accreted land now claimed, although Alice Jackson t e s t i f i e d it w a s discussed with t h e i r attorney. The property was d i s t r i b u t e d by sec- t i o n s and l o t s according t o t h e county records. I n 1964 t h e Jackson h e i r s conveyed Section 35 and Lot 5, Section 25, t o Andrew Jackson, Jr., and h i s wife Marjorie. N o mention w a s made t o t h e accreted lands although Andrew, Jr., and h i s mother continued t o run c a t t l e on t h e land e a s t of t h e s e c t i o n l i n e t o t h e r i v e r . I n 1964 t h e d e s c r i p t i o n of t h e land along t h e r i v e r w a s changed by t h e county assessor, and t h e Jacksons w e r e taxed f o r t h r e e l o t s and 65 a c r e s along t h e r i v e r . N o p r o t e s t was made as t o t h e payment of these taxes. I n 1974, following Andrew, Jr.'s death, h i s wife Mar- j o r i e conveyed t h e property which had been sold t o her and Andrew, Jr., t o t h e Holly Sugar corporation (Holly s u g a r ) . The land was advertised a s including accretions only t o Lot 5 i n Section 25 and those f i l l i n g i n t h e remaining p o r t i o n of t h e SE1/4 of Section 35. However, t h e c o n t r a c t f o r deed t o Holly Sugar, dated March 1974, gave t h e l e g a l d e s c r i p t i o n of Lot 5 of Section 25 and t h e E1/2 SW1/4 and SE1/4 of Section 35 together with a c c r e t i o n s of approximately 343.3 a c r e s . The accreted land between t h e r i v e r bank and t h e e a s t e r n s e c t i o n l i n e of Section 35 w a s n o t included i n t h e conveyance t o Holly Sugar. However, a f t e r t h e s a l e , t h e business e n t i t y of Andrew Jackson and Sons and Alice Jackson continued t o u t i l i z e t h e property f o r farm purposes. I n 1975 Andrew Jackson and Sons began a q u i e t t i t l e a c t i o n t o determine who had t h e leasehold i n t e r e s t i n Sec- t i o n 36. The c o u r t found t h e leasehold i n t e r e s t i n favor of Andrew Jackson and Sons and a g a i n s t Holly Sugar. However, t h e c o u r t was n o t asked, nor d i d it determine, what land along t h e r i v e r c o n s t i t u t e d t h e leasehold o r who owned t h a t land. Thereafter, Holly Sugar demanded t h a t Andrew Jackson and Sons move t h e i r fence t o t h e s e c t i o n l i n e and t o conduct t h e i r a c t i v i t i e s only i n Section 36. Jackson and Sons complied with t h i s request. A t about t h e same t i m e t h e Jacksons learned t h a t Stein- b e i s s e r was claiming ownership t o some of t h e accreted lands through t h e S t a t e of Montana. The Jacksons corresponded with t h e Attorney General of t h e S t a t e of Montana, and t h a t o f f i c e disclaimed any claim of t i t l e t o t h e property by adverse possession even though t h e Department of Lands had been l e a s i n g t h e property f o r a number of years. I n May 1976 t h e S t a t e of Montana, Joseph S t e i n b e i s s e r , and Holly Sugar entered i n t o a boundary agreement dividing t h e a c c r e t e d land i n t o f o u r t r a c t s : A, B , C and D. T r a c t A corresponded t o Lot 2 , Section 36, o r i g i n a l l y leased t o t h e Jacksons by t h e S t a t e p l u s a c c r e t i o n s t h e r e t o . T r a c t B described t h e accreted land a d j a c e n t t o t h e S t e i n b e i s s e r Property. T r a c t s C and D corresponded t o t h e accreted land a d j a c e n t t o t h e Meadors Property, now owned by Holly Sugar. This w a s done without t h e Jacksons' knowledge, and no p u b l i c a u c t i o n w a s held. On learning of t h e agreement, Jacksons brought an a c t i o n t o q u i e t t i t l e t o t h e accreted land which had been divided up by t h e S t a t e , Holly Sugar, and S t e i n - b e i s s e r . The Jacksons d i d n o t claim t i t l e t o T r a c t A, which they w e r e l e a s i n g from t h e S t a t e , b u t claimed they owned t h e remaining t r a c t s through adverse possession and a c c r e t i o n , having improved, u t i l i z e d , and paid t a x e s on same. The t r i a l c o u r t i n i t s f i n d i n g s of f a c t , conclusions of law and judgment found f o r defendants. C e r t a i n f i n d i n g s a r e important t o our discussion and decision. They a r e : "2. The Jacksons acquired, by Q u i t C l a i m Deed dated December 12, 1933, t h e E1/2 E1/2 of t h e SE1/4, Section 35, from John P. Meadors and Katheryn Meadors. "4. The t i t l e t o a l l lands previously owned by Joseph S t e i n b e i s s e r , and t h e t i t l e t o T r a c t B a s described i n boundary agreement recorded Book E-125, page 939 of t h e records of Richland County, Montana, which boundary agreement was entered i n t o between Joseph S t e i n b e i s s e r and t h e S t a t e of Montana a c t i n g through i t s Board of Land Com- missioners, dated May 2 4 , 1976, recorded Book E-125, page 939 of t h e records of Richland County, Montana, became vested i n Joseph Stein- b e i s s e r and C h r i s t i n e S t e i n b e i s s e r , husband and wife, a s j o i n t t e n a n t s , by v i r t u e of r a t i f i c a - t i o n of boundary agreement dated May 1 2 , 1977, f i l e d May 12, 1977, and recorded i n Book E-130, pages 506-507 of t h e M i s c . records of Richland County, Montana. "5. Joseph S t e i n b e i s s e r a t a l l t i m e s p r o t e s t e d ownership by t h e S t a t e of Montana of t h a t p o r t i o n of t h e N1/2 of Section 36 W e s t of t h e Yellowstone River l y i n g South of Lot 2 of Section 36, which Lot had a r i v e r boundary of approximately 720 f e e t . H e p r o t e s t e d ownership of t h i s land by t h e S t a t e of Montana on many occasions t o t h e S t a t e Land Board, b u t a t no time undertook l e g a l pro- ceedings t o q u i e t t i t l e a g a i n s t t h e S t a t e of Mon- tana, and t h e land a t t r i b u t a b l e as a c c r e t i o n t o h i s Lots 1 and 2 was by t h e boundary agreement, consolidated i n t o what i s now Tract B of t h e p l a t attached t o t h e boundary agreement hereinbefore r e f e r r e d t o . Said accreted land has never been s p e c i f i c a l l y described as being lands within Sec- t i o n 36 on t h e t a x records of Richland County, and Joseph S t e i n b e i s s e r has paid a l l taxes levied and assessed a g a i n s t s a i d Lots 1 and 2 of Section 35. N o taxes have been paid by any p a r t y t o t h i s a c t i o n on lands described a s being within Section 36, Township 23 North, Range 59 E a s t . "6. Insofar as t h e claim of Joseph S t e i n b e i s s e r i s concerned, t h e land s i t u a t e d within Section 36 and enclosed within a fence constructed by Andrew Jackson w a s held adversely by Jacksons only a s a Lessee of t h e S t a t e of Montana, and Jacksons never, a t any time, made any public claim t o t h i s land except a s a Lessee of t h e S t a t e of Montana. "7. Albert Jackson and h i s successors-in-interest have claimed t h e r i g h t t o fence, use and control, t h e lands i n Section 36 W e s t of t h e Yellowstone River under consecutive l e a s e s of S t a t e lands, commencing February 28, 1951, and a t no t i m e u n t i l t h e commencement of t h i s action, have contested t h e ownership of a l l lands involved i n t h i s case i n Section 36, by t h e S t a t e of Montana. "8. The t a x records covering payment of taxes by Andrew Jackson and h i s successors-in-interest, s p e c i f i c a l l y l i m i t taxes levied t o lands within Section 35, and t h e payment of taxes on t h e lands a s assessed i n Section 35, does not include any of t h e acreaqe i n Section 36 West of t h e Yellow- - stone River. Ownership, i f any, on t h e p a r t of t h e p l a i n t i f f s , r e s u l t s from p l a i n t i f f s being heirs-at-law and surviving next of k i n of Andrew Jackson, S r . N o acreage s i t u a t e d within Section 36 was included i n t h e Inventory and Appraisal dated June 19, 1963, f i l e d i n t h e probate of t h e E s t a t e of Andrew Jackson, S r . , i n t h e above-en- t i t l e d Court. The Inventory and Appraisal w a s signed and sworn t o by Alice E. Jackson as con- t a i n i n g a t r u e statement of a l l of t h e e s t a t e of s a i d deceased which has come t o t h e knowledge and possession of s a i d Alice E. Jackson, and was f i l e d with t h e S t a t e of Montana a s a b a s i s f o r deter- mination of inheritance taxes. Andrew W. Jackson, Jr., and h i s wife, Marjorie Ann Jackson, now Marjorie Ann C a r t e r , except f o r minerals reserved i n and under t h e lands owned by Andrew W. Jackson, Jr., a r e t h e successors-in-interest of a l l lands which w e r e owned by Andrew Jackson, S r . , and h i s widow, Alice E. Jackson, s a i d p r o p e r t i e s having been purchased f o r t h e sum of $40,000.00 under a Contract f o r Deed between a l l of t h e p l a i n t i f f s o t h e r than Marjorie Ann Jackson as S e l l e r s , and Andrew W. Jackson, Jr., and Marjorie Ann Jackson a s Purchasers, as j o i n t tenants with r i g h t of survivorship. This Contract f o r Deed i s dated January 1 4 , 1964, f i l e d May 7, 1965, recorded Book A-98, page 38 of t h e records of County Re- corder of Richland County. Warranty Deed executed pursuant t o s a i d Contract and dated February 1, 1965, w a s d e l i v e r e d and f i l e d January 7, 1974, and recorded Book A-110, page 210 of t h e records of Richland County, Montana. "10. Marjorie Ann C a r t e r as p l a i n t i f f , brought an a c t i o n t o q u i e t t i t l e t o t h e S t a t e Grazing Leases standing of record i n t h e name of Andrew Jackson and Sons, being Case No. 10785 of t h e records of t h i s Court. Defendants proof r e s u l t e d i n e n t r y of Findings of F a c t , Conclusions of Law, and Judg- ment of t h i s Court dated March 27, 1975, and i n which t h e Court made t h e following Finding of Fact: " ' 5 . That t h e "home" place of t h e Jackson family c o n s i s t i n g of lands o t h e r than t h e a f o r e s a i d S t a t e lands, w a s s o l d t o Andrew Jackson, Jr., on o r about- January 1 4 , 1964, b u t t h e land owned t h e S t a t e of Montana described i n Paragraph 2 above was n o t i n c l u d e d i n t h e s a l e t o Andrew Jackson, Jr . ' (emphasis added) " Seven i s s u e s a r e presented on appeal: 1. Whether t h e disputed land w a s formed by a c c r e t i o n r e q u i r i n g t h e l a w of a c c r e t i o n t o be applied i n determining i t s ownership. 2. Whether under t h e law of a c c r e t i o n t h e land belongs t o a p p e l l a n t s . 3 . Whether a p p e l l a n t s acquired t h e accreted land a j a c e n t t o t h e S t e i n b e i s s e r Property by adverse possession. 4 . Whether t h e S t a t e l e a s e b a r s a p p e l l a n t s ' claims t o t h e land. 5. Whether t h e d o c t r i n e of laches b a r s a p p e l l a n t s ' claims t o t h e property. 6. Whether t h e S t a t e ' s claim i s barred by t h e d i s - claimer of i n t e r e s t . 7 . Whether t h e State's claim i s barred by t h e s t a t u t e of l i m i t a t i o n s . For t h e purposes of t h i s opinion, w e w i l l combine c e r t a i n i s s u e s i n our discussion. I t i s agreed by t h e p a r t i e s t h a t t h e t r i a l c o u r t properly found t h a t t h e law of a c c r e t i o n applied and must t h e r e f o r e be followed i n determining ownership. They d i s - agree a s t o t h e law i n Montana, however. Appellants argue t h a t t h i s Court should enlarge our holding i n Smith v. Whitney (1937), 105 Mont. 523, 74 P.2d 450, t h e p r e v a i l i n g law on a c c r e t i o n . I n Smith w e held t h a t , "Unless excepted o r reserved, a c c r e t i o n s o r t h e r i g h t t h e r e t o pass t o a purchaser o r a p a t e n t e e although n o t described i n t h e deed o r o t h e r instrument of conveyance, i f t h e conveyance de- s c r i b e s t h e adjoining r i p a r i a n land. ( C i t a t i o n s o m i t t e d . ) " 105 Mont. a t 528. This p r i n c i p l e of r e t e n t i o n by a seller of accreted land s p e c i f i c a l l y by r e s e r v a t i o n i n t h e deed has been t h e law of t h i s S t a t e . Appellants ask us t o consider s i g n i f i c a n t a g r a n t o r ' s f a i l u r e t o include any accreted land i n t h e l e g a l descrip- t i o n of t h e land he conveys, c i t i n g Jones v. Johnston (1855), 59 U.S. 150, 15 L.ed. 320; J e f f e r i s v. E a s t Omaha Land Co. (1890), 134 U.S. 178, 10 S.Ct. 518, 33 L.ed. 872; and Stevens v. Arnold (1923), 262 U.S. 266, 43 S.Ct. 567, 67 L.ed. 965. See a l s o 78 Am J u r 2d, Water, S414. W e f i n d our holding i n Smith v. Whitney, supra, con- t r o l s here and t h a t accreted lands pass with t h e r i p a r i a n upland property u n l e s s excepted o r reserved. Therefore, t h e Jacksons, by t h e i r conveyances i n 1964 and 1974, which d i d n o t except o r r e s e r v e any a c c r e t i o n s i n Section 36, conveyed t h e a c c r e t i o n s t o Andrew Jackson, Jr., and h i s wife ~ a r j o r i e , who then conveyed them t o Holly Sugar. The 1976 boundary agreement and q u i t claim deed then conveyed Tract D to t h e S t a t e of Montana. W e next address a p p e l l a n t s ' claim of acquiring accreted land by adverse possession. To o b t a i n adverse possession of accreted land i n Montana, where t h e adverse claim i s n o t founded on a w r i t t e n instrument, t h e claimant must occupy, improve, enclose, and pay t a x e s on t h e property i n question f o r a period of n o t less than f i v e years i n a h o s t i l e and continuous manner. Townsend v. Koukol (1966), 148 Mont. 1, 416 P.2d 532. Here, a p p e l l a n t s do n o t m e e t t h e require- ments. Their claim of h o s t i l e possession, by keeping Stein- b e i s s e r o f f t h e property, w a s based on t h e f a c t they leased t h e property from t h e S t a t e . The h o s t i l e and continuous occupancy of t h e land i n Section 36 must a l s o f a i l f o r t h e r e was no proof of t a x e s paid, although t h e Jacksons claim t h a t they thought they were paying taxes. Section 36 i s t a x exempt school t r u s t land and no t a x e s a r e paid on such land. These school t r u s t lands are leased t o h e l p r a i s e school funds. Appellants raise t h e question of whether t h e S t a t e l e a s e b a r s t h e i r claims. The District Court held t h a t it d i d , and w e agree. Section 93-2512, R.C.M. 1947, now sec- t i o n 70-19-412 MCA, provides t h a t possession of a t e n a n t i s deemed possession of t h e landlord. H e r e , t h e uncontradicted testimony of S t e i n b e i s s e r i s t h a t t h e Jacksons r e l i e d on t h e l e a s e t o keep him o f f t h e land. Too, t h e l e a s e c l e a r l y s t a t e d t h a t it covered a l l land w e s t of t h e Yellowstone River i n Section 36. Further, i n t h e l a w s u i t a g a i n s t ~ o l l y Sugar i n 1975, they defended t h e i r ownership of t h e l e a s e i n Section 36 a g a i n s t Holly Sugar. The Court r u l e d t h a t they w e r e t h e owners of t h e l e a s e . W e next d i r e c t o u r consideration t o whether l a c h e s b a r s t h e Jacksons' claims. From 1961, when t h e lease w a s r e w r i t t e n t o cover t h e added acreage on t h e w e s t bank of t h e r i v e r i n Section 36, t h e Jacksons have accepted t h e t e r m s of t h e lease and have n o t n o t i f i e d t h e S t a t e of any adverse claims a g a i n s t t h e S t a t e . The t r i a l c o u r t found it would be inequi- t a b l e t o claim property they have continuously leased f o r 15 years without n o t i f y i n g t h e l e s s o r t h a t they claimed owner- s h i p of t h e property. W e agree with t h e t r i a l c o u r t i n applying t h e d o c t r i n e of laches t o t h e f a c t s here. W e held i n Montgomery v. Bank of Dillon (1943), 1 1 4 Mont. 395, 408-09, 136 P.2d 760, quoting from Riley v. Blacker (1915), 51 Mont. 364, 370, 152 P. 758, 759: ". . . '"Equity a i d s only t h e v i g i l a n t ; " and it [laches] e x i s t s when t h e r e has been unexplained delay of such d u r a t i o n o r c h a r a c t e r a s t o render t h e enforcement of t h e a s s e r t e d claim inequita- b l e . ' . . ." Next r a i s e d i s whether t h e S t a t e of Montana's claim i s barred by t h e disclaimer of i n t e r e s t by t h e S t a t e Department of Revenue. The disclaimer of i n t e r e s t w a s f i l e d by an a t t o r n e y i n t h e Department of Revenue. The disclaimer was intended t o i n d i c a t e t h a t no taxes w e r e owed on t h e land. It was never signed. The S t a t e was allowed t o amend i t s pleadings under Rule 15, M.R.Civ.P., t o withdraw t h e consent due t o mistake. N o d e f a u l t of t h e S t a t e w a s entered. The waiver was n o t given a p p e l l a n t s p r i o r t o t h i s a c t i o n . There was no showing made t h a t they were misled i n t o believing t h e S t a t e had no i n t e r e s t i n t h e i r a c t i o n . The a p p l i c a t i o n s t o withdraw t h e disclaimer and f i l e an answer w a s made long before t r i a l . The t r i a l judge properly decided t h i s i s s u e i n favor of t h e S t a t e . The f i n a l i s s u e r a i s e d i s whether t h e S t a t e of Montana's c l a i m i s barred by t h e s t a t u t e of l i m i t a t i o n s . The S t a t e gained ownership t o Tract D through t h e 1976 boundary agree- ment and q u i t claim deed from Holly Sugar. The t r i a l c o u r t c o r r e c t l y found t h a t s e c t i o n 93-2501, R.C.M. 1947, now s e c t i o n 70-19-302 MCA, d i d n o t apply t o t h i s claim. The D i s t r i c t C o u r t ' s award of t h e p r o p e r t y according t o t h e 1976 boundary agreement i s affirmed. W e concur: Chief J u s t i c e J u s t i c e s Mr. Justice John C. Sheehy specially concurring: Under Section 14, 1867 Organic Act, the United States entrusted every tract numbered Section 16 or 36 inviolable from any tricks by deed or ruse, lawless or statutory, when it created the Montana Territory. Likewise, our Enabling Act states in Section 10 and 11, for education of our children, the same traCts shall not be conveyed, deeded or lost, unless the permanent school fund gets full market cost. Our duty then is to guard against depletion of trusted lands by any means, and that includes accretion. Here the result is just by reason of the trade completed by the state which cannot be unmade. I concur in the result. | March 15, 1979 |
ea822dc6-17f0-4921-8169-8a8dfe595a44 | SCIUCHETTI v HURT CONSTRUCTION | N/A | 88-455 | Montana | Montana Supreme Court | No. 88-455 I N THE SUPREME COURT OF THE STATE O F MONTANA 1 9 8 9 DAVID S C I U C H E T T I , C l a i m a n t and A p p e l l a n t , HURT CONSTRUCTION & BOLAND CONSTRUCTION, and STATE COMPENSATION INSURANCE FUND, D e f e n d a n t s and R e s p o n d e n t s . APPEAL FROM: T h e Workers' C o m p e n s a t i o n C o u r t , I n and for t h e A r e a of G r e a t F a l l s , MT, T h e H o n o r a b l e T i m o t h y W. R e a r d o n , Judge presiding. COUNSEL O F RECORD: For A p p e l l a n t : R. V. B o t t o m l y , B o t t o m l y L a w O f f i c e ; G r e a t F a l l s , MT 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 , MT M a t t h e w F. H e f f r o n , A s s i s t a n t A t t o r n e y G e n e r a l S u b m i t t e d on B r i e f s : M a y 11, 1 9 8 9 D e c i d e d : J u l y 1 4 , 1 9 8 9 . . C l e r k Mr. Justice Fred J. Weber delivered the Opinion of the Court. Claimant appeals the decision of the Workers' Compensa- tion Court awarding him disability benefits for a knee injury for the statutory maximum of 200 weeks. Claimant contends that he should have received 500 weeks of benefits at a minimum because his disability is attributable to his back in addition to his knee. Claimant also appeals from a subse- quent order of the Workers' Compensation Court regarding attorney fees. We affirm the lower court's decision as to both disability benefits and attorney fees. The issues are: 1. Did the lower court err in concluding that claimant has no impairment or disability of his back? 2. Did the lower court err in its determination of attorney fees? 3. Did the lower court err in denying a lump sum award of attorney fees for future benefits? Claimant was 35 years old at the time of trial and was employed as a heavy duty construction worker when he suffered two industrial injuries which culminated in his disability. The first injury occurred on November 19, 1983, while claim- ant was employed by Hurt Construction earning $11.30 an hour. While carrying a wall weighing approximately 250-300 pounds, claimant tripped and fell, causing the wall to strike his right knee. Under the weight of the wall, claimant testified that he wrenched both his knee and his back. Claimant went to the emergency room where he was treated by Dr. Adelman, who diagnosed acute low back syndrome. The claimant was next examined on March 21, 1984, by Dr. Avery, an orthopedic surgeon. Dr. Avery diagnosed the injury as a (1) probable tear medial meniscus right knee and a (2) recur- rent thoracolumbar strain. He recommended that the claimant undergo knee surgery, although claimant testified that he resisted surgery at that time. Dr. Avery also examined claimant's back and found not only that the X-rays were normal, but also that his back had full range of motion. No treatment was prescribed. Claimant testified that he just "put up with the pain." In interpreting Dr. Avery's diagno- sis, another orthopedic surgeon, Dr. Bloemendaal, described "recurrent thoracolumbar strain" as a "weakness that throws his back into spasm. It's something in that particular area that is very difficult to demonstrate by anything other than examination when they're in the acute phase. For example, X-rays of that area are normal, and that has been the case with Mr. Sciuchetti. He probably has a weak point up there. When he overdoes things, he gets muscle spasm." Following the 1983 injury, claimant decided to continue working in the construction field. The Workers' Compensation Court found that he did not see another doctor until he suffered his second industrial injury on August 13, 1984, while working for Boland Construction. This injury resulted in a broken right ankle and aggravation of the right knee. While the ankle was healing, claimant's treating physician, Dr. Bloemendaal, suggested that claimant undergo surgery on his knee. On November 27, 1984, the medial meniscus of claimant's right knee was removed. At the time he sought treatment for the second injury, claimant testified that he did not mention his back problems to Dr. Bloemendaal, nor did he state it as an injury on his claim for compensation. Regarding the connection between the 1984 injury and claimant's back condition, the Worker's Compensation Court found that " (a) dispute exists as to whether or not the second injury also aggravated the claim- ant's back." Following the second injury, claimant received temporary total disability benefits of $277.00 per week from August 14, 1984 to January 7, 1985 for the ankle injury. After January 7, 1985, claimant received his maximum total disability rate of $286.00 per week for his injured knee. Claimant has not been regularly employed since the second injury. In July of 1985, he filed a cause of action with the Workers' Compensa- tion Court to determine the nature and extent of his inju- ries, whether he was receiving the correct temporary total. disability rate, whether he was entitled to a lump sum or an increased award as a penalty, and attorney fees. The Work- ers' Compensation Court concluded that claimant had reached maximum healing of his ankle with no impairment or disabili-- ty, and that his back had reached maximum healing in November of 1985 with no impairment or disability. The court also concluded that claimant's right knee had reached maximum healing on December 1, 1985, with a maximum seven percent impairment based on the testimony of Dr. Bloemendaal, and that as a result of the knee injury claimant could not return to his former employment as a heavy construction worker. The court determined that claimant was totally disabled pending completion of retraining, and ruled that if claimant failed to enter retraining, he would be determined permanently partially disabled. These determinations were based solely upon the injury to claimant's knee, with none of the disabil- ity premised upon the claimant's back problems. Pursuant to § 39-71-703, MCA (1983), the court calculat- ed claimant's permanent partial disability benefit rate to be $143.00 per week for the maximum 200 weeks for a knee injury, thereby totalling $28,600. The court disallowed any lump sum payment or a 20 percent penalty, but did allow reasonable costs and attorney fees. On appeal, claimant challenges the sufficiency of the benefits awarded, alleging that it was error for the court to limit a finding of disability to his knee. Claimant also challenges the court's subsequent award of attorney fees. Did the lower court err in concluding that claimant suffered no impairment or disability to his back? After reviewing the deposition testimony of four medical experts, the Workers' Compensation Court made findings there- on and concluded that claimant's disability was limited to his right knee as a result of the two industrial injuries. Claimant argues that, in reaching this conclusion, the lower court considered only the medical testimony relating to "impairment," and completely ignored the medical testimony relating to back "disability." He contends that without findings relating to back disability, the lower court erred in attributing disability solely to claimant's right knee, and he should be entitled to 500 weeks of benefits. We note that impairment is but one factor of disability, and both terms are defined under the 1983 Workers' Compensa- tion Act as follows: 39-71-121. Disability defined. A worker is dis- abled when his ability to engage in gainful employ- ment is diminished as a result of impairment, which in turn may be combined with such factors as the worker's physical condition, age, education, work history, and other factors affecting the worker's ability to engage in gainful employment. Disabili- ty is not a purely medical condition. Disability may be temporary total, permanent total, or perma- nent partial as defined in 39-71-116. 39-71-122. Impairment defined. Impairment means any anatomic or functional abnormality or loss of bodily function. Impairment refers to functional use of the body and is a purely medical condition. Permanent impairment is any anatomic or functional abnormality or loss of bodily function after the maximum medical rehabilitation has been achieved. The anatomic or functional abnormality or loss must be considered stable by the physician at the time the impairment rating evaluation is made. An impairment rating is purely a medical determina- tion. Impairment may or may not result in disability. In reviewing the lower court's determination of disabil- ity, this Court must determine whether sufficient evidence exists to support that conclusion. Linton v. City of Great Falls (Mont. 1988), 749 P.2d 55, 61, 45 St-Rep. 68, 74. Claimant points out that because all of the medical testimony in this case was by deposition, this Court is in as good a position as the Workers' Compensation Court to judge the weight to be given that testimony, citing Snyder v. San Francisco Feed & Grain (Mont. 1987), 748 ~ . 2 d 924, 929, 44 St.Rep. 2216, 2224. While that standard of review is cor- rect, this Court will nevertheless uphold the lower court if there is substantial credible evidence to support its conclu- sion. We note that in Snyder, the conclusion of the Workers' Compensation Court was found to be "in stark contrast with the evidence presented at trial," and the case was reversed. In this case, the relevant findings made by the lower court regarding the medical evidence presented on claimant's back disability and impairment are as follows: 9. The claimant was working for Hurt Construction when he injured his right knee and low back on November 29, 1983. He went to the emergency room and was treated by Dr. Adelman, who diagnosed the claimant as having acute low back syndrome. 10. The claimant was next examined by Dr. Avery on March 21, 1984. He found that his back x-rays were normal and that the claimant's back had full range of motion. He did not prescribe any treatment for the claimant's back at that time. The claimant did not see another doctor until he suffered his second industrial injury when he fractured his right ankle while working for Boland Construction on August 13, 1984. The claimant did not mention a back problem to his treating physician Dr. Bloemendaal, nor did he state it as an injury on his claim for compen- sation. It was not mentioned in his claim for compensation. (Exhibit 3 at 2) or the Employ- er's First Report. 14. It is agreed by all medical experts that the claimant's back reached maximum medical heal- ing in November of 1985. 15. Claimant's treating physician, Dr. Bloemendaal, testified that he did not treat the claimant's back and found no back impair- ment. Dr. Schutte testified that the claim- ant's back last "went out" in 1984, but there was no back impairment in January, 1986. Dr. Hinde reported that there had been no progres- sion in the back pain and that it was stable, so he did not address the issue. 25. The claimant has no impairment of the back. Having reviewed the record, we conclude that these findings accurately reflect the medical testimony presented and are not clearly erroneous. Tenderholt v. Travel Lodge Intern. (Mont. 1985), 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1794. However, claimant contends that these findings are inadequate based upon additional medical evidence which he claims clearly establishes that his back bars him from labor- ing activities. In essence, claimant requests that this Court make additional findings regarding disability which are not confined to "impairment." Claimant refers us to several statements made by the medical experts which he contends the lower court overlooked in reaching its conclusion. First, claimant contends that although his treating physician, Dr. Bloemendaal, rendered a conclusory opinion of no back impairment, the fact that he prescribed drugs for back pain over a considerable period of time is evidence of back disability. The record indicates that it was the claim- ant who stated that he was given muscle relaxants by Dr. Bloemendaal. The doctor himself, however, testified that he did not recall ever prescribing anything to the claimant for his back. He further testified that he did not recall ever treating claimant's back in any manner. Claimant's assertion on this point is therefore not supported by the record. Claimant also contends that Dr. Bloemendaal's testimony establishes that claimant is unable to work in heavy con- struction because of his back condition. The record indi- cates that Dr. Rloemendaal did not attribute the upper back problems to either of the accidents involved in this action, nor did he testify that claimant could not perform heavy construction work because of his back. Given this lack of conclusive evidence, we hold that the Workers' Compensation Court did not err in its refusal to find that claimant cannot work in construction because of his back. Next, our attention is directed to the testimony of Dr. Hinde, a physiatrist who examined the claimant at the request of claimant's counsel in November, 1985. Claimant argues that Dr. Hinde's testimony establishes objective manifesta- tions of pain and loss of motion in his back, thereby justi- fying a finding and conclusion of back disability. The doctor's notes state that: I did document some mild limitation of internal and external rotation of the shoulders, and that these maneuvers did produce mild discomfort in the area of the mid-thoracic spine at the level of T6, T7. He also reported some tenderness to my palpation of the paraspinal structures in this location. Claimant told Dr. Hinde that his back problems stemmed from an injury which occurred in 1976 while lifting some heavy pipes. Dr. Hinde did not attribute the back condition to either of the accidents involved in this action. He testified that the scope of his examination was limited to "any disability which still related to injuries to his right knee and right ankle," and he did not attempt to tie the claimant's back problems to any specific injury. When con- sidered with the whole of Dr. Hinde's testimony, we conclude that his notes indicating mild discomfort and mild limitation of rotation do not mandate a finding of pain and loss of motion to claimant's back, and that the lower court did not err in failing to make such a finding. Instead, the court's finding there was no loss of motion reflects the testimony of Dr. Bloemendaal. When the Workers' Compensation Court's findings are based on conflicting evidence, this Court's review is confined to determining whether there is substan- tial evidence on the whole record to support those findings. Wight v. Hughes Livestock Co., Inc. (Mont. 1981), 634 P.2d 1189, 1192, 38 St.Rep. 1632, 1635. Having reviewed the record, we hold that a finding there was no loss of motion is supported by the evidence. Next, claimant asks that we reassess the testimony of Dr. Schutte, a specialist in sports trauma, who reviewed the medical records of Dr. Adelman, Dr. Avery, and Dr. Bloemendaal and rendered an opinion that claimant had no back impairment in January of 1986. Dr. Schutte testified that, "According to my records, the patient told me that his upper back continues to go out and that his back has been on and off in the interim." Claimant contends that it was error for the Workers' Compensation Court not to make a finding re- flecting this testimony which would form a basis for a con- clusion of back disability. Given the whole of Dr. Schutte's testimony and the other medical evidence, we conclude that the lower court did not err in its findings. Dr. Schutte examined claimant's back and found that it was within the normal range of flexion, extension, and lateral bending. He also took X-rays of his thoracic spine and found them to be normal. As with the three other medical experts, Dr. Schutte did not attribute claimant's upper back problems to either of the industrial accidents involved in this action. We hold that the lower court did not err in its findings. Finally, the claimant directs our attention to the deposition testimony of Dr. Pardis, a chiropractor who exam- ined him in December of 1 9 8 5 at the request of claimant's counsel. Dr. Pardis was asked to evaluate the current condi- tion of the upper back based upon his 1 9 8 5 examination of claimant and additional medical records compiled in 1 9 7 8 when he treated claimant's back for a separate incident of injury. The claimant argues that, based on Dr. Pardis' testimony, the lower court should have found that he was required to leave the construction field because of his back. While Dr. Pardis' testimony establishes that heavy construction is not advisable given claimant's back condition, the back condition was not connected to any specific injury, let alone the two industrial accidents involved here. When asked to make the connection between the back complaints and the injuries, Dr. Pardis responded that "there's no way of tying it to a spe- cific accident," and stated that different conditions such as spinal cord lesions, tumors, fractures, or dislocations could also mimic the symptoms of which claimant complained. We conclude that the lower court did not err in refusing to find that claimant was forced to leave construction due to his 1 9 8 3 or 1 9 8 4 industrial accidents. Having reviewed the overall record, we conclude that claimant is attempting to have this Court substitute its judgment for that of the lower court based on isolated pas- sages of testimony when, in fact, the lower court's findings are supported by the record and do not indicate that any testimony was overlooked or ignored. We conclude that the lower court's conclusion is not in stark contrast to the evidence presented at trial, as was the case in Snyder. We hold that the lower court adequately considered both "impair- ment" and "disability" in reaching its conclusion, and that there are no grounds for modifying the findings or conclu- sions reached in this case. 11. Did the lower court err in its determination of attorney fees? In a subsequent hearing to determine reasonable attorney fees, the parties disputed whether fees should be paid on benefits received after claimant reached maximum medical healing, until the date he entered retraining pursuant to the court's order finding him permanently and totally disabled. The period in question runs from November 26, 1985 to Novem- ber of 1987, during which time claimant received temporary total disability benefits. The Workers' Compensation Court disallowed attorney fees for that period based on McKinley v. American Dental Mfg. Co. (Mont. 1988), 754 P.2d 831, 45 St.Rep. 892. In that case, this Court stated that there are two conditions to an award of attorney fees under § 39-71-612, MCA (1983), which is the applicable statute in the present case: (1) the amount of compensation must be in controversy, and (2) the amount awarded must exceed the amount paid or tendered, citing LaSar v. Oftedal & Sons (Mont. 1986), 721 P.2d 352, 43 St.Rep. 1938. Because claimant in this case was awarded the same amount of temporary total disability benefits as the State Fund was already paying, the Workers' Compensation Court determined that he was not entitled to attorney fees from November 26, 1985 to November of 1987. On appeal, claimant argues that this determination was in error because payment of benefits during that time (1) was a fact in controversy and were secured by the efforts of counsel, and (2) was not voluntary or unconditional because the State Fund fully expected to recoup any excess total disability payments had claimant been declared permanently partially disabled at the hearing. Claimant argues that these contentions form a basis for attorney fees not only under fj 39-71-612, MCA (1983), but under S 39-71-611, MCA (1983), as well because of defendant's denial of liability for payment of any benefits after November of 1985. Section 39-71-611, MCA (1983), only applies "[iln the event an insurer denies liability for a claim for compensa- tion or terminates compensation benefits." Here, the Work- ers' Compensation Court found as an uncontested fact that "defendant accepted liability for claimant's injury and has paid weekly temporary total disability benefits to date." Therefore, S 39-71-611, MCA (1983), is inapplicable. Secondly, claimant's contention that payments were not voluntary or unconditional based on how the State Fund might have proceeded is pure conjecture and is not supported by the record. We hold that the Workers' Compensation Court did not err in determining that claimant was not entitled to attorney fees for the period from November, 1985 to November, 1987. 111. Did the lower court err in denying a lump sum award of attorney fees for future benefits? The Workers' Compensation Court determined that lump sum attorney fees would be awarded on the permanent partial disability payments which were to be granted after claimant had completed his retraining period. However, the court held that lump sum attorney fees would not be awarded based on the total disability benefits paid out to claimant during his retraining program. The court based its determination on a finding that: [Ilt is questionable as to whether claimant will successfully complete the entire four years of his program. The Court draws this conclusion from the fact that claimant expressed little enthusiasm at the time of trial for the four-year computer sci- ence course. Therefore, claimant's counsel is entitled to 33 percent of all past paid total disability benefits in a lump sum but, thereafter, claimant's counsel is to receive his fee payment biweekly. This Court has held that a denial of lump sum attorney fees for future benefits which may never accrue is not an abuse of the lower court's discretion. Swan v. Sletten Construction Co. (Mont. 1986), 726 P.2d 1170, 1172, 43 St-Rep. 1926, 1929. Despite this authority, claimant argues that a lump sum award is not precluded if it is warranted by the facts. He argues that the following facts distinguish this case from Swan and render the lower court's denial of lump sum attorney fees an abuse of discretion: (1) Claimant is in perfect health and is likely to live out his life expectancy; . . . (3) The fee agreement (drafted prior to Swan) reflects the traditional expectations that lawyers will receive their contingent fees in a single lump sum; (4) Denying lump sum fees in a case like the present case will discourage attorneys from repre- senting needy claimants and will thereby frustrate the public policy of compensating injured workers. Despite these contentions, we hold that the Workers' Compensation Court's denial of lump sum fees was not an abuse of discretion. The reason for the court's denial was specif- ically stated in its order, and was based upon the court's observance of the character and demeanor of the claimant. The court reasoned that if claimant discontinued his training course, the remainder of the temporary total benefits for which claimant now requests a lump sum of attorney fees might never accrue. Such a determination is not an abuse of discretion. Affirmed. / C l - f i e f Justice Justices Mr. ~ u s t i c e William E. Hunt, Sr., dissenting: I dissent. I would reverse the Workers' Compensation Court and award the claimant disability for the injury to his back. / | July 14, 1989 |
30067720-c4e5-4dbc-9a69-88d9b7202e6e | TRI-COUNTY ATLAS INC v BRUMMER | N/A | 88-531 | Montana | Montana Supreme Court | No. 8 8 - 5 3 1 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 TRI-COUNTY ATLAS, INC., P l a i n t i f f and R e s p o n d e n t , -vs- JAMES BRUMMER, d/b/a BRUMMER ENTERPRISES, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t , I n and for t h e C o u n t y of L e w i s & C l a r k , T h e H o n o r a b l e H e n r y L o b l e , J u d g e p r e s i d i n g . COUNSEL OF RECORD: F o r A p p e l l a n t : C h a r l e s E. P e t a j a , H e l e n a , M o n t a n a T h o m a s H. C l a r y ; C l a r y & C l a r y , G r e a t F a l l s , Montana F o r R e s p o n d e n t : P. K e i t h K e l l e r ; K e l l e r , R e y n o l d s , D r a k e , S t e r n h a g e n & Johnson, H e l e n a , M o n t a n a S u b m i t t e d on B r i e f s : June 1, 1 9 8 9 t -. - _. oi - . , i-3 I D e c i d e d : e ~ u g u s t 3 , 1 9 8 9 - I _ - . . , F i l e d : - C . * - - 1 - , i "- ? . - i 3 - 7 * i ,- . - 3 " C l e r k - a . . - - * . ' I 3 Ci *4 I-. 6- 3 4 " ' .I c_r . . - - - Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal arises from an action to foreclose a mechanics' lien filed by Tri-County Atlas, Inc. for work and materials supplied to a construction project owned by James Brummer. The District Court for the First Judicial District, Lewis and Clark County, entered judgment in favor of Tri-County. We affirm and remand for correction of costs. James Brummer is a general contractor who conceived and developed the construction of a professional office building located in Helena, Montana. Brummer, through his corporation, Brummer Enterprises, Inc., designed and constructed the building, and utilized subcontractors for electrical, plumbing, heating, air conditioning and other aspects of the construction. Tri-County was hired by Brummer to install the heating, ventilation, and air conditioning (HVAC) system, and the domestic plumbing in the building. The parties had no written contract but merely discussed their agreements orally. Tri-County began work on the building in early February of 1987, and continued installation of both the HVAC system and the domestic plumbing until August, when it walked off the job because of nonpayment. In September, Tri-County filed its lien and brought this action to foreclose. Brummer counterclaimed for alleged defects in Tri-County's workmanship. The District Court entered judgment for Tri-County, and awarded damages, attorney's fees and costs. Brummer raises the following issues for our review: 1. Was the District Court's award of damages to Tri-County supported by substantial evidence? 2. Was it error for the District Court to award attorney's fees and costs? The standard of review is clear. We must affirm the trial court if its findings are supported by substantial evidence and are not clearly erroneous. We will not substitute our judgment for that of the District Court. Hammerquist v. Employment Sec. Div. of Montana Dept. of Labor and Industry (Mont. 1988), 749 P.2d 535, 536, 45 St.Rep. 261, 262; Meridian Minerals Co. v. Nicor Minerals, Inc. (Mont. 1987), 742 P.2d 456, 461, 44 St.Rep. 1516, 1523. At trial, Tri-County alleged it was hired on a not-to-exceed basis, plus specific amounts to be paid for additional constant air volume (CAV) and variable air volume (VAV) units. Brummer claimed Tri-County had given a flat bid of $112,000 for the entire HVAC system. The evidence was clear, however, that no final plans were submitted to Tri-County on which it could make a firm flat bid because the plans were evolving as the project developed. Additionally, there was evidence that other subcontractors were hired by Brummer on similar time-and-materials, or price-not-to-exceed bases. Although Brummer's counterclaim alleged the work performed by Tri-County was not done in a workmanlike manner, no evidence was produced at trial that Tri-County's workmanship was deficient. Tri-County admitted some work was not completed, because it pulled off the job. Tri-County also admitted there were some product defects which would have been covered by the manufacturer's warranty, had R r u r n r n e r not failed to pay. However, there was no evidence the workmanship was poor. Tri-County's witnesses and even one of Brummer's witnesses testified that Tri-County's workmanship was very good. The evidence was extensive and complicated. During the four day trial, the District Court heard testimony from eleven witnesses, examined all of the exhibits and determined that Tri-County was entitled to judgment. In its Opinion, Memorandum of Decision, and Order, the District Court made the following conclusions: The evidence of each party was diametrically opposed to the evidence of the opposing party. The matter resolved itself into a question of which party presented the most credible evidence. If the version of the Plaintiff is accepted, the version of the Defendant must be rejected, and vice versa. As the trial progressed, it became very clear to the Court that Plaintiff presented the most credible witnesses and evidence. Defendant, on the other hand, lacked credibility to a pronounced degree. His version of the events is wholly rejected by the Court. We find no abuse of discretion. The findings were supported by substantial evidence in the record. The judgment of the District Court is affirmed. Brumrner's final issue alleges the District Court erred in its award of attorney's fees and costs to Tri-County. The first basis of the alleged error, which Tri-County admits, involves the inclusion of expert witness fees and deposition costs within the award of attorney's fees and costs. Section 26-2-505, MCA. We remand this matter to the District Court to deduct these costs from the award. The second basis of alleged error involved settlement negotiations between the parties. Brummer apparently offered to pay Tri-County the amount of its lien as settlement of Tri-County's claims. Tri-County refused because it had already invested substantial amounts of money in attorney's fees in its attempt to recover. The District Court refused to hear the evidence because it involved settlement negotiations. Brummer cites Schillinger v. Brewer (1985), 215 Mont. 333, 697 P.2d 919, to support his claim that because Tri-County refused to accept his settlement offer, it is not entitled to attorney's fees. However, the facts of Schillinger differ from those of this case, and do not support Brumrner's theory. In Schillinger, the District Court. awarded the defendant attorney's fees when judgment was entered for an amount less than that offered in settlement by the defendant. We reversed the award of attorney's fees because the defendant was only entitled to costs, not attorney's fees. If Schillinger has any application to this case, it supports Tri-County's claim for attorney's fees. Donnes v. Orlando (1986), 221 Mont. 356, 720 P.2d 233. Tri-County prevailed in its action and was therefore entitled to recover attorney's fees and costs. Affirmed and remanded for reduction of costs awarded to Tri-County in accordance with this opinion. We concur: U | August 3, 1989 |
334299ec-fe4c-4a75-9ecc-ef0ef6a16e4d | THELEN v CITY OF BILLINGS | N/A | 89-099 | Montana | Montana Supreme Court | No. 89-099 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 RODNEY and DEBRA THELEN, RICHARD and DANA BUECHER, SUSAN GRASSO, LARRY and NANCY PINNOW, and GEORGE W. CLEVELAND, JR., Plaintiffs/Appellants, CITY OF BILLINGS, HEIGHTS SEWER BOARD, BLACK and VEATCH, COP CONSTRUCTION CO., SANDERSON, STEWART, GASTON ENGINEERING, INC., and CHRISTIAN, SPRING, SEILBACH & ASSOCIATES, jointly and severally, Defendants/Cross-Appellants. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russel K. Fillner, Judge presiding. COUNSEL OF RECORD: For Appellant: Jerrold L. Nye, Nye & Meyer; Billings, MT For Respondent: Mark S. Werner, McNamer & Thompson; ~illings, MT Ronald R. Lodders, Crowley, Haughey, Hanson, Toole and Dietrich; Billings, MT W. Anderson Forsythe, Moulton, Bellingham, Longo and Mather; Billings, MT . J . Dwaine Roybal, Keefer, Roybal, Hanson & Stacey; P- _Billings, MT. i ~ c ) C'3 / 1 Submitted on Briefs: May 25, 1 9 8 9 - - " 3 i~ Decided: July 5, 1 9 8 9 Mr. Justice R. C. McDonough delivered the Opinion of the Court. This appeal concerns alleged negligence and inverse condemnation on the part of a city government, a contractor and an engineering firm in designing and constructing a sewer sys tem. Plaintiffs Rodney and Debra Thelen, et al. (Plaintiffs) appeal from the Amended Judgment of the District Court of the Thirteenth Judicial District, Yellowstone County. The court granted summary judgment in favor of defendants City of Billings, Black & Veatch and COP Construction Co. We affirm. Plaintiffs present a single issue on appeal: Whether the Amended Judgment of November 16, 1988, granting summary judgment to Defendants by the Montana District Court and dismissing Plaintiffs' case was proper. In 1984, construction began on a sewer system project undertaken by the City of Billings in the Billings Heights area. The City hired engineering firms and a contractor to design, supervise and build the project. Preliminary studies showed that the soil in the area where Plaintiffs' homes are located contained ground water in quantities that might interfere with the excavation of trenches where sewer lines would be buried. The plans therefore called for the contractor, COP Construction Co., to take steps to "dewater" the trenches through the use of "dewatering wells". Construction of the project began in a neighborhood some distance from Plaintiffs' homes. Dewatering wells were employed to keep water out of the trenches. The water that collected in the wells was pumped into an existing irrigation ditch that ran through the area, passing near Plaintiffs' homes. At the time in question, the ditch was alleged to have been i n use f o r i r r i g a t i o n of f i e l d s near t h e homes. The use of t h e d i t c h f o r d i s p o s a l o f water from t h e dewatering wells was a l l e g e d t o have increased t h e amount of water i n t h e d i t c h beyond normal l e v e l s used f o r i r r i g a t i o n . The f i r s t construction a c t i v i t y i n P l a i n t i f f s ' neighborhood consisted of COP digging a " t e s t hole" i n an a l l e y . The workers digging t h e hole encountered a high water t a b l e t h a t prevented completion of t h e hole and any f u r t h e r excavation. While t h e hole was being dug, a water main was broken. COP turned o f f t h e t h e water and r e p a i r e d t h e main, b u t it broke again t h e next day. The main was again turned o f f and remained o f f u n t i l more permanent r e p a i r s were made some time l a t e r . C O P then r e f i l l e d t h e t e s t hole and suspended work i n P l a i n t i f f s ' v i c i n i t y , moving t o another a r e a of t h e p r o j e c t . While t h e e x a c t time frame i s disputed i n t h e record, sometime a f t e r COP'S departure from t h e a r e a P l a i n t i f f s t basements began t o flood. Some t e s t i f i e d i n deposition t h a t t h e water rose a s much a s two f e e t i n t o t h e i r basements, causing damage t o c a r p e t , wall coverings and concrete. P l a i n t i f f s and o t h e r r e s i d e n t s of t h e a r e a held a public meeting attended by COP, t h e C i t y and p r o j e c t engineers, a t which it was agreed t h a t C O P would i n s t a l l dewatering wells t o a l l e v i a t e t h e flooding. The w e l l s were i n s t a l l e d , and t h e water receded from P l a i n t i f f s ' basements. There were no f u r t h e r problems with flooding f o r t h e duration of t h e construction work, and t h e p r o j e c t was completed. P l a i n t i f f s f i l e d t h i s lawsuit i n August of 1985, naming a number of persons and e n t i t i e s involved with t h e p r o j e c t a s defendants. P l a i n t i f f s alleged t h a t t h e defendants' f a i l u r e t o a n t i c i p a t e and c o n t r o l t h e ground water they "knew o r should have known" t o be present amounted t o negligence, and a l s o worked a wrongful taking of P l a i n t i f f ' s property by i n v e r s e condemnation. After s e v e r a l motions f o r p a r t i a l summary judgment, t h e f i e l d of p a r t i e s being sued was eventually reduced t o t h e City of B i l l i n g s , t h e engineering firm Black and Veatch, and COP Construction Co., r e f e r r e d t o here a s Defendants. Defendants each moved s e p a r a t e l y f o r summary judgment. I n a s i n g l e Memorandum and Order, t h e D i s t r i c t Court granted t h e motions, holding (1) Defendants breached no duty running from themselves toward P l a i n t i f f s , and ( 2 ) P l a i n t i f f s were unable t o show damage t o t h e i r property t h a t was proximately caused by Defendants. This appeal followed. O n appeal, P l a i n t i f f s f i r s t argue t h a t t h e D i s t r i c t Court misapplied t h e summary judgment standard used i n t h i s s t a t e . P l a i n t i f f s ' argument, however, is based on a misunderstanding of Montana law. P l a i n t i f f s argue t h a t Defendants were required t o show " t h a t t h e flooding was not caused by o r d i d n o t occur a s a d i r e c t r e s u l t o f t h e sewer excavation and work." While Defendants were required t o show t h a t they were e n t i t l e d t o judgment a s a matter of law, t h a t burden d i d not r e q u i r e Defendants t o prove t h e reverse of P l a i n t i f f s ' case. Defendants had t o prove a s a matter of law t h a t P l a i n t i f f s w e r e not e n t i t l e d t o r e l i e f . P l a i n t i f f s thus appear t o confuse t h e burden of proof imposed on a p a r t y moving f o r summary judgment with t h a t imposed on a p l a i n t i f f i n every c i v i l s u i t . This fundamental misunderstanding t a i n t s P l a i n t i f f s ' arguments t o t h i s Court. I n order f o r summary judgment t o i s s u e pursuant t o Rule 5 6 ( c ) , M.R.Civ.P., t h e movant must show t h a t t h e r e is no genuine i s s u e a s t o any f a c t deemed m a t e r i a l i n l i g h t of t h e s u b s t a n t i v e l e g a l p r i n c i p l e s e n t i t l i n g t h e movant t o judgment a s a matter of law. A l l reasonable inferences t h a t can be drawn from o f f e r e d proof w i l l be drawn i n favor of t h e p a r t y opposing t h e motion. Cereck v. Albertson's, Inc. (1981), 1 9 5 Mont. 409, 637 P.2d 509. I f t h e movant meets t h i s burden, it then s h i f t s t o t h e non-moving p a r t y t o demonstrate a genuine i s s u e of m a t e r i a l f a c t . "Mere d e n i a l o r speculation w i l l not s u f f i c e , t h e non-moving p a r t y must show f a c t s s u f f i c i e n t t o r a i s e a genuine i s s u e . " Gamble Robinson Co. v. Carousel P r o p e r t i e s (1984), 212 Mont. 305, 312, 688 P.2d 283, 287. These same standards apply t o t h i s Court's review of t h e d e c i s i o n below. Kronen v. Richter (1984), 2 1 1 Mont. 208, 683 P.2d 1315. Most of t h e D i s t r i c t Court's memorandum i n t h i s case d e a l s with a s i n g l e substantive l e g a l p r i n c i p l e held t o e n t i t l e Defendants t o judgment a s a matter of law: t h e p r i n c i p l e of proximate cause. Proximate cause i s an element of t h e cause of a c t i o n f o r negligence, and must be proven i n order f o r a p l a i n t i f f t o recover damages. Young v. Flathead County (Mont. 1988), 757 P.2d 772, 45 St.Rep. 1047. Proximate cause i s a l s o a required element of t h e cause of a c t i o n f o r inverse condemnation. Rauser v. Toston I r r i g a t i o n D i s t r i c t (1977) , 172 Mont. 530, 565 P. 2d 632. The i n i t i a l burden was t h e r e f o r e on P l a i n t i f f s t o come f o r t h with s u f f i c i e n t proof t o r a i s e i s s u e s of m a t e r i a l f a c t concerning each element of t h e i r c a s e , including proximate cause. Absent a showing of proximate cause, both of P l a i n t i f f s ' claims would f a i l , and Defendants would be e n t i t l e d t o judgment a s a matter of law. A s t h i s Court noted i n Young, 757 P.2d a t 777, proximate cause has n o t been defined c l e a r l y i n Montana law: L i a b i l i t y , i n any cause of a c t i o n , a t t a c h e s i f t h e p l a i n t i f f can prove f i r s t t h a t defendant's a c t i s a cause i n f a c t of i n j u r y and then t h a t t h e i n j u r y i s t h e d i r e c t o r i n d i r e c t r e s u l t , proximately caused by t h e negligent a c t . Causation i n f a c t has been determined by t h e use of t h e "but f o r " t e s t ... ... I n Montana, proximate cause i s one which i n a n a t u r a l and continuous sequence, unbroken by any new, independent cause, produces i n j u r y , and without which t h e i n j u r y would n o t have occurred. [ c i t a t i o n s ] This d e f i n i t i o n o f proximate cause i n c o r p o r a t e s t h e " b u t f o r " d e f i n i t i o n i n t h e words o f t h e l a s t c l a u s e " [ a ] nd without which t h e i n j u r y would n o t have occurred." I t i s from t h i s wording t h a t t h e d i s t i n c t i o n between cause i n f a c t and proximate, o r l e g a l , cause has become clouded. The Young opinion t h e r e f o r e went on t o focus on t h e " n a t u r a l and continuous sequence, unbroken by any new, independent c a u s e , " which must be shown t o e s t a b l i s h proximate cause. Before t h e D i s t r i c t Court, P l a i n t i f f s r e l i e d l a r g e l y on t h e i r own d e p o s i t i o n testimony and a "Preliminary I n v e s t i g a t i o n Report" prepared by a hydrogeologist h i r e d by P l a i n t i f f s . Defendants argued i n b r i e f s f i l e d i n support of t h e i r motions f o r summary judgment t h a t t h i s evidence a l l e g e d i n s u f f i c i e n t f a c t s on which t o base a showing o f proximate cause, r e l y i n g i n s t e a d on mere s p e c u l a t i o n . I n o t h e r words, on t h e b a s i s o f t h e p l e a d i n g s and proof i n t h e r e c o r d , it was impossible f o r P l a i n t i f f s t o show t h a t Defendants ' a c t i o n s , through a n a t u r a l and continuous sequence unbroken by any new, independent cause, produced P l a i n t i f f s ' i n j u r i e s . The D i s t r i c t Court agreed. Because o f P l a i n t i f f s ' misunderstanding o f Montana ' s summary judgment s t a n d a r d , t h e i r arguments on appeal s u f f e r from t h e same flaw addressed by t h e D i s t r i c t Court. P l a i n t i f f s argue t o t h i s Court t h a t "undisputed f a c t s " i n t h e r e c o r d r a i s e s u f f i c i e n t i s s u e s o f m a t e r i a l f a c t t o avoid summary judgment: (1) P l a i n t i f f s had no problems with basement flooding p r i o r t o t h e e v e n t s a t i s s u e ; ( 2 ) t h e s o i l tests performed p r i o r t o c o n s t r u c t i o n i n d i c a t e d t h a t dewatering w e l l s would be necessary t o c o n t r o l ground water i n excavations; ( 3 ) C O P Construction began excavating i n P l a i n t i f f s ' v i c i n i t y b e f o r e i n s t a l l i n g dewatering w e l l s and encountered ground water; ( 4 ) P l a i n t i f f s ' basements began f l o o d i n g "within a day o r two" a f t e r COP began excavation; ( 5 ) once dewatering w e l l s w e r e i n s t a l l e d , t h e flooding subsided; and ( 6 ) P l a i n t i f f s have had no f u r t h e r flooding problems i n t h e i r basements. P l a i n t i f f s s t a t e i n t h e i r b r i e f t o t h i s Court t h a t t h e essence o f t h e i r argument i s t h u s " b u t f o r " Defendants' a c t i o n s a s s o c i a t e d w i t h excavating t h e test h o l e , P l a i n t i f f s ' basements would n o t have flooded. P l a i n t i f f s c i t e t h e Young opinion f o r t h e p r o p o s i t i o n t h a t t h e " b u t f o r " test i s a p p r o p r i a t e i n t h i s case. The Young opinion quoted above s t a t e s t h e d i s t i n c t i o n between cause i n f a c t and proximate cause. P l a i n t i f f s c o r r e c t l y c i t e Young f o r t h e " b u t f o r " test, b u t t h e y apply t h e t e s t i n c o r r e c t l y . "But f o r " is a t e s t o f cause i n f a c t , n o t proximate cause. S t a t e d another way, t h e " b u t f o r " test e s t a b l i s h e s t h a t i f t h e a c t complained o f had n o t taken p l a c e , t h e i n j u r y would n o t have r e s u l t e d . T h i s same argument, however, can be a p p l i e d t o any cause t h a t might have c o n t r i b u t e d t o t h e flooding; e.g., t h e presence o f water i n t h e i r r i g a t i o n d i t c h , t h e composition o f t h e s o i l , o r t h e water from s e p t i c t a n k d r a i n f i e l d s i n t h e neighborhood. By t a k i n g t h e argument t o i t s l o g i c a l extreme, it could be s a i d t h a t i f P l a i n t i f f s had n o t b u i l t t h e i r houses with basements, t h e y would have had no flooding problems ( s e v e r a l homes i n t h e neighborhood had no basements and t h u s no f l o o d i n g ) . This i s why t h e law r e q u i r e s an a c t t o be t h e proximate cause o f i n j u r y b e f o r e l i a b i l i t y w i l l a t t a c h . Which one o r more o f t h e c o n t r i b u t i n g causes i d e n t i f i e d by t h e " b u t f o r " test, through a n a t u r a l and continuous sequence unbroken by any new, i n t e r v e n i n g cause, produced P l a i n t i f f s ' i n j u r y ? C e r t a i n l y P l a i n t i f f s ' choice made y e a r s ago t o b u i l d homes w i t h basements would appear s o l o g i c a l l y remote t h a t it could n o t be t h e proximate cause of t h e flooding. However, by r e s t i n g t h e i r c a s e on "undisputed f a c t s " a s s e r t e d t o m e e t t h e " b u t f o r " test, P l a i n t i f f s ignore t h e r e q u i r e d showing t h a t Defendants' a c t i o n s w e r e t h e proximate cause o f t h e flooding. The f a c t s r e c i t e d by P l a i n t i f f s do n o t go t o t h e q u e s t i o n of whether t h e r e was a n a t u r a l , continuous, u n i n t e r r u p t e d sequence between Defendants' a c t i o n s and t h e flooding. They simply a l l e g e " b u t f o r " . The h y d r o g e o l o g i s t ' s p r e l i m i n a r y r e p o r t r e l i e d upon by P l a i n t i f f s below does n o t remedy t h e flaw i n t h e i r argument. The r e p o r t drew two main conclusions: (1) i n c r e a s e d water flow i n t h e i r r i g a t i o n d i t c h could have caused t h e flooding, and ( 2 ) excavation o f a sewer t r e n c h between t h e i r r i g a t i o n d i t c h and P l a i n t i f f s ' homes could have caused o r c o n t r i b u t e d t o t h e flooding. The r e p o r t a l s o s t a t e s , "Other f a c t o r s t h a t would a f f e c t water t a b l e l e v e l a t t h e basements [ i n c l u d i n g c l i m a t e , storms, i r r i g a t i o n o f c r o p s and normal water t a b l e f l u c t u a t i o n ] w e r e examined i n a b r i e f p r e l i m i n a r y manner." This r e p o r t , a s i s e v i d e n t from i t s very t i t l e , was preliminary. It i s based on t h e a p p l i c a t i o n of hydrogeological t h e o r y t o a number of p o s s i b l e c a u s e s , and i t s conclusions e x p r e s s no c e r t a i n t y o f any kind a s t o t h e n a t u r a l o r continuous sequence o f e v e n t s under P l a i n t i f f s ' t h e o r i e s . It i s c u r s o r y and s p e c u l a t i v e . W e have h e l d t h a t s p e c u l a t i v e s t a t e m e n t s a r e i n s u f f i c i e n t t o r a i s e a material. i s s u e o f f a c t . B.M. by Berger v . S t a t e (1985), 215 Mont. 175, 179, 698 P.2d 399, 401. Keeping i n mind t h e r u l e from t h e Cereck c a s e t h a t a l l reasonable i n f e r e n c e s drawn from t h e r e p o r t must be drawn i n favor o f P l a i n t i f f s , it must be noted t h a t t h e r e p o r t ' s t r e a t m e n t o f " o t h e r f a c t o r s " could address t h e q u e s t i o n of proximate cause. Examination o f o t h e r p o s s i b l e causes could show whether t h e "sequence" between t h e Defendants ' a c t i o n s and t h e P l a i n t i f f s ' i n j u r y was "unbroken by any new, independent cause". However, t h e r e p o r t ' s t r e a t m e n t o f " o t h e r f a c t o r s ' ' i s e q u a l l y s p e c u l a t i v e , drawing conclusions such a s , " [rlandom i n s p e c t i o n o f water t a b l e r e c o r d s . . . s u g g e s t s t h a t such occurrences may b e r a r e . " The only p o r t i o n o f P l a i n t i f f s ' o f f e r e d proof t h a t reasonably could be construed a s addressing proximate cause t h u s f a i l s t o r a i s e an i s s u e o f m a t e r i a l f a c t under t h e r u l e i n Berger. The proof o f f e r e d by P l a i n t i f f s below f a i l e d t o r a i s e a m a t e r i a l i s s u e o f f a c t on t h e q u e s t i o n o f proximate cause. Defendants moved f o r summary judgment, and pointed o u t t h e flaw i n P l a i n t i f f s ' c a s e . This had a d u a l e f f e c t . By p o i n t i n g o u t t h a t P l a i n t i f f s ' had f a i l e d t o r a i s e a genuine i s s u e o f m a t e r i a l f a c t a s t o proximate cause and supporting t h a t a s s e r t i o n w i t h b r i e f s , e x h i b i t s and a f f i d a v i t s , Defendants a t t h e same t i m e showed t h e i r e n t i t l e m e n t t o summary judgment. P l a i n t i f f s t h e n had t h e d u t y t o p r e s e n t s u f f i c i e n t proof t o show t h a t an i s s u e of m a t e r i a l f a c t a c t u a l l y e x i s t e d ; m e r e d e n i a l o r s p e c u l a t i o n would n o t s u f f i c e . Gamble Robinson, 683 P.2d a t 287. P l a i n t i f f s f a i l e d t o come f o r t h w i t h s u f f i c i e n t proof i n t h e District Court. I n s t e a d , t h e y merely r e i t e r a t e d t h e i r a l l e g a t i o n s o f f a c t which they a s s e r t preclude summary judgment by t h e i r own f o r c e , and pointed t o t h e h y d r o g e o l o g i s t ' s r e p o r t which i n a p r e l i m i n a r y fashion s p e c u l a t e s a s t o t h e p o s s i b l e causes o f t h e flooding. A s shown above, t h e proof t h u s f a r advanced by P l a i n t i f f s i s i n s u f f i c i e n t t o avoid summary judgment. By arguing t h a t it was Defendants' burden t o - disprove t h e i r t h e o r y o f t h e c a s e , P l a i n t i f f s seek t o r e v e r s e t h e burden o f proof under Montana law. This would l e a v e t h e D i s t r i c t Court i n t h e p o s i t i o n of having t o guess a t whether P l a i n t i f f s could p r e s e n t a v i a b l e c a s e , o r would simply waste t h e c o u r t ' s time i n a f u t i l e t r i a l . This Court has s p e c i f i c a l l y r e f u s e d t o r e q u i r e such a guessing game. . . . t h e t r i a l c o u r t , i n c o n s i d e r i n g a motion f o r summary judgment, has no duty t o a n t i c i p a t e p o s s i b l e proof t h a t might be o f f e r e d under t h e pleadings and t h a t a s k i n g f o r such f o r e s i g h t demands "clairvoyance" n o t possessed by even a t r i a l judge. Larry C . Iverson, I n c . v. Bouma (1981), 195 Mont. 351, 374, 639 P.2d 4 7 , 59. W e a f f i r m t h e judgment of t h e District Court. | July 5, 1989 |
08b0919a-5a98-4bc1-ad81-de87ed716c47 | JOHNSON v MCMILLAN | N/A | 89-005 | Montana | Montana Supreme Court | N o . 8 9 - 0 5 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 DAVE JOHNSON, P l a i n t i f f and R e s p o n d e n t , -vs- WARREN A. McMILLAN, 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 E i g h t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of G a l l a t i n , T h e H o n o r a b l e Joseph B. G a r y , Judge presiding. COUNSEL OF RECORD: For A p p e l l a 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 R e s p o n d e n t : H . A. B o l i n g e r , B o z e m a n , M o n t a n a S u b m i t t e d on B r i e f s : June 1 6 , 1 9 8 9 D e c i d e d : A u g u s t 11, 1 9 8 9 Filed: :L: I' . \ -_. ... ,--4 L -. k . - ; , " , . I ": - . . . ; ' C l e r k . , , $",. . . -- I : . . I ; . . Mr. Justice R. C. McDonough delivered the Opinion of the Court. This appeal from the District Court of the Eighteenth Judicial District, Gallatin County, involves a dispute over public use of a road across appellant McMillan's property. The District Court permanently enjoined McMillan from interfering with use of the road holding that the road constituted a public way. Respondent Johnson had requested the relief granted by the lower court arguing that the road was a public way by virtue of prescriptive use from approximately 1895 to 1985. We affirm. Timberline road follows Timberline Creek up several miles from the Jackson Creek Interchange on Interstate 90. The road is on an old railroad bed built by the Northern Pacific Railway in the early 1890's. The rail line formerly connected Northern Pacific's main line to the Timberline coal mining camp. The camp flourished during most of the 18801s, but died out in the early 1890's. In 1912, the rail was removed from the bed. Testimony at trial documented public use of the old railroad bed as a road across what is today McMillan's property in the late 1930's. Testimony also documented public use of the road from the early 1950's to 1976, when McMillan purchased the land. Following McMillan's purchase of the property, witnesses testified that public use of the road continued up until McMillan placed a locked gate on the road in 1985. During the period from the early 1950's to the present, various unlocked gates have been installed and in operation on the road. However, the gates were erected to keep cattle from roaming rather than to deny public access. Except for McMillan's locked gate, there is no evidence that any other landowner has attempted to restrict public access during the long period of time that the road has been in use by the public. Hilda Peterson, McMillan's predecessor in interest to the land involved, testified she maintained gates to keep cattle in pasture, but freely allowed all public access through the gates. Other landowners whose property is adjacent to the road also testified that they never considered denying public access, although they may have denied access if the public use had been abused. Hilda Peterson also testified that hunters had sought and obtained her permission to travel the road and hunt on her property. Issue Whether the District Court erred in concluding that the Timberline Road is a public road by reason of a prescriptive easement? The public's acquisition of a prescriptive easement on a private road may be explained as follows: That the public may acquire the right by prescription to pass over private land is undisputed and such is the law in Montana. To establish the existence of a public road by prescription it must be shown that the public followed a definite course continuously and uninterruptedly for the prescribed statutory period together with an assumption of control adverse to the owner. . . . By "continuous and uninterrupted use" is meant that the use was not interrupted by the act of the owner of the land, and that the right was not abandoned. by the one claiming it. . . . This court has said that to establish a prescriptive right it must be shown that the use was adverse and not by permission of the landowner. However, the older a road the more difficult it usually is to produce the proof of actual adverse use because the witnesses are no longer usually available. . . . The fact that a road has been barred by gates to be opened and closed by the parties passing over the land has always been considered as strong evidence of a mere license to the public to pass over the designated way. [citations omitted] Kostbade v. Metier (1967), 150 Mont. 139, 142-45, 432 P.2d 382, 384-86. Use of an alleged easement for the full statutory period, unexplained, creates a presumption of use adverse to the owner which may be overcome by evidence that the use is permissive. Lunceford v. Trenk (1974), 163 Mont. 504, 518 P.2d 266. District courts sitting as finders of fact occupy the best position to determine if the use was permissive or adverse. Lunceford, 518 P.2d at 267. McMillan contends that the lower court erred by finding use of Timberline Road adverse to prior owners. He points out that "the general rule is that the use of the road by another will generally be regarded as permissive where such use does not injure or interfere with the owner's use." White v. Kamps (1946), 119 Mont. 102, 115-16, 171 P.2d 343, 349. McMillan also contends that the fact that landowners long gated the road, and the fact that he placed a locked gate on the road in 1985, provides sufficient proof to overturn the lower court's finding that public use established the easement. Referring again to the standard of review applicable here, absent a demonstration by McMillan that the lower court's determinations are "clearly erroneous", we must affirm the lower court. Rule 52(a), M.R.Civ.P. The lower court determined that the presence of gates on Timberline Road did not overcome the presumption that the public's use was by claim of right, adverse to McMillanls predecessors in title. We acknowledge the rule from previous cases that standing a.lone, evidence of use by the public of a road obstructed by gates is insufficient to establish a prescriptive easement in favor of the public. Descheemaeker v. Anderson (1957), 131 Mont. 322, 326, 310 P.2d 587, 589. But this Court has also held that a gate constructed "not to stop people but cattle, is not enough standing alone to rebut the presumption established by such [over 50 years] long public use." Kostbade, 432 P.2d at 386. There is substantial evidence here to support a finding that public travelers pursued a definite, fixed course, continuously and uninterruptedly, down the old railroad bed for nearly one hundred years. The evidence of permissive use brought out by McMillan is scant. Previous landowners could only speculate that they may have attempted to bar public access if gates had been left open by travelers on the road. Hilda Peterson offered another solution to the open gate hypothetical question posed by McMillan's counsel: Q. Do you think that you -- if a member of the public came in there and left your gate open, did you think that you had the right to go in there and ask him to leave? A. I would have-- yes, I think maybe I would have felt that way. I would certainly have felt like asking him to please keep the gate closed. (Tr. at 52) Hilda Peterson also testified as follows: Q. And as far as you are concerned and your dad was concerned, you gave permission to everybody to go up through there? A. There was no specific permission given to anybody to go in there. People went in there, that's all. (Tr. at 52) Prior to 1954, the relevant statutory period for establishing the right at issue here was ten years. Section 9015 R.C.M. ( 1 9 3 5 ) . Since 1953, the period has been five years. Section 70-19-401, MCA. The long public use as documented in the record sufficiently supports the District Court's finding that Timberline Road is a public way. McMillanls evidence purporting to demonstrate permissive use does not overcome such public use. We affirm. -- ('z 4 ' 6/J&[.f ". Justice / We Concur: | August 11, 1989 |
0041594f-b863-4fc0-bc71-439669c2c55c | SEARIGHT v CIMINO | N/A | 89-192 | Montana | Montana Supreme Court | I N THE SUPREME COURT OF THE STATE OF MONTANA MURLAND W. SEARIGHT and VIRGINIA SEARIGHT, P l a i n t i f f s and A p p e l l a n t s , -vs- MICHAEL CIMINO, . . = . D e f e n d a n t and R e s p o n d e n t . , - ; APPEAL FROK: ~ i s t r i c t C o u r t of t h e E l e v e n t h J u d i c i a l D i s t r i c t ; : L-' I n and f o r t h e C o u n t y of F l a t h e a d , T h e H o n o r a b l e L e i f E r i c k s o n , Judge presiding.' COUNSEL OF RECORD: 6 2 F o r A p p e l l a n t : M u r l a n d W. Searight, ~ o l u m b i a F a l l s , Montana For R e s p o n d e n t : J a m e s C. B a r t l e t t ; H a s h , 0 ' ~ r i e n & B a r t l e t t , K a l i s p e l l , 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 : June 8 , 1 9 8 9 D e c i d e d : J u l y 1 9 , 1 9 8 9 - - I - / C l e r k M r . J u s t i c e Fred J. Weber d e l i v e r e d t h e Opinion o f t h e Court. The S e a r i g h t s appeal from an o r d e r o f t h e District Court f o r t h e Eleventh J u d i c i a l D i s t r i c t , Flathead County, denying t h e i r motion t o v a c a t e judgment and imposing s a n c t i o n s a g a i n s t t h e defendant, M r . Cimino. 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 d e n i a l of t h e motion, and f u r t h e r a s s e s s damages a g a i n s t t h e a p p e l l a n t s pursuant t o Rule 3 2 , M. R.App. P., f o r t h e f i l i n g of an appeal without s u b s t a n t i a l o r reasonable grounds. The S e a r i g h t s p r e s e n t s e v e r a l i s s u e s f o r o u r review b u t we f i n d it necessary o n l y t o address t h e i s s u e o f whether t h e D i s t r i c t Court p r o p e r l y denied a p p e l l a n t s ' motion t o vacate judgment and impose s a n c t i o n s . Because we answer t h i s ques- t i o n a f f i r m a t i v e l y , w e w i l l n o t d i s c u s s t h e remaining i s s u e s r a i s e d by a p p e l l a n t s . T h i s c a s e h a s a lengthy h i s t o r y . The S e a r i g h t s i n i t i a t - ed a cause o f a c t i o n a g a i n s t M r . Cimino i n 1981, seeking t o e n f o r c e t h e terms o f a c o n t r a c t f o r deed r e q u i r i n g M r . Cimino t o pay h a l f t h e c o s t o f an a i r s t r i p c o n s t r u c t e d on t h e S e a r i g h t s ' land. On May 1 4 , 1985, judgment was e n t e r e d i n f a v o r o f t h e S e a r i g h t s , and on appeal t h i s Court affirmed. S e a r i g h t v. Cimino (1986), 718 P.2d 652, 43 St.Rep. 810. M r . Cimino then sought t o enforce t h e t e r m s o f t h e c o n t r a c t f o r deed g r a n t i n g him t h e r i g h t t o use t h e a i r s t r i p . I n J u l y o f 1986, he f i l e d a motion t o cause a p p e l l a n t s t o execute an a i r p o r t easement pursuant t o Rule 70, M.R.Civ.P., which provides i n r e l e v a n t p a r t : I f a judgment d i r e c t s a p a r t y t o execute a convey- ance o f land o r t o d e l i v e r deeds o r o t h e r documents o r t o perform any o t h e r s p e c i f i c a c t and t h e p a r t y f a i l s t o comply w i t h i n t h e time s p e c i f i e d , t h e c o u r t may d i r e c t t h e a c t t o be done a t t h e c o s t of t h e d i s o b e d i e n t p a r t y by some o t h e r person appointed by t h e c o u r t and t h e a c t when s o done has l i k e e f f e c t a s i f done by t h e p a r t y . The S e a r i g h t s r e s i s t e d d e f e n d a n t ' s motion, arguing t h a t t h e previous judgment e n t e r e d d i d n o t c o n t a i n any r e f e r e n c e t o an easement which could be enforced by invoking Rule 70, M. R.Civ. P. The S e a r i g h t s acknowledged d e f e n d a n t ' s r i g h t t o use t h e a i r s t r i p a s set f o r t h i n t h e c o n t r a c t f o r deed, b u t argued t h a t t h e g r a n t i n g o f an easement was n o t contemplated e i t h e r by t h e c o n t r a c t o r by t h e D i s t r i c t C o u r t ' s judgment s o t h a t d e f e n d a n t ' s motion should be dismissed. The S e a r i g h t s a l s o requested s a n c t i o n s a g a i n s t M r . Cimino under Rule 11, M.R.Civ.P. The D i s t r i c t Court h e l d a hearing on t h e motion t o cause t h e execution o f t h e easement, and r u l e d t h a t a w r i t t e n easement needed t o be prepared and recorded. Following a l a t e r hearing on t h e S e a r i g h t s ' motion f o r s a n c t i o n s , t h e D i s t r i c t Court found t h a t an easement had been prepared and recorded by t h e S e a r i g h t s ' a t t o r n e y . The c o u r t f u r t h e r found t h a t t h e motion f o r s a n c t i o n s "appears t o be harassment on M r . S e a r i g h t ' s p a r t . " The c o u r t denied s a n c t i o n s a g a i n s t M r . Cimino, and on i t s own motion, imposed s a n c t i o n s a g a i n s t t h e S e a r i g h t s of $100. The S e a r i g h t s then f i l e d a motion t o a l t e r o r amend t h e judgment, arguing t h a t Rule 7 0 , M.R.Civ.P., was i n a p p r o p r i a t e t o e n f o r c e a judgment g r a n t i n g an easement which never e x i s t - ed. The D i s t r i c t Court denied t h e motion, reasoning t h a t : The t h r u s t o f P l a i n t i f f s ' argument is t o r e l i t i g a t e t h e i s s u e o f easement. Since p l a i n t i f f s have a l r e a d y signed and recorded t h e easement t h e p o i n t i s moot. On appeal, t h i s Court r e f u s e d t o d i s t u r b t h e a c t i o n s of t h e p a r t i e s i n p u t t i n g t h e easement on record. S e a r i g h t v. Cimino (Mont. 1988), 748 P.2d 948, 45 St.Rep. 46. This conclusion was reached based upon t h e absence of a record of t h e hearing on M r . Cimino's motion t o r e q u i r e execution o f an easement, and t h e absence o f proof o f whether an o r d e r was i s s u e d o r whether t h e p a r t i e s w e r e simply t o l d t o work it o u t . T h i s Court a l s o affirmed t h e levying o f s a n c t i o n s a g a i n s t t h e S e a r i g h t s , b u t r e f u s e d t o award damages f o r a f r i v o l o u s appeal under Rule 32, M.R.App.P. 748 P.2d a t 952. On March 10, 1989, a f t e r appointing himself a s counsel, M r . S e a r i g h t f i l e d a motion t o v a c a t e judgment and impose s a n c t i o n s i n t h e D i s t r i c t Court. The motion requested t h a t t h e c o u r t , pursuant t o i t s a u t h o r i t y under Rule 12 ( h ) ( 3 ) , M.R.Civ.P., and Rule 6 0 ( b ) ( 4 ) , M.R.Civ.P., v a c a t e a l l o r d e r s , d e c r e e s , and judgments e n t e r e d i n t h e a c t i o n a r i s i n g from M r . Cimino's motion t o cause a p p e l l a n t s t o execute an a i r p o r t easement. M r . S e a r i g h t contended t h a t t h e D i s t r i c t Court l o s t s u b j e c t m a t t e r j u r i s d i c t i o n o f t h e c a s e a f t e r e n t r y and s a t i s f a c t i o n of i t s f i n a l judgment i n t h e f i r s t a c t i o n and had no power t o o r d e r t h e g r a n t i n g o f an easement. M r . S e a r i g h t a l s o requested t h a t s a n c t i o n s be imposed a g a i n s t M r . Cimino pursuant t o Rule 11, M.R.Civ.P. The District Court summarily denied t h e motion. I t is from t h i s d e n i a l t h a t t h e S e a r i g h t s appeal. I Did t h e District Court p r o p e r l y deny a p p e l l a n t s ' motion t o v a c a t e judgment and impose s a n c t i o n s ? Appellants contend t h a t t h e District Court was without s u b j e c t m a t t e r j u r i s d i c t i o n t o h e a r and determine t h e ease- ment i s s u e because f i n a l judgment had been rendered i n t h e p r i o r d e c i s i o n and t h a t judgment included no r e f e r e n c e t o an easement which could have been enforced under Rule 70, M.R.Civ.P. Appellants argue t h a t a l l o r d e r s and judgments rendered a s t o t h e easement i s s u e must be vacated, c i t i n g Crawford v . P i e r s e (1919), 56 Mont. 371, 375-76, 185 P. 315, 317-18: I t i s elementary t h a t when t h e judgment-roll upon i t s f a c e shows t h a t t h e c o u r t was without j u r i s d i c - t i o n t o render t h e p a r t i c u l a r judgment, i t s pro- nouncement i s i n f a c t no judgment. I t cannot be enforced. No r i g h t can be d e r i v e d from it. A l l proceedings founded upon it a r e i n v a l i d and i n e f - f e c t i v e f o r any purpose. . . . An affirmance of such a judgment on appeal cannot make it v a l i d . ( c i t a t i o n s o m i t t e d ) . I n response, M r . Cimino argues t h a t a p p e l l a n t s a r e merely attempting t o r e l i t i g a t e t h e easement i s s u e , and t h a t because they have a l r e a d y had t h e o p p o r t u n i t y t o r a i s e a j u r i s d i c t i o n a l c h a l l e n g e , t h e d o c t r i n e o f r e s j u d i c a t a ap- p l i e s t o preclude f u r t h e r l i t i g a t i o n o f t h i s m a t t e r , c i t i n g Wellman v. Wellman (1982), 198 Mont. 42, 643 P.2d 573: Once t h e r e h a s been f u l l o p p o r t u n i t y t o p r e s e n t an i s s u e f o r j u d i c i a l d e c i s i o n - i n a given proceeding, including t h o s e i s s u e s t h a t p e r t a i n t o a c o u r t ' s - - j u r i s d i c t i o n , t h e determination o f t h e c o u r t i n t h a t proceeding must be accorded f i n a l i t y a s t o a l l i s s u e s r a i s e d o r which f a i r l v could have been r a i s e d , e l s e judgments might b g a t t a c k e d piecemeal and without end. ( ~ m ~ h a s i s s u p p l i e d ) . 643 P.2d a t 575, c i t i n g Royal Coachman Color Guard v . Marine Trading ( M e . 1979), 398 A.2d 382, 384. Contrary t o a p p e l l a n t s ' c o n t e n t i o n s t h a t Wellman i s d i s t i n g u i s h a b l e we conclude t h a t it c o n t r o l s . I n Wellman, a p p e l l a n t s attempted t o a t t a c k a judgment rendered t e n y e a r s p r i o r t o t h e appeal, contending t h a t t h e D i s t r i c t Court exceeded i t s j u r i s d i c t i o n by g r a n t i n g more r e l i e f than was sought i n t h e pleadings. I n a f f i r m i n g t h e lower c o u r t ' s d i s m i s s a l , t h i s Court s a i d : P l a i n t i f f s had a f u l l o p p o r t u n i t y t o l i t i g a t e t h e voidness i s s u e i n 1971 when t h e y f i r s t moved t o set a s i d e t h e d e f a u l t judgment. They f a i l e d t o do so. The d o c t r i n e o f res j u d i c a t a i s founded upon t h e g e n e r a l l y recognized p u b l i c p o l i c y t h a t t h e r e must be some end t o l i t i g a t i o n . The end f o r t h e p l a i n - t i f f s i n t h i s c a s e occurred more than t e n y e a r s ago when they f a i l e d t o r a i s e t h e i s s u e o f j u r i s d i c t i o n and t h e D i s t r i c t Court denied t h e i r f i r s t motion t o set a s i d e t h e d e f a u l t judgment. I n t h e p r e s e n t c a s e , a p p e l l a n t s had t h e same o p p o r t u n i t y t o r a i s e t h e voidness i s s u e when M r . Cimino f i r s t f i l e d h i s motion t o cause execution o f an a i r p o r t easement. They d i d i n f a c t o b j e c t t o t h e District C o u r t ' s a b i l i t y t o enforce an easement under Rule 70, M.R.Civ.P., i n t h e i r motion t o a l t e r o r amend t h e judgment following d i s p o s i t i o n of t h e easement i s s u e . They f u r t h e r r a i s e d t h e s p e c i f i c i s s u e of l a c k of s u b j e c t m a t t e r j u r i s d i c t i o n i n t h e i r P e t i t i o n f o r Rehearing a f t e r t h i s C o u r t ' s opinion i n t h e m a t t e r . Because t h e sub- s t a n c e o f a p p e l l a n t s ' challenge t o t h e D i s t r i c t C o u r t ' s a c t i o n s h a s remained t h e same, it i s apparent they a r e merely attempting t o r e l i t i g a t e i s s u e s which have a l r e a d y been decided by invoking d i f f e r e n t l a b e l s by which t o c o n t e s t t h e proceedings, one o f which i s s u b j e c t m a t t e r j u r i s d i c t i o n . W e w i l l n o t allow a p p e l l a n t s ' c h a r a c t e r i z a t i o n o f t h e i r claim t o h i n d e r a p p l i c a t i o n o f t h e d o c t r i n e o f res j u d i c a t a , and t h e prevention o f p r o t r a c t e d l i t i g a t i o n . Furthermore, t h e District C o u r t ' s handling o f t h e ease- ment i s s u e was compelled by t h e a c t i o n s o f t h e a p p e l l a n t s themselves. While it i s n o t c l e a r from t h e record whether t h e D i s t r i c t Court ordered an easement be g r a n t e d o r t o l d t h e p a r t i e s t o "work it o u t , " t h e District C o u r t ' s f i n d i n g s i n d i c a t e t h a t a p p e l l a n t s were uncooperative and t h a t M r . Cimino's a t t o r n e y was l e f t w i t h t h r e e a l t e r n a t i v e s : (a) to do nothing and have this matter con- tinue indefinitely without resolution; (b) to breach the Code of Professional Re- sponsibility and communicate directly with Mr. Searight; or (c) to seek relief through the Court. The District Court found that Mr. Cimino's attorney chose the only alternative that was reasonably available to him, name- ly, to file a motion asking the court to compel an easement be drawn and recorded. Even if the relief sought by Mr. Cimino was beyond the scope of the original pleadings in the first proceeding, we hold that a jurisdictional challenge to the court's actions will nevertheless be barred by the doctrine of res judicata under this Court's holding in Wellman. We affirm the Dis- trict Court's order denying appellants' motion to vacate and impose sanctions. Because we conclude that this appeal is taken without substantial or reasonable grounds and that appellants are merely attempting to relitigate the easement issue, we impose damages in the amount of $500 pursuant to Rule 32, M.R.App.P. Affirmed. | July 19, 1989 |
bf13d71b-8b62-487f-9e92-6d956ae9fa86 | KARELL v AMERICAN CANCER SOCIETY | N/A | 89-217 | Montana | Montana Supreme Court | No. 89-217 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 CAROL FOX KARELL, plaintiff and Appellant, -vs- AMERICAN CANCER SOCIETY, Montana Division, Inc., a Montana corp., Defendant and Respondent. APPEAL FROM: District Court of the ~hirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Barz, Judge presiding. COUNSEL OF RECORD: For Appellant: Calvin J. Stacey; Keefer, Roybal, Hanson, Stacey and Walen, Billings, Montana For Respondent: Sidney R. Thomas; T. Thomas Singer; Moulton Law ~ i r m , ~illings, Montana submitted on ~riefs: Aug. 3, 1989 Decided: September 14, 1989 - - . 1 Filed': i ' 1 1 EI Chief Justice J. A. Turnage delivered the Opinion of the Court. The District Court of the Thirteenth Judicial District, Yellowstone County, granted respondent American Cancer Society's motion for summary judgment dismissing appellant Carol Karell's suit for breach of the implied covenant of good faith and fair dealing, and negligent discharge. The court found that the respondent employer gave the appellant employee no reasonable expectation of job security and therefore created no implied covenant of good faith and fair dealing or duty of reasonable care. Karell appeals this decision. The American Cancer Society cross- appeals the District Court's denial of the respondent's memorandum of costs as not timely filed. We affirm the summary judgment and reverse the denial of respondent's memorandum of costs as untimely filed. ISSUES 1. The appellant raises the following issues on appeal. Did the District Court err in concluding on summary judgment: a . That as a matter of law the implied covenant of good faith and fair dealing did not arise in the employment relationship between the American Cancer Society and Carol Karell because the respondent gave the appellant no reasonable expectation of job security; and b . That the American Cancer Society was not negligent in discharging appellant Karell? 2. The respondent raises the following issue on cross-appeal: Did the District Court err in rejecting the American Cancer Society's memorandum of costs as not timely filed? FACTS Stan Wieczorek, the Vice President of the Montana Division of the American Cancer Society (ACS), hired Carol Karell as Division Program Director on January 6, 1986. ACSfs policy manual provided for a six-month probationary period during which either party could terminate the employment relationship without notice. Following the probationary period, ACS retained an express Itright to dis- charge without notice or further pay, anyone who has willfully failed in his duties or who has been guilty of misconduct." During her year-long employment with ACS, Karell received three pertinent memos from officers of the national organization. Each memo discussed business-related topics and included praise for Karellls work on various projects. In April, National Public Education Representative Marcia Nenno praised Karellts Itexcellent, enthusiastic, well organizedt1 Public Education Committee meeting. In November, Representative Nenno again praised Karell for having accomplished a "GREAT deal" through her enthusiastic efforts. In December, C.P.S. I1 National Coordinator Melody Davis congratulated Karell on "a job beautifully done" in a data collection project. During the same period, Karell received several critical letters from Stan Wieczorek, her immediate supervisor. In April Wieczorek reproached Karell for failing to complete a required inventory report. In August he noted that Karell had failed to complete time summary reports and had taken vacation time without a written request. In September Wieczorek again sent Karell a disapproving letter. He complained that she failed to set an itinerary for a field trip and lacked the basic occupational skills to organize volunteer groups for the ACS. Finally, he rebuked Karell for consistently failing to show up for work on time. On January 30, 1987, Wieczorek discharged Karell. In April of 1987, Karell filed suit against ACS in District Court alleging breach of the implied covenant of good faith and fair dealing, negligent discharge, and wrongful discharge. Karell later dropped the wrongful discharge count. On February 6, 1989, the District Court, by memorandum decision mailed to the parties, granted ACS1s motion for summary judgment on the remaining charges. On February 14, 1989, the District Court entered judgment and the following day the respondent filed its memorandum of costs with the District Court clerk. The appellant objected to the memorandum of costs and the District Court rejected it as not timely filed. 1. a. The Implied Covenant of Good Faith and Fair Dealinq Given these facts, did the District Court err in granting ACSgs motion for summary judgment when it found that as a matter of law the implied covenant of good faith and fair dealing did not arise because the ACS gave Karell no reasonable expectation of job security? The criteria for review of summary judgment are well settled. The standard for review of a summary judgment is the same as that used by the trial court. Frigon v. Morrison-Maierle, Inc. (Mont. 1988), 760 P.2d 57, 59, 45 St.Rep. 1344, 1346. Summary judgment is properly granted when it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), M.R.Civ.P. Once the moving party meets its burden of establishing facts sufficient to satisfy both statutory requirements, the burden shifts to the non- moving party to show the existence of a genuine issue of fact. Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 311-12, 688 P.2d 283, 286-87. The non-moving party's evidence of an issue of fact must be substantial and material. Benson v. Diehl (Mont. 1987), 745 P.2d 315, 316, 44 St.Rep. 1455, 1456. Here, we hold that there is no genuine issue of material fact which requires reversal of the summary judgment. When, as in this case, there is no genuine issue as to any material fact, the question of whether or not the implied covenant of good faith and fair dealing arises is a matter of law to be decided by the judge. In determining whether the covenant of good faith and fair dealing is implied in a particular case, the trial court must look to the employment relationship of the parties. Whether a covenant of good faith and fair dealing is implied in a particular case de- pends upon objective manifestations by the employer giving rise to the employee1s reason- able belief that he or she has job security and will be treated fairly. Dare v. Montana Petroleum Marketing Co. (1984) , 212 Mont. 274, 282, Res~ondentls Burden ACS argues that it has satisfied its summary judgment burden because no attending facts show that the respondent gave Karell any reason to believe that her position was secure and, therefore, the implied covenant against bad faith never materialized. We agree; the facts of this case depict no reasonable expectations of job security. Karel18s immediate supervisor, Stan Wieczorek, criticized Karellts performance on several occasions. In April of 1986, he sent Karell a letter noting that she had failed to compile a "Loan Closet Inventory and Needs Assessment for the Yellowstone/Billings Unit." Noting the adverse effect of Karellls dereliction, Wiec- zorek stated, I1I cantt tell you how disappointed I was that I did not receive this report and how embarrassed I was to tell Carolyn and the other volunteers it was not a~ailable.~~ Three months later, Wieczorek admonished Karell for taking vacation time without first obtaining written permission as required by the Montana Division's personnel policies. He also noted that she had not filed weekly time summary reports for the third weeks in February, May and August which were required by the organization's auditors. At one point, Wieczorek relieved Karell of responsibility for supervising her secretary because he felt she had no management skills. A September 26 letter from Wieczorek to Karell illustrates his concerns. I was surprised to hear you admit that you did not even know what your itinerary was for 3 of the 4 day field trip [to Great Falls]. It was obvious, you did not put alot [sic] of thought into the reasons for the trip. It was even more alarming to me for you to admit that you did not know how to organize a volunteer committee. Carol, the reason I hired you as Program Director, is because you had over 6 years experience working with volunteers . . . . Added to this experience, I have provided Division training plus Nation- al training at the Western Area New Staff Orientation . . . in February and the New Staff Public Education Conference . . . this past summer. As you are aware, our Area Directors have an enormous responsibility to their Units and this is one of the reasons we decided to hire a Division Program Director, to give our staff the much needed assistance in Unit organiza- tion. I need to address one of your frequently stated concerns: too much work and not enough time . . . . One way that would provide you with more time is to simply report to work at 9:00 a.m. every morning. You are not meeting your obligation or demonstrating staff leader- ship by reporting to work at 9:20 every morn- ing. Carol, please plan to meet with me Wednesday, October lst, at 9:00 a.m. to discuss in depth your role as our Division Program Director. Defendant's Deposition Exhibit No. 5 . Wieczorek took several remedial steps to improve Karellts performance. He asked her to work closely with knowledgeable personnel in preparing the Inventory and Needs Assessment report. In his September 26 letter, Wieczorek laid out a seven-step procedure for organizing volunteer committees, offered individual training by Marcia Nenno of the national organization, and asked Karell to attend several training workshops. Finally, Wieczorek asked Karell to submit weekly written reports of her activities. From these facts, it is difficult to see how any reasonable person could believe that their job was secure. We agree with the District Court that the respondent provided sufficient evidence to meet its burden of establishing that as a matter of law the implied covenant of good faith and fair dealing never arose in the employ- ment relationship between ACS and Karell. Appellant's Burden Appellant argues that the laudatory remarks in her three National American Cancer Society memos constitute objective manifestations of job security sufficient to overcome a motion for summary judgment. We do not agree. Objective manifestations of job security must come from the employer. In Dare we specifically stated "manifestations by the emplover" could imply the covenant of good faith and fair dealing. Dare, 212 Mont. at 282, 687 P.2d at 1020. (Emphasis added.) The employer's position is pivotal in the employment relation- ship. The employer has the exclusive right to hire and fire. The employer is responsible for the employee's performance and is in the best position to evaluate it. The employer has the power to rebuke or reward the employee and is the only one with the power to create job security. As in the present case, compliments from those who are not the employer may be based on incomplete or inaccurate information by persons who are not accountable to the employee. Representative Nenno and Coordinator Davis praised Karellls work on specific projects in which they were involved. They may have been unaware that Karell's immediate supervisor, Stan Wieczorek, who held responsibility for her work and continued employment, had repeated- ly complained about her performance. We agree with the District Court that these non-employer comments do not support an implied covenant of good faith and fair dealing. The appellant argues that a conversation with Wieczorek during a ski trip in December of 1986 also supports her belief that her position with ACS was secure. Karell alleges thatwieczorek stated that she "had a wonderful future with the American Cancer Society and . . . could go anywherew in the organization. To overcome a motion for summary judgment, the non-moving party's evidence must be substantial and material. Benson v. Diehl (Mont. 1987), 745 P.2d 315, 316, 44 St.Rep. 1455, 1456. Occasional compliments by an employer are not sufficient to establish a reasonable expecta- tion of job security. The appellant also argues that she reasonably believed she had job security because Wieczorek did not warn her that her employment was in jeopardy. Such warnings are not mandatory, but may be considered along with other evidence of objective manifestations of job security. Rupnow v. City of Polson (Mont. 1988), 761 P.2d 802, 805, 45 St.Rep. 1734, 1739. The appellant's evidence is distilled to one compliment from her employer and the fact that he did not threaten to fire her before doing so. Karellhas established no substantial facts which demonstrate a genuine issue as to whether she had a reasonable expectation of job security. The District Court correctly held that no implied covenant of good faith and fair dealing occurred in this employment relationship. We affirm its summary judgment. 1 . b. Neqlisent Discharqe Did the District Court err in concluding on summary judgment that the American Cancer Society was not negligent in discharging appellant Karell? Montana has recognized the cause of action for negligent discharge from employment. Rupnow v. City of Polson (Mont. 1988), 761 P.2d 802, 806, 45 St.Rep. 1734, 1739. The appellant argued this issue before the District Court, and the District Court entered summary judgment for the respondent. In the present appeal, Karell did not address negligent discharge in either the appellant I s brief or the reply brief. Nor has the respondent moved for dismissal of this issue. With no contentions to show that the District Court was in error, we affirm summary judgment on the negligent discharge issue. 2. Memorandum of Costs Did the District Court err in rejecting the American Cancer Society's memorandum of costs as not timely filed? The pertinent Montana statute provides that: The party in whose favor judgment is rendered and who claims his costs must deliver to the clerk and serve upon the adverse party, within 5 days after the verdict or notice of the decision of the court or referee or, if the entry of the judgment on the verdict or deci- sion be stayed, then before such entry is made, a memorandum of the items of his costs . . . . Section 25-10-501, MCA (1987). The case law on the timing of memoranda of costs has been a slow and sometimes meandering evolution. In McDonnell v . Huffine, we held that the five-day statutory time period begins to run when the District Court signs and files its findings of fact and conclusions of law and not when the court orally announces its decision. Huffine (1912), 44 Mont. 411, 428, 120 P. 792, 797. In contrast, in Miles v. Miles we held that the "notice1' under the statute indicated knowledge of the court's decision and that formal notification was not necessary. Miles (1926), 76 Mont. 375, 382- 83, 247 P. 328, 331. In the present case, the respondent makes an alternative argument that the five days begins to run on the date of entry of judgment. This is not necessarily true. Whether the date of entry will be the trigger date depends on when the District Court's decision is final. In Ballenger v. Tillman, we upheld a memorandum of costs filed within five days after the District Court rendered its final decision. Ballenser (1958), 133 Mont. 369, 382, 324 P.2d 1045, 1052. We rejected the date of the court's findings of fact and conclusions of law as an appropriate trigger because the court allowed the parties to file exceptions to the findings and conclu- sions effectively staying the final decision. In Davis v. Trobough we interpreted Ballenqer as holding that the date of entry of judgment was the appropriate trigger. Davis (1961) , 139 Mont. 322, 326-27, 363 P.2d 727, 729-30. Two subsequent cases followed this decision in rejecting the date of the jury verdict. By relying on the date of entry of judgment, these courts postponed filing and serving the memorandum of costs until after the parties completed all post-trial motions. Poeppel v. Fisher (1977), 175 Mont. 136, 142, 572 P.2d 912, 915; Funk v. Robbin (1984), 212 Mont. 437, 448, 689 P.2d 1215, 1221. In State v. Helehan post-trial proceedings were not an issue and we returned to the plain language of the statute. Helehan (1980), 189 Mont. 339, 342-43, 615 P.2d 925, 927-28. The statute provides that the time period begins with the "verdict or notice of the decision." We held that the date of the jury verdict triggered the time limitation. We also applied Rule 6 of the Montana Rules of Civil Procedure extending the deadline by correct- ly excluding intervening Saturdays and Sundays, but, because of the jury verdict, incorrectly allowing three additional days for mailing. Helehan, 189 Mont. at 343, 615 P.2d at 928. Mailing is not necessary in the case of a jury verdict, and the three-extra- days clause of Rule 6 does not apply. Like Helehan, our most recent decision on this issue followed the plain language of the statute in holding that the date of the jury's decision is the appropriate trigger. R.H. Grover, Inc. v. Flynn Ins. Co. (Mont. 1989), P.2d , I 46 St.Rep. 1266, 1274. Rule 6, M.R.Civ.P., was not addressed in Grover; an extra three days for mailing and exclusion of weekends would not have affected the outcome of the decision. We also distinguished cases relying on the date of entry of judgment such as Poeppel and Funk, erroneously stating that they were bench trials. We reasoned that in a bench trial the District Court retains more latitude than juries as to when it will render its decision. Grover, - P . 2d at , 46 St.Rep. at 1274. In the present case we agree with the respondent's argument that Rule 6, M.R.Civ.P. brings ACS1s memorandum of costs within the five-day limitation. Because no jury was involved, the issue here is one of 81noticew under the statute rather than one of ltverdict.w The District Court mailed its memorandum decision to the parties on Monday, February 6, thereby beginning the five-day limitation. The day of notice is not counted, Rule 6(a), M.R.Civ.P.; section 1-1-306, MCA (1987), leaving Tuesday, February 7 as day one. Since the statutory period in question is less than eleven days, intermediate Saturdays and Sundays are excluded by Rule 6 (a) , M.R.Civ.P. Saturday, February 11, and Sunday, February 12, are eliminated. Monday, February 13, thereby becomes the fifth day. A party receiving notice by mail, as in this case, has an addi- tional three days in which to act. Rule 6(e), M.R.Civ.P. The three additional days, and the limitation on ACS1s memorandum of costs, ended on February 16. ACS filed its memorandum in the District Court on February 15 and sewed the appellant on February 16. We therefore hold that the respondent's memorandum of costs was timely filed and reverse the District Courtls decision. Summary judgment for the respondent affirmed. Dismissal of respondentls memorandum of costs reversed. W e , , concur: < Chief ~ustice | September 14, 1989 |
854327e5-b64b-4eb0-8cff-08033b24be22 | MOGAN v CITY OF HARLEM | N/A | 88-598 | Montana | Montana Supreme Court | No. 88-598 IN THE SUPREME COURT OF THE STATE OF MONTANA DAVID C. MOGAN, Plaintiff and Appellant, -vs- CITY OF HARLEM, Defendant and Respondent. APPEAL FROM: District Court of the Seventeenth Judicial District, In and for the County of Blaine, The Honorable B.W. Thomas, Judge presiding. COUNSEL OF RECORD: For Appellant: Thomas P. Meissner, Lewistown, Montana For Respondent: Sue Ann Love; Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana Submitted on Briefs: April 27, 1 9 8 9 Decided: June 27, 1 9 8 9 Filed: Mr. Justice R. C. McDonough delivered the Opinion of the Court. This appeal involves the issuance of water and sewer permits by a city government. Plaintiff David C. Mogan appeals from the order of the District Court of the Seventeenth Judicial District, Blaine County, granting summary judgment in favor of the City of Harlem. We affirm. Mogan presents three main issues on appeal. Restated, they are as follows: 1. Did the District Court err in determining that no genuine issue existed as to any fact deemed material in light of the legal principles entitling the City of Harlem to judgment as a matter of law? 2. Is the City of Harlem immune from suit pursuant to 5 2-9-111, MCA? 3. Did the District Court err in denying Mogan's motion to amend his pleading? In 1983, Mogan made plans to build an "eight-plex" apartment building in Harlem, Montana. The building was to include apartments for low-income residents, and was financed through the Farmers' Home Administration. In March of 1984, Mogan submitted architectural plans for the eight-plex to the Harlem City Clerk, and was issued a building permit. On a later date that is not certain in the record, Mogan appeared at the City Clerk's Office to discuss water and sewer permits for the building. Ordinance No. 57, enacted in 1978 by the Harlem City Council, required persons wishing to connect to Harlem's water and sewer system to purchase water and sewer permits and install a water meter. Until 1984, the ordinance did not differentiate between single-family houses and multi-family apartment buildings. ORDINANCE NO. 57 AN ORDINANCE REGULATING CONNECTION TO CITY WATER AND SEWER SYSTEM BE IT ORDAINED BY THE CITY OF HARLEM: Section 1: PERMIT REQUIRED. Any persons desiring to connect into the City water and sewer system within the city limits, must first make application to the City Clerk for a permit for same. All applications for such connections shall contain the names and addresses of the persons desiring to so connect, the address of the property to be connected and a statement of the purpose of the water usage. Additionally, the application shall contain the name and address of the regularly licensed plumber who will do the connection work. Section 2 : FEES. The Clerk shall collect a fee of Seventy-five Dollars ($75.00) for water and a fee of Fifty Dollars ($50.00) for sewer, prior to the issuance of a permit for connection to city sewer and water within the city limits. Section 3: WATER METER. No connection shall be made to the city water system until a water meter has been installed. According to deposition testimony by the City Clerk, Mogan was under the impression that only one meter and one set of permits would be required for the building. The Clerk explained to Mogan that he would need separate permits and water meters for each apartment. The Clerk also testified that this would conform with the City's prior application of the ordinance. After her conversation with Mogan, the Clerk brought Mogan's misunderstanding to the attention of the Mayor. In July of 1984, the Harlem City Council held a special meeting, at which they amended the ordinance to require separate permits and meters for each "household unit," which was defined in the amended ordinance to include an apartment. The amendment was to take effect on August 25, 1984. On August 24, 1984, the day before the amended version of the ordinance went into effect, Mogan returned to the City Clerk's Office seeking a single water permit and a single sewer permit for the eight-plex. He was again informed that he would need a separate set of permits for each apartment, as per previous practice. Mogan then met with the Mayor and a city councilman. According to Mogan's deposition, he was told not only that he would be required to purchase eight sets of permits and install eight water meters, but also that the Mayor and the councilman were opposed to the project. They did not want a low-income housing project in Harlem, and intended to stop Mogan . In addition, the Mayor allegedly showed personal animosity toward Mogan. Mogan then demanded to be issued a single set of permits for the building under construction, and one set of permits for each of two additional buildings he was planning to build sometime in the future. All of Mogan's permit requests were denied by the Mayor. Later that day, Mogan returned and gave the Mayor a letter detailing their previous conversation and indicating Mogan's intention to "look to the City of Harlem1' for any damages resulting from the Mayor's denial of the requested permits. The Mayor later wrote a letter to Mogan instructing him to obtain a set of permits and connect a water meter for each apartment in the eight-plex. Mogan did so, and incurred expenses attendant to obtaining the additional permits and altering the plumbing in the building after construction had begun. In October of 1985, Mogan filed suit against the City of Harlem. He alleged breach of contract, as well as statutory and constitutional violations. The complaint was dismissed for failure to state a claim upon which relief could be granted. On appeal, this Court reversed and remanded, holding that the complaint was sufficient to state a claim. On remand, Mogan filed his First Amended Complaint, alleging violation of state constitutional guarantees of equal protection and due process, and federal constitutional guarantees of equal protection, due process and compensation for the "taking" of property. The City of Harlem filed an answer, and discovery proceeded. After discovery, Mogan moved to file a Second Amended Complaint, and the City filed a Motion for Summary Judgment. The District Court granted summary judgment to the City, and denied Mogan's motion as being moot. This appeal followed. Mogan first asserts that the District Court erred in granting summary judgment in favor of the City. Mogan cites the standard for summary judgment from our decision in Morrow v. FBS Insurance Montana (Mont. 1988), 749 P.2d 1073, 1074-75, 45 St.Rep. 188, 190: According to this Court's interpretations of Rule 56(c), M.R.Civ.P., "[tlhe party moving for summary judgment has the initial burden of showing that there is no genuine issue as to any fact deemed material in light of the substantive principles that entitled the movant to judgment as a matter of law. " [citation] According to Mogan, the City did not meet its burden in the District Court, which should be reversed for two reasons: (a) genuine issues of material fact exist concerning the City's prior application of the ordinance in question, and (b) the court erred in refusing to consider two FmHA memoranda offered as evidence of City officials ' improper motives. Mogan takes issue with the City's position that its application of the ordinance in his case was consistent with the City's treatment of other owners of multiple-unit buildings. He cites instances brought out in discovery where the City applied the ordinance inconsistently. Mogan also cites notes taken by himself and others in meetings with the Mayor and city councilmen showing that the inconsistent treatment he received was motivated by the intention of city officials to impede his project. Mogan asserts that the ordinance was amended specifically to accomplish that end. The City concedes that inconsistencies in the application of the ordinance exist, but argues that they were the result of inadvertence or mistake. While the notes presented by Mogan show some animosity exhibited toward him by the Mayor, they are not of consequence. First, as pointed out by the City below, the decision to require Mogan to obtain eight permits and install eight meters was made under the version of the ordinance existing prior to the amendment complained of by Mogan. Second, and also shown below by the City, the allegedly offensive amendment merely reflected the City's prior practice. The "inconsistencies" in the application of the ordinance pointed out by Mogan are just that; they are the exception rather than the rule. The record shows that with only three exceptions, all multiple-unit buildings in Harlem were required to obtain a separate set of permits and connect a separate water meter for each unit. A District Court ruling in Mogan's favor would have resulted in disparate treatment of Mogan's project, not consistent treatment. The City sustained its burden of showing that there was no issue as to any material fact on Mogan's equal protection claims. Mogan simply was not singled out for different treatment, nor was he placed in a class that was treated differently. Mogan also alleged state and federal due process violations based on the City's alleged failure to give him adequate notice of the meeting at which the ordinance was amended. Given the fact that the City's decision on Mogan's project was made before the amended ordinance became effective and the fact that the amendment did not change the requirements of the ordinance as previously enforced by the City, these claims are moot. Were we to find that Mogan had not been notified properly, the result at best would be harmless error. Mogan's "taking" claim alleged that the City's denial of the permits he requested deprived him of his property interest in those permits without compensation, in violation of the Fifth Amendment to the U.S. Constitution as applied through the Fourteenth Amendment. This claim is without merit, as Mogan had no property interest in the permits that could be afforded constitutional protection. Property interests are not created by the Constitution. They come from independent sources, such as state law. McCracken v. City of Chinook (D. Mont. 1 9 8 7 ) , 652 F.Supp. 1300. Mogan has cited no authority upon which he bases his claimed property right in the permits, and our research has uncovered none. Mogan's second argument, that the District Court erred in refusing to consider proffered memoranda in making its decision, is likewise without merit. The memoranda at issue were alleged by Mogan to have been written by an FmHA official in the course of monitoring Mogan's project. They contain statements made by the Mayor to the FmHA official concerning his dislike for Mogan and his project. The memoranda were excluded on grounds that they constituted hearsay and lacked proper foundation. However, their content does not change the result in this case. Mogan was not prejudiced by the actions complained of here. While the behavior of the Mayor and others may not have been particularly polite, neither was it actionable. 11. Mogan's second and third issues are intertwined. Mogan asserts that the District Court erred by refusing to allow him to file a second amended complaint. Mogan cites Rule 15(a), M.R.Civ.P., which states that a pleading may be amended by leave of court, and that such leave shall be freely given when justice so requires. Mogan's Proposed Second Amended Complaint differed from his previous complaint by adding factual allegations concerning the Mayor's refusal to issue the permits Mogan demanded for the two contemplated buildings, adding " lost prospective income" from the two contemplated buildings to his claim for damages, and adding a separate cause of action alleging negligence on the part of the City Clerk's Office in issuing a building permit for the eight-plex without ensuring that the plans he submitted conformed to the City's ordinances. The City cites Prentice Lumber Co. v. Hukill (1972), 161 Mont. 8, 17, 504 P.2d 277, 282, where this Court set out the approach to be used in considering requests to amend: "In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rule requires, be 'freely given.'" (quoting Foman v. Davis (1962), 371 U.S. 178, 182, 83 S.Ct. 227, 230). The quoted language is directly applicable to this case, because the proposed amendment would be futile for two reasons. First, our discussion above shows that Mogan had no property interest in the permits he requested for the contemplated buildings and thus could not assert constitutional protection. Second, the only new cause of action alleged--negligence--would have been barred by the immunity afforded the City of Harlem by S 2-9-111, MCA. Section 2-9-111, MCA, states in relevant part: (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. In this case, the ordinances at issue were enacted by the Harlem City Council. As shown by the portion of Ordinance 57 quoted above, the Council through its legislative action in enacting these ordinances charged the City Clerk with official duties concerning the issuance of permits. The Clerk was thus acting as an agent of the Council. Mogan's proposed amendment alleged negligence on the part of the Council's agent in the performance of official duties associated with an action of a legislative body. This Court has very recently held a school board immune from suit under this statute for the actions of its agent in performance of an official duty associated with the board's action. Peterson v. Great Falls Public School District No. 1 and A (Mont. 1989), - P.2d - , 46 St.Rep. 880. The same immunity would apply in this case. We have found that no genuine issue of material fact exists as to the City's entitlement to summary judgment on Mogan's constitutional claims. We have also found that the District Court's refusal to grant Mogan leave to amend his complaint was correct, because the proposed amendment would have been futile. Therefore, we affirm the decision of the District Court. We Concur: | June 27, 1989 |
ad60ab43-24e1-4b69-85aa-76e09a09cbce | STATE v CHRISTOFFERSON | N/A | 89-042 | Montana | Montana Supreme Court | I N THE SUPREME COURT OF THE STATE OF MONTANA STATE OF MONTANA, p l a i n t i f f and R e s p o n d e n t , -vs- LARRY DUANE CHRISTOFFERSON, D e f e n d a n t and A p p e l l a n t . .F-_ f"3 . , . . -\. L ? - : 3 ;- --> APPEAL FROM: D i s t r i c t C o u r t of t h e ~ i g h t h ~ u d i c i a l ~ i s t r i c t , " ~ . M I n and for t h e C o u n t y of C a s c a d e , (-) : - \ o T h e H o n o r a b l e John M c C a r v e l , Judge presiding. 2; -4 vi COUNSEL OF RECORD: For A p p e l l a n t : B e l l & M a r r a ; B a r b a r a E. B e l l , 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 : 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 John Paulson, A s s t . A t t y . G e n e r a l , H e l e n a p a t r i c k L. P a u l , C o u n t y A t t o r n e y , G r e a t F a l l s , M o n t a n a S t e p h e n H u d s p e t h , D e p u t y C o u n t y A t t o r n e y , G r e a t Falls S u b m i t t e d on B r i e f s : June 1, 1 9 8 9 D e c i d e d : June 2 7 , 1 9 8 9 C l e r k Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Defendant was found guilty by jury trial in District Court, Eighth Judicial District, Cascade County, of the offenses of felony burglary, in violation of section 45-6-204(1), MCA, and felony sexual intercourse without consent, in violation of section 45-5- 503(1), MCA. Defendant was sentenced on November 9, 1988, to the Montana State Prison to concurrent terms of ten years for each offense with five years suspended on each offense. Christofferson appeals only the issue of the burglary charge. We affirm. The issue here is whether the District Court erred in denying defendant's motion to dismiss the burglary charge at the close of the State's evidence. In December 1987 D.F. was residing in a split level home with her three children, daughter K.F., daughter R.F., and son, M.F. Also living in the house was G.T., who attended vocational school in Great Falls. Defendant was an acquaintance of D.F., and he had been over to her house on several occasions. On Friday, December 4, 1987, D.F. left Great Falls for the weekend. She took R.F. and M.F. with her and left K.F. and G.T. at home. Defendant and D.F. had a conversation before she left for Livingston. The evidence was disputed, but defendant claims that he volunteered to check on the children in Great Falls. According to him, D.F. did not say yes or no. D.F., on the other hand, stated that she told him not to bother checking on the children. Defendant came from the bars in the Great Falls area to the residence in the early hours of Saturday morning. G. T. and several friends were watching television in the downstairs family room when Christofferson came calling. G.T. testified that he recognized defendant from his previous visits and defendant told G.T. that he was checking on them because D.F. had sent him. Defendant stayed for nearly an hour, started to leave and then dropped a beer bottle on the floor. He cleaned up the spill, and G.T. testified that defendant stated he was leaving and went upstairs. G.T. heard the front door close. G.T. came upstairs about one-half hour later and found defendant still in the house. G.T. asked defendant what he was doing and Christofferson assured G.T. that he was going to finish his beer and then leave. G.T. left to go to the grocery store and when he returned he did not see defendant. He returned downstairs to the family room and was shortly thereafter alarmed by a loud crash. K.F. ran downstairs calling for his help. G.T. went upstairs and saw defendant in the yard with his pants unzipped. K.F. had been upstairs watching television. After friends of hers left, she changed into her pajamas (a tee shirt and underwear) and went to lie on the couch and watch television before falling asleep. She testified that she woke up when she felt someone's hand in her underwear. She felt a finger penetrate her vagina. She was turned on her back and the male figure performed oral sex on her. K.T. knew that it was a male and she could smell alcohol, but it was too dark to see who the person was. When the male committed oral sex, she kicked him and knocked him down and into a table. At that point, she got up and ran downstairs toward G.T. The only issue which challenges the decision of the District Court is whether the District Court erred in denying defendant's motion to dismiss the burglary charge at the close of the State's case-in-chief. On appeal, defendant does not contend that there was insuffi- cient evidence to support his conviction of sexual intercourse without consent. He does, however, appeal the decision of the District Court that there was sufficient evidence regarding the burglary charge to go to the jury for its consideration. The standard of review is: #'The decision whether to dismiss the charge or direct a verdict of acquittal lies within the sound discretion of the trial court and will be disturbed on appeal only when abuse is shown." State v. Just (1979), 184 Mont. 262, 277, 602 P.2d 957, 965; cited in State v. Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 1085; State v. Keil (Mont. 1988), 751 P.2d 680, 45 St.Rep. 532; State v. Matson (Mont. 1987), 736 P.2d 971, 44 St.Rep. 874. Based upon section 46-16-403, MCA, which states that the District Court may dismiss an action and discharge the defendant, [w] hen, at the close of the state's evidence . . . the evidence is insufficient to support a finding or verdict of guiltyIgt we have said that a verdict of acquittal may be directed in favor of the defendant only if no evidence exists upon which to base a guilty verdict. State v. Courville (Mont. 1989), 769 P.2d 44, 46 St.Rep. 338; State v. Matson, supra. The evidence presented by the State to prove the burglary charge was established through the testimony of G.T. G.T. testified that when defendant appeared at the residence, he gained entry by telling G.T. that D.F. had told him (defendant) to check in on G.T. and K.F. D.F., however, stated that she told him not to bother. Defendant acknowledged at trial that D.F. did not tell him to go to the house. The defendant gained entry into the house by deceit. After being in the house, defendant twice told G.T. that he was leaving. The first time Christofferson went upstairs, and G.T. heard the front door close. The second time was when G.T. found Christofferson still in the house some time later, asked him what he was doing there, and was told by defendant that he was on his way out. Even after this, defendant continued to stay, committing the act of sexual intercourse without consent upon K.F. Burglary is defined in section 46-6-204, MCA, and provides: (1) 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. In the recently-decided case of State v. Courville, supra, we were faced with a situation similar to that here. In Courville, it was disputed whether defendant was invited or entered unlawful- ly. The victim did not remember inviting defendant into her house but testified that she did not mind if he stayed to sleep on the couch. The victim went upstairs to her room and was later choked and sexually assaulted by the defendant. This Court, in Courville, pointed out that the burglary statute was written in the disjunctive, that is, a person commits the offense of burglary if he "enters or remains ~nlawfully.~~ Defendant contends that he was initially invited into the house. Although this jurisdiction has not had previous opportunity to consider whether entry by fraud, deceit, or pretense is an "unlaw- ful entry, other jurisdictions have. The Kansas Supreme Court held in State v. Maxwell (Kan. 1983), 672 P.2d 590, that entry into a dwelling obtained by fraud, deceit, or pretense is an unautho- rized entry for the purposes of burglary. We hold that the defendant entered by deceit and was properly found guilty of burglary. Regardless of whether Christofferson entered unlawfully, there was sufficient evidence to show that he remained unlawfully. In Courville, we looked to State v. Watkins (1974) , 163 Mont. 491, 518 P.2d 259, and State v. Mathie (1982), 197 Mont. 56, 641 P.2d 454, where we stated: "when a person exceeds the limits of his privilege by remaining on the premises longer than is permitted, he thereby transforms his originally invited presence into a trespass that can form the basis of a burglary charge." The record establishes that defendant did not have the privilege of entering D.F. I s residence on December 4, 1987, but, even if he had entered with the privilege of doing so, he remained unlawfully in the house when he committed the offense of sexual intercourse without consent upon the person of K.F. We hold that there was no abuse of discretion by the District Court in denying defendant's motion for a directed verdict regarding the burglary charge. There was sufficient evidence to support the submission of the charge of burglary to the jury for its determination. Affirmed . ,---- < r thief Justice We concur: 1 | June 27, 1989 |
d56c237b-7f6c-44df-859c-b1b4c84011f8 | SLOAN v FAUQUE | N/A | 89-220 | Montana | Montana Supreme Court | NO. 89-220 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 JEANETTE SLOAN, as conservator of the Estate of John P. Sloan, plaintiff and Respondent, -vs- RICHARD FAUQUE AND TED ZENZIUS, Defendants and Appellants. APPEAL FROM: District Court of the Ninth Judicial ~istrict, In and for the County of ~lacier, The Honorable R. D. McPhillips, Judge presiding. COUNSEL OF RECORD: For Appellant: Stephen C. Berg; Warden, Christiansen, Johnson & Berg, ~alispell, Montana For Respondent: Stephen D. Roberts, Bozeman, Montana C d 3 Submitted on Briefs: Aug. 24, 1989 C3 = * =: z w Decided: October 17, 1989 - I I . - z W ZC Ct, t-- 3 =! F , a LL z < C- 0 m Z CO 0 - a Justice William E. Hunt, Sr. delivered the Opinion of the Court. Richard Fauque and Ted ~enzius, defendants and appellants, appeal from a partial summary judgment entered in favor of plaintiff and respondent, Jeanette Sloan, as conservator of the estate of John P. Sloan, by the District Court of the Ninth Judicial District, Glacier County. We affirm and remand for proceedings pending before the District Court. The sole question raised on appeal is whether the District Court properly granted a partial summary judgment pursuant to Rule 56(a), M.R.civ.P., in favor of respondent on the issue of liability. The facts of the case are undisputed. On April 5, 1987, ~enzius attended a "kegger" party in Shelby, Montana. Among the guests were Will Newberry, Mark Barnes, and Glen Gorman. Later that evening, the party moved to the Newberry home in Cut Bank. ~enzius transported the keg from the Shelby residence to the Cut Rank residence in his vehicle. The keg was taken into the Newberry home where it was made available for consumption. The party-goers proceeded to drink the contents of the keg. On that same evening, Fauque, who was walking home from work, was approached by Barnes, who asked Fauque if he wanted to drink some beer. Fauque responded in the affirmative and the pair proceeded to the Newberry residence in the Barnes vehicle, where Fauque did in fact consume the beverage. Shortly thereafter, some Shelby kids arrived at the party and wanted to take the keg. An argument ensued over the matter between Barnes, Gorman, and the Shelby kids. The Shelby kids took the keg and left the party in a vehicle driven by Jeffrey Hodges (the Shelby vehicle) . As the vehicle departed, Gorman and Barnes yelled and screamed at the vehicle's occupants. Gorman returned to the Newberry residence and informed everyone that the Shelby kids had called them a derogatory name. He then encouraged the people in the house to go with him to "beat up" the Shelby kids. Fauque and Zenzius were present at that time. Fauque and zenzius voluntarily joined Gorman, Barnes, and Newberry in Barnes's vehicle to pursue the Shelby vehicle. Zenzius later stated that he assumed that "we were going to get in a fight" when the group got into the vehicle and that the group was the type who would get into such a fight. Both Fauque and zenzius were aware of the violent reputation of Gorman. As Barnes was backing his vehicle out of the driveway, it became stuck on a fence. Fauque assisted Barnes in freeing the vehicle by stepping on the fence. ~pproximately five minutes had lapsed since the departure of the Shelby vehicle. Both Fauque and ~enius were aware that the Barnes vehicle would have to speed to catch up to the Shelby vehicle. The Barnes vehicle did in fact travel 80-90 miles per hour on U.S. Highway 2 from Cut Bank to Shelby in pursuit of the Shelby vehicle. The Barnes vehicle did catch up with the Shelby vehicle, at which time the two vehicles passed each other back and forth. Gorman leaned out the back window of the driver's side of the Barnes vehicle and yelled at the kids in the Shelby vehicle. He then leaned out the window and opened the door of the Shelby vehicle. He also threw a piece of rubber at the vehicle. At no time did either Fauque nor ~enzius say anything to anyone about slowing down or abandoning the chase. As a consequence of the chase, a collision occurred between the two vehicles which resulted in serious and disabling injuries to John Sloan, a passenger in the Shelby vehicle. The sole question raised on appeal is whether the ~istrict Court properly granted a partial summary judgment pursuant to Rule 56(a), M.R.civ.P., in favor of respondent on the issue of liability. A party moving for summary judgment must prove that he is entitled to summary judgment as a matter of law by demonstrating an absence of any genuine issue of material fact. Cereck v. Albertson's, Inc. (1981), 195 Mont. 409, 637 P.2d 509. As noted, the facts of the case are not in dispute. The appeal centers around whether Fauque and Zenzius are liable as tortfeasors acting in concert--a question of law. Fauque and Zenzius argue that their involvement in the action does not constitute a tort since they were not driving the vehicle involved in the accident but were merely passengers in the vehicle. The ~istrict Court, however, found that defendants did indeed act in concert as tortfeasors as defined in part in Restatement (Second) of Torts S 876 (1979) as follows: For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself. While the issue raised is one of first impression in Montana, several other jurisdictions have determined that where two or more persons commit tortious acts in concert, all are liable for the tortious acts of anyone. Huckeby v. Spangler (Tenn. 1975), 521 S.W.2d 568. See also Herman v-. Westgate (N.Y. App. D ~ V . 1983), 94 A.D.2d 938, 464 N.Y.S.2d 315 (equal liability found where defendant participated in the concerted activity of throwing stag party guests from a barge) ; ~rnerican Family Mutual Ins. Co. v. Grim (Kan. 1968), 440 P.2d 621 (joint and several liability found where defendant aided, abetted, and encouraged breaking into a church at night to steal sodas and, unknown to the defendant, his two friends lit torches to light the darkened church, which subsequently caused a fire therein). Defendants argue that because they were not in control of the Barnes vehicle and did not make any encouraging statements to the driver, they should not be held liable for the resulting accident. We disagree. In Schiller v. Strangis (D. Mass. 1982), 540 F.Supp. 605, the court held that where the defendant knowingly joined in committing a tort and by his silence encouraged the tort, he was liable. The same holds true in the present case. Fauque and Zenzius voluntarily joined the group in the Barnes vehicle. They knew the vehicle would have to speed to catch up with the Shelby vehicle. They also knew that the purpose of the chase was to eventually assault the occupants of the vehicle. The silence of the defendants during the chase does not negate their involvement nor excuse their liability. Further, Fauque and Zenzius acted affirmatively in the joint tortious plan to chase after the Shelby vehicle and assault its occupants. Both men responded to Gorman's statement that they should "beat up" the Shelby kids by voluntarily joining the group in the Barnes vehicle for the common purpose of committing an intended assault; Fauque substantially assisted in freeing the Barnes vehicle from a fence in order for the chase to commence; and both defendants remained silent during the chase and did not make any demands of abandoning the chase nor slowing the vehicle to anyone therein. Fauque and ~ e n z i u s encouraged Barnes's actions and gave him substantial assistance, thus, acting in concert with the occupants of the Barnes vehicle and are subject to liability. Summary judgment was proper. Affirmed and remanded for proceedings pending before the / ~istrict Court. We Concur: | October 17, 1989 |
ffd28c1e-b161-4040-a57e-609d84ce04f2 | STATE v POPESCU | N/A | 88-546 | Montana | Montana Supreme Court | N o . 88-546 I N THE SUPREME COURT O F THE STATE OF M O N T A N A 1989 STATE OF MONTANA, P l a i n t i f f and Respondent, -vs- GEORGE R. POPESCU, Defendant and A p p e l l a n t . APPEAL FROM: D i s t r i c t Court o f t h e E i g h t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Chouteau, The Honorable Chan ~ t t i e n , 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 : Moses Law Firm; C h a r l e s F. Moses, B i l l i n g 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 George Schunk, A s s t . A t t y . G e n e r a l , Helena Thomas J. Sheehy, County A t t o r n e y , F o r t Benton, Montana P Filed: .- <.' ,) Submitted on B r i e f s : May 11, 1989 Decided: June 6 , 1989 ! C l e r k M r . J u s t i c e L. C. Gulbrandson d e l i v e r e d t h e Opinion of t h e Court. Defendant Popescu was convicted o f two counts o f felony a s s a u l t , one count o f i n t i m i d a t i o n , and one count o f c r i m i n a l endanqerment i n a i u r y t r i a l i n t h e D i s t r i c t Court f o r t h e Twelfth J u d i c i a l D i s t r i c t , Chouteau County. H e a p p e a l s . W e r e v e r s e . The d i s p o s i t i v e i s s u e is whether t h e District Court e r r e d i n requsing t o g i v e any o f t h e j u s t i f i a b l e use o f f o r c e i n s t r u c t i o n s o f f e r e d by defendant and by t h e S t a t e . The defendant, who was 37 y e a r s o l d a t t h e t i m e of t r i a l , l i v e s a l o n e on a farm near F o r t Benton, Montana. Tn 1986 and again i n 1987, defendant h i r e d a crew o f custom combiners l e d by J i m Rarker o f Yazoo C i t y , Mi.ssissippi, t o c u t h i s g r a i n . I n J u l y and August 1987, Rarker and h i s c r e w c u t about 600 a c r e s o f g r a i n on d e f e n d a n t ' s farm, l e a v i n g about 400 a c r e s uncut. They then went t o another job. Their view was t h a t t h e remaining 400 a c r e s o f g r a i n were n o t y e t ready t o be c u t . Defendant's view was t h a t they l e f t him i n t h e l u r c h . H e h i r e d a n o t h e r combiner t o c u t t h e remaining g r a i n . The following Saturday, Rarker and a member o f h i s c r e w , Hastings, went t o d e f e n d a n t ' s farm t o c o l - l e c t t h e i r pay f o r t h e work they had done. Defendant and t h e combiners had a heated argument d u r i n g which Hastings swore a t defendant and defendant drew a handgun. Barker and Hastings then l e f t . The next morning, Barker and two o f h i s crewmembers a g a i n drove o u t t o d e f e n d a n t ' s farm. More heated words were exchanged. Defendant f i r e d h i s gun e i t h e r i n t o t h e a i r ( h i s v e r s i o n ) o r a t t h e t h r e e men ( t h e i r v e r s i o n ) . Barker and defendant then came t o t h e agreement t h a t i f Barker would o b t a i n a w r i t t e n apology from Hastings and r e t u r n t o defendant some wooden blocks and a c r e s c e n t wrench, defendant would pay f o r t h e work done. L a t e r t h a t a f t e r n o o n , Barker and a crewmember r e t u r n e d t o d e f e n d a n t ' s farm w i t h t h e requested i t e m s and defendant wrote them a check. That evening defendant went t o t h e C i r c l e K s t o r e i n F o r t Benton t o g e t a take-out sandwich. While he was s t i l l t h e r e , Barker and two o t h e r s drove up and parked n e x t t o d e f e n d a n t ' s t r u c k . Then another pickup drove up and parked behind d e f e n d a n t ' s t r u c k . The occupants of t h a t t r u c k t e s t i f i e d t h a t t h i s was t h e only a v a i l a b l e s p o t f o r them t o park. Defendant m e t Barker a s defendant was walking o u t of t h e s t o r e . Defendant a l s o saw t h e o t h e r custom combiners o u t s i d e . H e d i s p l a y e d h i s gun when Barker s a i d , " W e w i l l - settle t h i s r i g h t h e r e and now." Defendant r e t u r n e d t o h i s pickup, y e l l e d a t t h o s e i n t h e t r u c k behind h i s t o move, then rammed t h a t t r u c k o u t o f t h e way s o t h a t he could leave. One o f t h a t t r u c k ' s passengers was j u s t g e t t i n g o u t when defendant rammed it and i n j u r e d h i s knee. Defendant went home. Defendant was charged w i t h felony a s s a u l t f o r t h e Saturday evening i n c i d e n t , i n t i m i d a t i o n and felony a s s a u l t f o r t h e Sunday morning i n c i d e n t , felony a s s a u l t f o r use o f t h e gun i n t h e C i r c l e K i n c i d e n t , and c r i m i n a l endangerment f o r ramming t h e pickup i n t h e C i r c l e K i n c i d e n t . A f t e r h e a r i n g t h e evidence, t h e c o u r t dismissed t h e count a r i s i n g o u t o f t h e Saturday evening i n c i d e n t . Defendant was convicted o f t h e remaining charges. A t t r i a l , defendant o f f e r e d s e v e r a l i n s t r u c t i o n s concerning t h e defense o f j u s t i f i a b l e u s e o f f o r c e . The c o u r t r e f u s e d them a l l , s t a t i n g , "There i s no evidence a t a l l from which a t h r e a t can be aimed a t t h e defendant and a u t h o r i z i n g him t o a c t t h e way he d i d . " The S t a t e d i d n o t o b j e c t t o t h e d e f e n d a n t ' s proposed i n s t r u c t i o n s on t h i s s u b j e c t and o f f e r e d i t s own proposed j-nstructions on s e l f - d e f e n s e . The c o u r t refused them, t o o . T t i s t h e d u t y o f t h e District Court t o i n s t r u c t t h e i u r y on every i s s u e or theory which has support i n t h e evidence. S t a t e v. S t a r r (19831, 204 Mont. 2 1 0 , 2 1 7 , 664 P.2d 893, 897. The elements of proof necessary t o e s t a b l i s h j u s t i f i a b l e use of force were described by t h i s Court i n S t a t e v. DeMers (Mont. 1988), 762 P.2d 860, 45 St.Rep. 1901.. They a r e (1) t h a t t h e defendant was not t h e aggressor, ( 2 ) t h a t t h e defendant reasonably believed t h a t he was i n imminent danger of unlawful harm, and (3) t h a t t h e defendant used reasonable force necessary t o defend himself. DeMers , 763 P.2d a t 865. In DeMers, t h e Court reviewed t h e defendant's testimony t o determine whether t h e r e was s u f f i c i e n t evidence t o submit t o t h e jury t h e i s s u e of j u s t i f i a b l e use of force. I n t h e p r e s e n t case, defendant t e s t i f i e d t h a t during h i s Saturday evening argument with t h e combiners, when Hastings swore and began running toward defendant, "I thought he f u l l y intended t o a t t a c k me." H e s t a t e d t h a t he had been t o l d t h a t Hastings was " r e a l crazy . . . wild, i r r e s p o n s i b l e . " He t e s t i f i e d t h a t he then grabbed h i s handgun and turned t o face Hastings, saying "keep away from me. I' A s t o t h e Sunday morning i n c i d e n t , defendant t e s t i f i e d t h a t when Barker and t h e two o t h e r crewmembers came t o t h e Popescu farm, they pulled up r a p i d l y r i g h t i n f r o n t of h i s truck. " I t was very h o s t i l e and aggressive when he pulled i n . " He t e s t i f i e d t h a t he feared a 3-against-l f i g h t and a gun i n t o t h e a i r . Defendant t e s t i f i e d t h a t when he looked o u t t h e window of t-he C i r c l e K on Sunday evening, he saw Barker p u l l i n across t h e parking l o t r i g h t diagonally a t m y pickup, t h e d r i v e r ' s door, and p u l l up r i g h t next t o it j u s t a s c l o s e a s he thought he could g e t a t t h e time. And r i g h t behind t h a t came another pickup, a red and white pickup. Parked behind m y pickup. I was blockaded i n a t t h a t point. He stated that when he walked out of the store and met Barker, he had his gun in his hand, pointing at the ground. After Barker said, "We will settle this, right here and now," Barker noticed the gun and asked, "Are you going to fire that here in front of everybody?" Defendant testified that he replied, "I will do what is necessary." Defendant testified that when he got into his pickup he "thought I better get out of here. I am going to have to get out of here." He stated that he called out to the occupants of the pickup behind his to move their vehicle, but that they ignored him. He then "lightly tapped" the pickup behind him with his truck, hut the occupants continued to ignore him so he "backed out and moved the pickup out of my w a 1 7 . " b 7 e conclude that under the circumstances presented in this case, the defendant's testimony was sufficient to warrant submitting to the jury the issue of whether defendant exercised justifiable use of force. Defendant's counsel properly entered his obfection to the District Court's refusal to give such instructions. We hold that it was error to fail to instruct on this issue. Because of this error, we reverse. The defendant raised several other issues in his appeal. The first of these is whether the District Court erred in refusing to permit a licensed clinical psychologist to testify in defendant's behalf. The defense offered this testimony under 46-14-102, MCA, which relates to evidence that defendant suffered from a mental disease or defect. However, the defense did not give pretrial notice of relying on mental disease or defect, as required bv S 46-14-201, MCA. We conclude that under these circumstances the court did not err in refusing to allow the testimony. Defendant also raised three issues relating to whether certain witnesses should have been allowed to testify or not. These issues concern failure of the State to provide previous notice of witnesses who testified on rebuttal, failure of the court to grant a continuance to allow the defense to pursue possible exculpatory testimony, and failure of the court to issue certificates for subpoenas for out-of-state witnesses desired by the defense. These issues may or may not re-arise on retrial. We will not consider them now. Finally, defendant argues that the evidence was insufficient to convict him of intimidation for the Sunday morning incident. Since the evidence may not be identical on retrial, we decline to address the issue at this time. Reversed and remanded for retrial. We concur: M 9 hief /*ywA~- Justice | June 6, 1989 |
abc36afb-afc2-4e47-a562-1f3f7e9bbbde | MARRIAGE OF THANE | N/A | 88-606 | Montana | Montana Supreme Court | NO. 88-606 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF JUDITH ELAINE THANE, Petitioner and Respondent, and DENIS PATRICK THANE, - - 7 - " Respondent and Appellant. p- , C . 3 -7-! . I APPEAL FROM: District Court of the Fourth Judicial ~istrict, . --" -- ij In and for the County of Missoula, r- - The Honorable Jack L. Green, Judge presiding. I--. 6 3 . - 8 COUNSEL OF RECORD: For Appellant: James P. O'Brien, Missoula, Montana For Respondent : Christopher Daly, iss sou la, Montana Filed: Submitted on ~riefs: May 4, 1 9 8 9 Decided: August 7, 1989 U . . . > (9 S I' , v * : : : 9 ? *P f?"d I . ' ) < t 8 , *,. *> g u T L{<q7 " - bi A.$ 'Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. Denis Patrick Thane appeals from a judgment in the District Court, Fourth Judicial District, Missoula County, requiring him to pay to Judith Elaine Thane, his former wife, the sum of $150 .OO per month for each of two children, the progeny of their former marriage. We affirm. eni is patrick Thane (patrick) contends on appeal that because he and Judith Elaine (Judith) obtained a joint marital dissolution of their marriage in 1981, under a decree which contained no provisions for child support, that the ~istrict Court had no jurisdiction after more than two years to modify the decree with respect to child support. Patrick also contends that the District Court abused its discretion by concluding that the circumstances between the parties had changed so substantially that the terms of the 1981 decree had become unconscionable. Patrick and Judith were married on August 8, 1970. Their marriage was dissolved following a joint petition for dissolution in the same District Court by a decree issued on June 9, 1981. The decree of dissolution granted joint custody, care and control of the minor parties, Erin ~ennifer Thane and Jason ~hristopher Thane with equal rights and privileges in the parents respecting all decisions to be made. The dissolution decree further required Patrick to carry medical and dental insurance on the minor children of the parties. On June 13, 1986, Judith filed a petition for modification of child support in the District Court. On August 29, 1986, Judith also filed a motion for temporary support. On January 9, 1987, the District Court granted temporary child support to the respondent, which grant was upheld on a subsequent motion for reconsideration. On June 17, 1988, a hearing was held on the original petition for modification dated June 13, 1986, after which the District Court issued findings of fact, conclusions of law and order dated July 25, 1988, which granted Judith child support in the monthly amount of $150.00 per child to be paid by Patrick to Judith. This appeal followed. On the issue of lack of jurisdiction in the District Court, Patrick contends that at the time of the original dissolution, no child support was sought by Judith and none was included in the original decree of dissolution. He contends that since no child support was awarded in the original decree, the decree cannot be modified to provide child support under the provisions of B 40-4-208(2) (a), MCA. He relies on Marriage of Cooper (Mont. 1985), 699 P.2d 1044, and Marriage of Hagemo (Mont. 1988), 749 P.2d 1079. It is provided in § 40-4-208 (2) (a), MCA, that: Whenever the decree proposed for modification does not contain provisions relating to maintenance or support, modification under subsection (1) may only be made within two years of the date of the decree. The District Court determined in its conclusions of law that because the decree of dissolution contained a specific provision relating to Patrick's obligation to provide support, i.e., medical and dental insurance, the District Court had jurisdiction to modify the decree. The District Court had the provision of health insurance and more to rely on in asserting jurisdiction for the purpose of modification. In the original decree, the District Court had decided that it was in the best interests of the minor children that the parents have joint custody, care and control, with equal rights and privileges, and with all decisions affecting the welfare of the children to be made by the mutual consent of the parties. Under this provision of the decree, since the dissolution, the children have been shared equally between the parents as far as custody and support is concerned. The result has been that the children have spent as much time in the home of the father, receiving there shelter and support, as they have in the home of the mother. There is no argument that this arrangement was what was contemplated by the parties at the time of the original decree of dissolution. There can be no doubt that the equal sharing of the sheltering and support of the children from and after the decree of dissolution was in effect an award of one-half of the cost of supporting the children to the husband. If, in fact, the District Court had intended that the husband pay no child support, then the court would have been under a duty to state the reasons for not ordering child support from a parent from whom a duty of support existed, under S 40-4-204(2), MCA. The original decree of dissolution is bare of any statements by the court as reasons for not requiring child support from the father. Thus, the two year statute after which decrees may not be modified in the circumstances described in 5 40-4-208(2) (a), MCA, is not met here. Both in providing directly for health insurance for the children and in providing for their joint care and support, the District Court in effect required child support from the husband and so had jurisdiction to modify the child support provisions even after the lapse of two years. The second prong of Patrick's appeal is that the District Court had no basis upon which to find that the method of child support was unconscionable. Section 40-4-208(2) (b), MCA, provides that when a decree proposed for modification contains provisions relating to maintenance and support, modification may be had only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable, unless the parties consent otherwise. The findings of the District Court with relation to the care of the children are that the children have been well cared for in both homes and have warm relationships with both parents. Both parents have provided for all of the needs of the children including food, shelter, health, social and recreational and academic needs. The findings further show that after the dissolution, the wife became employed and that her income has increased from the time of the dissolution with relatively little earnings to $13,035.00. To obtain this income, she worked at community ~ospital 24 hours a week at $7.41 per hour and at State Farm Insurance Company for 31 hours a week at $5.25 per hour. Her mother contributes $150.00 monthly to Judith's support. The husband is certified as an elementary teacher in Missoula and earns more than $30,000.00 per year with a net take home pay of $1,817.00 per month. Since the dissolution, his annual income has increased from $23,838 in 1983 to $30,677 in 1987, the last year shown in the findings. His income increases each year. The husband does not work in the summer months when school is out. Judith intended to terminate her employment with State Farm Insurance Company on or about September 1, 1988, and to engage in cleaning houses at $7.00 per hour and selling encyclopedias. She felt these jobs would be flexible in the hours of work so that she would have more time for contact with her children, especially her daughter. The wife has no retirement plans or benefits other than available through her employment at Community Hospital. Husband is able to carry medical and dental insurance on the minor children of the parties through his employment. The District Court concluded that the child support provision as constituted under the 1981 decree of dissolution was unconscionable and should be modified because the parties are presently bearing the support of the children equally but the wife h a . s a lesser income than the husband. His income has been increasing regularly each year while her income varies and increases cannot be depended upon. Accordingly, the District Court decided that the husband should pay $300.00 per month in child support to equalize the disproportionate burden currently being borne by the wife. Essentially, Patrick argues against unconscionability on two grounds 1) that there is nothing in the evidence to show that there is a need by the children for his additional support, and 2) his monthly expenses as exhibited to the District Court show that he cannot afford the increased child support required by the District Court. It is true that in Marriage of West (Mont. 1984), 692 P.2d 1213, this Court remanded the cause for an evidentiary hearing because the District Court had failed to make findings on the needs of the children and this Court wanted the District Court to determine whether those needs could be met at the current level of support payments. That is not the situation here. ~udith is bearing one-half of the cost of the support of the children although her annual income is less than one-half of that of her former husband. The needs and resources of the parents with respect to child support are also factors to be looked at by the District Court. Marriage of Callahan (Mont. 1988), 762 P.2d 205. Here the ~istrict Court determined that patrick's net take home pay was $1,817.00 per month and noted his claimed current expenses of $1,850.00 per month. The ~istrict Court said this included a house payment at $696.00 per month and a payment for savings of $100.00 per month. The spirit of our law respecting child support is that the parties will be required to contribute to the support of the children in proportion to their ability to make such contributions. Each case is decided on a case-to-case basis. We established that requirement in Marriage of Carlson (Mont. 1984) , 693 P.2d 496, and continued it in adopting Guidelines for Determining Child Support, effective January, 1987, [Published in 44 St.Rep. 828 (1987), and in the Desk Book published annually by the State Bar of Montana]. Because of the disparity in the parties' incomes, the court found it unconscionable that the wife should bear one-half of the cost of supporting the children and fashioned a contribution from the husband accordingly. The changes in the couple's financial circumstances since the dissolution were so substantial and continuing as to make the earlier support arrangement unconscionable. Marriage of Jensen (Mont. 1986), 727 P.2d 512. We uphold the ~istrict Court on this issue. Under Rule 54 (a), M.R.Civ.P., findings by a district court are to be sustained by us, unless clearly erroneous. We do not find the District Court in error and therefore affirm. We Concur: Justices / / | August 7, 1989 |
0869e349-37ff-46bf-a41b-fc72b19f5a9a | MARRIAGE OF BOS | N/A | 88-423 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA IN RE THE MARRIAGE OF ROYCE A. ROS, r ( y . 7 - - Plaintiff and Respondent, and JERAL L. BOS, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Michael Keedy, Judge presiding. COUNSEL OF RECORD: For Appellant: Hash, O'Brien & Barlett; C. Mark Hash, ~alispell, Montana For Respondent: Royce A. O'Erien, pro se, Tacoma, washington submitted on ~riefs: Zune 16, 1989 Decided: July 24, 1989 - Clerk Mr. Justice William E. Hunt, Sr. delivered the Opinion of the Court. Jeral L. Bos (husband) appeals from the distribution mandated in the dissolution of marriage decree entered by the District Court of the Eleventh Judicial District, Flathead County. We affirm. The issue raised on appeal is whether the District Court properly distributed the marital estate when it considered a lump sum Workers' Compensation disability award. Royce (wife) and Jeral (husband) Bos were married on October 27, 1973. On February 13, 1986, wife filed a petition for dissolution of the marriage and for the equitable distribution of the marital estate. A hearing on the matter was held on June 2, 1987. On February 18, 1988, the District Court entered its findings of fact and conclusions of law and decree dissolving the marriase and dividing the marital property. The findings of fact and conclusions of law were twice amended. When dividing the marital property, the District Court considered several facts pursuant to § 40-4-202, MCA. Among the facts considered was a lump sum Workers' Compensation award paid to husband which is the subject of this appeal. On January 9, 1978, husband was injured while working as a carpenter in Whitefish, Montana. On December 26, 1985, the Workers' Compensation Division approved a final settlement that resulted in a net award of $35,219.59. From that amount, husband paid $26,039.55 in marital obligations and the remainder on living expenses. Upon distribution of the marital estate wife received property with a net value of $24,608.25 and husband received property with a net value of $24,037.69. Husband argues that the District Court erred in the distribution because the marital estate would have had a lesser net value had husband's Workers' Compensation award not been applied to reduce marital debts. We disagree. In In re the Marriage of Jones (Mont. 1987), 745 P.2d 350, 44 St.Rep. 1834, we held that where a lump sum Workers' Compensation award of husband was commingled in a marital account and later used to reduce marital debts, such was includable in the marital estate. Further, we upheld the District Court's determination that wife was entitled to one-half of the marital estate notwithstanding the reduction of marital debts by application of husband's benefits. In the present case, as in Jones, husband received a Workers' Compensation award in which the funds were used to reduce marital debts. In applying the funds to reduce the marital debt, husband placed the funds in the marital estate thus, commingling the funds. 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 Stewart (Mont. 1988), 757 P.2d 765, 767, 45 St.Rep. 850, 852. In light of our holding in Jones, there was no abuse of discretion. Affirmed. ,/ We Concur: / A / C H 5 e . f Justice /r / Justices | July 24, 1989 |
95605005-becb-4824-9b22-a814ca703cee | BLOME v FIRST NATIONAL BANK OF MIL | N/A | 88-336 | Montana | Montana Supreme Court | No. 88-336 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ED H. BLOME and SHIRLEY A. BLOME, Plaintiffs and Appellants, -vs- FIRST NATIONAL BANK OF MILES CITY, Defendant and Respondent. APPEAL FROM: District Court of the Sixteenth Judicial District In and for the County of Custer, The Honorable Alfred B. Coate, Judge presiding. COUNSEL OF RECORD: For Appellant: Michael P. Sand; Bozeman, Montana For Respondent: Thomas M. Monaghan, Lucas & Monaghan; Miles City, MT Filed: c-' ! I I Submitted on Briefs: January 26, I989 Decided: July 18, 1989 9 - Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. E . H. Blome and Shirley A. Blome appeal from a summary judgment granted against them in the District Court, Sixteenth Judicial District, Custer County, and in favor of ~ i r s t National Bank in Miles City. We determine that the record discloses no genuine issue of material fact so as preclude summary judgment and so affirm the District Court. The issues on appeal as stated in the Blornes' brief are as follows: 1. Whether summary judgment is proper where the record discloses genuine issues of material fact and that the moving party is not entitled to judgment as a matter of law. 2. Whether the trier-of-fact could find that the Bank acted arbitrarily, unreasonably or capriciously and in violation of the Blomes' justifiable expectations that the Bank would loan them money for the purchase of feeder cattle and to pay on their Contract for Deed with Charles McRae and Jack Ross in December of 1982. 3. Whether the trier-of-fact could find that the Bank acted arbitrarily, unreasonably or capriciously and in violation of the Blornes' justifiable expectations by failing to give the Blomes reasonable notice that their credit was in jeopardy prior to December 23, 1982. 4. Whether the court could find that the Bank breached a contract with the Blomes when it refused to loan them money for the purchase of feeder cattle and to pay on the McRaeIRoss contract in December of 1982. 5. Whether the trier-of-fact could find, assuming an absence of tortious.bad faith or breach of contract, that the Blomes relied, to their detriment, on a justifiable belief that the Bank had agreed to loan money for the purchase of feeder cattle and to pay on the McRae/Ross contract in December of 1982. The Blomes, who had been successful farmers near Dillon, Montana, for a number of years, in 1981 sold their farm for $360,000. That summer the Blomes approached Charles McRae, co-owner of a farming and feedlot operation near Hysham, Montana, as interested buyers. Eventually the Blomes entered into a contract for deed to purchase for $1,100,000 from Charles McRae and Jack Ross, the ranching and feedlot operation at Hysham. The Blomes agreed to make and did make payments totalling $300,000 on the contract, and agreed to make annual payments of $77,872 beginning in January of 1983 until the amortized debt was paid. Charles McRae was a director of the First National Bank in Miles City. He suggested to the Blomes that they deal with the Bank for their financing. ~eginning on October 6, 1981, and ending on December 23, 1982, the Bank loaned the Blomes money on 27 occasions, each time evidencing the loans through promissory notes. The memoranda appearing on the Bank records indicate the progress of the loan and the Blomes' new ranching operation. On March 17, 1982, the Bank learned that Ed Blome had made a crop sharing agreement on 330 acres of land with a neighboring owner. The Bank officers expressed some dismay that the agreement was made without their knowledge. Nonetheless, on July 21, 1982, their inspection report showed an excellent crop of corn being raised, with excess silage also on hand. On November 5, 1982, the Bank noted the purchase by the Blomes of a 1970 ~eterbilt truck and a 1966 Wilson grain hopper at a total cost of $14,500. At this point the Bank expressed to Shirley Blome the displeasure of the officers that these purchases had been made without consultation with the Bank. The notation for December 23, 1982, showed that Ed Blome had approached the officers with a proposal to purchase 1,200 head of calves to utilize his existing silage. Since the finances would have to come from the Bank, the officers had presented the proposal to the Bank's loan committee. The loan committee had decided not to allow the loan request and to decline renewal of loans for the entire upcoming year. So it was that on November 23, 1982, the Blomes were advised orally that the Bank would no longer be financing Blomes' operations. At that time their outstanding debt to the Bank amounted to $372,131.24. Because of the Bank's withdrawal of support, the Blomes were unable to meet the January, 1983, payment on their contract for purchase with Charles McRae and Jack Ross. The default resulted in a complete loss of the Blomes' investment in the ranch operation. The Bank did not commence foreclosure until after the 1983 harvest, apparently with the consent and cooperation of the Blomes who aided the Bank in disposing of the various items of property and crops so that the debt as of the time of foreclosure had been reduced to $64,899.45 on November 29, 1983. There is a notation in the Bank records that the cooperation of the Blomes helped Charles McRae, the Bank director, who would otherwise have had to farm the unit and who was in no position to do the farming. The Blomes filed their complaint against the Bank in the Yellowstone County District Court on October 15, 1986. A change of venue to the ~istrict Court of the Sixteenth Judicial District for Custer County was eventually granted. On December 23, 1987, First Bank moved for summary judgment which the District Court granted on May 12, 1988. his appeal followed. This case is similar to, and in many respects controlled by our decision in Shiplet v. ~ i r s t security Bank of Livingston (1988), - Mont. - , 762 P.2d 242. There, with respect to the appropriate standard of review we stated: In order for summary judgment to issue, the moving party must show there is no genuine issue as to facts that are material in the light of the substantive principles entitling that party to judgment as a matter of law. If the moving party meets this burden, the non-moving party then has the burden of showing a genuine issue of material fact. These standards also apply to this Court when reviewing the grant or denial of summary judgment. Frigon v. orriso on ~aierle, Inc . (Mont . 1988), 760 P.2d 57, 45 St.Rep. 1344, and cases cited therein. 762 P.2d at 244. The issues presented for review by the Blomes which we have quoted above, can be boiled down to these essential questions: (1) Was there ever an expressed or implied contract on the part of the Bank to continue to loan the Blomes money for their ranching operation, and to pay on their contract for deed with Charles McRae and Jack Ross? (2) Was there an implied covenant of good faith and fair dealing between the Blomes and the Bank which the Bank breached? (3) Did the Bank give reasonable notice of intention not to renew credit for the Blomes after December 23, 1982. (Arbitrary and capricious issue)? DID AN EXPRESS OR IMPLIED CONTRACT EXIST? -- - This caption subsumes issues 4 and 5 first above noted as presented by the Blomes for review. Blomes contended there was an agreement by the Bank to provide the Blomes financing for their operation - as long as they needed - it with repayment to be made when they -- were able to with respect to the operation of the ranch and the - payments on the contract for deed. Totally lacking before the District Court and here is any evidence of facts upon which an express contract could be based. The loans by the Bank were evidenced by promissory notes signed by the Blomes; the memoranda in the Bank records are simply journal reports of the progress of the ranching operations and the prospects of payment for the loans; no oral representations by any bank officers may be found which would bind the Bank to perform as the Blomes contend. In other words in this case there can be no express contract upon which the Blomes can base a cause of action. The same problem attends the contention of the Blomes that there was an implied contract between them and the Bank. Under 5 28-2-103, MCA, an implied contract is one the existence and terms of which are manifested by conduct. The evidence here is that from the time the Blomes entered into financing arrangements with the Bank, until the arrangements were terminated on December 23, 1982, their relationship was one of an ordinary bank-customer . Each time the Blomes needed financing, the Bank reviewed their progress, determined their financing needs, and in accordance therewith issued loans based on promissory notes on a short term basis. Nothing in the evidence suggests anything more than a day-to- day or month-to-month financing arrangement, based upon a review of the financial condition of the borrowers at the time the notes were executed and delivered. Particularly, there is no indication in the Bank memoranda or any oral evidence that the Bank did not expect the notes to be paid when due nor any agreement outside the notes for loans to the Blomes when they needed them, and without regard to the necessity of repayment. Moreover, the claimed existence of an implied contract between the parties runs into legal questions which cannot be answered here on the facts. First, an implied contract the performance of which exceeded one year would run afoul of the statute of frauds, 5 28-2-903, MCA. Secondly, the language of the notes in each case is clear and explicit as to due dates and payment. The claimed implied contract would have the effect of varying the terms of written instruments. So we said in Shiplet, supra: As to any oral representations by the Bank that the application was in fact a contract, the District Court quoted language from our decision in ~ i r s t National Montana Bank of Missoula v. McGuiness (Mont. 1985), 705 P.2d 579, 42 St.Rep. 288: [Elvidence of prior oral agreements is not admissible for the purpose of altering subsequent written agreements dealing with the same subjects, and that the prior oral agreements and the written agreement will merge into the subsequent written agreement unless they are distinct and can stand independently of one another. 705 P.2d at 584. Under the doctrine of merger as enunciated in McGuiness, any oral representations made by the Bank merged wlth the terms of the note, which then represented the contract reached between these two parties. As a matter of law therefore, neither an express nor implied contract, nor evidence tending to support the same, was presented to the ~istrict Court so as to preclude summary judgment. We find no error on these issues. DID THE BANK BREACH AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING? Under the Uniform Commercial Code, every contract or duty within the code imposes an obligation of good faith in its performance or enforcement. Section 30-1-203, MCA. "Good faith" is defined in the code as "honesty in fact in the conduct or transaction concerned." Section 30-1-201(19), MCA . The duty of good faith may not be disclaimed by agreement between the parties, though their agreement may determine the standards by which good faith is to be measured if the standards are not manifestly unreasonable. Section 30-1-102 (3) , MCA. We may assume then that there did exist between the parties, mutually, and to each other, because the instruments involved here were related to the uniform commercial Code, a duty of good faith in their conduct or performance. This leads us to the next issue raised by the Blomes. DID THE BANK GIVE REASONABLE NOTICE OF ITS INTENTION NOT TO RENEW ITS FINANCING TO THE BLOMES OR OTHERWISE ACT ARBITRARILY OR CAPRICIOUSLY? his caption subsumes issues 2 and 3 first noted above by the Blomes as proper for review. Essentially, the Blomes are claiming that the conduct of the Bank gave rise to their justifiable expectations that the Bank would continue to loan them money for the purchase of feeder cattle, and to pay on their contract for deed. Blomes further contend that they were entitled to reasonable notice that their credit was in jeopardy prior to December 23, 1982. In Nicholson v. United pacific Insurance Company (1985), Mont. - , 710 P.2d 1342, this Court took pains to "more - fully articulate our conception of what has been termed loosely as 'bad faith,' but has termed more accurately as the tort of breach of the implied covenant of good faith and fair dealing." There this Court stated: . . . [wle agree with the statement in Quigley, supra, [Quigley v. Pet, Inc. (1984) 162 Cal.App.3rd 223, 208 Cal.Reptr. 3941 that the tort resulting from this breach depends on some impermissible activity. The Montana cases discussed above focus on the action of the breaching party in the relationship to find a breach of the implied covenant, not just the existence of a breach of contract. . . . But whether performing or breaching, each party has a justifiable expectation that the other party will act as a reasonable person (citing a case). 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 expectation 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. Clearly, under Nicholson, a breach of implied covenant of good faith and fair dealing requires the breaching party to conduct itself in an impermissible activity, and in so doing, to act arbitrarily or capriciously. In the case now before us, evidence of such a breach of implied covenant is totally lacking. Certainly the Bank here, analyzing the financial situation of the Blomes, had a right to terminate its financing as long as it did so reasonably and not capriciously. The Bank, from the evidence here, did act reasonably and not capriciously or arbitrarily. As to notice of its intention not to renew the financing, there is no common law or statutory duty to give notice. It further appears here that the Bank gave notice to the Blomes when they applied to the Bank for additional financing to purchase a large herd of feeder cattle. The Bank officials decided that they had gone as far as they could and it was time to call a halt to their financing of the operation. That was a business decision made by the Bank which it fully had a right to make. Again, this point was covered in Shiplet, supra: The Shiplets' fourth count alleged breach of the implied covenant of good faith and fair dealing. The ~istrict Court's ruling cited authority from this Court requiring that a breach of contract must be a result of some "impermissible activity" before the breaching party can be held to have breached the implied covenant of good faith and fair dealing. (Citing cases. ) The Shiplets seek to distinguish this authority by noting in Nicholson, we held a breach of contract was not a prerequisite to'a breach of the covenant, because the implied covenant of good faith is not an oblisation arisins from the contract itself. ~ i c h o l s o ~ , 710 P.2d at 1348. while this is true, we also stated the obligation imposed by the covenant is to act reasonably. Under this standard, we have held the 'minimal requirement' for breach of the covenant is action by the defendant that is 'arbitrary, capricious or unreasonable, and exceeded plaintiffs' justifiable expectation [that the defendant act reasonably].' Noonan, 740 P.2d at 635. In this case the Shiplets had a justifiable expectation that the Bank would act reasonably by lending money on the terms agreed upon in the notes. As we found above, this was done. The evidence induced by the Shiplets fails to show arbitrary or unreasonable conduct by the Bank. The District Court was correct in granting summary judgment. CONCLUSION The first issue presented by the Blomes for review is that summary judgment is not proper where the record discloses genuine issues of material fact. There simply is no evidence adduced by the Blomes here that would indicate either an express or an implied contract, or a breach of the implied covenant of good faith imposed on transactions under the Uniform Commericial Code. The plight of the Blomes in this case, who lost the entire proceeds of their former farming operation in Dillon, is regrettable, but it cannot be said in this case that the Bank is legally responsible for any of the losses sustained by the Blomes. There is no genuine issue of material fact presented in this case, and the decision of the District Court to grant summary judgment in favor of the Bank is herebv affirmed. Mr. Justice L. C. Gulbrandson specially concurring. I concur with the result of the foregoing opinion but not with all that is expressed therein. / / / & Justice I | July 18, 1989 |
980b8f82-1572-4d82-b939-7a6ce6671168 | JOHNSON v STATE | N/A | 88-236 | Montana | Montana Supreme Court | No. 88-236 IN THE SUPREME COURT OF THE STATE OF MONTANA JUDITH A. JOHNSON, Plaintiff and Respondent, -VS- STATE OF MONTANA, ED ARGENRRIGHT, Superintendent of Public Instruction, Defendants and Appellants. APPEAL FROM: The District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Leif B. Erickson, Judge presiding. COUNSEL OF RECORD: For Appellant: Beda J. Lovitt, Office of Public Instruction, Helena, Montana John H. Maynard, Dept. of Administration, Helena, Montana Sam Haddon argued, Missoula, Montana For Respondent : W. William Leaphart argued, Helena, Montana For Amicus Curiae: Jeffrey T. Renz, American Civil Liberties Union, Billings, Montana Marshall Murray; Murray, Kaufman, Vidal, Gordon & Ogle, - Montana Innkeepers Assoc., et al., Kalispell, Montana cn i ' l ; Submitted: April 11, 1989 ,- t , Clerk b Mr. Justice R. C. McDonough delivered the Opinion of the Court. This appeal from the First Judicial District, Lewis and Clark County, concerns the liability of appellants the State of Montana and Ed Argenbright for damages arising from the alleged wrongful discharge of respondent Johnson. Johnson has alleged common-law and statutory wrongful discharge claims against appellants, and has also requested that the District Court declare that portions of the Montana Wrongful Discharge Act, S 39-2-901 to -913, MCA, (Act) unconstitutionally limit Johnson's fundamental right to full legal redress. Johnson moved for summary judgment on the requested declaratory relief. She argued specifically that classifications created under the Act violated equal protection guarantees under Article 11, S 4, by denying her, as a member of a class of wrongful discharge claimants, her fundamental right to full legal redress. Pursuant to the motion, the District Court declared the Act unconstitutional citing White v. State (1983), 203 Mont. 363, 661 P.2d 1271; Pfost v. State (1986), 219 Mont. 206, 713 P.2d 495. The District Court reasoned that White and Pfost mandate that the State demonstrate a compelling state interest justifying such classifications because Article 11, S 16, guarantees a fundamental right to full legal redress. The District Court went on to conclude that the State had failed to make the required showing, and the lower court then declared the Act unconstitutional. This is the only issue which has been adjudicated in the lower court. Appellants contend that White and Pfost should be overruled. Our decision handed down recently in Meech v. Hillhaven West, Inc. (Mont. 1988), No. 88-410, filed June 29, 1989, o v e r r u l e s White and P f o s t , r e l a t i v e t o A r t i c l e 11, S 16. S p e c i f i c a l l y , Meech holds t h a t A r t i c l e 11, S 1 6 , does not guarantee a fundamental r i g h t t o a p a r t i c u l a r cause of a c t i o n , and t h a t t h e r e f o r e t h e l e g i s l a t u r e may a l t e r common-law causes of a c t i o n , remedies, and r e d r e s s , without demonstrating t h a t a compelling s t a t e i n t e r e s t j u s t i f i e s c l a s s i f i c a t i o n s c r e a t e d by such modifications. Meech c o n t r o l s t h i s case. Therefore, t h e d e c i s i o n of t h e D i s t r i c t Court must be reversed. Other i s s u e s have been b r i e f e d on appeal by Johnson and Argenbright. These i s s u e s have not been ruled on by t h e D i s t r i c t Court. Therefore, they a r e presented prematurely before t h i s Court, and cannot be properly reviewed a t t h i s time. See Velte v. A l l s t a t e Ins. Co. (1979), 181 Mont. 300, 593 P.2d 4 5 4 . W e reverse and remand f o r f u r t h e r proceedings c o n s i s t e n t with Meech. W e Concur: <A Chief J u s t i c e J u s t i c e / J u s t i c e s Mr. Justice John C. Sheehy, dissenting: For all of the reasons expressed in my dissent in Meech v. Hillhaven West, Inc. (Mont. 1988), number 88-410, filed June 21, 1989, I emphatically dissent from this decision. /-i ' . - Justice / , / Mr. ~ u s t i c e ~ i l l i a m E. Hunt, Sr., dissenting: 1 concur in the foregoing dissent of ~ u s t i c e Sheehy. Justice | July 19, 1989 |
e4efaa7e-6623-45f9-8813-b5b458863184 | MATTER OF THE SUSPENSION OF THE DRI | N/A | 88-210 | Montana | Montana Supreme Court | No. 88-210 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 IN THE MATTER OF THE SUSPENSION OF THE DRIVER'S LICENSE OF BYRNE KENNEDY GEBHARDT, Petitioner and Respondent, -vs- STATE OF MONTANA, Respondent and Appellant. APPEAL FROM: District Court of the Fourteenth ~udicial District, In and for the County of Musselshell, The Honorable Roy ~odeghiero, Judge presiding. COUNSEL OF RECORD: For Appellant: Hon. Marc ~acicot, Attorney General, Helena, Montana Peter Funk, Asst. Attorney General, Helena, Montana Floyd A. Brower, County Attorney, Roundup, Montana For Respondent: John L. Pratt, Ask & Pratt, Roundup, Montana Filed: Submitted on Briefs: March 23, 1 9 8 9 ~yecided: July 6 , 1989 Clerk Mr. Justice ~illiam E. Hunt, Sr., delivered the opinion of the Court. The State of Montana appeals from an order of the District Court of the Fourteenth Judicial District, Musselshell County, which held that respondent Byrne Kennedy Gebhardt was justified in refusing to submit to a chemical test of his breath for the purpose of determining the alcoholic content of his blood because the officer who arrested him did not have reasonable grounds to believe he was in actual physical control of a motor vehicle while under the influence of alcohol. We reverse and remand. The sole issue raised on appeal is whether the District Court erred in ruling that the arresting officer did not have reasonable grounds to believe that Gebhardt was in actual physical control of a vehicle upon the ways of the state open to the public while under the influence of alcohol. On January 29, 1988, at approximately 1:30 a.m., Montana Highway Patrolmen George Kostelecky and Jeffree McLaughlin responded to a call concerning a vehicle stuck in the ditch near the intersection of Shilo and Hesper Roads, a residential area on the outskirts of Billings. Upon arrival, the patrolmen found a Chevrolet pickup located approximately ten feet off the traveled portion of the road. The vehicle was mired in mud up to its axles with its engine running. Its headlights were off, but its parking lights were on. The patrolmen observed tire chains next to the rear wheels of the pickup and a bumper jack behind the vehicle. Tire tracks indicated that the pickup had become stuck when the driver attempted to negotiate a U-turn on the nearby road. The patrolmen discovered Gebhardt asleep, lying across the front seat of the pickup with his feet and legs beneath the steering wheel and his head near the passenger door. The officers had to shake and yell at Gebhardt to rouse him. When awakened, he was belligerent and uncooperative. The officers smelled an odor of alcohol in the cab of the pickup and on Gebhardt's breath. Patrolman Kostelecky placed Gebhardt under arrest for being in actual physical control of a vehicle while under the influence of alcohol, a violation of S 61-8-401, MCA. The patrolmen did not conduct any sobriety tests at the scene, but they conducted a series of physical tests when they arrived at the Yellowstone County Courthouse. Gebhardt failed two of the three tests administered. Because Gebhardt refused to take a chemical test of his breath to determine the alcholic content of his blood, his driver's license was seized pursuant to the mandates of the implied consent law, S 61-8-402, MCA. He was issued a 72-hour driving permit in place of the license. Before the Department of Justice formally acted to suspend his license, Gebhardt filed a petition seeking judicial review of the license seizure and anticipated suspension. The District Court issued an order staying the suspension of Gebhardt's driver's license pending a hearing. On February 22, 1988, a hearing was held on the petition for judicial review. Following the hearing, the ~istrict Court ordered that the arresting officer did not have reasonable grounds to believe that Gebhardt was in actual physical control of a vehicle upon the ways of this state open to the public while under the influence of alcohol. Therefore, Gebhardt's subsequent refusal to take a chemical breath test was justified and he was entitled to a driver's license. The State of Montana appeals from this order. Under Montana law, an individual who is arrested for operating a motor vehicle while under the influence of alcohol is deemed to have given his consent to a chemical test for the purpose of determing the alcoholic content of his blood. Refusal to submit to a chemical test results in immediate seizure of the individual's driver's license and formal suspension of the driving privilege by the Department of Justice. This law, commonly known as the implied consent statute, is set out at S 61-8-402, MCA, which provides in pertinent part: (1) Any person who operates a vehicle upon ways of this state open to the public shall be deemed to have given consent, subject to the provisions of 61-8-401, to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested by a peace officer for driving or in actual physical control of a vehicle while under the influence of alcohol. The test shall be administered at the direction of a peace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol. The arresting officer may designate which one of the aforesaid tests shall be administered. (3) If a resident driver under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the arresting officer as provided in subsection (1) of this section, none shall be given, but the officer shall, on behalf of the department, immediately seize his driver's license. The peace officer shall forward the license to the department, along with a sworn report that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon the ways of this state open to the public, while under the influence of alcohol and that the person had refused to submit to the test upon the request of the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5) . (4) Upon seizure of a resident driver's license, the peace officer shall issue, on behalf of the department, a temporary driving permit, which is valid for 72 hours after the time of issuance. (5) The following suspension and revocation periods are applicable upon refusal to submit to a chemical test: (a) upon a first refusal, a suspension of 90 days with no provision for a restricted probationary license; (b) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the department, a revocation of 1 year with no provision for a restricted probationary license. (7) All such suspensions are subject to review as hereinafter provided. Judicial review of the suspension of a driver's license for failure to take a chemical test is governed by S 61-8-403, MCA, which provides: The department shall immediately notify any person whose license or privilege to drive has been suspended or revoked, as hereinbefore authorized, in writing and such person shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the district court in the county wherein such person resides or in the district court in the county in which this arrest was made. Such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 10 days' written notice to the county attorney of the county wherein the appeal is filed and such county attorney shall represent the state, and thereupon the court shall take testimony and examine into facts of the case, except that the issues shall be limited to whether . - a peace offlcer had reasonable grounds to believe - - the person - - had been driving or was & I actual physical control - of - a vehlcle upon ways of this - - state oDen to the ~ublic. while under the influence L - - I . of alcohol, whether the person was placed under - arrest, and whether such person refused to submit to the test. The court shall thereu~on determine L whether the petitioner is entitled to a license or is subject to suspension as heretofore provided. (Emphasis added.) A hearing held under this statute is a civil proceeding, separate and distinct from a criminal trial on the charge of operating a motor vehicle while under the influence of alcohol. In re Blake (1986), 220 Mont. 27, 31, 712 P.2d 1338, 1341. During the course of the criminal proceedings resulting from the citation for driving under the influence, the judge or jury determines the ultimate issue, that is, whether, beyond a reasonable doubt, the defendant had been driving or was in actual physical control of a vehicle on the ways of this state open to the public while under the influence of alcohol. However, during the civil proceedings reviewing the propriety of the suspension of the petitioner's driver's license for failing to submit to a chemical test, the judge determines only: (1) whether the arresting officer had reasonable qrounds - to believe the following: (a) that the petitioner had been driving or was in actual physical control of a vehicle; (b) that the vehicle was on a way of this state open to the public; and (c) that the petitioner was under the influence of alcohol; ( 2 ) whether the individual was placed under arrest; and (3) whether the individual refused to submit to a chemical test. either party in this case has ever contended that Gebhardt was not arrested nor that he refused to submit to a chemical test. The only issue presented to the ~istrict Court for review was whether the arresting officer had reasonable grounds to believe that Gebhardt was in actual physical control of a vehicle on a public way while under the influence of alcohol. In ruling from the bench, the ~istrict Court expressed doubt as to whether Gebhardt's vehicle was on a "way of this state open to the public." Section 61-8-101(1), MCA, defines this phrase in the following manner: As used in this chapter, "ways of this state open to the public" means any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public. The term highway is defined by S; 61-1-201, MCA, as follows: "~ighway" means the entire width between the boundary lines of every publicly maintained way when any part there of is open to the use of the public for purposes of vehicular travel. exce~t - - that .- for - the purpose of chapter 8 [governikg trafflc regulation] - - the T e r m also i'ncludes ways which have been or shall be dedicated t~-~ubllc - - use. ( ~ m p h a x a d d e d . ) These statutes clearly provide that, with regard to matters involving a motorist driving under the influence of alcohol, a "way of this state open to the public" is not limited to the traveled portion of the road but extends to the accompanying right-of-ways that are dedicated to public use. Indeed, in State v. Taylor (1983), 203 Mont. 284, 661 P.2d 33, a case in which we upheld the conviction of an individual who was discovered asleep behind the steering wheel of a vehicle stuck in a borrow pit, we concluded that a borrow pit that had been dedicated to public use constituted a "highway" within the meaning of S 61-1-201, MCA. The question presented to the District Court was not whether the vehicle was, beyond a reasonable doubt, on a public highway, but whether the arresting officer had reasonable grounds to believe that the pickup was on a public highway. Considering the statutory language and the precedent set by Taylor, the arresting officer had reasonable grounds to believe that Gebhardt's pickup, located approximately ten feet from the traveled portion of the roadway, was on a way of the state open to the public. The District Court also ruled from the bench that, because the vehicle was mired in the mud and could not be moved, Gebhardt did not have actual physical control of the pickup. However, in Taylor, where the defendant's vehicle was stuck in a borrow pit and immobile, we stated that movement of a vehicle is not required for "actual physical control.'' A motorist does not relinquish control over a vehicle simply because it is incapable of moving. Taylor, 203 Mont. at 287, 661 P.2d at 34. Nor does a motorist relinquish actual physical control over a vehicle because he is lying across the front seat, asleep. In Taylor, the defendant was asleep and slumped over the steering wheel of his vehicle with its engine running and its lights on. We held that he was in actual physical control of the vehicle. Similarly, in State v. Ryan (Mont. 1987), 744 P.2d 1242, 44 St.Rep. 1735, we held that a motorist who was lying across the front seat of a vehicle with his feet near the gas and brake pedals while the engine was running and the lights were on was in actual physical control of the vehicle. In the present case, Gebhardt was found alone in the pickup. He was asleep, lying across the front seat with his legs beneath the steering wheel. The engine was running and the parking lights were on. This set of facts gave Officer Kostelecky reasonable grounds to believe that Gebhardt was in actual physical control of the vehicle. The District Court also concluded that the arresting officer did not have reasonable grounds to believe that Gebhardt was under the influence of alcohol. It appears that the court based this conclusion on the fact that Officer Kostelecky failed to administer any sobriety tests at the scene. We agree with the ~istrict Court to the extent that a motorist's failure to pass sobriety tests given at the scene strenthens the State's case. However, the failure to administer field sobriety tests does not, by itself, constitute lack of reasonable grounds to believe that a motorist may be under the influence of alcohol. Rather, reasonable grounds exist if the facts and circumstances within the personal knowledge of the arresting officer would be sufficient to warrant a reasonable person to believe that the motorist is under the influence of alcohol. See State v. Lee (Mont. 1 9 8 8 ) , 754 P.2d 512, 515, 45 St.Rep. 903, 906-07. In this case, Officer Kostelecky observed Gebhardt asleep in a vehicle while the motor was running. Gebhardt was difficult to rouse and, once awakened, was belligerent. Gebhardt's breath and the cab of the pickup smelled of alcohol. This combination of facts constitutes reasonable grounds to believe that Gebhardt was under the influence of alcohol. We reverse the District Court and remand for entry of an order consistent with this opinion. >,& j , Signed I ? , + The expense of making changes is such that we cannot undertake it for items of merely typographical style. 'i West Publishing Co. * I N182c ,$ ; ": | July 6, 1989 |
75c575bf-2013-45e6-a345-3bca1f546d57 | MARRIAGE OF PENNING | N/A | 88-502 | Montana | Montana Supreme Court | NO. 88-502 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF KATHLEEN LOIS PENNING, Petitioner and Respondent, and DALE EVERETT PENNING, Respondent and Appellant. 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: Andrew M. Small, ~illings, Montana For Respondent: ,.Jack E. Sands; Sands Law Firm, Billings, Montana Submitted on Briefs: June 1, 1989 -- - --I , L- . J Decided: June 30, 1989 i ' ' Clerk Mr. Justice R. C. McDonough delivered the Opinion of the Court. This appeal from the Thirteenth Judicial District, Yellowstone County, concerns issues arising from the divorce of Kathleen and Dale Penning. Dale appeals the District Court's decisions on custody, the proper amount of child support and maintenance, and the propriety of an award of attorney fees to Kathleen. We affirm. The parties married on March 27, 1981. The District Court dissolved the marriage on April 21, 1988. Four children, aged from one year old to six years old, were born of the marriage. Kathleen also has an eight-year-old child from a prior marriage. Dale contracts work at the Exxon refinery in Billings, and receives approximately $47,000 annually. Dale employs a person he describes as a close friend for unskilled or semi-skilled labor at $12.50 an hour. The parties dispute the net income retained by Dale from the $47,000 in earnings. Kathleen has performed only unskilled labor in the past, and currently has no special skills which would enable her to take a job that would adequately cover her child care expenses. The primary caretaker of the parties children has been Kathleen. The lower court awarded Kathleen $260.00 per month, per child in child support, and $400.00 per month in maintenance. The lower court also named. Kathleen the residential custodian of the parties' children. Dale presents the following issues: (1) Whether the District Court erred in naming Kathleen residential custodian? ( 2 ) Whether the District Court erred in awarding Kathleen $260.00 per month per child for child support? (3) Whether t h e D i s t r i c t Court e r r e d i n awarding maintenance t o Kathleen? ( 4 ) Whether t h e D i s t r i c t Court e r r e d i n awarding a t t o r n e y f e e s t o Kathleen? I. Dale makes s e v e r a l c o n t e n t i o n s on t h e i s s u e o f t h e proper r e s i d e n t i a l p a r e n t f o r implementing t h e j o i n t custody p r o v i s i o n s o f t h e decree. F i r s t , Dale contends t h a t t h e D i s t r i c t Court f a i l e d t o consider t h e presence o f p h y s i c a l abuse o f t h e c h i l d r e n i n f l i c t e d by Kathleen a s by r e q u i r e d by § 40-4-212 ( 6 ) , MCA. Testimony i n d i c a t e d t h a t Kathleen h a s , on occasion, slapped o r spanked t h e c h i l d r e n . Testimony a l s o i n d i c a t e d t h a t some o f t h e c h i l d r e n have s u f f e r e d from d i a p e r r a s h , and t h a t one c h i l d , while l e f t unattended by Kathleen, f e l l from t h e p a r t i e s ' van t o t h e pavement. The o n l y o t h e r i n c i d e n t o f a l l e g e d abuse involves punishment meted o u t by Kathleen f o r two o f t h e c h i l d r e n ' s behavior i n p l a y i n g with dog f e c e s . Kathleen t e s t i f i e d t h a t t h e p a r t i e s ' dog messed on t h e f l o o r o f t h e i r basement. H e r two young boys discovered t h e m e s s and, according t o Kathleen, managed t o become covered w i t h it. Kathleen t e s t i f i e d t h a t she smeared some o f t h e m a t t e r on t h e i r noses and made them s t a n d i n t h e c o r n e r f o r f i v e minutes. W e hold t h a t t h e D i s t r i c t Court a c t e d w i t h i n i t s d i s c r e t i o n by r e f u s i n g t o f i n d t h a t t h e s e i n c i d e n t s c o n s t i t u t e d c h i l d abuse. Thus, no e r r o r may be p r e d i c a t e d h e r e based on t h e r e q u i r e d f i n d i n g s under 5 40-4-212(6), MCA. Dale f u r t h e r contends t h a t t h e lower c o u r t committed r e v e r s i b l e e r r o r i n finding: [Kathleen's] home and i n t e r a c t i o n w i t h t h e c h i l d r e n has been observed by a number o f witnesses. A l l of whom t e s t i f i e d t h a t she i s a aood mother. Dale points out that not - all of the witnesses testified that Kathleen was a good mother. We disagree that the District Court erred in interpreting the testimony of the witnesses. Witnesses testifying for Dale criticized Kathleen's parenting skills. However, they also admitted that Kathleen had good abilities in some areas of parenting. Moreover, even if all of Dale's witnesses testified that Kathleen was not a good mother, other witnesses held the opposite opinion. Thus, the record would only reflect conflicting evidence on this issue, and it is the function of the District Court to resolve such conflicts. We will not reverse the decision of the District Court on what constitutes a custody arrangement in the best interest of the children based on the proper weight assigned to conflicting evidence. In re Marriage of Rolfe (19851, 216 Mont. 39, 45, 699 P.2d 79, 82. Nor will we reverse for incomplete or partially erroneous findings unless appellant demonstrates the District Court failed to base its decision on substantial evidence. In re Marriage of Saylor (Mont. 1988), 756 P.2d 1149, 1151, 45 St.Rep. 1062, 1065. Dale also contends that the lower court erred in relying on a report from a Court Services Investigator in its findings because the report was never admitted into evidence. Kathleen responds that Dale stipulated to a Court Services investigation which was to "make appropriate recommendations to the Court." We agree that Dale's stipulation to the report properly places it in the record as evidence. Dale asserts that his citations to the record show that substantial evidence does not support the District Court's decision to make Kathleen the residential parent. We disagree. By and large, witness testimony supports the conclusion that the best interests of the children will be served by making Kathleen the residential custodian. Several witnesses t e s t i f i e d favorably concerning Kathleen's parenting s k i l l s . One s t a t e d : Q. Have you had occasion t o be i n her home? A. Y e s . O n s e v e r a l occasions I have v i s i t e d her home. Q. And have you observed her and her c h i l d r e n i n her home? A. Yes, q u i t e o f t e n . Q. Could you describe t h e home environment t h e r e ? A. Well, yes. I t always s t r i k e s m e t h a t it i s a very d i f f i c u l t s i t u a t i o n t h a t she i s i n . She had t h e f i v e c h i l d r e n , and it always s t r u c k m e how remarkably she c o n t r o l l e d t h a t . Another witnesses t e s t i f i e d : Q Could you describe t h e r e l a t i o n s h i p between Kathy and her children? A. They seem t o be very close. I d o n ' t know. She was j u s t a r e a l good mother. Some witnesses having knowledge of Dale's parenting s k i l l s indicated t h a t Dale d i d not provide adequate c a r e f o r t h e c h i l d r e n . Therefore, t h e decision of t h e D i s t r i c t Court on t h e r e s i d e n t i a l p a r e n t i s supported by s u b s t a n t i a l evidence and we a f f i r m on t h i s i s s u e . 11. Dale a s s e r t s t h a t t h e D i s t r i c t Court e r r e d i n determining t h e amount of c h i l d support. The lower c o u r t c a l c u l a t e d Dale's support o b l i g a t i o n a s $260.00 per c h i l d each month. In determining Dale's gross income, the District Court refused to deduct the $12.50 per hour, 20 hours per week, employment expenses Dale incurs for employing his close friend. The lower court allowed such expenses at $5.00 per hour. This is the main objection to the lower court's calculations in arriving at Dale's net income for determining child support. We hold that the lower wage figure properly reflects evidence in the record that the unskilled or semi-skilled labor performed by Dale's close friend is worth only $5.00 per hour. Thus, the lower court acted correctly in discounting Dale's assertions to the contrary. Dale also objects to the addition of workers' compensation benefits as income for determining his ability to make support payments. He claims that he no longer receives the benefits. Kathleen asserts that the issue is not properly reviewable on this appeal. We agree that the existence of a reduction in Dale's income following the proceedings in the lower court cannot be considered as an issue reviewable on this appeal. Dale also objects generally to the lower court's award of support in light of the Guide for Determination of Child Support Obligations, adopted and approved for use by district courts by this Court on January 13, 1987. Dale claims that the District Court misapplied the Guidelines by failing to subtract the proper amount of his business expenses from his gross income to arrive at his net income. Kathleen responds that under the proper application of the Guidelines, Dale's support obligations would exceed the amount arrived at by the lower court. The Guidelines mandate that only "legitimate" business expenses be subtracted to arrive at net income. Guide for Determination of Child Support Obligations, Part 5. As previously discussed, there exists some controversy over the proper amount of legitimate expenses incurred by Dale. Moreover, the Guidelines: are not binding upon such judges and officials [using the guidelines]. We so order to prevent appeals based upon claimed failure to observe or follow the guidelines. In the Matter of Adoption of a Uniform District Court Rule on Child Support Guidelines, Order of the Supreme Court of Montana, No. 86-223, Filed January 13, 1987. Obviously, there exists no reversible error based on the improper use of the Guidelines here. Thus, we affirm on this issue. 111. Dale contends under this issue that the lower court erred in setting the amount of maintenance to be received by Kathleen at $400.00 per month. According to Dale, the lower court erroneously failed to consider Dale's ability to "meet his needs while meeting those of the spouse seeking maintenance," as required by S 40-4-203(2)(f), MCA. The thrust of Dale's argument on this point is that the lower court erred in increasing the amount of available income for maintenance by finding that Dale was sharing expenses with the close friend he employs for $12.50 an hour. Dale contends that evidence in the record demonstrated that he and the friend do not share expenses. We disagree. At the trial, one of Dale's witnesses testified that he had stayed with Dale the weekend prior to the trial, and that Dale's close friend was present in the household during the weekend. Another witness testified that while on visitation with Dale, the children have gone from Dale's close friend's house to his house to play. This testimony is sufficient to sustain the District Court's conclusion that Dale and his close friend/employee share expenses. Dale also objects to the lower court's decision on the ability of Kathleen to provide for the children's financial needs. The record does not contain evidence sufficient to support this assertion. On the contrary, evidence indicates Kathleen is patently unable to hold down a job which would bring in income sufficient to reduce Dale's obligation. Thus, we reject Dale's contentions on this issue. IV. Dale argues that the District Court abused its discretion by awarding attorney fees to Kathleen. Again, the focus of the argument concerns Dale's finances, this time in regard to his ability to pay the fees. We have already held that the District Court acted within its discretion in determining Dale's income. Thus, we affirm. <I ciief justice - - | June 30, 1989 |
72dabcbe-f89c-4bd3-ad29-93cd7b3b7822 | TIGART v THOMPSON | N/A | 88-501 | Montana | Montana Supreme Court | NO. 88-501 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 - DONALD J. TIGART, plaintiff and Respondent, -vs- RICHARD J. THOMPSON, Defendant and Appellant, DOUGLAS C. BROOKINGS, plaintiff and Respondent, -vs- DICK THOMPSON, Defendant and Appellant. RICHARD J. THOMPSON, Third-Party Plaintiff and Appellant, -vs- DONALD J. TIGART, Third-Party Defendant and Respondent. APPEAL FROM: ~istrict Court of the Ninth Judicial ~istrict, In and for the County of Pondera, The Honorable R.D. McPhillips, Judge presiding. COUNSEL OF RECORD: For Appellant: Lon T. Holden; ~ardine, Stephenson, Rlewett & Weaver, Great Falls, Montana For Respondent: I . Erik B. Thueson, Helena, Montana .-Patricia 0'~rien Cotter; Cotter & Cotter, Great Falls, ,. . ; Montana . I . - 1 :- l?, -.-- L .I - r -.. Submitted on ~riefs: April 2 7 , 1989 L. 3 . . I _ Decided: June 6, 1989 L , + + \ , - - 1 1 ; : 3 Filedc- - . I , > . .- -& Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. This is an appeal from an order of the District Court, Ninth Judicial District, granting plaintiffs Brookings and Tigart a new trial, granting them certain attorney fees and costs and ordering the production of an investigative file in the possession of defendant's insurance carrier. Defendant in the action below, Richard J. Thompson, appeals. The issues on appeal are whether the District Court erred (1) by granting plaintiffs1 motions for a new trial based on irregularities in the proceedings which deprived plaintiffs of a fair trial; (2) by awarding plaintiffs certain attorney fees and costs; (3) by ordering defendant's insurance carrier to produce its entire investigative file as it existed prior to the commencement of legal proceedings. Additionally, under Rule 14, M.R.App.P., respondent Brookings raises the following issue: whether the District Court erred by denying Brookingsl request for a ruling that Thompson individually or Thompson and ~igart jointly were negligent as a matter of law. We affirm in part and dismiss in part. This case stems from a single car accident which occurred on the afternoon of January 4, 1985, on U.S. Highway 91 near the City of Conrad, Montana. Plaintiff Tigart was driving his pickup south on Highway 91 with plaintiff Brookings as his passenger. While rounding an icy corner on that highway near the Branding Iron Restaurant and Bowling Alley, plaintiffs encountered defendant Thompson entering the highway in his pickup near the intersection of Highway 91 and Front Street. To avoid collision, Tigart let off of the accelerator and began pumping his brakes. His vehicle fishtailed on the ice and soon he lost control of it. The pickup veered across the highway and rolled into a steep ditch on the other side, injuring both Tigart and Brookings. Thompson apparently had not seen Tigart approaching, did not see him swerve and crash, and continued his route until he reached his home in Brady, Montana. Thompson was not aware of any accident or his possible part therein until several days later when he was contacted by Harris, the investigating highway patrol officer about his actions on January 4, 1985. At trial, plaintiffs offered testimony that Thompson entered the highway negligently from the bowling alley parking lot that day by failing to keep a proper lookout, failing to stop and failing to yield the right-of-way such that he created an immediate hazard to Tigart in violation of section 61-8-341, MCA. Further, plaintiffs alleged that such negligence legally caused their injuries. After the trial commenced, Brookings was allowed to amend his pleading asserting a separate negligence suit directly against Tigart, his driver. Tigart likewise was joined by Thompson as a third-party defendant. Thompson, during the entire course of discovery and pretrial proceedings, maintained that he knew nothing of the accident, had no knowledge of any actions or circumstances on the day in question and had no independent recollection of whether or not he was even in the vicinity that day. Thompson further denied in answers to interrogatories that he had given any statements to anyone, except for talking with Officer Harris who made no notes of the conversa- tion. In her opening statement Tigartts attorney asserted that she could state "with confidencett that Thompson would not refute any of her evidence, and that actually what Thompson would say would be consistent with Tigartts contentions of what transpired on the highway that day. Much to the surprise of both plaintiffs, on the opening day of trial, defense counsel stated that the evidence would show that his client had been bowling at the Branding Iron, left the parking lot there, drove to Front Street, and entered the highway from Front Street (not from the parking lot as plaintiffs contended) after stopping at the stop sign, looking both ways and proceeding cautiously. For a defense, Thompson additionally asserted that Tigart was driving too fast for the conditions. Plaintiffs protested this new development. In chambers defense counsel explained that testimony would come in from Officer Harris who interviewed Thompson in connection with the accident. However, Harris took no notes from his conversation with Thompson and would be relying solely on his recollection of the conversation which occurred some three years earlier. The trial judge ruled that Harris would not be allowed to testify as an expert witness at trial because he had not been identified by defense counsel as an expert in the pretrial order. Rather, he would only be able to testify as a fact witness as to what occurred at the accident scene when he arrived some twenty minutes after impact. This development and ruling severely limited the testimony that defense counsel could get in to prove the case asserted in opening statements. However, on the Friday of the first week of trial, after the close of Brookingst case, defense revealed for the first time that Thompson had actually given a statement to his insurance carrier, Safeco, which was tape-recorded just eleven days after the accident. This came to light during the course of trial when Tigartts attorney subpoenaed the insurance adjuster and his records. Just before the adjuster was to testify, defense counsel notified the court and the plaintiffs that the statement existed. The adjuster testified that all investigative files were kept in the Spokane, Washington, regional office. The tape was likewise in Spokane. It was agreed that the tape would be transcribed immediately. The tape was transcribed over the weekend and express-mailed to the Great Falls office where defense counsel turned it over to the plaintiffs for the first time. Plaintiffs proceeded in trial on Monday and were allowed to read portions of the Thompson statement to the jury. The statement was to the effect that Thompson did not see the Tigart vehicle and had no knowledge of the accident. However, he was at that bowling alley on that day at that time; he remembered the road conditions as being "ripe for skatingn; he was "slow getting on the highway"; and he also placed himself at the Front Street intersection, rather than entering the highway from the bowling alley parking lot. Plaintiffs moved for a new trial based on surprise and for personal sanctions against defense counsel for concealment of evidence. Sanctions were not imposed; however, when a defense verdict was returned by the jury, the trial judge granted plain- tiffst motions for a new trial. The judge further ordered that defendant pay attorney fees and costs associated with the first trial and incurred from the close of discovery until the completion of the appeal. Finally, the court ordered the defendant to produce the entire Safeco investigative file as it existed prior to the lawsuit being filed, based on a possibility that there may be even more undisclosed witness statements in the file. Defendant appeals. I. New Trials The District Court granted a new trial based on irregularities in the proceedings which deprived plaintiffs of a fair trial. We agree. Section 25-11-102, MCA, provides: Grounds for a new trial. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: (1) irregularity in the proceedings of the court, jury or adverse party . . . by which either party was prevented from having a fair trial ; Defense counsel contends that it was mere inadvertence and not concealment which prohibited the production of the defendant's statement during discovery. Such inadvertence surprised plaintiffs and materially affected their substantial right to a fair trial. AS the District Court noted in its order, "Because of these new contentions and the surprise that they engendered, the plaintiffs were forced to try to do discovery during the course of trial." Prior to trial, both plaintiffs believed that the facts were uncontested because Thompson recalled nothing with which to dispute their evidence. However, at trial, many material facts were disputed from the speed of the vehicles and the condition of the road to the place from which Thompson actually entered the highway. The order of the trial judge granting a new trial with regard to the direction of the trial states: The defendant has prevented the plaintiffs from receiving a fair trial and has created unfair surprise at trial by withholding a major piece of evidence until after the trial commenced. . . . the defendant I s contentions in the final pretrial order are devoid of any contentions concerning where or when Thompson pulled out onto the highway. Thus up until the time of trial, both this Court and the Plaintiffs were left with the impression--if not express contentions--that the defendant would take no position concerning his whereabouts or actions related to the subject accident. During the trial, the defense contended that the plaintiffs had major credibility problems because they were contending that the defen- dant's evidence showed he pulled out from Front Street. On closing argument, the de- fense attorney stated that the plaintiffs and at least Tigartls attorney had reshaped the facts because the driveway (parking lot) better fit their theory of liability. Defendant's contention that this surprise did not I1materially" affect the substantial rights of the plaintiffs is without merit. The importance of the evidence cannot be underestimated, as it is the sole record of defendant's recollection. Thompson was eighty years of age at the time of the first trial and may very well have had a lack of independent recollection of the day in question. Granting a new trial is within the sound discretion of the trial court. Benner v. B.F. Goodrich, Co. (1967), 150 Mont. 97, 430 P.2d 648. This discretion is not without limitation. Nelson v. Fairmont Hot Springs (Mont. 1988), 763 P.2d 1135, 45 St.Rep. 2042. However, an order granting a new trial will not be set aside absent a showing of abuse of discretion. Tope v. Taylor (Mont. 1988), 768 P.2d 845, 45 St.Rep. 2242; State v. DeMers (Mont. 1988), 762 P.2d 860, 45 St.Rep. 1901. The credible evidence of this record shows that defense counsel denied the existence of a critical piece of evidence during discovery and then produced it during trial, after the close of Brookingsl case. Defense counsel in resisting the motion for new trial argued that nothing "irregularl1 had happened. What defense counsel views as nothing wirregularl' in the course of this trial is a view that could only be shared with himself. Based on this record, defense counsel cannot make a showing that the District Court abused its discretion in ordering a new trial. That portion of the District Court order is affirmed. 11. Attorney Fees Although the District Court did not assess personal sanctions against defense counsel, it awarded certain fees and costs in an amount to be determined to both plaintiffs pursuant to section 37- 61-421, MCA. That portion of this appeal is dismissed without prejudice. The issue of attorney fees and costs is not in the form of a final order, and thus, the appeal is premature. This Court has held that there must be a final judgment from which an appeal may be taken before we a r e vested with j u r i s d i c t i o n . Rule 1, M.R.App.P.; In Re Marriage of Adams (1979), 183 Mont. 26, 598 P.2d 197; State ex rel. Raw v. City of Helena (1961) , 139 Mont. 343, 363 Further, it is the duty of the attorneys involved in an appeal to bring this to the attention of the Court. As we stated in In Re Adoption of B.G.B. (1979), 183 Mont. 347, 599 P.2d 375: Too often this Court is confronted with cases that are not ready for appellate review within the meaning of the rules, but where the oppos- ing parties do not bring this crucial fact to our attention. We often do not discover this until we are deeply into the process of review and indeed often in the opinion-writing stage. We cannot and will not tolerate this state of affairs. . . . If for some reason it is appealed prematurely, it is the duty of the parties to bring this to our attention by an appropriate motion to dismiss . . . 599 P.2d at 381. This portion of the appeal is dismissed. 111. Investigative File The District Court ordered the defendant to turn over Safeco's entire investigative file as it existed prior to the filing of the complaint. That order is not entirely supported by the law in Montana. Certainly, the judge was protecting any work product which would have been generated after the legal action was commenced and was merely assuring the exchange of discoverable information in fulfillment of the letter and the spirit of discovery rules. However, we conclude that there is no legal basis for such a broad order. That portion of the District Court order is reversed and modified as follows: We order that any and all witness statements in Safecots file be disclosed. We held in Cantrell v. Henderson (Mont. 1986), 718 P.2d 318, 43 St.Rep. 745, that a witness statement given by the defendant to his insurance carrier prior to the filing of the complaint is discoverable. Admittedly, defense counsel does not dispute the discoverability of the Thompson statement, but rather cites mere inadvertence for his failure to disclose. We have in this case a failure to disclose discoverable documents through negligent or willful conduct, thus warranting this Courtts order that all such statements in Safecots possession be revealed. However, any motion to disclose an entire investigative file must be objected to by specific objections to any part which the defendant does not wish to disclose. Then the District Court can handle those objections during the normal course of the discovery process. This may require the plaintiffs to make additional, more specific requests for particular pieces of information. IV. Rule 14, M.R.App.P. We do not reach the issue of whether the District Court improperly denied Brookings a ruling under Rule 14 regarding negligence as a matter of law. Brookings failed to appeal properly this issue because he did not file a cross-appeal. This Court does not review issues outside of those raised by the appellant. Mydlarz v. Palmer/Duncan Construction Co. (1984), 209 Mont. 325, 682 P.2d 695. As we stated in Mydlarz, "Although Rule 14, M.R.App.civ.P., provides for review of matters by cross- assignment of errors, this does not eliminate the necessity for cross-appeal by a respondent who seeks review of matters separate and distinct from those sought to be reviewed by appellant." Mydlarz, 682 P.2d at 700. In summary, we affirm the District Court order for a new trial; we dismiss without prejudice the appeal regarding certain attorney fees and costs; disclosure is ordered of all witness statements, written, taped, or otherwise, in Safecots file, and we dismiss Brookings' appeal of the denial of a Rule 14, M.R.App.P., ruling . The case is remanded to the District Court for further proceedings consistent with this opinion. We concur: Justices / ? | June 6, 1989 |
627c84ef-0947-4585-baf9-950331bd78d8 | STATE v LANGE | N/A | 89-022 | Montana | Montana Supreme Court | No. 89-22 IK THE SUPREME COURT OF THE STATE O F 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 D.W. LANGE, 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 the Seventh ~ u d i c i a l D i s t r i c t , I n and for t h e C o u n t y of R i c h l a n d , T h e H o n o r a b l e D a l e C o x , Judge p r e s i d i n g . COUNSEL OF RECORD: For A p p e l l a n t : R i c h a r d J. C a r s t e n s e n , 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 ~ a t r i c i a J. Schaeffer, A s s t . A t t y . G e n e r a l , H e l e n a victor G . K o c h , C o u n t y A t t o r n e y , sidney, M o n t a n a S u b m i t t e d on B r i e f s : A p r i l 2 0 , 1 9 8 9 Decided: June 6 , 1 9 8 9 Mr. ~ustice ~illiam E. Hunt, Sr., delivered the opinion of the Court. The ~istrict Court of the Seventh Judicial District, Richland County, revoked the suspended sentence of Michael D. W. Lange, the defendant, for violations of the conditions of his probation, under S 46-18-203, MCA, in 1986 and again in 1988. Lange appeals. We affirm. The following issues are raised on appeal: 1. Whether the 1986 revocation of defendant's suspended sentence violated the double jeopardy clauses of the united States and Montana constitutions rendering all further proceedings unconstitutional. 2. Whether substantial evidence supported the District Court's exercise of discretion in revoking defendant's 1988 suspended sentence. 3. Whether defendant's due process rights were violated during the May, 1988 revocation hearing because he was unable to confront and cross examine a witness. On November 2, 1983, a jury convicted defendant for the 1981 felony offenses of criminal sale of dangerous drugs and criminal possession with intent to sell in violation of S S 45-9-101 and 45-9-103, MCA (1981). On February 29, 1984, he was sentenced to ten years with all suspended subject to conditions of probation. In 1986 defendant failed to report to his probation officer on several occasions. For these violations the District Court, on August 27, 1986, ordered a revocation of the February 29, 1984 sentence under S 46-18-203, MCA, and defendant was sentenced to serve ten years with eight years suspendea again subject to conditions of probation upon release. On December 3, 1986, defendant was paroled from the Montana State Prison and moved to North Dakota. At that time he was subject to the supervision of a North Dakota probation officer . Montana retained jurisdiction of defendant during his probationary period. In May, 1988, defendant's probation officer was contacted by security police at North Dakota State College of Science who informed him that defendant was suspected of selling marijuana on campus. Consequently, on May 17, 1988, the probation officer authorized a search of defendant ' s dormitory room, his person, and a vehicle owned by defendant's girlfriend but used by him. Nothing ~u'~stantia1 was found in his room but the search of the vehicle revealed the remnants of a greeting card with residue of a vegetable-like substance which later tested positive for marijuana. A urinalysis test of defendant was administered on the day of the search and later on May 23, 1988. Both tests revealed recent marijuana use. The greeting card residue and urinalysis samples were analyzed and documented by the North Dakota State Toxicologist. Use and possession of dangerous drugs by the defendant were violations of his 1986 conditions of probation. On June 4, 1988, defendant's eight year probationary portion of his sentence began under the supervision of his North Dakota probation officer. On June 10, 1988, defendant's probation officer filed a report concerning the May, 1988, violations of probation and, on August 19, 1988, the Richland Deputy County Attorney filed a petition for revocation of defendant's suspended sentence based on the report. A hearing concerning the violations was conducted on September 19, 1988, and then continued to October 3, 1988. On October 25, 1988, the District Court found that defendant did indeed violate the conditions of his probation by the use and possession of marijuana in May, 1988. Consequently, the ~istrict Court revoked his suspended sentence under S 46-18-203, MCA, and sentenced defendant to five years in the Montana State prison with five days credit for jail time previously served. The first issue raised on appeal is whether the 1986 revocation of defendant's suspended sentence violated the double jeopardy clauses of the united States and Montana constitutions by enhancing his punishment thus, rendering all further proceedings unconstitutional. The Fifth Amendment to the united States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy." The clause protects offenders from multiple punishment for the same offense. Ex Parte Lange (1874), 85 U.S. (18 Wall.) 163, 21 L.Ed. 872. The Montana Constitution affords a similar protection. section 25, Art. 11, 1972 Mont. Const., provides that, "No person shall be again put in jeopardy for the same offense. . . " We have held, however, that the revocation of a suspended sentence does not subject defendant to jeopardy twice for the same offense. Matter of Ratzlaff (19771, 172 Mont. 439, 445, 564 P.2d 1312, 1316. A revocation hearing is not a criminal trial, petition of Meidenger (1975), 168 Mont. 7, 15, 539 P.2d 1189, 1190, since there is no adjudication of guilt or innocence. rial concerns a new crime while a revocation hearing concerns only whether the conditions of a suspended sentence had been violated. Marutzky v. State (Okla. rim. App., 1973), 514 P.2d 430, 431. "The subsequent conduct, not his original offense, forms the basis of revocation and reinstates the original sentence." Ratzlaff, 564 P.2d at 1316. The defendant, in this case, remained subject to the original sentence as if it had never been suspended, and he must live with the knowledge that "a fixed sentence for a definite term hangs over him." Ratzlaff, 564 P.2d at 1316, and Roberts v. united States (1943), 320 U.S. 264, 268, 64 S.Ct. 113, 115, 88 L.Ed. 41, 44. Under 5 46-18-203(l), MCA, the District Court retains jurisdiction over defendant during the period of probation. See State v. Oppelt (1979), 184 Mont. 48, 53, 601 P.2d 394, 397, and Marutzky, 514 P.2d at 431. A revocation hearing is simply an exercise of the trial court's supervision over defendant during probation and the consequence of revocation is execution of a penalty previously imposed. -- See Marutzky, 514 P.2d at 431. We agree. As stated in State v. Eckley (1978), 34 0r.App. 563, 579 P.2d 291: Because the revocation proceeding is not a criminal adjudication, does not require proof of a criminal offense, does not impose punishment for any new offense, and is an act in the performance of the duty of judicial supervision of probationary liberty . . . the Double Jeopardy Clause . . . is inapplicable. In this case, defendant violated the conditions of his 1986 probation by his failure to report to his probation officer. After a revocation hearing, he was sentenced to serve 10 years with two years suspended. We hold the revocation of defendant's suspended sentence did not violate the double jeopardy clauses of the United States and Montana Constitutions. Defendant next argued that the District Court abused its discretion because the revocation was not based on substantial evidence. We disagree. The revocation of a suspended sentence comes within the purview of judicial discretion but must be supported by substantial evidence. State v. Lange (Mont. 1987), 733 P.2d 846, 848, 44 St.Rep. 418, 420. The ~istrict Court revoked defendant's suspended sentence for violating the conditions set forth in its August 27, 1986 judgment: That he violate no laws, city, county, state or federal. That he use no drugs of any kind unless prescribed to him by a licensed physician and that he not be in or about any place where dangerous drugs, as that term is defined by the State of Montana, are being used, dispensed or sold. The judgment also required that defendant submit to a search of his person, residence or vehicle, or an examination of his bodily fluids upon reasonable request of his probation officer . On May 17, 1988, defendant's probation officer authorized a search of defendant's dorm room, his person, and a vehicle owned by defendant's girlfriend but used by him. The search was based on information received from the North Dakota State College of Science security police that defendant was suspected of dealing drugs. The search of defendant's car produced remnants of a smoked greeting card with a vegetable-like substance in its creases. Just prior to the search, defendant admitted to his North Dakota probation officer that he used a greeting card to roll and smoke a marijuana cigarette the previous week. An analytical report from the North Dakota State Toxicologist confirmed the residue taken from the card was indeed marijuana. Further, two urinalysis tests were administered to defendant at his probation officer's request on May 17 and May 23, 1988. Both tests, also analyzed by the North Dakota State ~oxicologist, confirmed recent marijuana use. Defendant made a second admission of marijuana use to his probation officer when the first urine sample was requested. During the revocatio~ hearing, defendant's probation officer testified to these events. Letters from the State Toxicologist which confirmed and explained the test results were admitted into evidence. We hold that this evidence meets the substantial evidence standard. Further, 5 46-18-203(1), MCA, provides in part: A judge . . . who has suspended the execution of a sentence . . . under 46-18-201 or his successor is authorized in his discretion to revoke the suspension or impose sentence and order the person committed. We will not reverse the District Court's revocation of defendant's suspended sentence absent a showing of abuse of discretion. See State v. Stangeland (~ont. 1988), 758 ~ . 2 d 776, 45 St.Rep. 1446. The facts relied upon need not establish guilt beyond a reasonable doubt. State v. Robinson (Mont. 1980), 619 P.2d 813, 37 St.Rep. 1830. We held in State v. Kern (1984), 212 Mont. 385, 389, 695 P.2d 1300, . . . All that is required is that the facts before him be such that the judge is reasonably satisfied that the conduct of the probationer has not been what he agreed it would be if he were given liberty. The District Court properly used its discretion when it ordered the revocation of defendant's suspended sentence based on the testimony of the probation officer and the letters from the North Dakota State Toxicologist. The last issue raised on appeal is whether defendant's due process rights were violated during the 1988 revocation hearing because he was not able to confront or cross-examine the North Dakota chemist who analyzed and documented the urinalysis tests. The chemist did not testify at the revocation hearing. Instead, letters from the chemist to defendant's probation officer, which confirmed and explained the toxicology test results, were presented as evidence. In this case, defendant stipulated that the letters could be received into evidence for the truth of the matter asserted during the 1988 revocation hearing. The defendant never specifically objected to the denial of his right to confront and cross-examine the chemist. He merely objected to his probation officer as an unqualified witness to give testimony about the contents of the chemist's letters. In fact, defendant's counsel stated: Your Honor, we agreed that this gentleman [the chemist] did not have to appear and recite as evidence what was in his report, and what was in his report could be received in evidence without foundation, that's correct. Defendant stipulated that presence and testimony of the chemist was not necessary and cannot now complain that his right to confront and cross-examine the witness was denied. Affirmed. | June 6, 1989 |
f9ecb98a-eefc-4098-b55c-6d2773f511fd | HANZEL v MARLER | N/A | 88-554 | Montana | Montana Supreme Court | No. 88-554 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 FRANK HANZEL, d/b/a TOWN & COUNTRY ELECTRIC h BUILDING SUPPLIES, Plaintiff and Appellant, -vs- BRIAN MARLER and U.S.A. INVESTMENTS, INC. , Defendant and Respondent. APPEAL FROM: District Court of the Tenth ~udicial District, In and for the County of Fergus, The Honorable Peter L. Rapkoch, Judge presiding. COUNSEL OF RECORD: For Appellant: Torger S. Oaas, Lewistown, Montana For Respondent: J. David Penwell, Bozeman, Montana Submitted on Briefs: March 2, 1 9 8 9 Decided: June 8, 1989 Mr. ~ustice ~illiam E. Hunt, Sr., delivered the opinion of the Court. Frank Hanzel, plaintiff, appeals from the denial of his motion for a new trial under 5 25-11-103, MCA, by the D ~ S - trict Court of the Tenth ~udicial District, Fergus County. We affirm and remand for a determination of the amount of attorney fees. The issues raised on appeal are: 1. Whether the District Court erred in denying plain- tiff's motion for a new trial based on irregularities in the proceedings. 2. Whether the District Court erred in failing to award Hanzel his attorney fees. Hanzel owns and operates an electrical contracting business in Lewistown, Montana. Defendant, Brian Marler, entered into an oral contract with Hanzel to perform electri- cal contracting work and other repairs on an apartment build- ing owned by Marler in Lewistown. During the course of the contract, Marler paid Hanzel $21,000.00. Hanzel claimed that he was entitled to another $6,725.00 for additional labor and materials he supplied. Hanzel brought an action in the District Court on December 10, 1987, to foreclose on a mechanic's lien that he filed on Brian Marler's property in Lewistown for the disputed $6,725.00. On the morning before trial, Marler made a motion in limine to exclude certain invoices from evidence based on Hanzel's failure to comply with Rule 34, M.R.Civ.P. The motion was granted. A bench trial commenced and judgment was entered in favor of Hanzel for $1,066.40 for a bill due and owing by Marler to Hanzel. Each party was ordered to pay its own attorney fees. On June 22, 1988, Hanzel filed a motion for a new trial pursuant to § 25-11-103, MCA, based on irregularities in the proceedings. The District Court failed to rule on Hanzel's motion within 45 days, and under Rule 59 (dl , M.R.Civ.P., the motion was deemed denied. Hanzel appeals. Granting or refusing of a motion for a new trial rests in the trial court's discretion. O'Brien v. Great Northern R.R. Co. (1966), 148 Mont. 429, 421 P.2d 710, cert. denied 387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 974; State v. Barovich (1963), 142 Mont. 191, 382 P.2d 917. The "motion must be viewed in the light most favorable to the party against whom the motion is directed." Dieruf v. Gollaher (1971), 156 Mont. 440, 446, 481 P.2d 322, 325. Should the court grant a new trial, "the error complained of must be an error materially affecting the substantial rights of the aggrieved party. I ' Giles v. lint Valley Forest Products (1979), 179 Mont. 382, 388, 588 P.2d 535. Further, under Rule 61, M.R.Civ.P., the court must determine whether refusal to grant a motion for a new trial would appear inconsistent with substantial justice. At the hearing on motion for a new trial, Hanzel argued that the crux of his case depended on the introduction of the disputed invoices in order to prove the full extent of damag- es. He argued that excluding them materially affected the outcome of his award, and therefore, he should be granted a new trial. Marler's counsel stated, in response, that Hanzel failed to comply with the rules of discovery for request for production of documents under Rule 34, M.R.civ.P. At Hanzel ' s deposition, held the week before trial, Hanzel agreed that he would produce further invoices before trial. Marler stated that the invoices were not presented to him until the morning of trial which was untimely. He argued that this failure to comply with discovery was properly sanctioned by the ~istrict Court under Rule 37 (b) , M.R.Civ.P., by excluding the evidence from trial. Imposition of sanctions for failure to compl-y with the rules of discovery are regarded favorably. Owen v. F.A. Buttrey Co. (Mont. 1981), 627 P.2d 1233, 1236, 38 St.Rep. 714, 716. his Court frowns on last-minute production of relevant documents especially when the matter could easily have been taken care of before trial. See G-K properties v. Redevelopment Agency of the City of San Jose (9th ~ i r . 1978), 577 F.2d 645. Just before trial, counsel met in chambers with the Judge. Marler contended that the only invoices received by him before the morning of trial had been in response to his request for production of documents provided to Hanzel on September 23, 1987. Hanzel's counsel, however, offered to prove that Marler did receive several more invoices. He claimed that several invoices were attached to his responses to Marler's interrogatories as exhibits, and he requested a continuance of the trial in order to call his secretary as a witness on the matter. The District Court denied Hanzel's request and trial proceeded as scheduled. This Court cannot determine from the record before us whether Hanzel complied with the rules of discovery. When Hanzel's motion for a new trial based on irregularities in the proceedings was made, the ~istrict Court had all the necessary evidence before it. It had the complete record (including the disputed invoices), the affidavits of Hanzel, his counsel and counsel's secretary, and the transcripts of the motion in limine, the trial and the motion for a new trial. The District Court's denial of a motion for a new trial will not be overturned absent a showing of manifest abuse of that discretion. ~ i l e s , 588 P.2d at 538. See also Brothers -- v. Town of Virginia City (1976), 171 Mont. 352, 558 P.2d 464. We conclude that there was no abuse of discretion. The second issue raised on appeal is whether the District Court erred in failing to award Hanzel his attorney fees. Section 71-3-124, MCA, provides in part: In an action to foreclose any of the liens provided for by parts . . . 5 [construction liens] . . . of this chapter, the court must allow as costs the money paid for filing and recording the lien and a reasonable attorney's fee in the district and supreme courts, and such costs and attorney's fees must be allowed to each claimant whose lien is established . . . (Emphasis added.) The District Court Judgment of June 14, 1988, stated: It is therefore ordered that plaintiff have judg- ment for $1,066.40, for said lacier State Electric Supply Company bill, together with costs; but, because of the limited recovery, it is ordered that each party pay its own attorney's fees. At the trial there was conflicting evidence as to whether any money was due Hanzel. The ~istrict Court held that $1,066.40 was due Hanzel. Hanzel is, therefore, entitled to a reasonable attorney fee under 5 71-3-124, MCA. We remand for a determination of the amount of attorney fees. As we take this opportunity to admonish properly complied with Rule 23, M.R.App.P. Plaintiff's counsel failed to attach the District Court judgment and memorandum opinion in his appendix as required under Rule 23 (a) (6), M.R.App.P. Defendant's counsel's table of authorities was incomplete as required under Rule 23(b) and 23(a)(l), M.R.App.P. The table merely cited, "Montana Rules of Civil Procedure. I' Defendant 's counsel failed to properly list six authorities in his table although clearly cited throughout his brief. Affirmed and remanded for a determination of the amount of attorney fees. | June 8, 1989 |
cac950c2-867e-4ac8-9a23-7546a9a29f58 | MARRIAGE OF GRECIAN | N/A | 88-496 | Montana | Montana Supreme Court | No. 88-496 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF CINDY GRECIAN .* c * G' ' petitioner and Respondent C J : : , - Csr- . t - k : -. - -and- \ Cil --- 1 r - - . STEWART F. GRECIAN i ' .- - c-J ../' Respondent and Appellant ' Clf' . - \ ' $, - 7 L 3 .-- APPEAL FROM: District Court of the Sixteenth ~udicial ~ i s t ~ c t In and for the County of Rosebud The Honorable Alfred B. Coate, Judge presiding. COUNSEL OF RECORD: For Appellant: Gary A. Ryder, Forsyth; Montana For Respondent : Garry P. Bunke; Forsyth, Montana Submitted on Briefs: April 13, 1989 Decided: July 7 , 1989 9 Filed: - Y " Clerk Mr. Justice John C. Sheehy delivered the opinion of the Court. This is an appeal by Stewart Grecian from a division of marital property and a determination of child support in a judgment and decree issued against him by the District Court of the Sixteenth Judicial District, Rosebud County. We affirm. The parties, Cindy and Stewart Grecian were married February 14, 1981 in Forsyth, Montana. One child, Amber, was born of the marriage on August 24, 1982. Cindy filed a petition for dissolution of the marriage January 20, 1988. A hearing on motion for temporary child support and maintenance was held February 8, 1988. The parties entered into a stipulation at the the urging of the District Court which was adopted by the District Court on March 11, 1988. The parties agreed that Stewart would pay $600.00 per month child support and $300.00 per month maintenance during the pending dissolution proceeding. A bench trial was held May 23, 1988. On June 8, 1988 the District Court made its findings of fact and conclusions of law. The judgment and decree were entered on July 7, 1908. Joint custody was ordered with the child residing with Cindy during the school year. Based upon the earlier stipulation, Stewart was ordered to pay $600.00 per month child support reviewable in two years by request of either party. Stewart will not be required to pay child support during summer visitation. Stewart was also ordered to pay $150.00 per month for maintenance for 24 months while Cindy is enrolled in a re-education program. Property awarded to ~ i n d y includes: Household goods 8,000 Mobile home 8,000 And one-half of the net proceeds of a settlement of a lawsuit in favor of the parties prior to the divorce. Property awarded to Stewart includes: Olds $2,500 GMC 4x4 300 Chev. Coupe 0 Tools 25,212 Plus the other half of the proceeds of the lawsuit. The complaint by Stewart about the property distribution is confined to the proceeds of the lawsuit settlement in favor of Stewart and Cindy. I. Did the District Court err in its award of one-half of the anticipated proceeds from the settlement of the lawsuit resolved prior to the divorce? According to testimony presented at trial by Cindy, Stewart's father (Richard) had a power of attorney from Stewart. Richard deeded property in California to Stewart and was conducting real estate transactions with Stewart's power of attorney without Stewart's knowledge. Cindy and Stewart began to receive bills and tax notices associated with the property. Cindy and Stewart hired an attorney to revoke the power of attorney but still ended up having to pay taxes on part of the property and Richard refused to reimburse Cindy and Stewart. Richard sued Cindy and Stewart to get the property back and Cindy and Stewart countersued. The matter was settled for $50,000.00 plus 26% net equity value of the real estate involved. As of the date of the hearing, the settlement proceeds had not been paid, although Cindy stated she expected the amount to be approximately $250,000.00 before attorney fees are deducted. Stewart claims the property Richard deeded to him and eventually sued him for were gifted to him, and should not have been considered by the court as part of the marital estate. The District Court, in its findings of fact, characterizes the right to receive the proceeds of the settlement as a chose in action which is personal property that can be divided by the District Court. Stewart argues that the District Court erred by finding that Cindy automatically obtained an interest in the land (prior to its transformation to personal property) because California is a community property state. Stewart cites Hughes v. Hughes (1978), 91 N.M. 339, 573 P.2d 1194 for the proposition that the domicile of the parties is what determines whether property acquired during the marriage is subject to community property law or, as in Montana, equitable distribution law. This is a misstatement of that case. In Huqhes, the court stated the general rule as: . . . funds or property, brought in from a non-community property state where the funds or property were there considered to be the separate property of an individual, will retain the same character when traceable into New ~exico property. Hughes, 573 P.2d at 1198; citing ~oprian v. Mennecke (1949), 53 N.M. 176, 204 P.2d 400. The facts involved in Hughes distinguish it from the present case. In Hughes, the husband had separate property in Iowa, reduced the property to monetary form, moved to New Mexico (a community property state) where he invested the money in another piece of real property. Upon divorce, husband contended community property law did not extend to the New Mexico property because it could be traced to his separate property in Iowa and the New Mexico court agreed. The New Mexico Court applied Iowa law which is essentially equitable distribution and arrived at the same result. The present case involves property located in California and the domicile of the parties has always been Montana. The Montana courts do not have jurisdiction over real property located outside its jurisdiction, nor would Montana law apply. In the final analysis, it does not really matter because the character of the property was transformed from real property outside the state of Montana, which the Montana court would have no power over, to personal property found in the state of Montana, over which the Montana court does have jurisdiction to equitably distribute under 5 40-4-202, MCA. Judgment by the District Court will not be altered in a dissolution proceeding unless a clear abuse of discretion is shown. ~arriage of Dalley (1988), - Mont . - , 756 P.2d 1131, 1133. We hold that the ~istrict Court did not abuse its discretion by awarding Cindy one-half of the settlement in the case in which she was a named defendant. There is substantial evidence in the record to indicate something more was going on than a gift to Stewart from his father. It appears that Richard was attempting to make transfers of property without incurring tax liability which cannot be categorized as a gift. If analyzed under either community property law or equitable distribution law, the same result is reached. Maintenance of this asset involved being a party to the lawsuit initiated by Richard and he named both Stewart and Cindy as defendants and both participated in the defense which resulted in the settlement at issue. There is no set formula as to how assets of this type are to be distributed, and each case is decided on its own merits. ~arriage of Herron (1980), 186 Mont. 396, 404, 608 P.2d 97, 101. We, therefore, affirm the division this marital property. 11. Did the District Court err in its determination of child support? Stewart, the appellant, sets out the issue as to whether the District Court erred in its determination of child support by failing to apply the Child Support Guidelines adopted by this Court. We stress that our order dated January 13, 1987 adopting the Child Support Guidelines specifically provide that the Guidelines are not binding upon judges and further: We so order to prevent appeals based upon claimed failure to observe or follow these guidelines. The court, in setting the amount of child support, looked to the stipulation of the father that he would pay $600 per month in temporary child support. The evidence is not clear as to the actual income of the father because of his extra-employment activities, but his earnings average over $35,000 per year. The wife had no employment at the time of the decree, except for part-time cleaning work. The decision of the court to continue for two years the monthly amount stipulated for during the pendency of the lawsuit seems reasonable, especially since no support is due during the two months the child will be with the father. Because of the temporary nature of the amount of child support, and the amount stipulated, we find no abuse of discretion at this point relating to child support. Thus, the court considered the relevant factors. ~arriage of ~ i n g (1985), 216 Mont. 92, ~f firmed. We Concur: , I/ Chief J u s t i c e / | July 7, 1989 |
7c4c0366-ee58-408e-a5f3-5a6375449261 | MARRIAGE OF DIRNBERGER | N/A | 88-500 | Montana | Montana Supreme Court | NO. 88-500 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF CONNIE A. DIRNBERGER, petitioner and Respondent, and JEROME A. DIRNBERGER, Respondent and Appellant. APPEAL FROM: District Court of the Fourth ~udicial ~istrict, In and for the County of is sou la, The Honorable Douglas G. arki in, Judge presiding. COUNSEL OF RECORD: For Appellant: Paul Neal Cooley; Skelton & Cooley, Missoula, Montana For Respondent: Paulette C. Ferguson, Missoula, Montana Submitted on Briefs: March 31, 1989 ' 7 Decided: May 18, 1389 C-) Filed: 2 - ' > \ - 4 ' , % I , - 1 r - : yc, - L " C l e r k Mr. Justice Fred J. Weber delivered the Opinion of the Court. This is an appeal from a dissolution proceeding in the Fourth Judicial District Court, Missoula County. Husband appeals. We affirm i . n part, reverse in part and remand for furt.her proceedings consistent with this opinion. The issues are: 1. Did the District Court err in failing to make ade- quate findings of fact before dividing the marital propertv? 2. Did the District Court err by not awarding specific visitation rights to husband? 3. Did the District Court err in awarding attorney fees to wife? 4. Did the District Court err in certain rulings? The parties were married January 24, 1982. Dissolution proceedings were initiated on December 12, 1986. Husband has two minor children from a prior marriage. Wife has a minor daughter whom husband adopted. Jerome Dirnberger (husband) has a bachelor's degree in theology and has done graduate studies in anthropology. Connie Dirnberger (wife) has a high school diploma. Hus- band's work experience includes bank teller, bank officer, and bank manager. He has also owned and managed several businesses, including Schrader Stoves, Montana Glass, Inc., United Building Services, and Business Advisory Services. Wife has worked as a telephone operator, interior designer, and as alcohol counselor for the Confederated Salish and Kootenai Tribes. Wife is an enrolled member of these Tribes. When the parties were married wife owned a home in East Missoula, Montana. Husband had just closed the Schrader Stoves business. Soon after marriage the parties sold the East Missoula home and moved to Denver, Colorado. The par- ties received approximately $2,300 in equity from the Missoula home. During the marriage, husband received approx- imately $62,000 by bequest from his father. When the parties moved to Denver they purchased a home using proceeds from the home sold in Missoula, combined with money from husband's inheritance. The parties later sold the home in Colorado and moved back to Missoula, reinvesting the proceeds from the Denver home into a home in Missoula. At dissolution the equity in the Missoula family home was valued at $13,000. The court ordered that the family home be sold and the proceeds divided equally. The parties owned two businesses at the time of dissolu- tion: Montana Glass, Inc., and West Pine Partnership which owns rental properties. Montana Glass, Inc. was purchased by the parties in 1985 for $404,000. The purchase price of Montana Glass, Inc. actually comprised the purchase of stock, inventory, and the West Pine Partnership. Husband contrib- uted $40,000 to the purchase price from funds obtained by bequest from his father, and assumed a contract in the amount of 9;347,000. Husband's brother contributed 515,000 to the business and husband's two chiIdren each contributed 51,500. Husband and wife owned 70% of this business. Montana Glass, Inc. was found by the court to have a net market value of $100,000. Because the parties owned 70% of the business, their interest was valued at $70,000, From this value the court deducted $44,000 which was attributaSle to husban6's inheritance, leaving a value of $26,000 attrih- utable to the marital estate. The court determined the net value of the West Pine Properties to be $2645. Thus the combined net value of the two businesses was $28,645. The court awarded !X35,000 of this interest to wife, ordering husband to pay this at the rate of $500 per month until paid. Wife was to transfer her interest in these businesses to husband. L Did the District Court err in failing to make adequate findings of fact before dividing the marital property? "A District Court has far-reaching discretion in divid- ing the marital property. Our standard of review is that the District Court's judgment, when based upon substantial credi- ble evidence, will not be altered unless a clear abuse of discretion is shown." In re Marriage of Stewart (1988) , 45 St.Rep. 850, 852, 757 P.2d 765, 7 6 7 ; In re Marriage of Watson (198?), 44 Mont. 1167, 1170, 739 P.2d 951, 954. Tn a marital. dissolution the guidelines for property division are enumerated in 5 40-4-202, MCA. This statute lists many factors to consider in this apportionment, specif- ically providing that the court shall consider the estate and liabilities of the parties. The basic goal is that. the court must "finally equitably apportion between the parties the property and assets . . ." In construing this statute, this Court has consistently held that this apportionment must be predicated upon a finding of the net worth of the marital estate. Only after a finding of net worth can the trial court make an equitable apportionment. The District Court must make complete findings of fact, including assets and liabilities, from which can be established a net worth of the parties. Schultz v. Schultz (1980), 188 Mont. 363, 613 P.2d 1022, and cases cited therein; Cook v. Cook (1980), 188 Mont. 472, 614 P.2d 511. Additionally, "[ilf the District Court's findings and conclusions do not reflect the net worth of the parties' marital assets at the time of their divorce, this Court on appeal cannot determine if the property was equita- bly divided." Robertson v. Robertson (1979), 180 Mont. 226, 3 3 1 , 590 P.?d 113, 116. The District Court found the marital estate of the parties included the family home, Montana Glass, Inc., and the West Pine Partnership. However, the court made no spe- cific finding as to marital debt, or as to the value of the parties' personal property. The court simply allocated the unpaid debt to husband. Husband produced evidence at trial demonstrating debts exceeding $55,000, which have been in- curred by both husband and wife. The amounts and sources of these debts are uncontroverted. Husband argues that if this debt is subtracted from his share of the marital estate, he is left with a negative net value of over $35,000. In the case of In re Marriage of Metcalf, 183 Mont. 266, 598 P.2d 1140, the trial court failed to consider $12,000 worth of unsecured debt before distributing the marital property, resulting in a net deficit to one party. This Court stated, "This factor, if considered by the court, should have alerted it that the property distribution was inequitable." Metcalf, 598 P.2d at 1143. Similarly, in the present case, there is no basis for determining whether the apportionment of assets is equitable without a finding on the parties' liabilities. We conclude that the District Court's failure to make a specific finding as to liabilities, thereby precluding a determination of net worth, was an abuse of discretion. Additionally, we note that the court's decree should include a finding regarding the parties' personal property in this case, as husband alleges that this value is substantial. "If contested evidence i . s presented regarding the existence of a marital asset and no findings are made regarding that asset or no explanation provided as to why the District Court did not include or explain the exclusion of such property, the District Court has abused its discretion." Hamrneren v. Hammeren (1982), 201 Mont. 443, 447, 663 P.2d 1152, 1154. We vacate the property division in this case and remand For a redetermination of the property division, using all. relevant factors including the consideration of net worth and personal property in a manner consistent with this opinion. Husband also contends that the court erred in not taking his inheritance into consideration in dividing the proceeds from the family home. While the court subtracted the hus- band's inheritance from the parties' equity in the business, it did not subtract any amount from the equity in the family home which might be attributable to inheritance. The court is required to take an inheritance into consideration in dividing the assets. However, this Court has previously stated that "no definite rule could be established as to how the trial court was to consider this asset. Each case has to be decided on its own facts." Metcalf, 598 P.2d. at 1143, quoting Vivian v. Vivian (1978), 178 Mont. 341, 583 P.2d 1072. In the present case the court took husband's inheri-- tance into consideration in the property division. We con- clude that the District Court did not err in its determination that the equity in the family home should be divided equally. Did the District Court err in not awarding specific visitation to husband? The dissolution decree awarded custody of the minor child to wife and gave husband "reasonable rights of visita- tion." The court also decreed that "Husband may petition the Court for a specific visitation schedule with the minor child if the granting of 'reasonable visitation' becomes unwork- able." The child involved in this custody issue is wife's daughter, Sari, whom husband adopted. Sari is now 16 years old. Husband contends that it was error for the court not to establish a specifj-c visitation schedule because there is recognized animosity between him and his wife, and because wife has previously discouraged visitation of Sari. We find no abuse of discretion in this case. Considering Sari's age, the granting of a lenient standard of "reasonable visitation" may be appropriate. The court specifically allowed husband to petition for a specific visitation schedule should the parties' visitation arrangement turn out to be unworkable. This Court has previously approved the granting of reasonable visitation, rather than a specific schedule in certain cases. See Meyer v. Meyer (1983), 204 Mont. 177, 182, 663 P.3d 338, 331; Sanderson v. Sanderson (Mont. 198!), 623 P.2d 1388, 1389, 3R Pt.Rep. l7?, 178. We hol-d that the District Court. did not abuse its discretion in not establishing a specific visitation schedule. IIT Did the District Court err in awardin9 wife attorney fees? Husband contends that the court abused its discretion in ordering him to pay $3,000 of wife's attorney fees and costs. He urges that the court's failure to consider the parties' liabilities indicates that it failed to consider the finan- cial resources of the parties' before awarding attorney fees. In a dissolution proceeding, attorney Fees are awarded pursuant to $ 40-4-110, MCA, which provides that "[tlhe court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party . . ." In view of the court's failure to make findings on the parties' 1iabilit.ies , it could not have properly considered the financial resources of both parties. As in In re Mar- riage of PcGjll (1380), 187 Mont. 187, 193, 609 P.2d 278, 279, rev'd on other grounds, 196 Mont. 40, 637 P.2d 1182 (1981-), we believe it is best t . o vacate the attorney Fee award and leave t h i s t o t h e d i s c r e t i o n of t h e t r i a l court on remand. W e therefore vacate t h e award of attorney fees and remand f o r f u r t h e r consideration. IV Di-d t h e D i s t r i c t Court e r r i n all.owing c e r t a i n evidence a t t r i a l ? Husband contends t h a t the court e r r e d allowing w i f e ' s l a t e f i l i n g of proposed findings of f a c t and conclusions of law. Wife did not f i l e proposed findings of f a c t and conclu- sions of law u n t i l the dav before t r i a l . O n t h e day of t r i a l , husband requested sanctions f o r l a t e f i l i n g pursuant t o Rule 8, Uniform D i s t r i c t Court Rules. The c o u r t f i r s t imposed a sanction prohibiting wife from presenting any evidence a t t.ria1. However, t h e court withdrew t h a t order when wife reminded t h e court t h a t it had previously agreed t o allow her an extension of time t o f i l e her proposals. W e note t h a t t h e language of Rule 8 allows t h e court d i s c r e t i o n i n awarding sanctions. In t h e absence of any showing by the record t h a t t h e D i s t r i c t Court committed an abuse of discre- t i o n , w e w i l l not overturn t h e decision of t h e lower court. Husband a l s o a l l e g e s t h a t t h e court erred when it re- t r a c t e d i t s order excluding wife ' s expert from t e s t i f y i n g . O n t h e f i r s t day of t r i a l , January 2 2 , t h e c o u r t excluded w i f e ' s expert, Tracy Rlakeslee, a CPA who was t o t e s t i f y t o t h e value of Montana Glass, Inc. This exclusion was based on t h e f a c t t h a t wife had not supplemented i n t e r r o g a t o r i e s i n a timely fashion t o n o t i f y husband of t h i s expert. Relying on t h i s order, husband declined t h e c o u r t ' s o f f e r of a continuance and e l e c t e d t o t r y t h e case t h a t day. However, a t the c l o s e of t h e f i r s t day of t r i a l , husband requested a continuance i n order t o b r i e f a c e r t a i n i s s u e . The court granted t h i s continuance, and because of scheduling problems, t h e t r i a l was not resumed u n t i l March 1 6 , nearly two months later. When trial resumed on March 16, both husband's expert and wife's expert were allowed to testify as to the value of the business. Husband claims surprise, and also that the retraction of the order negated his trial tactics, in that he assumed only his expert would testify as to the value of the business. It is not clear from the record at which point or for what reason the court retracted its order. In view of the fact that the trial was continued for nearly 2 months, we conclude no abuse of discretion has been shown on the part of the trial judge in allowing wife's expert to testify. In the event husband contends he should be allowed to submit addi- tional evidence because of the Blakeslee testimony he may present that request to the trial court for consideration on remand. We affirm in part, reverse in part and remand for fur- ther proceedinqs consistent with this o~inion. We Concur: | May 18, 1989 |
e9716656-d230-4b33-ac12-337696fd505c | WHITEHAWK v CLARK | N/A | 88-582 | Montana | Montana Supreme Court | No. 88-582 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 PHIL WHITEHAWK and CONNIE BELLET, Plaintiffs and Appellants, -VS- STAN CLARK, Defendant and Respondent. APPEAL FROM: District Court of the Sixth Judicial District, In and for the County of Park, The Honorable Byron Robb, Judge presiding. COUNSEL OF RECORD: For Appellant: Karl Knuchel, Livingston, Montana For Respondent: J. Robert Planalp, Landoe, Brown, Planalp and Kommers, Bozeman, Montana Filed: Submitted on Briefs: April 27, 1 9 8 9 Decided: June 29, 1989 M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion o f t h e Court. P l a i n t i f f s , P h i l Whitehawk and Connie B e l l e t (Whitehawks), appeal from a jury v e r d i c t rendered i n t h e S i x t h J u d i c i a l D i s t r i c t , Park County, t h e Honorable Byron L. Robb p r e s i d i n g , i n f a v o r o f t h e defendant, Stan Clark. P l a i n t i f f s i n i t i a t e d t h e a c t i o n seeking t o recover damages f o r t h e d e s t r u c t i o n o f personal property. W e r e v e r s e and remand f o r a new t r i a l . The Whitehawks r e n t e d a l o g c a b i n and f o u r o u t b u i l d i n g s l o c a t e d near W i l s a l l , Montana, from t h e defendant Stan Clark. The Whitehawks r e s i d e d i n t h e c a b i n and used t h e o u t b u i l d i n g s t o s t o r e v a r i o u s p e r s o n a l i t e m s , i n c l u d i n g a r t work, musical instruments, musical recordings and h i s t o r i c a l documents. Much o f t h e m a t e r i a l s t o r e d i n t h e o u t b u i l d i n g s w e r e used i n connection w i t h t h e Whitehawks' musical performances e n t i t l e d " I n s p i r a d a Americana." On A p r i l 28, 1985, Duane Clark, son o f t h e defendant, began burning d i t c h e s on t h e family ranch s o u t h e a s t o f t h e p r o p e r t y r e n t e d by t h e Whitehawks. I n t h e e a r l y evening hours, a s l i g h t b r e e z e caused t h e f i r e t o move o u t o f t h e d i t c h e s , burning brush and swamp a r e a t o t h e n o r t h e a s t . Duane tended t h e f i r e throughout t h e day and r e t u r n e d home a t 6:00 p.m. f o r d i n n e r . L a t e r , Duane received a phone c a l l from t h e Whitehawks e x p r e s s i n g concern over t h e f i r e . Duane r e t u r n e d t o t h e f i e l d and continued t o watch t h e f i r e u n t i l approximately 10:OO p.m. The testimony a t t r i a l c o n f l i c t e d regarding t h e f i r e a c t i v i t y d u r i n g t h e n i g h t and t h e following morning. Duane t e s t i f i e d t h a t when he r e t u r n e d t o t h e f i e l d i n t h e l a t e evening, t h e f i r e had diminished t o only embers and smoke. I n a d d i t i o n , Duane s t a t e d t h a t he viewed t h e f i e l d t h e next morning and found t h e embers and smoke completely extinguished. T h e r e a f t e r , Duane l e f t t h e a r e a t o continue work with his father in another portion of the ranch several miles away. On the other hand, the Whitehawks testified that throughout the night, they could see both embers and flames. However, they testified that the following morning, no embers were visible, but a substantial amount of smoke was present. The Whitehawks stated that they remained concerned about the fire, but that a heavy dew, a backburn, a still wind and lack of any embers reassured them that they could leave their residence for a doctor's appointment. Additionally, Mr. Whitehawk testified that he spoke to Duane in the morning and was assured that Duane would continue to watch the area. Duane denied the conversation entirely. During the afternoon, the fire flared up, sweeping across the marshes and open fields. When the Whitehawks returned home in the afternoon, they found three of the four outbuildings completely destroyed and fire threatening the log cabin. Mrs. Janet Clark, Duane's wife, was on the premises when the Whitehawks returned. Immediately, the Whitehawks began fighting the fire. After 45 minutes, the local volunteer fire department arrived and extinguished the blaze. The Whitehawks filed suit against Stan Clark, alleging negligence and strict liability. On September 18, 1987, the Whitehawks moved for summary judgment on the issue of liability, arguing that S 50-63-103, MCA, imposed strict liability upon one who intentionally starts a fire which destroys property, and therefore, they were entitled to judgment as a matter of law. The District Court denied the motion without opinion. On August 29, 1988, the case was tried before a twelve member jury. Upon the completion of testimony, the District Judge met with the attorneys to settle jury instructions and prepare a special verdict form. At this time, the District Court rejected plaintiffs' Proposed Instruction No. 22 concerning 8 50-63-103, MCA, concluding t h e s t a t u t e pertained only t o t h e i n t e n t i o n a l burning of excess f o r e s t m a t e r i a l . Thereafter, t h e jury returned a v e r d i c t i n favor of t h e defendant. The Whitehawks appeal t h e following issues: 1. Does S 50-63-103, MCA, apply t o t h e i n s t a n t case? 2 . Did t h e D i s t r i c t Court e r r when it denied p l a i n t i f f s ' motion f o r summary judgment? 3. Did t h e D i s t r i c t Court e r r when it refused t o i n s t r u c t t h e jury on p l a i n t i f f s ' Proposed I n s t r u c t i o n No. 22 regarding 8 50-63-103, M C A ? Section 50-63-103, MCA, s t a t e s i n p a r t : L i a b i l i t y of offender f o r damages and c o s t s . Any person who s h a l l upon any - land within t h e s t a t e , whether on h i s own o r on a n o t h e r ' s land, s e t o r leave any f i r e t h a t s h a l l spread and damage o r destroy property of any kind n o t h i s own s h a l l be l i a b l e f o r a l l damages caused thereby, and any owner of property damaged o r destroyed by such f i r e may maintain a c i v i l s u i t f o r t h e purpose of recovering such damages. Any person who s h a l l upon any land within t h i s s t a t e , whether on h i s own o r on a n o t h e r ' s land, s e t o r leave any f i r e which t h r e a t e n s t o spread and damage o r destroy property s h a l l be l i a b l e f o r a l l c o s t s and expenses incurred by t h e s t a t e of Montana, by any f o r e s t r y a s s o c i a t i o n , o r by any person extinguishing o r preventing t h e spread of such f i r e . (Emphasis added. ) This Court has been c a l l e d upon t o i n t e r p r e t t h e s t a t u t e on two occasions. Montana Dept. of Natural Res. and Cons. v. Clark Fork Logging (1982), 198 Mont. 494, 646 P.2d 1207; and Belue v. S t a t e (1982), 199 Mont. 451, 649 P.2d 752. Defendant contends t h a t our previous decisions c o n t r o l t h e outcome o f t h e f i r s t i s s u e which questions t h e a p p l i c a b i l i t y of S 50-63-103, MCA. Defendant argues t h a t t h e s t a t u t e applies only to the burning of excess forest materials. We find defendant's interpretation unduly restrictive. In Clark Fork Logging, defendants entered into a timber sale contract with the United States Forest Service to log an area in Sanders County. During operation, an employee started a chain saw which backfired and ignited a forest fire. The Department of Natural Resources and Conservation (DNRC), acting under contract with the United States Forest Service, extinguished the fire at a cost of $126,721.80. Thereafter, the DNRC brought suit to recover the cost under theories of strict liability and negligence. On appeal, we affirmed the lower court's grant of summary judgment against DNRC's strict liability count, holding: As they are used in section 50-63-103, MCA, the words "set or leave a fire" refer to the deliberate act of burning excess forest material. The statute does not apply to the instant situation. The fire was not deliberately --- ignited. Rather, it accidentally started when a spark from the chain saw ignited a slash pile. Under these facts summary judgment on Count I was proper. (Emphasis added. ) Clark Fork Logging, 646 P.2d at 1209. Subsequently, this Court issued its decision in Belue. During a severe windstorm, a fire ignited near a slag pile. The fire spread four and one half miles across defendant's land to plaintiffs ' property. Relying upon Clark Fork Logging, we concluded the facts did not support the applicability of 5 50-63-103, MCA. Belue, 649 P.2d at 754. Our decisions emphasized that the statute applied to the intentional setting of a fire. None of the factual circumstances which limited the statute's applicability in Clark Fork Logging, or Belue, are present here. Our review of the statute failed to disclose limiting factors which would render the provision inapplicable to private landowners, or language which i n d i c a t e s an a p p l i c a t i o n exclusively t o t h e burning of f o r e s t m a t e r i a l s . Therefore, we conclude (5 50-63-103, MCA, may be applicable t o t h e i n s t a n t case. Next, t h e Whitehawks contend t h e D i s t r i c t Court should have granted t h e i r motion f o r summary judgment on t h e l i a b i l i t y i s s u e , leaving damages a s t h e s o l e i s s u e t o be decided a t t r i a l . W e disagree. The standard t h e a p p e l l a t e c o u r t a p p l i e s when reviewing a g r a n t o r d e n i a l of a motion f o r summary judgment i s t h e same a s t h a t u t i l i z e d by t h e t r i a l c o u r t i n i t i a l l y ; summary judgment i s proper when it appears t h e r e i s no genuine i s s u e a s t o any m a t e r i a l f a c t and t h e moving p a r t y i s e n t i t l e d t o judgment a s a matter of law. Rule 56, M.R.Civ.P.; Reagan v. Union O i l Co. of C a l i f o r n i a (1984), 208 Mont. 1, 675 P.2d 953. I f t h e r e i s any doubt a s t o t h e p r o p r i e t y of t h e motion, it should be denied. Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015. The v i o l a t i o n of a s t a t u t e intended t o p r o t e c t t h e p l a i n t i f f from t h e i n j u r y incurred i s generally held t o be negligence per s e . Taylor, Thon, Thompson & Peterson v. Cannaday (Mont. 1988), 749 P.2d 63, 45 St.Rep. 1 0 2 ; ~ e h r i n g v. LaCounte (1986), 219 Mont. 462, 712 P.2d 1329. The defendant's conduct must s t i l l be t h e proximate cause of t h e harm t o t h e p l a i n t i f f s , and t h e r e remains t h e p o s s i b i l i t y of defenses, such a s contributory negligence. Restatement (Second) of Torts § 288B (1974) ; Martel v. Montana Power Co. (Mont. 1988), 752 P.2d 1 4 0 , 4 5 St.Rep. 460. Because t h e s e a r e i s s u e s of f a c t , summary judgment was inappropriate. The D i s t r i c t C o u r t ' s d e n i a l of t h e Whitehawks' motion f o r summary judgment was t h e r e f o r e proper. F i n a l l y , we address t h e t h i r d i s s u e on appeal. The Whitehawks contend t h e D i s t r i c t Court improperly refused t o g r a n t t h e i r Proposed I n s t r u c t i o n No. 22 which s e t f o r t h verbatim t h e f i r s t sentence of § 50-63-103, MCA. A t t r i a l , defendant objected t o t h e i n s t r u c t i o n and argued t h e Whitehawks abandoned t h e v i o l a t i o n of s t a t u t e claim because they by f a i l e d t o include it within t h e p r e t r i a l order. The D i s t r i c t Court denied t h e i n s t r u c t i o n and s t a t e d t h a t t h e s t a t u t e pertained only t o t h e burning of excess f o r e s t m a t e r i a l . The purpose of t h e p r e t r i a l order i s t o prevent s u r p r i s e , simplify i s s u e s and permit counsel t o prepare f o r t r i a l on t h e b a s i s of t h e p r e t r i a l order. Workman v. McIntryre (1980), 190 Mont. 5, 617 P.2d 1281. This Court has held t h a t t h e p a r t y may n o t r a i s e an i s s u e on appeal which deviated from those s t a t e d i n t h e p r e t r i a l order. Morse v. Cremer (1982), 200 Mont. 71, 647 P.2d 358. Under t h e s e two premises, it appears reasonable f o r defendant t o have assumed t h a t t h e i s s u e of l i a b i l i t y under t h e s t a t u t e would not a r i s e a t t r i a l . However, o t h e r f a c t o r s weigh a g a i n s t defendant's waiver contention. F i r s t , t h e Whitehawks properly preserved t h e i s s u e f o r appeal a s applied t o jury i n s t r u c t i o n s . Rule 51, M.R.Civ.P., provides i n p a r t t h a t " [ n l o p a r t y may assign a s e r r o r t h e f a i l u r e t o i n s t r u c t on any p o i n t of law unless he o f f e r s an i n s t r u c t i o n thereon." When t h e Whitehawks presented an i n s t r u c t i o n which s t a t e d verbatim t h e language of S 50-63-103, MCA, t h e D i s t r i c t Court denied t h e i n s t r u c t i o n a s inapplicable t o t h e case. I n a d d i t i o n , t h e s t a t u t e was t h e s u b j e c t of a motion f o r summary judgment. Notwithstanding c e r t i f i c a t i o n , an order denying summary judgment i s i n t e r l o c u t o r y . Rule 1, M.R.Civ.P. Thus, t h e a p p l i c a b i l i t y of 5 50-63-103, MCA, has not been waived i n s o f a r a s it was presented t o t h e D i s t r i c t Court i n t h e Whitehawks' motion. W e t h e r e f o r e a r e persuaded t h a t t h e Whitehawks' i s s u e of t h e f a i l u r e t o i n s t r u c t i s proper f o r appeal. W e have held t h a t t h e r e f u s a l t o i n s t r u c t a jury on an important p a r t of a p a r t y ' s theory of t h e case i s r e v e r s i b l e e r r o r . Smith v. Rovick (Mont. 1988), 751 P.2d 1053, 45 St.Rep. 451; Northwestern Union Trust Co. v. Worm (1983), 204 Mont. 184, 663 P.2d 325. While other instructions addressed the elements necessary to establish negligence, none of the given instructions informed the jury of the effect of a violation of statute. This was an essential part of the Whitehawks' case and therefore they were entitled to have Proposed Instruction No. 22 submitted to the jury. Reversed and remanded for new trial. We concur: , + ' | June 29, 1989 |
3194e3bf-facb-421e-bf19-9080e45a6cd4 | STATE v HIGAREDA | N/A | 88-498 | Montana | Montana Supreme Court | No. 88-498 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Respondent, -VS- JESSE JAMES HIGAREDA, Defendant and Appellant. APPEAL FROM: The District 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: ~cKinley Anderson, Bozeman, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana George M. Schunk, Asst. Atty. General, Helena A. Michael Salvagni, County Attorney, Bozeman, Montana Marty Lambert, Deputy County Attorney, Bozeman submitted on ~riefs: ~ p r i l 27, 1989 Decided: July 11, 1989 Mr. Justice ~illiam E. Hunt, Sr. , delivered the opinion of the Court. A jury empaneled in the District Court of the Eighteenth Judicial District, Gallatin County, found Jesse James Higareda, the defendant, guilty under S 45-6-204, MCA, of the offense of burglary. The District Court sentenced defendant to the Montana State Prison for a term of 15 years with five years suspended and credit for time served. Defendant appeals. We affirm. The issues raised on appeal are: 1. Whether the ~istrict Court erred in denying defendant's motion to suppress statements made to an arresting officer. 2. Whether the ~istrict Court erred in admitting testimony of defendant's parole officer during a jury trial. On February 29, 1988, at approximately 3:00 a.m., two men entered the Country Lanes Bowling Alley, two miles west of Bozeman, through an air conditioning duct on the roof of the building. The men triggered a silent alarm to which the alla at in County Sheriff's Department responded. Anthony May, defendant's partner, was apprehended in the building at that time. The safe, a cash register, a cigarette machine, a pool table, and poker machines had been looted. Several buckets of quarters had been set aside and burglary tools were found in the building. At approximately 3:30 p.m. that same day, the sheriff's department was again called to the Country Lanes to investigate a report of a man, later identified as the defendant, hiding above a false ceiling in the building. Police officers surrounded the building. The defendant, who attempted t . o flee, was then arrested in a nearby field. He was placed in a patrol car and brought back to Country Lanes where he was identified by the manager as the person who had been spotted in the ceiling. At that point, the arresting officer asked defendant what the name of his partner was in the Country Lanes burglary, to which defendant replied, "Didn't he tell you?" He further stated to the officer that if his partner did not give the police his name, the defendant was not going to either. Defendant was then transported to the Gallatin County Sheriff's Department where he telephoned his parole officer. He told his parole officer, "I really screwed up." He also told the parole officer of his conversation with the detective. On March 15, 1988, an information was filed in the District Court charging defendant with burglary in violation of S 45-6-204, MCA. Defendant pled not guilty during his March 17, 1988, arraignment. On April 7, 1988, a hearing was held to consider defendant's motion to suppress the statements he made to the arresting officer. The motion was denied and a jury trial commenced on June 6, 1988. Defendant was found guilty of the charge and, on June 27, 1988, was sentenced to the Montana State Prison for a term of 15 years with 5 years suspended and credit for time served. The first issue raised on appeal is whether the District Court erred in denying defendant's motion to suppress statements made to an arresting officer. The arresting officer, after taking defendant in custody, asked defendant what the name of his partner was in the Country Lanes burglary. The defendant replied, "Didn't he tell you?" The officer explained that he thought defendant's partner had given him a false name to which defendant replied that if his partner had not given the officer his name that defendant would not either. Defendant contends that because he was never advised of his rights prior to the questioning, as required under Arizona v. Miranda (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the statements should be suppressed. After a hearing on the matter, the motion to suppress was denied. We held in In Re Matter of J.W.K. (Mont. 1986), 724 P.2d 164, 167, 43 St.Rep. 1483, 1486, that the standard to be applied in a motion to suppress is whether the District Court predicated its decision on substantial credible evidence. The record reflects that defendant did not recall being advised of his rights after being taken into custody. In fact, at the suppression hearing defendant testified that he believed he had been advised of his rights prior to questioning but that he was confused. Moreover, the arresting officer testified that he did indeed advise defendant of his rights before defendant was questioned. Further, the District Court in a suppression hearing must look at the totality of circumstances surrounding the statements. J.W.K., 724 P.2d at 167. The circumstances may include the experience, conduct, and capacity to understand warnings. See State v. Blakney (1982), 197 Mont. 131, 138, 641 P.2d 1045, 1049. Here, the only unusual circumstance alleged by defendant was his language difficulty. ~othing in the record, however, reflects an inadequate ability of defendant to communicate or understand the English language. In fact, during the suppression hearing, defendant was asked to convey his understanding of his rights and replied, "The right to an attorney, right to remain silent, the right to have an attorney present during any questioning, I guess. That's about it." The District Court properly denied defendant ' s motion to suppress in view of the circumstances and based on the testimony of the arresting officer and the defendant. The second issue raised on appeal is whether the District Court erred in admitting testimony of defendant's parole officer during a jury trial. Under S 2-2-102(6), MCA, a public officer is defined as any state officer. State officers are defined under § 2-2-102(8), MCA, as all elected officers and directors of the executive branch of state government. Although the Parole and Probation Division comes under the executive branch of government, a parole officer is neither an elected officer nor director. Therefore, a parole officer is not a state officer as defined above and thus, no privilege under § 26-1-810, MCA, extends to communications made to parole officers. Defendant argues that his parole officer's testimony was unduly prejudicial since it showed that defendant had been convicted of a crime. Although the issue is one of first impression in Montana, washington allowed a parole officer to testify at a parolee's trial. In State v. Terrovona (1986), 105 Wash.2d 632, 716 P.2d 295, a probation officer was permitted to testify in a murder trial since the testimony tended to establish a motive for murder. The Court found that because the probative value of the probation officer ' s testimony outweighed the prejudicial effect, the trial court did not abuse its discretion in allowing the testimony. The Court found the testimony relevant. See also State v. Chavez (1988), 111 Wash.2d 548, 761 P.2d 607 and; State v. Brown (1987), 47 Wash.App. 565, 736 P.2d 693. We so adopt this rationale where such testimony is relevant. Rule 401 M.R.Evid., provides in part: Relevant evidence means evidence having any tendency to make the existence of any fact that 1s of consequence to the determination of the action more probable or less probable than it would be without the evidence. In the present case, the defendant's parole officer testified that defendant stated, "I really screwed up," and that he had not revealed the name of his partner to the police. The defendant voluntarily made the statements after he had been arrested and advised of his rights as discussed earlier. Defendant initiated the conversation when he telephoned his parole officer to inform the parole officer of his arrest. Although defendant was required to inform his parole officer of arrest, the statements he made during the telephone conversation were not a result of an interrogation but were made freely and conveyed voluntarily. while some prejudicial effect is inherent in this type of testimony, we cannot say that it outweighed the probative value. The statements are relevant as an admission of guilt. The District Court properly admitted testimony of defendant's parole officer . ~f f irmed. / We Concur: | July 11, 1989 |
99a81a03-e7ac-49a5-91ff-72f35c7b6b70 | MARRIAGE OF JOHNSON | N/A | 89-139 | Montana | Montana Supreme Court | NO. 89-139 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF SUSAN DRISCOLL JOHNSON, petitioner and Respondent, and THOMAS JOHNSON, Respondent and Appellant. APPEAL FROM: District Court of the Second ~udicial ~istrict, In and for the County of silver Bow, The Honorable Arnold Olsen, Judge presiding. COUNSEL OF RECORD: For Appellant: Brad L. Belke, Butte, Montana For Respondent: Mark A. Vucurovich, ~enningsen, Purcell, Vucurovich and ~ichardson, Butte, Montana Submitted on Briefs: June 8, 1989 Decided: July 11, 1989 I . . - " .. c - ; j ' ~ +. Clerk Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. The father, Thomas Johnson, appeals from the final custody decree entered by the Second Judicial District Court, Silver Bow County. The court denied the father's motion to modify the current joint custody arrangement so as to appoint him, instead of the mother, the primary physical custodian o f their son. We affirm. The following issues are presented on appeal: 1. Did the District Court err in failing to find that the best interest of the child required a modification of the present custody arrangement? 2. Did the District Court's adoption of the petitioner's Findings of Fact, Conclusions of Law and Final Decree indicate that the court failed to properly consider the facts or render its independent judgment on the matter? The parties married October 23, 1978. A son was born to this marriage. When the marriage was dissolved on October 3, 1984, the court awarded each parent joint custody of their son. The custody arrangement provided that each parent would have physical custody of their son on alternating days. In October of 1985, the mother filed a petition for modification of this alternating physical custody arrangement. The father filed a cross-petition for modification, requesting the court to grant him primary physical custody of their son. He alleged that the best interest of the child demanded such a modification because the mother did not provide proper nourishment or care for their son's physical or educational needs. Following a hearing on the matter, the District Court granted the mother's motion and awarded her primary physical custody of their son. Both parents retained joint legal custody of the c h i l d . The f a t h e r g e n e r a l l y was e n t i t l e d t o v i s i t a t i o n every Tuesday and Thursday, every o t h e r weekend, and f o r one month i n t h e summer. The c o u r t ' s modification decree was i s s u e d a f t e r t h e c o u r t found t h a t t h e mother provided proper c a r e f o r t h e i r son and t h a t t h e b e s t i n t e r e s t o f t h e c h i l d demanded a m o d i f i c a t i o n a s t h e a l t e r n a t i n g p h y s i c a l custody schedule was confusing t o t h e son. The c o u r t a l s o had found t h a t t h e d a i l y c o n t a c t between t h e p a r e n t s because o f t h i s a l t e r n a t i n g custody schedule continued t h e f a t h e r ' s h o s t i l i t y toward t h e mother. I n J u l y o f 1988, t h e mother gave n o t i c e t h a t s h e was moving t o t h e S t a t e o f Washington. H e r reasons f o r moving included wanting t o be c l o s e r t o h e r family and d e s i r i n g a b e t t e r job w i t h o p p o r t u n i t i e s f o r f u t u r e advancement. She l e f t h e r son w i t h t h e f a t h e r f o r a few weeks i n J u l y while looking f o r a job and a home i n Washington. She r e t u r n e d t o Montana and began c o l l e c t i n g h e r belongings i n a n t i c i p a t i o n of h e r move with t h e i r son t o Redmond, Washington, i n August. On August 3, 1988, t h e f a t h e r f i l e d a motion t o modify t h e custody o r d e r s o a s t o g r a n t him primary custody and t o p r e v e n t t h e mother from t a k i n g t h e i r son o u t of Montana. A few days l a t e r , t h e mother proceeded w i t h h e r intended move, t a k i n g t h e i r son w i t h h e r . Hearings were n o t held u n t i l January 9, 1989, on t h e f a t h e r ' s modification motion, t h e f a t h e r ' s November 22, 1988 contempt motion, and t h e mother's motion f o r c h i l d support. (The f a t h e r had moved t h e c o u r t t o o r d e r t h e mother i n contempt o f c o u r t because he a l l e g e d she had denied him h i s v i s i t a t i o n r i g h t s . ) Following hearing on t h e motions, t h e c o u r t denied t h e f a t h e r ' s m o d i f i c a t i o n motion. The c o u r t found t h a t t h e s o n ' s b e s t i n t e r e s t would be served by r e t a i n i n g t h e mother a s primary p h y s i c a l custodian. The f a t h e r remained e n t i t l e d t o reasonable and open v i s i t a t i o n w i t h t h e i r son. The c o u r t a l s o ordered t h e p a r t i e s t o n e g o t i a t e c h i l d support o b l i g a t i o n s . The f a t h e r appeals from t h i s f i n a l custody decree. The record i n t h i s c a s e r e v e a l s t h a t both p a r t i e s a r e good p a r e n t s who love t h e i r son and d e s i r e t o have him w i t h them. Both w e r e a b l e t o s h a r e a comparatively e q u a l amount of t i m e w i t h t h e i r son while they both l i v e d i n B u t t e , Montana. However, t h e p a r t i e s now l i v e o v e r 400 m i l e s a p a r t , and t h e r e i n lies t h e r o o t o f t h e problem g i v i n g rise t o t h i s appeal. W e n o t e a t t h e o u t s e t t h a t a p a r e n t w i t h j o i n t custody of a c h i l d i s e n t i t l e d t o change h e r r e s i d e n c e , s u b j e c t only t o t h e power o f t h e c o u r t " t o r e s t r a i n a removal which would p r e j u d i c e t h e r i g h t s o r w e l f a r e o f t h e c h i l d . " S e c t i o n 40-6-231, MCA. Absent such p r e j u d i c e , a move by i t s e l f w i l l n o t c o n s t i t u t e grounds s u f f i c i e n t t o e n a b l e t h e o t h e r p a r e n t t o o b t a i n a m o d i f i c a t i o n o f t h e t e r m s o f a j o i n t custody arrangement. See I n r e Marriage o f P a r a d i s (1984), 213 Mont. 177, 180, 689 P.2d 1263, 1265. The f a t h e r contends t h a t t h e w e l f a r e o f t h e i r son was p r e j u d i c e d by t h e move and t h a t t h e b e s t i n t e r e s t o f t h e i r son n e c e s s i t a t e d awarding t h e f a t h e r primary p h y s i c a l custody because t h e i r son had a l r e a d y been i n t e g r a t e d i n t o t h e f a t h e r ' s family and i n t o t h e Butte community and school. The f a t h e r argues t h a t such an award i s necessary t o p r e v e n t d e s t r u c t i o n o f h i s s o n ' s r e l a t i o n s h i p w i t h f r i e n d s , family, school, and t h e community o f Butte, a d e s t r u c t i o n t h r e a t e n e d by t h e mother's move o u t o f t h e S t a t e . The c o u r t d i d n o t f i n d t h i s i n t e g r a t i o n argument p e r s u a s i v e a s t o t h e b e s t i n t e r e s t o f t h e c h i l d i n t h i s c a s e , and n e i t h e r do we. The f a t h e r d i d n o t move t o t e r m i n a t e t h e j o i n t l e g a l and p h y s i c a l custody. Rather, t h e f a t h e r moved only t o modify t h e j o i n t custody p r o v i s i o n s s o a s t o provide him, and n o t t h e mother, w i t h t h e primary p h y s i c a l custody o f t h e i r son. The i n t e g r a t i o n r a t i o n a l e found i n S 40-4-219, MCA, which a p p l i e s only t o proceedings t o t e r m i n a t e j o i n t custody, t h e r e f o r e a r e n o t a p p l i c a b l e t o t h i s case. See, e.g., I n re Custody o f A.L.S. (Mont. 1 9 8 7 ) , 747 P.2d 192, 44 St.Rep. 1979; I n r e Marriage o f Gahm (1986), 222 Mont. 300, 722 P.2d 1138. Moreover, t h e son has r e a d i l y a d j u s t e d t o and a l s o become i n t e g r a t e d i n t o h i s extended family, school and community i n Redmond, Washington. This i n t e g r a t i o n o f a c h i l d i n t o t h e homes and community of both p a r e n t s i s t h e necessary outcome and g o a l of a j o i n t custody arrangement; i n t e g r a t i o n t h u s may n o t s e r v e a s a j u s t i f i c a t i o n f o r a m o d i f i c a t i o n o f t h e t e r m s o f a j o i n t custody decree. See P a r a d i s , 689 P.2d a t 1265. The r e c o r d a l s o f a i l s t o show any o t h e r f a c t o r s , such a s t h o s e l i s t e d i n 5 40-4-212, MCA, which would l e a d t h e c o u r t t o determine t h a t t h e s o n ' s b e s t i n t e r e s t would be served and preserved by g i v i n g primary p h y s i c a l custody o f t h e c h i l d t o t h e f a t h e r . The f a t h e r a l l e g e d t h a t h i s s o n ' s mental, moral and p h y s i c a l h e a l t h was a d v e r s e l y a f f e c t e d by t h e mother's d r i n k i n g and frequenting o f b a r s i n t h e Redmond a r e a . The c o u r t , however, held otherwise. W e w i l l n o t r e v e r s e t h e D i s t r i c t C o u r t ' s f i n d i n g s u n l e s s t h e y a r e c l e a r l y erroneous. A s s t a t e d i n Rule 5 2 ( a ) , M.R.Civ.P.: Findings of f a c t s h a l l n o t be set a s i d e u n l e s s c l e a r l y erroneous, and due r e g a r d s h a l l be given t o t h e o p p o r t u n i t y o f t h e t r i a l c o u r t t o judge o f t h e c r e d i b i l i t y o f t h e w i t n e s s e s . The evidence i n d i c a t e d t h a t t h e mother d i d i n f a c t go o u t w i t h a f r i e n d and have a "couple o f b e e r s " once a week o r so. However, t h e son was n o t l e f t alone a t such t i m e s . H e s t a y e d w i t h h i s grandparents o r h i s a u n t and cousins. F u r t h e r , t h e mother t e s t i f i e d t h a t she d i d n o t d r i n k t o excess. W e t h e r e f o r e hold t h a t t h e D i s t r i c t C o u r t ' s f i n d i n g t h a t t h e mother was a c a r i n g and loving p a r e n t (Finding #13) was n o t c l e a r l y erroneous, and t h e c o u r t d i d n o t abuse i t s d i s c r e t i o n i n concluding t h a t t h e f a t h e r ' s a l l e g a t i o n s were groundless (Conclusion # 4 ) and t h a t t h e mother's primary p h y s i c a l custody remained i n t h e b e s t i n t e r e s t of t h e c h i l d . The f a t h e r ' s second argument i s t h a t t h e D i s t r i c t C o u r t ' s adoption o f t h e mother's proposed f i n d i n g s o f f a c t and conclusions o f law i l l u s t r a t e d t h e c o u r t ' s f a i l u r e t o use i t s independent judgment a s i s r e q u i r e d by law. F u r t h e r , t h e f a t h e r argues t h a t s e v e r a l o f t h e f i n d i n g s i s s u e d by t h e D i s t r i c t Court a r e n o t supported by t h e evidence. This Court h a s p r e v i o u s l y s t a t e d t h a t a d i s t r i c t c o u r t may adopt one p a r t y ' s proposed f i n d i n g s o f f a c t . Kowis v . Kowis (1983), 202 Mont. 371, 3 7 9 , 658 P.2d 1084, 1088. The c o u r t errs i n adopting a p a r t y ' s proposed f i n d i n g s only i f t h e c o u r t does s o "without proper c o n s i d e r a t i o n o f t h e f a c t s " and w i t h a l a c k o f independent judgment. I n re Marriage of Callahan (Mont. 1988), 762 P.2d 205, 209, 45 St.Rep. 1639, 1644. T h i s Court w i l l n o t o v e r t u r n a d i s t r i c t c o u r t ' s f i n d i n g s and conclusions simply because they a r e based upon t h o s e submitted by counsel i f : [ t h e ] f i n d i n g s and conclusions a r e s u f f i c i e n t l y comprehensive and p e r t i n e n t t o t h e i s s u e s t o provide a b a s i s f o r d e c i s i o n , and a r e supported by t h e evidence. Kowis, 658 P.2d a t 1088. The r e c o r d i n t h e p r e s e n t c a s e i n d i c a t e s t h a t t h e c o u r t p r o p e r l y considered a l l t h e p e r t i n e n t f a c t s during a hearing conducted s e v e r a l weeks b e f o r e t h e c o u r t i s s u e d i t s f i n d i n g s and conclusions. The c o u r t ' s conclusion, t h a t t h e b e s t i n t e r e s t o f t h e son e n t a i l e d leaving him i n t h e primary p h y s i c a l custody o f h i s mother, was rendered a f t e r t h e judge himself questioned the child. The findings in this case are sufficiently comprehensive and pertinent to the issue raised by the father. Moreover, the findings, when viewed as a whole, are supported by existing evidence. The father also argued that the court's decision to award primary physical custody of their son to the mother denied him his right to joint custody. This argument would have been a proper subject for an appeal following the 1986 modification decree, which awarded the mother primary physical custody. This appeal, however, is only from the decree denying the father primary physical custody of his son, and as such, the argument is not only irrelevant to this appeal but actually counterproductive to the father's contention that he should have been awarded primary physical custody. We therefore decline to address this argument. The decision of the District Court is affirmed. We concur: | July 11, 1989 |
bf80d637-592b-425d-9047-573b3fd55b86 | BROWN v DIST COURT OF THE SEVENT | N/A | 88-487 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA CAROLINE ANN BROWN AND HARLEY LEROY BROWN, Petitioners, -vs- DISTRICT COURT OF THE SEVENTEENTH JUDICIAL DISTRICT FOR THE STATE OF MONTANA, IN AND FOR THE COUNTY OF BLAINE, and THE HONORABLE LEONARD LANGEN, a Judge thereof, Respondents. ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Petitioner: Frisbee, Moore, Stufft & Olson; Jayne Mitchell, Cut Bank, Montana For Respondent: Hon. Karc ~acicot, Attorney General, Helena, Montana Clay Smith, Solicitor, Attorney General's office Donald Ranstrom, County Attorney, chinook, Montana Filed: submitted on ~riefs: Dec. 14, 1 9 8 8 ~ecided: J u l y 1 9 , 1989 P - -- - - - - ' Clerk Mr. Justice John C. Sheehy delivered the Opinion of the Court. The United States Supreme Court in ice, ~irector, Department of ~lcoholic Beverage Control of ~alifornia v. Rehner (hereafter -- ice v. Rehner) (1983), 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961, decided that Congress, by enacting 18 U.S.C. S 1161, gave states the power to regulate within their borders the possession and sale of liquor by Indian persons in Indian country through the licensing provisions of the states. Our case here answers the further problem: whether such liquor regulation by the states includes the power to enforce state criminal statutes against Indian persons for violations of state law relating to the possession or the sale of liquor within Indian country. We hold here that under - - Rice v. Rehner, and the applicable federal statute, Montana can, and does, have the power to punish by criminal proceedings in its state courts violations of state liquor laws occurring within its borders by 1ndian persons in Indian country. Because of our holding, we deny the petition for a writ of supervisory control from this Court, and dismiss these proceedings. In Rice 5 Rehner, the pivotal case here, Rehner was a federally licensed Indian trader who operated a general store on the Pala ~eservation in San Diego, ~alifornia. The Pala Tribe had adopted a tribal ordinance permitting the sale of liquor on the reservation, providing that the sales conformed to state law. Rehner sought from the state an exemption from its law requiring a state license for retail sale of liquor for off-premises consumption. When she was refused an exemption, Rehner filed suit seeking a declaratory judgment that she was not required to obtain a license from the state and an order directing that liquor wholesalers could sell to her without her state license. The federal district court granted the state's motion to dismiss, ruling that Rehner was required to have a state license under 18 U.S.C. 5 1161. The Court of Appeals reversed the district court, holding that S 1161 did not confer jurisdiction on the states to require liquor licenses. (9th Cir. 1982), 678 F.2d 1340. On writ of certiorari, the United States Supreme Court, as above noted, reversed the Court of Appeals, holding that California may properly require Rehner to obtain a state license in order to sell liquor for off-premises consumption. As noted by the dissent in Rice 5 Rehner, the United States Supreme Court rested its conclusion on three propositions. 463 U.S. at 738 (Blackmun, J., dissenting). First, the Supreme Court asserted that "tradition simply has not recognized sovereign immunity or inherent authority in favor of liquor regulation by Indians." Second, the Supreme Court found a "historical tradition of concurrent state and federal jurisdiction over the use and distribution of alcoholic beverages in Indian country." ~hird, the Supreme Court concluded that Congress "authorized . . . state regulation over 1ndian liquor transactions" by enacting 18 U.S.C. B 1161. The principal argument of the petitioners (hereafter Brown or Browns) is that ice 5 Rehner held only that the states could require Indians transacting liquor business on the reservation to purchase a state liquor license. They argue that - - ice v. Rehner did not, however, and could not, confer on the state criminal jurisdiction over liquor offenses committed by Indians on the reservation, contending that criminal jurisdiction over Indians can only be conferred upon the states by Congress with the express consent of the tribe. They argue that Nontana has not been given such a grant of criminal jurisdiction. The facts in this case parallel somewhat the facts in Rice v. Rehner. This action arises from an information filed -- in Blaine County District Court, charging Harley LeRoy Brown and Caroline Ann Brown with the felony offense of sale and possession of beer and wine without a license in violation of Montana's statute, 5 16-6-301(1), MCA. Caroline Ann Brown is an enrolled member of the Fort Eelknap Tribal Community of the Assiniboine and Gros Ventre 'Tribes. Harley LeRoy Brown is an Indian person residing on the Fort Belknap ~eservation and is the husband of ~aroline Ann Brown and the head of an Indian family. The Browns operate a small grocery store at Hays, Montana, selling groceries, as well as beer and wine. At the time of the alleged offense, they claim they had a valid tribal and federal license authorizing them to sell beer and wine. The District Court, however, noted that the Browns had not obtained from the tribe such a liquor license. On January 6, 1988, the Blaine County Attorney caused a state search warrant to be issued from the ~ l a i n e County Justice Court. Law enforcement officials attempted to execute the Blaine County search warrant on the reservation; but were told by the chief tribal judge of the Fort Belknap Tribal Court that the search warrant was invalid because the state had no jurisdiction on the reservation. Apparently, the state officers then caused an action to be filed in ~ribal Court charging the Browns with criminal violations of tribal ordinances relating to the sale and display of liquor on the reservation. Under the charges filed in the ~ r i b a l Court, a search warrant was issued from that Court under which evidence was seized from the grocery store at Hays, Montana; and transported to Blaine County District Court. The evidence was not taken to the ~ribal Court and it is contended that the tribal search warrant was not served upon Caroline Ann Brown, from whose possession the evidence was seized. Following the seizure and transport of the evidence, the Tribal Court action was dismissed. State court charges were filed against the Browns on February 4, 1988, after the Tribal Court action was dismissed. On April 6, 1988, Browns moved to dismiss the charges against them on grounds that the Montana State District Court did not have criminal jurisdiction over Indians who allegedly committed crimes within the exterior boundaries of the reservation. The defendants further moved to quash the search warrant and suppress the evidence seized under the Tribal Court search warrant, which evidence had been transferred to the state court. On August 6, 1988, the ~istrict Court denied both the motion to dismiss and the motion to quash. In denying the motion to dismiss, the ~istrict Court relied on - - ice v. Rehner particularly. Thereupon, the petitioners filed their application for a writ of supervisory control or other appropriate writ from this Court to review the issue of jurisdiction, and the issue of whether the evidence should be suppressed. Under Title 18 U.S.C. S 1154, 1156, 3113, and 3488, introduction of liquor, possession thereof, dispensing thereof or transporting the same is forbidden in Indian country. As noted in -- ice v. Rehner, 463 U.S. 722, Congress imposed complete prohibition of liquor on 1ndian lands in Indian country in 1832 and "these prohibitions are still in effect subject to suspension, conditioned on compliance with state law and tribal ordinance." The united States Supreme Court derived that statement from the provisions of Ti-tle 18 U.S.C. $ , 1161, which follow: The provisions of 1154, 1156, 3113, 3488 and 3618 of this title shall not apply within any area that is not Indian country nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws - - - ---- of the state in which such act or transaction - - - - - occurs and w i t h - a n ordinance duly adopted by the tribe having jurisdiction over such area of Indian country . . . (Emphasis added.) Plainly, under the language of 5 1161, two things are necessary to remove the federal prohibition against liquor in Indian country: (I) conformity with the laws of the state in which the transaction occurs; and, (2) an ordinance duly adopted by the tribe having jurisdiction over the area of Indian country. In this case, the Fort Belknap Indian Community adopted its Tribal Ordinance No. 3-74 in 1974, which regulates liquor transactions on the reservation under the jurisdiction of the Fort Belknap Indian community "provided that such introduction, sale or possession is i . n conformity with the laws of the state of Montana." The principal argument of Brown in this case is that ice v. Rehner was a civil case, which only held that Indians -- transacting a liquor business on the reservation must purchase a state liquor license; and that it did not give state courts criminal jurisdiction over Indians who commit liquor offenses on the reservation. Brown contends that criminal jurisdiction over Indians can only be conferred upon the states by Congress by the express consent of the tribe. 18 U.S.C. S 1162. They contend that Montana has not been given such a grant of criminal jurisdiction. Such an interpretation would be a narrow construction of 18 U.S.C. 5 1161 and would overlook the specific reference in Rice v. Rehner that Congress has also historically permitted. -- concurrent state regulation through the "imposition of criminal penalties on those who supply ~ndians with liquor, or who introduce liquor into 1ndian country." 463 U.S. at 726. The interpretation ignores also the obvious determination in Rice v. Rehner that the state was entitled -- to effective regulation of liquor, the Supreme Court saying: The historical tradition of concurrent state and federal jurisdiction over the use and distribution of alcoholic beverages in Indian country is justified by the relevant state interests involved. See confederated ~ribes, supra, [447 U.S.] at 156, 65 L.Ed.2d 10, 100 S.Ct. 2069. Rehner ' s distribution of liquor has a significant impact beyond the limits of the Pala ~eservation. The state has an unquestionable interest in liquor traffic that occurs within its borders, and this interest is independent of the authority conferred on the states by the Twenty-first Amendment. Crowley v. ~hristlansen, 137 U.S. 86, 91, (1890). Liquor sold by Rehner to other Pala tribal members or to nonmembers can easily find its way out of the reservation and into the hands of those whom, for whatever reason, the state does not wish to possess alcoholic beverages, or to possess them through a distribution network over which the state has no control. p his particular "spillover" effect is qualitatively different from any. spillover" effects of income taxes or taxes on cigarettes. "A state's regulatory interest will be particularly substantial if the state can point to off-reservation effects that necessitate state intervention." New ~exico v. Mescalero Apache Tribe, 462 U.S. 234, 65 L.Ed.2d 611, 103 S.Ct. 2378 (1983). ice v. Rehner, 463 U.S. at 724. -- In this case, the district judge particularly noted the "spillover" effect, remarking that the state's regulatory interest was substantial because the Brown grocery was located on Montana State Highway No. 66, a state-maintained, two-lane paved highway, carrying non-Indian traffic from ~illings, Nontana, to the south; to Harlem, Montana, to the north. Moreover, Rice v. Rehner recognized that "it cannot -- be doubted that the state's police power over liquor transactions within its borders is broad enough to protect the same Congressional decision in favor of the state" [by allowing removal of the prohibition against liquor on reservations from transactions that conform both with the laws of the state and with a tribal ordinance]. 463 U.S. at 731. The second principal argument made by Brown is that the Fort Belknap community has preempted the field by asserting exclusive jurisdiction over liquor offenses on the reservation. In support, they point to the criminal prosecution ordinances adopted by the tribe which provide procedures in the tribal courts for crimes committed on the reservation. They also point to ~esolution No. 71-88, adopted by the tribal community on April 6, 1988, after the institution of the criminal action in this case. Resolution t J o . 71-88 declared in effect that its previously adopted ordinance allowing the use and sale of alcoholic beverages on the reservation did not cede or authorize jurisdiction within the reservation to the state of Montana. For these contentions, the Browns rely on State of Wisconsin v. ~ i g John (Wis. Ct. App. 1987), 409 N.W.2d 455; and upon the federal decisions in U.S. v. Cowboy (10th ~ i r . 1982), 694 F.2d 1228; U.S. v. Johnson (9th Cir. 1980), 637 F.2d 1224; and U.S. v. Allen (8th ~ i r . 1978), 574 F.2d 435. State - v. Big John, supra, has no application in this cause because it involved the state's attempt to regulate the use of boats in isc cons in, an activity well within the traditional area of 1ndian tribal sovereignty. - - Rice v. Rehner specifically pointed out that the regulation of liquor on reservations was not within the inherent or historical tribal sovereignty. The federal cases likewise do not support Brown in this case. U.S. v. Allen, supra, involved - - an assault by an 1ndian against other Indians on a reservation and has no connection with the interpretation of Indian liquor laws except that the parties were drinking when the assault occurred. - U.S. - v. Johnson, supra, held that offenses by an Indian against an Indian are subject to the jurisdiction of the Tribal Courts if not covered by the Major Crimes Act, in a case construing the federal ~uvenile ~elinquency Act. u. 1. Cowboy, supra, held that the tribal courts had concurrent jurisdiction with the federal courts over Indians who offend 1 8 U.S.C. B 1154 (dispensing liquor). No state statutes were involved and the court there did not pass upon the application of state criminal laws under 18 The state district court in this case rejected the preemption argument pointing to the language in - - ice v. Rehner, which said: . . . Our examination of § 1161 leads us to conclude that Congress authorized, rather than preempted state regulation over Indian liquor transactions. 463 U.S. at 726. Again, the District Court noted from - - Rice v. Rehner: It is clear then that Congress viewed S 1161 as abolishing federal prohibition, and as legalizing Indian liquor transactions as long as those transactions conformed both with tribal ordinances and state law. It is also clear that Congress contemplated that its absolute, but not exclusive power, to regulate Indian liquor transactions would be delegated to the tribes themselves and to the states, which historically shared concurrent jurisdiction with the federal government in this same area . . . 463 U.S. at 728. We agree with the District Court that preemption has not occurred here. In sum, we hold that when Congress decided to allow the end of prohibition of liquor on reservations in certain cases, it did so under the conditions that state law and tribal ordinances would regulate liquor transactions in Indian country. If we were to interpret 18 U.S.C. 5 1161 as permitting only state licensing of liquor transactions on Indian reservations, but not the power to enforce the same, the state would be powerless to effectuate the intent of Congress that such liquor transactions on reservations be "in conformity with state law." ice v. Rehner, supra, was decided by a divided court, -- but its majority holding clearly implies that state criminal laws relating to liquor transgressions apply to offenses committed by Indians in 1ndian country. We so hold. With respect to the second portion of Browns' petition for writ in this cause asking us to direct the suppression of the evidence seized under the tribal search warrant, we find this issue to be premature because Browns have a clear remedy by appeal. The order denying suppression of the evidence is interlocutory and in such case a writ of supervisory control from this Court is not obtainable. The application for writ of supervisory control is denied and these proceedings dismissed. We Concur: Chief Justice ,,d | July 19, 1989 |
8fafee8d-ac90-43e0-b5fa-bf7581843377 | STATE v RUDOLPH | N/A | 88-508 | Montana | Montana Supreme Court | No. 88-508 I N THE S U P R E M E COURT O F THE STATE O F MONTANA 1989 STATE O F MONTANA, p l a i n t i f f and Respondent, -vs- R A N D A L L MARK RUDOLPH, Defendant and Appellant. APPEAL F R O M : ~ i s t r i c t Court of t h e Fourth ~ 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 is sou la, The Honorable James B. wheelis, Judge presiding. C O U N S E L O F RECORD: For Appellant: ~ i l l i a m Boggs, is sou la, Montana For Respondent : Hon. Marc Racicot, Attorney General, Helena, Montana Robert F.W. Smith, A s s t . Atty. General, Helena Robert Deschamps, 111, County Attorney, iss sou la, Montana; Craig Friedenauer, Deputy County Attorney l e d : (7.- L .- <--. $ I;-. ' , : 1 . : ! :--i I d - . * --i Submitted on ~ r i e f s : June 8, 1989 Decided: July 11, 1989 Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Randall Rudolph appeals his conviction of robbery in the Fourth Judicial District, Missoula County. The four issues he raises on appeal are: 1 . Was the show-up identification of him as a co-assailant impermissibly suggestive so as to violate his due process rights; 2. Was it an abuse of discretion to deny defendant's protective order regarding witness Trowbridge; 3 . Was the State impermissibly allowed to admit into evidence a nondisclosed statement of the defendant; 4 . Was it an abuse of discretion to refuse the admission of witness C. Rude's testimony. We affirm. On the evening of December 8, 1986, Greg Jasperson was assaulted in downtown Missoula near the corner of Pattee and Main Streets. His assailants, two males of average height and stocky build, beat him until he fell to the ground and then kicked him about the head until he became unconscious. The assailants robbed him of the contents of his pockets and then briskly walked away proceeding south down Pattee Street. Various stages of this crime were viewed by three eyewit- nesses. Witness Thieler came out of the Bon, a nearby clothing store, and got in her car which was in the Bon parking lot. She exited the parking lot onto Pattee Street and immediately noticed two men kneeling over a body on the sidewalk by the Executive Motor Inn. She assumed the two men were aiding the man on the sidewalk until she saw one of the men kick the body with his boot until it rolled into the gutter. By this time Thieler's car was at the stop sign of Pattee and Main. She watched the two men walk briskly south down Pattee Street. She kept them in sight in her rearview mirror long enough to note that they did not go into the Elks Club, but rather kept going southward on Pattee toward the Missoula Sheraton. Thieler testified at trial the although she was trying to note where the men went, she momentarily lost sight of them while she turned her head to check for traffic. Thieler then drove around the block and returned to the Bon to seek assistance for the victim. She enlised the assistance of a man she knew at the Bon. However, by the time they returned to the body, several people were already assisting the victim and she was advised that the police had been called. The police arrived momentarily. Orlando Gonzales also witnessed part of the crime. Gonzales was walking north on Pattee Street near the Elks Club when he passed by two men going through a wallet. Gonzales assumed that the two were discussing a purchase and were talking about how much money they had. As Gonzales approached the Executive Inn parking lot, he noticed what appeared to be a tlbumlt lying in the street. When he got closer, he discovered it was a well-dressed man who had obviously been hurt. He ran into the office of the Executive Inn where the receptionist was phoning the police at that minute. The third witness was Leon Furnish. He was sleeping in a room at the Executive Inn when he was awakened shortly after 9:00 p.m. by loud cries for help. He ran to the window and on the street below saw two men kicking a man who had fallen to the sidewalk. The victim raised his hands to protect his eyes and teeth and cried, ''please don't kick me, why are you kicking me." The attackers kicked the back, sides and head of the victim. Furnish then saw the assailants search the pockets and take the contents. As they stood up to leave, one of the attackers shoved the body into the street with his boot. They then walked down Pattee Street in a southerly direction and out of Furnish's view. As they walked off, Furnish noted that one man wore a hat of some type which appeared to have something "flapping" out from under- neath it. Furnish called the hotel desk and told the receptionist to call the police and call an ambulance for the man who had been beaten outside. The police call came in at 9: 15. At 9: 18, the police arrived at the scene. By that time, several passers-by had gathered, covered Greg with a sleeping bag and were administering first aid. The police asked if anyone had seen the attack or noticed anyone leaving the area. Thieler and Gonzales both explained that they saw two men, dressed in heavy dark coats, one with long flowing blonde hair and a cap on and one with dark hair walking south on Pattee. The police left immediately proceeding south on Pattee to search the area. At the southern end of Pattee Street near the Missoula Sheraton (approximately six blocks away), the police spotted two men, one with dark hair and one with long blonde hair and a black stocking cap. These two men were stopped and questioned by one police officer while another officer returned to the crime scene to question the witnesses. The two eyewitnesses at the scene, Thieler and Gonzales, were asked if they would go with the police to see if they could identify two men which were stopped by the police. They agreed and were transported by police car, Thieler in the front seat and Gonzales in the back seat. The witnesses were separated by a plexiglass screen and did not confer with one another. When they reached the Montana Power substation near the Sheraton, where the other patrolman was detaining the two men, Thieler and Gonzales remained in the car. The two men were placed approximately fifteen feet from the front of the patrol car with its headlights shining on them. The two men gave a profile view and view of their backs. Witness Thieler asked if one of them would put his hat back on. The patrolman with the witnesses radioed to the other officer and asked if either suspect had a cap, whereupon Rudolph produced his black stocking cap and donned it. Thieler then quickly made a positive identification stating that the long blonde hair coming out from under the black stocking cap created the exact figure which she saw. Gonzales likewise identified the two suspects as the men he passed who were going through the wallet. Gonzales based his identification on the stature and build of the two men as well as the warm, dark clothing they were wearing. Rudolph was tried separately from the co-defendant and was convicted of robbery by a jury on October 19-21, 1987. He was sentenced to fifteen years in the Montana State Hospital in lieu of prison incarceration. He was also designated a dangerous offender. Rudolph appeals, questioning many procedural aspects of the identification and the trial. I. IgShow up" Identification Rudolph asserts that the conviction was based solelv on the "show upv1 identification held that night and that procedure violated his due process rights by being impermissibly suggestive. We disagree. The importance of the eyewitness identification is under- scored, Rudolph asserts, by the lack of corroborating evidence and inconsistencies in the State's case. All accounts of the incident state that the two assailants proceeded south along Pattee Street walking on the east sidewalk. However, the victimls wallet was found the next day across the street from the attack on the west side of Pattee Street. Witness Thieler admitted losing sight of them momentarily while she looked both ways for traffic at the intersection. The State argued that it must have been just long enough for one of them to dispose of the wallet. The second inconsistency deals with the money stolen from the victim. Jasperson testified that only a small amount of money was stolen: five to eight dollars. However, when stopped just moments after the attack, Rudolph had less than two dollars in his possession. Thirdly, Rudolph's clothing, a dark green ski jacket, black cap, blue jeans and boots, were not retained by the police for evidence because Rudolph asked to keep his clothes, stating that he had no other clothes with him in Missoula. Thus, when he was released from jail, he was given his clothes. He was then unable to produce them at trial; however, all witnesses, as well as Rudolph, agree to the description of his apparel that night. Therefore, it was not possible to check the clothing for blood or hair samples, although no blood stains were noted in the police report. The officers testified that they did not recall any blood on Rudolph's clothes or boots that night. Lastly, at trial Gonzales and Thieler were unable to identify Rudolph by means of a facial photo lineup. Each stated that their identification was based, not on a view of the faces, but rather on stature (height, weight and build) , hair (color, length and facial hair), and clothing (style, color, and the cap). Thus, the identification became a key factor in the prosecution's case. To pass constitutional muster, a pretrial identification must not be (1) impermissively suggestive, nor (2) have such a tendency for misidentification under the totality of the circumstances that it violates due process rights. This two-prong test was set forth in State v. Lara (1978), 179 Mont. 201, 587 P.2d 930, and is controlling on this issue. In State v. Lara, defendant participated in a ''show up1' wherein he was identified by the victim as the armed robber involved in a one person robbery of a Laurel food store. The Laurel police apprehended Lara within fifteen to twenty minutes of the robbery and he was identified by the victim at the scene of the arrest shortly thereafter. Regarding that identification, we stated: Considering the totality of the circumstances we conclude that while the identification procedure was unnecessarily suggestive, it did not create a situation in which there was a substantial likelihood of misidentification and therefore not violative of due process. Lara, 587 P.2d at 933. We also find Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. 2d 401, instructive on this issue. Bisqers sets forth five factors relating to the circumstances under which pretrial identifications are made. Trial courts should consider the following in evaluating the risk or likelihood of misidentifica- tion: . . . the opportunity of the witness to view the criminal at the time of the crime, the witness1 degree of attention, the accuracy of the witness1 prior description of the crimin- al, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confronta- tion. Biqqers, 409 U.S. at 199-200. Thielerls testimony regarding her identification certainly passes any test set up by the Lara case and by the Bissers factors. Thieler stated that she was concerned the attackers would see her watching them, so she drove forward slowly and then proceeded to watch them for several minutes in her rearview mirror. Thus, her opportunity to view the attackers was good, even if she did not view their faces specifically. Her attention was keen and her description to the police was accurate regarding the assailants' gender, size, hair color and length, and clothing style and color. Also lending credibility to the validity of the identification was the very close proximity in time and distance from the crime scene. The suspects were appre- hended just blocks away from the scene and only moments after the police arrived. Further, all witnesses testified that the downtown streets were deserted that particular winter night, shortly after 9:00 p.m. Not only did they fit the description, the two suspects detained were also the only two pedestrians within many blocks of the crime scene. Rudolph's own testimony regarding his actions on that night was incredible. Although in the immediate vicinity, Rudolph testified that he had no knowledge whatsoever of the crime, including the fact that he heard no cries for help, no sirens, and saw no lights flashing from emergency help vehicles. The State concedes that the identification process was suggestive by the mere fact that the two people were stopped so close to the scene, so soon, and that only those two were shown to the witnesses. Indeed, a "show upgt identification requiring a "yes or no" answer is a far less desireable situation than positively picking out a person from an anonymous lineup. Bissers, supra; State v. Lara, supra; State v. Campbell (1985), 219 Mont. 194, 711 P.2d 1357, cert. denied, 475 U.S. 1127, 106 S.Ct. 1654, 90 L.Ed.2d 197. As we cautioned in Campbell, [1] aw enforcement agencies [are] ill advised to rely solely on one-to-one showups in identify- ing suspects with a crime." Campbell, 711 P.2d at 1362. Suggestive as it was, based on Lara and the factors set forth in Bissers, we conclude that this identification did not have such a tendency for misidentification so as to violate Rudolph's due process rights under the immediate circumstances of this case. We conclude the Bissers factors were also met by eyewitness Gonzales and that his identification was also constitutionally- sound. Gonzales did not view them as long as Thieler and his identification seemed apprehensive initially. However, Gonzales passed the suspects on a narrow sidewalk near the crime scene and observed them long enough and carefully enough to notice their gender, size, clothing and what they were doing. His opportunity to view them and the attention he displayed lend reliability to his identification. Also helpful is the close proximity which was discussed above regarding witness Thieler. We find no error in admitting into evidence the results of this "show upt' identifica- tion. We note here that witness Furnish did not participate in the identification that night, but he did testify at trial as to what he observed that night. Lastly, we are not disturbed by the minor discrepancies in the witnesses' descriptions which were asserted by defense counsel. These discrepancies go more to the credibility of each witness and the weight the jury will give their testimony, rather than to the constitutionality of admitting the identification based on varying testimony of other witnesses. See Campbell, supra. 11. Protective Order Defense counsel moved for a protective order to conceal the contents of Keith Trowbridge's testimony to prevent the State from "capitalizing" on it by changing their strategy. The motion was denied. We agree. Keith Trowbridge, an employee of the Firestone Service Station located directly across the west side of the street from the crime scene, would testify that he found the victim's wallet in the alley behind the Firestone property the morning after the robbery. Defense counsel anticipated that the State's case would have Thieler keeping the assailants in constant view on the east side of the street from the time they left the body until they were out of sight. Defense counsel did not want to alert the prosecution to this discrepancy in locations because the police report stated that the wallet was found at the Firestone station and yet the State had not interviewed any of Firestone's employees. Defense counsel makes much of the fact that after this motion was denied, Thielerls testimony was actually that she momentarily lost sight of the two assailants (in which time one of them may have crossed the street). Defense asserts that the issue of continuous or noncontinuous observation by Thieler never would have come up at trial but for the disclosure of witness Trowbridge, and thus his defense was sabotaged. We disagree. Admitting or refusing evidence lies within the sound discre- tion of the trial judge. Those rulings will not be overturned unless there is a showing of an abuse of discretion by the trial judge in issuing his ruling. State v . Courville (Mont. 1989), 769 P.2d 44, 46 St.Rep. 338; Cooper v . Roston (Mont. 1988), 756 P.2d 1125, 45 St.Rep. 978. No such showing can be made in this case. Protective orders should issue when the disclosure of a witness's identity would result in a risk or harm outweighing anv usefulness of the disclosure to any party. Section 46-15-328(1), MCA. (Emphasis added.) Obviously, there are two flaws with defendant's motion. First, there was no risk or harm to the witness shown by the defense. Indeed, no harm could result to the witness by the disclosure of his identity--as he was already generally identified in the police report and was not in danger. Secondly, the statute seeks to weigh the usefulness of the disclosure gained by either party. Defense asserted that the harm done to its case was the impeachment of witness Thieler being blunted and that harm far outweighed the disclosurels usefulness. We disagree. As noted by the trial judge, a greater showing of harm or imbalance must be made in order to invoke such an extra- ordinary restriction. It is obvious from the record the State was aware that the wallet was found at the Firestone Station and could have interviewed the employees had they seen fit to do so. Under these facts, we affirm the trial court's denial of extraordinary relief in the form of a protective order. 111. Nondisclosed Statement When questioned as to why Rudolph's clothes were returned to him, rather than seized for evidence, Officer Wicks testified it was because Rudolph stated he had no other clothes in Missoula, all his belongings were in Kalispell. It is undisputed that this hearsay statement by Rudolph previously had not been disclosed and the State fully acknowledges its duty under section 46-15- 322(1) (b) , MCA, to disclose "all written or oral statements of the accused . . . " However, the State asserts that the defense cannot raise the issue of this undisclosed hearsay on appeal because it did not object at trial; or, in the alternative, that the defendant was not prejudiced by allowing the hearsay remark into evidence. We agree. The verbatim exchange at trial was as follows: Q. [By prosecutor Friedenhauer]: Go ahead, why did you release the clothes? A. [By Officer Wicks]: Mr. Rudolph indicated to me that was the only set of clothes he had in Missoula, that he left all his other be- longings behind in Kalispell. Several questions prior to this exchange, defense objected to the State's line of questioning regarding the co-defendant. The generic objection (which stated no grounds) was overruled by the court. The court, however, went on to admonish the State to limit its questioning to Rudolph only. Whereupon, the exchange in question occurred. We find no basis in the record for defense counsel's assertion that the hearsay statement was admitted over his objection. No objection by defense counsel was made following this exchange either. Therefore, defendant cannot now claim that the District Court abused its discretion and committed reversible error by allowing the statement into evidence. IV. Testimony Exclusion Our standard of review for this issue is identical to the previous issue: an abuse of discretion must be shown before a District Court's ruling on evidentiary questions will be overturned. Defendant argues that the District Court abused its discretion in refusing to admit the testimony of witness C . Rude. Defense counsel made an offer of proof in chambers asserting that Rude would testify to his eavesdropping on a conversation which occurred in Missoula during early December 1986. The conversation related by two men, now in trouble with the Washington state authorities, was regarding a man they had I1rolledtt in downtown Missoula, taking a small amount of money from the victim. The District Court analyzedthe proposed testimony in relation to the crime with which Rudolph was charged. The judge found the proposed testimony was too vague regarding the time of the occur- rence and the actual crime committed (wrolledlt was the best recollection Rude could give and he did not recall the day of the ltcrimel1). Thus, after finding the proposed testimony too tenuous and remote from Rudolph' s case, the judge excluded the evidence for failing the relevancy requirements. We agree. Relevancy is defined in Rule 401, M.R.Evid., as follows: . . . evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more proba- ble or less probable than it would be without the evidence. Rude's testimony sought to exculpate Rudolph by incriminating two other unknown individuals upon whom he had been eavesdropping. The similarities between the crime overheard by Rude and the one attributed to Rudolph are few: two men perpetrated the offenses (one dark haired and one blonde), in downtown Missoula, in December of 1986, for a small amount of money. The unknown factors of the evidence include what crime was committed, upon whom, when and by whom. These far outweigh the similarities of the two occurrences. Thus, defense is counsel is unable to prove that the proposed testimony is so close in time, place and similar in style so as to be relevant to the question of Rudolph's innocence or guilt. Absent a closer connection between the two occurrences, or at the very least, a definition of the crime committed by the other unknown assailants, we find no abuse of discretion in refusing this testimony. In summary, we conclude that the "show up*' pretrial identifi- cation of Rudolph was constitutionally sound and that the trial court did not abuse its discretion regarding the evidentiary rulings contested at trial. Judgment affirmed. Chief Justice We concur: | July 11, 1989 |
0acc5633-bd47-4c2b-ac47-ecaec291d43f | MARRIAGE OF HOCKADAY | N/A | 88-514 | Montana | Montana Supreme Court | No. 88-514 IN THE STJPREMF COURT OF THE STATE OF MOhTTAMA 1 9 8 9 IN RE THE MARRIAGE OF MARTHA HETdEN HOCKADAY, Petit-ioner and Respondent, and HUGE W. HOCKADAY, 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 Jel lison, Kal-ispell, Montana For Respondent: Bruce McEvoy; Warden, Christiansen, Johnson & Rerg, KalispelJ , Montana Submitted on Briefs: April 6, 1989 Decided: June 1, 1989 A iled: ,. . Y --._ ' < . , : .. . ', ,: Mr. Justice L. C. Gulbrandson delivered the 0pini.on of the Court. Hugh Hockaday, the husband, appeals the division of property mandated in the final dissolution of marriage decree entered by the Eleventh Judicial District Court, Flathead County. Martha Hockaday , the wife , filed a cross-appeal requesting the correction of numerous factual and mathematical errors in the District Court's findings of fact and conclusions of law. We affirm the District Court's valuation of those marital properties disputed by appellant and the method employed by the court to equitably distribute the property. We remand the case, however, for a correction of various errors, more specifically enumerated herein, and for an alteration of the final judgment as deemed necessary by the District Court to assure the equitable division of the marital estate after correction of these enumerated errors. The husband raised the following issues on appeal: 1. Did the District Court fail to make a reasonable valuation of the family home, Lots 32, 33 and Lot 37, and of Hockaday Reproductions, Inc.? 2. Did the District Court err in failing to determine the net worth of the marital estate prior to ordering a division of the estate property? 3. Did the District Court err in awarding Lot 37 to the wife after erroneously finding that the husband owned the property even though his mother held title to the Tlot? The wife raised the following issues on cross-appeal: 1. Did the District Court err by valujnq the husband's premarital debt to Montana Forest Products at two different amounts in two different Findings of fact? 2. Did the District Court err in valuing the husband's debt to Valley Rank of Kalispell at $15,000 when the evidence indicated the debt was approximately $4,000? 3. Did the District Court err in finding that the husband had incurred a premarital alimony debt to a former spouse but then failing to include this debt in its evaluation of assets and debts existing at the time of the parties' marriage? 4. Did the District Court err by failing to include the total $13,834.30 value of improvements to Lots 32 and 33 in Finding No. 24, a finding detailing the value of the marital estate at the time of the hearing? 5. Did the District Court err, after reimbursins the wife for all other inheritance expended for marital purposes, in failing to reimburse her for those life insurance policy benefits amounting to $1,916 which she inherited hut similarly expended during the marriage? Hugh and Martha Hockaday were married on March 17, 1979. On December 12, 1984, the wife filed a petition for dissolution o f : their marriage and for equitable division of the marital estate. The parties made several attempts at. reconciliation after 1984, but these attempts failed. Thereafter, a hearing on the petition was held on December 14 and. 1.5, 1987. On July 8, 1988, the District Court issued its findings of fact, conclusions of law and final decree di-ssolving the marriage and dividing the marital property. The court's division of the marital property was made after its considerat.ion of the length of the marriage, the occupation of each, their respective employment histories and the future employment and income opportunities for each in light of their age, health and skills. The court noted that the husband worked in construction, building first log homes and then docks and retaining walls when the market for home construction slowed. His good health would allow for his continued work within the field of construction. Further, as an only child, he stood to inherit property and money when his elderly mother died. The court noted that the wife, on the other hand, did not have this potential future expectancy of inheritance income as both her parents had already died. Moreover, the court recoanized that the wife had a limited potential for future job advancement and salary increases in her present occupation as a legal secretary. She had been employed as a special education administrator in Hardin, Montana and had been working toward her doctorate in the field prior to her marriage. She had a promising chance for job advancement within that field. After she married and moved to the Flathead Valley area, however, she was unable to find employment within this field of expertise. She then worked as a homemaker, helping raise her husband's two children from a prior marriage, and at various odd jobs. She had often helped her hu-sband in his construction business. The court noted that the wife would be unable to return to her prior profession within the field of education, after her nine-year absence from the field, without further schooling and a recertification. The court also based its division of the marital estate upon a consideration of the amount of property each party brought to the marriage and of the value of the marital. estate at the time of dissolution. Rased on the evidence elicited. at the dissolution hearing, the court determined the assets and debts of each party at the time of their marriage and t.he value of the marital estate at the time of the hearing, excluding the amount of inherited or gifted property received by each party during the marriage. These evaluations detailed in Findings Nos. 3 3 , 3 4 , and 35 are summari-yed as f0ll0~7~: Marital Inheritance Premarital Estate During Assets/ (Debts) Value - -- -- - - - - - - - - Marriage HUSBAND Lot 39/residence Koonce Contract Income Lots 32/33 T o o t 37 1975 Chevy truck Tractors Sawrnill/Tools Artwork-Bronzes Quarter horses Household/Furnishings Mortgage on home 17alley Bank Montana Forest Prod. A1 imony TOTATJS : WIFE Arlee Acreage North Fork Acreage 1974 Ford Truck Library Stock Money Life Ins. Cash Value Teacher's Retirement Household/Furnishings Life Ins. Benefits/ from Father 1,oans /from Mother Kal ispell Lot Lot ?AA Note Mobile Home Jeep First Natll/ Whitefish, MT I,it+le Horn State Rank (2,631) TOTALIS : $21,221 $153,617 18, O O C MUTUAL ACQUISITIONS JJots 32/33-Improvements 5ot 37-Improvements Two Trucks 1978 Cadillac Hockaday Reproductions Stock/So. Cal. Electric Jewelry Note Receivahle/Fis Son Danny on Prints TOTALS : Total Marital Estate: $208,742 (excluding inheritance 1 Total Premarital Estate: (Husband = 104,300) (Wife = 21,231) Increased value of Marital Estate: Reimbursement to Wife for Expended inheritance: Remaining Increase in Marital Estate: $54,167.70 (Divided Equatly) As is apparent from the foregoing chart, a substantial amount of the wife's inherited monies and premarital assets had been sold and/or spent during the course of the marriage. The court thus awarded $29,053.30 of the increased value of the marital estate to the wife to reimburse her For the $15,219 loaned by her mother to meet marital expenses, and later subtracted from the wife's inheritance amount, and for the additional $13,834.30 in improvements to Lots 32/33 which the court generally traced to the wife's inheritance and liquidated premarital assets. This reimbursement effectively insured that the wife received a return of all her inheritance, except the $1,916 in life insurance benefits from her father's estate. The court then divided the ~ r a ! . u e of the remaining increase in the marital estate equally between the two. Each party was awarded the total value of their respective premarital assets and the increased value of the marital estate as apportioned by the court. Because of the husband's greater future income potential, the court determined that equity demanded also awarding the wife the value of the majority of her inheritance. Because many of the wife's premarital assets had been sold during the marriage, the court determined that Lots 32, 33 and 37, which constituted the sum of the husband's advance inheritance, would have to be given to the wife to comprise her total. The award of Lots 32 and 33 also served to guarantee the wife's continued right to reside on these lots in her mobile home, a residence she established after her husband obtained a court order expelling her from the family home. The husband retained Lot 39 and the family home. The husband appealed from the court's valuation and division of the marital estate. I. CHALLENGES TO THE COURT'S VALUATIONS Appellant challenges the District Court's valuation of several pieces of property. We will review these alleged valuation errors and reverse the District Court's valuatior! and subsequent property division only upon a showing that the court acted arbitrarily or clearly abused its discretion so as to create a substantial injustice. In re Marriage of Hall (Mont. 1 9 8 7 ) , 740 P.2d 684, 686, 44 St.Rep. 1321, 1323. This standard of proof for reversal is necessarily high because a district court has broad discretion when valuing and distributing property in a dissolution action. In re Marriage of Stewart (Mont. 1988), 757 P.2d 765, 767, 45 St.Rep. 850, 852. The court's valuation need only be r~asonabl-e in light of competent evidence submitted. In re Marriage of Milesnick (Mont. ?988), 765 P.2d 751, 755, 45 St.Rep. 2182, 2187. Appellant's first challenge is to the valuation of Lot 39 at $153,617 at the time of dissolution. He contends this valuation is unreasonable and amounts to an abuse of discretion by the District Court. This value reflects an increase of $68,637 from the $85,000 value assigned by the court to the T,ot at the time of marriage. The husband asserts that this increase is erroneous as Lot 39 was worth $125,000 at the time of the marriage and it did not appreciate in value during the marriage. The District Court based its valuation of Lot 39 on the wife's testj-mony, which the court concluded generally was more credible than the husband's. Her testimony regarding the value of the Lot was supported by the Flathead County Treasurer's valuation of the property. The husband, on the other hand, offered no concrete evidence in support of his valuation. The extensive improvements made during the marriage to the family home, located on Lot 39, provide a further illustration of the increased value of the property. These improvements included a remodeled kitchen and bathroom, new carpeting and linoleum upstairs, construction of an outside deck and driveway, and the installation of a large garden and landscaped yard. The parties also converted the unfinished basement of the home into a bathroom, den, bedroom, study area, family room with rock fireplace, and a fruit room, thereby doubling the living area of the home. Evidence of these extensive improvements and the valuation by the county and by the w i F ~ indicate that the District Court's valuation was reasonable. We therefore conclude that the court's valuation of Lot 39 was not arbitrary nor the product of an abuse of dS scretlon. Appellant's second challenge is to the court's valuation of Lots 32 and 33 at $18,760, a value which included $17,789.30 in improvements made during the marriage. Appellant asserts this valuation unreasonably placed the value of Lots 32 and 33 at the time of marriage at $971. The District Court's findings of fact, when viewed as a whole, indicate that the court valued Lots 32 and 33 at the time of dissolution not at a total $18,760, but rather at $18,760 plus the value of improvements, or $36,549.30. Finding No. 25 placed the base value of the Lot at the time it was gifted to the husband at $18,760. Finding No. 24 recognized $3,955 in improvements attributable to the joint efforts of both parties. Finding No. 27 recognized an additional $13,834.30 in improvements to the Lots arising from the investment of monies directly traceable to the wife's inheritance or liquidated premarital assets. The sum of these findings, $36,549.30, is consistent with the testimony of both the husband and the wife, the county's valuation of the property, and the bills submitted for improvements made to the Lots. F 7 e therefore hold that the court did not act arbitrarily or abuse its discretion when it valued Lots 32 and 33. The District Court admittedly utilized an oftentimes confusing methodology for valuing the various properties and for attributing the value to the entitled party. Moreover, the District Court failed to apply this methodology in a consistent manner; the court failed to include that portion of the $13,834.30 attributable to the wife's inheritance monies in its Finding No. 25, which detailed the wife's inherited property, or on the other hand, to include that portion attributable to her premarital assets in Finding No. ? 4 , which d e t a r i l . e d the value of those items benefiting the marital estate, excluding inheritance monies. We direct the court to correct this omission upon remand. Appellant's third challenge is to the District Court's valuation of Lot 37 at $16,540, a value which appellant contends included $1.0,000 worth of improvements made during the marriage. Again, we hold that the value of the Lot stated in Finding No. 25, listing inheritance values, did not include the value of improvements made during the marriage. The court valued the lot at the time of dissolution at the sum of the $16,540 value at the time it was gifted and the - $l0,000 in improvements made during the marriage. Appellant failed to show that either of these two values were arbitrary. The wife's testimony and the Flathead County Treasurer ' s valuation of the property support the court's $1.6,540 valuation of the unimproved lot. The court cited to the wife' s testimony and to the turn-around in profits from the orchard as support for its valuation of the improvements made to Tlot 37 at $10,000. The orchard went from a non-profitab1.e orchard with a loss of approximately 54,500 in 1980, at the beginning of their marriage, to a productive orchard capable of producing a net profit of $3,000-$4,000. This improvement can be attributed to the increased care of the orchard and to the addition of a combination of 125 new cherry, peach and apricot trees on Lots 37 and 38, as well as favorable weather conditions. ' I n light of this evidence, we hold that the court's valuation of the property and improvements on it did not amount to a clear abuse of discretion. Appellant lastly challenges the court's valuation of Hockaday Reproductions, Tnc., a business venture commenced to market and sell a limited number of art prints of paintings done by the husband's father, a well-known local artist. The court valued the parties' 50% share of the corporation at $20,000. Yet, appellant contends that those remaining unsold prints would not sell without a great expenditure of time and money, and thus they were worth only the value of the paper on which they were printed. We hold that the court's valuation of the parties' share of Hockaday Reproductions was not arbitrary. Both parties testified that 250 sets of prints were created by an initial $3,000 investment. Enough prints were sold, roughly twenty sets of prints at the retail price of $175 for a set of five prints (or at $40 for each individual print), to recover the initial investment by a11 parties to the venture. The potential income available from the remaining approximately 230 sets at this retail price could total $40,240. Although the husband asserted that a substantial- amount of time and money would be necessary to market and sell the remaining prints, he failed to provide any evidence or estimates of this monetary amount. In light of all the evidence the court's estimated valuation of the parties' 50% share in Hockaday Reproductions at $20,000 appears reasonable, and we hold that the court did not abuse its discretion in so valuing the corporation's worth. 11. NET WORTH OF THE MARITAL ESTATE Appellant contends that the District Court erroneously failed to determine the net worth of the marital estate. This determination is required prior to a division of the property, and appellant contends the court abused its discretion when it failed to make such a determination. Indeed, this Court has previously held that a district court must determine the net worth of a marital estate prior to division of the estate. Schultz v. Schultz (1980), 188 Mont. 363, 365, 613 P.2d 1022, 1024. This determination of net worth is necessary before a court may equitably apportion all the property and assets belonging to the parties as is required hy 5 40-4-202, MCA. The c o u r t need n o t , however, p r e c i s e l y d e t a i l t h e p a r t i e s ' n e t worth i n one finding. Rather, t h e findings a s a whole must be s u f f i c i e n t t o allow f o r t h e determination of t h e p a r t i e s ' n e t worth. I n re Marriage of I,eProwse 11982), 198 Mont. 357, 362, 646 P.2d 526, 529. W e ho1.d t h a t t h e findings a s a whole g e n e r a l l y were s u f f i c i e n t l y d e t a i l e d and exhaustive. The findings, however, contain s e v e r a l e r r o r s which prevent an accurate cletermj-nation of t h e p a r t i e s ' n e t worth. W e order these e r r o r s corrected upon remand. S p e c i f i c a l l y , t h e D i s t r i c t Court erroneously awarded t h e e n t i r e value of Lot 37 t o t h e wife d e s p i t e t h e f a c t t h e husband's mother holds t i t l e t o t h e property. The husband had only a l i m i t e d e q u i t y , by v i r t u e of a few payments c r e d i t e d t o him under a c o n t r a c t f o r deed, i n t h e property a t t h e time o f d i s s o l u t i o n . The D i s t r i c t Court only may award t h a t e q u i t y acquired by t h e husband i n t h e property. W e t h e r e f o r e d i r e c t t h e c o u r t t o make f u r t h e r findings a s t o t h e e x a c t amount of e q u i t y acquired by t h e husband i n t h e Lot a t t h e time of t h e d i s s o l u t i o n and t o make a l l necessary c o r r e c t i o n s t o t h e r e l e v a n t findings, notably t o Findings Nos. 1 5 ( b ) , 25 and 36, and t o t h e d i - s t r i b u t i o n of t h e m a r i t a l e s t a t e a s deemed necessary i n l i g h t of these c o r r e c t i o n s . W e a l s o d i r e c t t h e court t o address t h e followjnq e r r o r s r a i s e d by cross-appellant. W e note t h e cross- a p p e l l a n t filed! a n o t i c e t o amend t h e findings t o allow t h e D i s t r i c t Court t o c o r r e c t these e r r o r s , but t h e c o u r t was unable t o address t h e s e e r r o r s before t h e n o t i c e o f appeal was f i l e d . F i r s t , t h e findings erroneously l i s t e d t h e husband's debt t o Montana Forest Products a t two d i f f e r i n g values: Ftnding N o . 7 ( j ) l i s t e d t h e debt a t $700, while Find5no WO. 33 1i.sted t h e same debt a t 5900. Second, Findings Nos. 24 and 30 list the debt owed to Valley Rank at $15,000 (while Finding No. 23 mentions a $5,000 debt), even though both parties concede, and the testimony at the dissolution hearings indicates, that the debt owed was only $4,000. Third, the court considered and listed the premarital debts of both parties in Finding No. 33, yet it failed to list the amount of the recognized alimony debt owe$L by the husband. Fourth, as previously mentioned in Section T above, the court failecl to include the $13,834.30 in improvements made to Lots 32 and 33 either in Finding No. 24 or 25. The fifth allegation of error by cross-appell-ant, that the court erred in failing to reimburse the wife for the expended $1,916 in inheritance monies, is without merit. The court need not assure the return of all the wife's inheritance, it need only equitably divide the property. The final property division, after correction of the above-mentioned errors, would appear to be equitable. We affirm the District Court's valuations, but remand this case for correction of the above-mentioned errors and for redistribution of the marital estate as deemed necessary by the District Court, in light of these corrections, to assure an equitable propert!- division. We concur: | June 1, 1989 |
05fb9670-66df-4ad0-8011-7ed60cf95a89 | STATE v RYDBERG | N/A | 89-193 | Montana | Montana Supreme Court | No. 89-193 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Respondent, -vs- KATHERINE RYDBERG, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Rarz, Judge presiding. COUNSEL OF RECORD: For Appellant: Gary E. Wilcox, Billings, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Dorothy McCarter, Asst. Atty. General, Helena Harold Hanser, County Attorney; Curtis L. Bevolden, Deputy County Atty., Billings, Montana Filed: Submitted on Briefs: July 13, 1989 Decided: August 31, 1989 Justice L. C. Gulbrandson delivered the Opinion of the Court. Defendant, Katherine Rydberg, appeals from a judgment of the District Court for the Thirteenth Judicial District, Yellowstone County, finding her guilty of Criminal Possession of Dangerous Drugs pursuant to 5 45-9-102, MCA. This judgment was entered after the District Court denied Rydberg's motion to suppress evidence seized pursuant to a search warrant allegedly issued without probable cause. We affirm. The only issue presented for our review is whether the District Court erred in finding that the application for the search warrant contained facts sufficient to establish probable cause. On August 8, 1988, Detective Thayer filed an application for a search warrant for Rydberg's residence. The grounds for the application were based in part on a July 6, 1988 phone call from an anonymous informant who reported observing Rydberg's involvement with the buying and selling of drugs. The informant also identified two other people, Walter Foster and Debbie Hicks, who "were involved with drugs" and who also associated with Rydberg. Specifically, the informant stated that Foster had sold Rydberg approximately one gram of cocaine the month before. This information was partially corroborated by a crimestopper's tip received on March 3, 1988; the tipster reported, as did the primary informant, that Foster was buying and selling drugs. On July 25, 1988, the primary informant reported observing dangerous drugs at the Rydberg residence. The informant observed Foster at Rydberg's residence on July 28, 1988, and also reported seeing Rydberg at Hicks' residence "several times." The informant called a third time on August 7, 1988, and reported observing crank, possibly some cocaine, and other dangerous drugs at the Rydberg residence. These facts were also noted in the application as grounds for issuance of the search warrant. The search warrant application then stated that both Foster and Hicks had been charged with criminal possession of dangerous drugs, and that Hicks was subsequently convicted of selling these drugs while Foster's charge was dismissed. The subsequent search of Rydberg' s residence and purse produced 5.7 grams of methamphetamines, 1.5 grams of cocaine, 1 gram of marijuana, a razor blade and snort tube, and three empty bindles. Consequently, the County Attorney for Yellowstone County charged Rydberg via an Information filed August 12, 1988, with Criminal Possession of Dangerous Drugs in violation of g 45-9-102, MCA. Rydberg subsequently filed a motion to suppress all evidence seized during the August 10, 1988 search. The motion was denied. After Rydberg waived her right to a jury trial, she was found guilty on March 7, 1989, before the District Court and received a three-year deferred imposition of sentence subject to fulfillment of specified conditions. Rydberg appeals from this judgment and sentence. She alleges that the search of her residence and purse was a violation of her federal and state constitutional rights because the search warrant application did not contain facts sufficient to establish probable cause. The Fourth Amendment to the United States Constitution and Article 11, Section 11 of the Montana State Constitution protect against unlawful searches and seizures. These constitutional provisions require a showing of facts in the application for a search warrant sufficient to establish probable cause. State v. O'Neill (19841, 208 Mont. 386, 393, 679 P.2d 760, 763-64. Probable cause for issuance of a search warrant, however, is "significantly less than that required for a conviction." State v. Walston (Mont. 1989) , 768 P.2d 1387, 1389, 46 St.Rep. 309, 311. The application need only contain facts sufficient to indicate the probability of criminal activity in light of the "totality of the circumstances." Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548; State v. Crain (Mont. 1986), 725 P.2d 209, 210, 43 St.Rep. 1628, 1629. This "totality of the circumstances" analysis requires an issuing magistrate to make a practical, commonsense decision about the probability of criminal activity from: all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information . . . Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. We hold that the totality of facts set forth in the search warrant application filed by Detective Thayer were sufficient to lead the issuing magistrate to conclude that Rydberg's residence probably contained dangerous drugs. The basis of the informant's knowledge was stated; the informant learned of the presence of drugs in Rydberg's residence through personal observation. The crimestopper's tip, which provided some corroboration as to the character of Foster and as reported by the informant, indicates the veracity of the information provided. The search warrant application stated that both Foster and Hicks had previously been charged with drug-related offenses. If a police official provided this information regarding Foster's and Hicks's prior drug-related charges, then the veracity of the information is further supported. The application regrettably fails to state clearly the source of this information, however, the application does identify the informant when reiterating facts that were reported by the informant. The application states that: Both of these subjects [Foster and Hicks1 have previously been charged with criminal possession of dangerous drugs. Hicks was convicted on the charges of selling dangerous drugs. Foster's charge was dismissed. According to the CI [Confidential - - Informant], Foster sold Rydberg some - cocaine approx. one gram, a month ago. . . According to the CI, that is - - - working with this department Rydberq has been seen at ~ebbie Hicks - residence several times, also according to the CI, --- who called in again on 7-25-88 to say that at the Rydberg residence there was some drugs again, that was seen by the CI. . . On August 7, 1988 the same CI, - - - called this office asain, with some more information concerning Rydberg. After talking to the CI, I was informed that in --- the house was crank and possibly some cocaine, and other drugs. (Emphasis added. ) The search warrant application does not identify the informant as the person providing the information about Foster's and Hicks's prior drug charges, yet it does refer specifically to the informant as the source of the other information provided, indicating that a person other than the informant provided the facts about Foster's and Hicks's prior criminal record. When a magistrate determines that probable cause exists to warrant the issuance of a search warrant, this Court should not only give great deference to that decision but we should also draw every reasonable inference possible to support the decision. State v. Sunberg (Mont. 19881, 765 P.2d 736, 741, 45 St.Rep. 2235, 2340; State v. Pease (~ont. 1986), 724 P.2d 153, 159, 43 St.Rep. 1417, 1424. In light of the facts outlined above, we uphold the ~istrict Court's denial of Rydberg's motion to suppress evidence seized under the search warrant and therefore affirm the judgment. Affirmed. 1 We concur: w -- Justices Justice John C. Sheehy did not participate in this opinion. Justice R. C. McDonough and Justice William E. Hunt, Sr., file the following dissents, each concurring in the other: Justice R. C. McDonough dissents. The application for the search warrant of the defendant's home was not sufficient to establish probable cause. The pertinent parts of such application are as follows: On 7-6-88 this office received an anonymous phone call from a subject who had some information concerning a KATHY RYDBERG, who lives at 1004 Sunhaven Trailer Court, Laurel, Montana, who has involvement in dealing, buying and selling of drugs. The subject who called in since then has become a confidential informant. The CI stated that RYBERG [sic] was involved with several people who are into drugs. Of these people, two names were brought up. One is a WALTER FOSTER, who lives at 1 5 1 5 E. Main Street Laurel, Montana. The other is a DEBBIE HICKS, who lives on 224 South 32nd street, Billings, Montana. Both of these subjects have previously been charged with criminal possession of dangerous drugs. Hicks was convicted on the charges of selling dangerous drugs. Foster's charge was dismissed. According to the CI, Foster sold Rydberg some cocaine approx; one gram, a month ago. Foster also was called in on a crimestoppers tip on March 3 1988. The informant said that a Walter Foster who lives at 1 5 1 5 E. Main, in Laurel, Montana, was dealing and selling drugs. This is a different informat [sic] entirely. According to the CI, that is working with this department Rydberg has been seen at Debbie Hicks residence several times, also according to the CI, who called in again on 7-25-88 to say that at the Rydberg residence there was some drugs again, that was seen by the CI. Also Foster has been at the Rydberg house recently. Foster was observed at the Rydberg residence at around 10:OO PM on July 28, 1988. Foster was driving a cream colored 4 door Ford. On August 7, 1988 the same CI, called this office again, with some more information, concerning Rydberg. After talking to the CI, I was informed that in the house was crank and possibly some cocaine, and other drugs. This information that was received from the CI, is based upon the CI being in the residence, from time to time, and seeing the drugs, and the paraphenalia [sic] . l a It is to be noted from examining the wording of the application that the only person who for sure connects the defendant in any way to possible criminal behavior or incriminating items, is the confidential informant. It is confusing whether the anonymous informant who called in on July 6, 1988, is the same or a different confidential informant who is referred to later. Therefore, the applicant for the search warrant, a detective, has as his only connection to the defendant, the hearsay evidence of the confidential informant. There is nothing in the affidavit which would inform the magistrate that such hearsay was reliable or that the officer thought the informant was credible. The information and statements given by the informant are vague and not in any way explicit, and do not lend themselves to be able to be checked as to their veracity. We have adopted the totality of the circumstances test (see State v. Sundberg (Mont. 1988), 765 P.2d 736, 45 St.Rep. 2235) adopted in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, which was discussed therein as follows: For all these reasons, we conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. See Jones - v. United States, supra; United States v. Ventresca, 380 U.S. 102 (1965); Brinegar v. ~nitea States, 338 U.S. 160 (1949). The task o f the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed. Jones v. United States, 3 6 2 U.S., at 271. - We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. Gates, 4 6 2 U.S. at 238-39. Looking at this application a magistrate would ask common sense questions which by asking the questions point out the deficiency of the application: Can the confidential informant be believed? and Why isn't he/she more specific about dates, times, places, itemization, description of the house, etc., and therefore Was he/she actually in the house, and Can his/her information be corroborated? Without further facts under the circumstances here, there is no basis to believe that probable cause exists for issuance of the warrant. I would reverse the District Court and suppress the evidence. I further concur in the following dissent of Justice William E . Hunt, Sr. R P Justice Mr. Justice ~illiam E. Hunt, Sr., dissenting: I dissent. The search warrant application did not contain sufficient facts to establish probable cause and, thus, violated the protections guaranteed by the Fourth Amendment to the united States constitution and Art. 11, Sec. 11 of the Montana Constitution. The search warrant application was partially based upon telephone calls from an anonymous informant who reported observing Rydberg buying and selling drugs. The majority notes, and correctly so, that when a magistrate examines an application for a search warrant, he must consider: . . . all the circumstances set forth in -- the affidavit before him, includinq the "veracity" and "basis of knowledgew of persons supplying hearsay information. [Emphasis added.] ~llinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548. The validity of a search warrant based on information received from an informant will not necessarily be negated as long as the reliability and credibility (the veracity) and the basis of the informant's knowledge is established. The majority makes a feeble attempt to establish the veracity of the anonymous informant, who communicated by telephone, by stating that because a crimestopper's tip corroborated the informant's report, the "veracity of the information provided" was indicated. It is not the veracity of the "information" which is at issue when dealing with informants, but the veracity of the informant himself. In this case, the veracity of the informant is impossible to establish because the informant remains anonymous. Because the informant remains anonymous, his veracity cannot be established, therefore, his statements may not be introduced as a basis for issuing the search warrant. Without the informant's statements, the search warrant fails for lack of probable cause. The majority states that the "application need only contain facts sufficient to indicate the probability of criminal activity in light of the totality of the circum- stances." Aside from information received from the infor- mant's anonymous telephone calls, the only other fact considered when issuing the warrant was a crimestopper's tip. The veracity of the crimestopper's tipster, as with the anonymous informant, has not been established. For all we know, it could have been the same person. Moreover, the majority admits that the "application regrettably fails to state clearly the source of this information." Regrettable indeed! What is even more regrettable is the kind of precedent established by this case. Even in the most lenient of circumstances, the infor- mation relied upon would not establish probable cause and is, therefore, unconstitutional. I would reverse the District Court. I also concur in the dissent o f Mr. Justice McDonough. | August 31, 1989 |
e5446536-d4a0-49ab-9787-03f50d744578 | STATE v SHAW | N/A | 88-594 | Montana | Montana Supreme Court | No. 88-594 IN THE STJPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and. Respondent, -vs- DENNY DEAN SHAW, Defendant and Appellant. APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Custer, The Honorable Nat Allen, Judge presiding. COUNSEL OF RECORD: For Appellant: John S. Forsythe, Forsyth, Montana For Respondent : Hon. Marc Racicot, Attorney General, Helena, Montana Robert F.W. Smith, Asst. Atty. General, Helena Mr. Keith D. Haker, County Attorney, Miles City, .- Montana ".* Submitted: May 11, 1989 Decided: June 2, 1989 . . U i . .I Clerk Mr. Justice Fred J. Weber delivered the Opinion of the Court. The defendant, Denny Shaw, appeals his conviction from the District Court of the Sixteenth Judicial District, Custer County. Following a jury trial, the defendant was found guilty of felony theft and burglary and was sentenced to 10 years at the Montana State Prison. We reverse. The defendant's brief presents seven issues for our review. Since we conclude that reversible error has been committed with respect to one of those issues, the remaining six will not be discussed. We consider whether i-t was error to allow the State to impeach a defense witness by asking if he had been convicted of a crime and asking him to disclose what crimes he had committed in view of Rule 609, M.R.Evid. On July 21, 1987, John Helm of Miles City, contacted the Custer County Sheriff's Office to report the theft of a skill saw, some tools, a .22 caliber rifle, two cameras, and mis- cellaneous groceries. He later reported that a rototiller was missing as well. On August 5, 1987, an anonymous woman called the Custer County Sheriff's Office to report that groceries stolen from the Helm residence were taken to the James Carpenter residence by Mike Johnson. Mike Johnson later gave a statement to the Custer County Deputy Sheriff concerning the offenses. Johnson stated that the Helm burglary was suggested by Lorna Kidd at a drinking party attended by Lewis Carpenter, Rose Carpenter, Carol Carpenter Johnson and Gary Johnson. The evidence established that the defendant was not present at that party. Mike Johnson, his brother Gary, and his wife Carol then traveled to a bar where they met a person named Danny or Denny Shaw. Mike Johnson testified that he and Denny Shaw had commjtted the burql-ary . N o physical evidence was presented by the S t a t e linking t h e defendant t o t h e crime. P r i o r t o t r i a l , several of t h e S t a t e ' s witnesses were shown p i c t u r e s of Denny Shaw, whom they i d e n t i f i e d a s t h e man who committed t h e burglary with Mike Johnson. A t t r i a l , those witnesses i d e n t i f i e d t h e defendant with varying degrees of c e r t a i n t y . During the defendant's presentation of h i s case, a bar owner was c a l l e d t o t e s t i f y t h a t it was not t h e defendant who s o l d him t h e . 2 2 r i f l e which was allegedly t h e same r i f l e s t o l e n from t h e Helm residence. The bar owner's testimony was corroborated by another defense witness, Charles Schoonover, who was a t t h e bar t h e night t h e gun was brought i n . M r . Schoonover t e s t i f i e d t h a t he wasn't sure who brought t h e gun i n t o t h e bar, but t h a t it was not t h e defendant. He t e s t i f i e d t h a t he had known the defendant for t e n t o f i f t e e n years. O n c r o s s examination of M r . Schoonover the S t a t e engaged i n t h e following inquiry: Q. Have you ever been convicted of a crime? M r . ChrFstF: Your Honor, I ' m going t o o b j e c t t o t h a t question. I don' t believe i t ' s within t h e scope o f cross-examination. M r . Corbin: I believe t h a t has t o be within t h e scope, Your Honor. The Court: I t ' s cross-examination. Overrl~led. Q. (by M r . Corhin) Have you? A. Yeah. Q. What crime? A. Intimidation. Q. Any other crimes? A. Assault. Q. Anything involving guns? The defendant argues that the foregoing cross- examination is impermissible as a method of impeachment under Rule 609, M.R.Evid., which states: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is not admissible. The State argues that the introduction of such evidence was harmless error because Mr. Schoonoverls testimony merely corroborated that of the bar owner and added nothing to the defendant1 s case. Despite the substance of the witness " testimony, this Court will not condone prosecutorial conduct which is in clear violation of Rule 609, M.R.Evid. We note that generally, it is the defendant who objects to the intro- duction of other crimes evidence. See State v. Just (19791 , 184 Mont. 262, 602 P.2d 957; State v. Lave (1977), 174 Mont. 401, 571 P.2d 97; State v. Heine (1976), 169 Mont. 25, 544 P.2d 1212; State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631. In that circumstance, such evidence is inadmissible unless it falls within an exception of Rule 404(b), M.R.Evid.: Other crimes, wrongs, acts. 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. Mr. Schoonover's testimony as to his crimes failed to reveal a motive, opportunj.ty, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. As a result the evidence was not admissible as an exception under Rule 4 8 4 (b) , M.R.Evid. The record fails to disclose any appropriate reason for the State's inquiry as to the prior criminal conduct of Mr. Schoonover. Clearly it was not something inadvertent in nature, as the defendant's attorney objected to the question but was overruled by the trial court. We conclude that the intention on the part of the State was to discredit the witness by showing that he had been engaged in crimes of intimidation and assault, and that the intimidation crime involved guns. We further conclude that the aim on the part of the State was to improperly impugn the character of the defendant and thereby suggest a greater likelihood of guilt of the crimes with which he was charged. We will not toler- ate this intentional and significant evasion of our r~zles. We conclude that the prosecution's inquiry clearly was improper under Rule 609, M.R.Evid., and that none of the exceptions stated in Rule 404(b), M.R.Evid. applied. We hold that it was reversibl-e error for the District Court to all-ow this testimonv. The judgment of con~riction is reversed and the case is remanded for new trial. We Concur: _/--7 sit&%ng for ? I I , c ~ ' -- ' - | June 2, 1989 |
3316eae0-237d-420e-bcc4-fd18df6d1f30 | BUCKMAN v MONTANA DEACONESS HOSPIT | N/A | 88-533 | Montana | Montana Supreme Court | No. 88-533 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 - ROSE N. BUCKMAN, Claimant and Appellant, -vs- MONTANA DEACONESS HOSPITAL, 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: Lloyd E . Hartford; Billings, Montana For Respondent: Michael McCarter, Hughes, Kellner, Sullivan & Alke; Helena, Montana Submitted on Briefs: May 11, 1989 Decided: June 27, 1989 JUfi 2 7 1389 1 * ~ & g m r t l l CLERK OF SUPREIblE COURT ( . A 0 ? / pq,.!&v< 2 4 ~ "TAtE OF MOWTBNA V 3 " ' " , j . Clerk Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Claimant appeals the decision of the Workers' Compensation Court reducing the hourly rates charged for attorney fees. The decision came on remand from the opinion of this Court in Buckman v. Montana Deaconess Hospital (Mont. 1986), 730 P.2d 380, 43 St.Rep. 2216. We affirm. The issues on appeal are: (1) whether the Workers' Compensa- tion Court abused its discretion in reducing the attorney fees requested by claimant from $225 per hour to $80 per hour; and (2) whether the Workers' Compensation Court erred in awarding attorney fees only for those issues upon which claimant prevailed. Claimant, Rose Buckman, was injured in 1981 in the course and scope of her employment. It was stipulated that she was permanent- ly, totally disabled and she requested a lump sum advance of benefits. The Workers' Compensation Court denied the application of lump sum benefits pursuant to section 39-71-741, MCA (1985). On appeal, this Court stated that retroactive application of section 39-71-741 (2) was unconstitutional for injuries occurring prior to 1985. The case was remanded to the Workers' Compensation Court for reconsideration of claimant's lump sum request. On remand, partial lump sum benefits of $15,000 were advanced claimant on January 11, 1988, and upon a contingent fee arrangement between Buckman and her attorney, 40 percent was awarded for attorney fees. Moreover, the court found that claimant was entitled to reasonable attorney fees on the remainder of the compensable claim and directed claimant's attorney to prepare and submit a statement concerning costs and the attorney's customary and current hourly fee. Claimant's attorney, Lloyd Hartford, submitted a statement of an hourly rate and the time spent representing claimant. He sought $225 per hour for 154.8 hours worked, equalling a total of $34,830 in attorney fees. On March 31, 1988, a hearing was held to discuss the attorney fees requested. Three issues were presented to the Workers' Compensation Court. The first was whether attorney fees should be limited to the contingency fee agreement. From the $15,000 lump sum the attorney's fee was $6,000 (40 percent). The second issue was whether the number of hours claimed by the attorney was reasonable. The third issue questioned the reason- ableness of the hourly rate claimed. The Workers1 Compensation Court found that a reasonable hourly rate was $80 per hour and a reasonable time spent by the attorney in this case was 80 hours. The first issue with which we are faced is whether this determination the court reduce the attorney's hourly rate was an abuse of discretion. Section 39-71-614, MCA, provides: Calculation of attorney fees -- limitation. (1) The amount of an attorney's fee assessed against an insurer under 39-71-611 or 39-71- 612 must be based exclusively on the time spent by the attorney in representing the claimant on the issues brought to hearing. The attorney must document the time spent, but the judge is not bound by the documentation submitted. (2) The judge shall determine a reasonable attorney fee and assess costs. The hourly rate applied to the time spent must be based on the attorney's customary and current hourly rate for legal work performed in this state, subject to a maximum established by the divi- sion. (3) This section does not restrict a claimant and an attorney from entering into a contin- gency fee arrangement under which the attorney receives a percentage of the amount of compen- sation payments received by the claimant because of the efforts of the attorney. However, an amount equal to any fee and costs submitted assessed against an insurer under 39-71-611 or 39-71-612 and this section must be deducted from the fee an attorney is entitled to from the claimant under a contingency fee arrange- ment. The Workers1 Compensation Court requested that counsel submit a statement detailing the attorney's "customary and current hourly rate." Mr. Hartford himself asserted that he does not charge an hourly rate in the regular course of business, stating that he works upon contingent fee arrangements. Regardless, Hartford submitted a claim for $225 an hour, claiming that if he were to charge hourly fees, this rate would be necessary to support the cost of doing business. Respondent requested a hearing to discuss the propriety of the hourly rate alleged by Mr. Hartford. Testimony was taken regarding a proper hourly fee to be charged in workers1 compensation cases. The testimony was considered in reducing claimant's attorney's rate from $225 per hour to $80 per hour. The court found that a reasonable fee in a workers1 compensation case is between $70 and $90 per hour. In determining attorney fees in the case at bar, the Workers' Compensation Court relied on the factors set out in Wight v. Hughes Livestock Co., Inc. (1983), 204 Mont. 98, 114, 664 P.2d 303, 312. We stated there: . . . that in every retainer contract, be it personal or public, hourly, fixed fee or contingent fee, each such contract is in reality based on the market value of the lawyer's services. Claimant contends that, according to Gullet v. Stanley Structures (Mont. 1986), 722 P.2d 619, 621, 43 St.Rep. 1335, 1337, We must note that the statute [section 39-71- 614, MCA] does not require that fee awards be based on an average rate of Montana attorneys, but rather awards must be based on the par- ticular attorney's customary hourly rate. In this respect, claimant alleges that the Workers' Compensation Court incorrectly relied on the testimony in determining an hourly rate for the average Montana attorney. While the hourly rate of the particular attorney is the proper test, Gullet cannot be relied upon specifically here. Hartford does not have a customary and current hourly fee, although he claims an equivalent would be $225. As we showed in Paulsen v. Bonanza Steak House (Mont. 1987), 733 P.2d 335, 44 St.Rep. 159, the Workers' Compensation Judge can look to evidence submitted by both parties to determine a reasonable rate. Without a customary and current hourly fee, the judge cannot wholly rely on the claimant's attorney's testimony of what he believes his fee would be. Section 39-71-614(2), MCA, states that "[tlhe judge shall determine a reasonable attorney fee and assess costs. The hourly rate applied to the time spent must be based on the attorney's customary and current hourly rate for legal work performed in this state. . . Therefore, it is within the discretion of the Workers1 Compensation Judge to determine reasonable attorney fees. In cases where a successful claimant's attorney does not charge a customary and current hourly rate, the judge's discretion is broad. This Court will not interfere with the decision of the Workers' Compen- sation Court absent an abuse of discretion. Swan v. Sletten Construction Co. (Mont. 1986), 726 P.2d 1170, 43 St.Rep. 1926. In this case, there is substantial credible evidence to support the findings of the Workers' Compensation Court and we will not substitute its judgment with our own. Intermountain Insurance Co. v. Church Mutual Insurance Co. (Mont. 1987), 740 P.2d 682, 44 St. Rep. 1317; Coles v. Seven Eleven Stores (1985) , 217 Mont. 343, 704 P.2d 1048. An attorney who charges contingency fees cannot expect to reap the same benefits from hourly rates as they may from successful contingent fee cases. As we stated in Wisht, The experience of the marketplace indicates that lawyers generally will not provide legal representation on a contingent basis unless they receive a premium for taking that risk. Ordinarily, when lawyers undertake a represen- tation on a contingency basis, they bargain for a percentage of the recovery. That per- centage is sufficiently high to compensate the lawyer not only for the reasonable value of the time he or she anticipates devoting to the particular lawsuit, but also for the time devoted to other lawsuits undertaken on the same basis but unsuccessful in result. Thus, in a rough and arbitrary way, the contingent percentage fee accounts for the risk of non- recovery. Berger, Court Awarded Attorneyst Fees: What is Reasonable? 126 Univ. Pa. Law Review 281, 324-325 (1977); Clark v. Sage (1981), 102 Idaho 261, 629 P.2d 656, 661. An attorney who charges a customary and current hourly fee does not take the same risk nor expect the same high compensation in return. The court took this into consideration and decided accordingly that $80 per hour is reasonable for attorney fees in this case. We hold that the Workers1 Compensation Court did not abuse its discretion in reducing claimant's attorney's fees from $225 to $80 per hour. The second issue is whether the Workers' Compensation Court erred in awarding claimant's attorney attorney fees only for those issues upon which claimant prevailed. Mr. Hartford claimed that he spent, initially, 154.8 hours handling claimant's case. He then added another 82.3 hours previously overlooked, totaling 236 hours. The fee for this case, over and above the contingent fee, was calculated at $53,100. In considering these hours submitted, the court found that the attorney should not receive prevailing fees for those issues upon which he was not successful. Hartford looks to section 39-71-614, MCA, which states that llattorneyl s fees assessed against an insurer under 39-71-611 or 39-71-612, must be based exclusively on the time spent by the attorney in representing the claimant on the issues brought to hearing.## As alleged, attorney fees would then be paid for any time spent on any issue, compensable or illusory. The Workers1 Compensation Court considered the hours submitted by Mr. Hartford on all the issues brought before the court. A substantial amount of time was spent concerning an annuity from a total lump sum award, which was denied. More hours were spent on a penalty issue against the insurer, which claimant states was withdrawn, and on the attorney fee issue. All of these hours, as the court pointed out, did not relate to the partial lump sum advance or the constitutional issues, prevailed upon in Buckman I. Section 39-71-614(1) states that "the judge is not bound by the documentation submitted." For the same reason that an attorney would not receive attorney fees in a case where he did not prevail on any issues, an attorney will not be awarded attorney fees for issues upon which he did not prevail here. We held in Krause v. Sears Roebuck & Co. (1982), 197 Mont. 102, 641 P.2d 458, that under section 39-71-612, MCA, a claimant is entitled to attorney fees and costs in relation only to his proof on prevailing issues. Similarly, under section 39-71-612, MCA, ff[i]f a dispute in amount owed is resolved in favor of claimant, this Court inevitably finds that an award of attorney's fees is appropriate. Polich v. Whalenls 0. K. Tire Warehouse (1983), 203 Mont. 280, 661 P.2d 38; Walker v. H. F. Johnson (1978), 180 Mont. 405, 591 P.2d 181, Catteyson v. Falls Mobile Home Center (1979), 183 Mont. 284, 599 P.2d 341." Lamb v. Missoula Imports (Mont. 1988), 748 P.2d 965, 967-968, 45 St.Rep. 127, 131. Furthermore, in Milander v . Carpenter (Mont. 1987), 748 P.2d 932, 44 St.Rep. 2204, pursuant to section 39-71-611, MCA, the state fund denied a claim for benefits. Only after the claim was later adjudged compensable by the Workerst Compensation Court was the award of attorney fees proper. Therefore, the Workerst Compensation Court did not err in finding that the claimant's attorney should not receive attorney fees for issues upon which he did not prevail and the number of hours found by the court as reasonable to spend in this case is upheld. Af f irmed. We concur: Justices Mr. Justice R. C. McDonough did not participate. Mr. Justice John C. Sheehy, dissenting: Counsel for the claimant Buckman, Lloyd Hartford, brought two cases to this Court which were consolidated for oral argument in 1986. They were Buckman v. Montana Deaconess ~ospital (Mont. 1986), 730 P.2d 380, 43 St.Rep. 2216, and stelling v. ~ivercrest Ranches (Mont. 1986), 730 P.2d 388, 43 St.Rep. 2212. Each of these cases had essentially one prime issue, that is whether the 1985 legislative amendment of 5 39-71-741, MCA, could be applied retroactively. Hartford was successful in Buckman, establishing that retroactivity was improper. He was unsuccessful in stelling, although stelling adopted Buckman on retroactivity. The reason Hartford was unsuccessful in Stellinq was that his client had no standing to raise a further constitutional issue. Both cases established definitively that the amendment to 5 39-71-741, MCA, had no retroactive application. The reason for my dissent here is the obvious disparate treatment of counsel for the claimants and counsel for the insurer in each of these cases. In Buckman, a case which counsel for the insurer lost, the state counsel recovered an attorneys fee based on 110 hours. The Workers' Compensation Court, however, allowed Hartford only 80 hours for his efforts on the same case. The Court manages to do this by eliminating from Hartford's claim the hours that he spent on an issue on which he was unsuccessful. That can occur only because this Court and the Workers' Compensation Court have effected a judicial amendment of S 39-71-614, MCA, relating to the calculation of attorneys fees. Under the attorneys fees statute, the fee assessed against an insurer "must be based exclusively on the time spent by the attorney in representing the claimant on the issues brought to hearing." If Hartford were entirely unsuccessful, of course, he is entitled to no fee. Because he was successful, he is entitled under the statute to compensation for his time spent on "the issues brought to hearing." Any reduction of that time by eliminating hours spent on unsuccessful issues is a violation of 5 1-2-101, MCA, which states that the function of a judge in declaring the substance of a statute is "not to insert what has been omitted or to omit what has been inserted.'' The legislature and the administrators of the Workers' Compensation Fund have thus far terribly bungled that fund and put it in a precarious financial position. The legislature has already done much to reduce the recoverable fees by attorneys who represent claimants in Workers' Compensation cases. There is no need for us to find reasons which make claimants' attorneys subsidize the impoverished State Fund. However heroic our efforts, we can never catch up with the errors of management. If counsel for the Fund in this case spent 110 hours losing a Supreme Court case and an important issue of retroactivity, certainly the attorney for the successful claimant is entitled to at least 110 hours. I dissent. .-"--\ u i k Justice 42. 2- Mr. Justice William E. Hunt, Sr.: t / ' I concur in the foregoing dissent. | June 27, 1989 |
1483a257-05bd-415a-b4d8-f2081db07ed4 | KELLER v SCHOOL DISTRICT NO 5 | N/A | 89-007 | Montana | Montana Supreme Court | No. 89-07 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ROSE KELLER, Plaintiff and Respondent, -vs- SCHOOL DISTRICT NO. 5 and its BOARD OF TRUSTEES, ED ARGENBRIGHT, Superintendent of public Instruction, Office of public Instruction, State of Montana, Defendants and Appellants. APPEAL FROM: ~istrict Court of the First ~udicial ~istrict, In and for the County of ~ e w i s & Clark, The Honorable Thomas Honzel, Judge presiding. COUNSEL OF RECORD: For Appellant: Loren Tucker, County Attorney, ~irginia city, Montana Beda Lovitt, office of Public Instruction, Helena, Montana For Respondent: J. C. ~eingartner, Helena, Montana &- Submitted on Briefs: April 27, 1989 Decided: June 6, 1989 Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Rose Keller, petitioner, was informed by the Sheridan School ~istrict, that her teaching contract was not to be renewed. Petitioner appealed to the County Superintendent of Public Instruction who upheld the decision of the School Board, stating that petitioner had not filed timely for an appeal. The State Superintendent affirmed the school board's decision, but the ~istrict Court reversed the Deputy County superintendent's decision, finding that Keller's appeal was timely and that she had followed the applicable statute properly in questioning her dismissal. Sheridan School District appeals the District Court's decision. We reverse. The issues brought forth by appellant are: 1. Whether an appeal by the nontenured teacher was filed timely with the county superintendent, subsequent to her termination. 2. Whether petitioner is entitled to reasons for the nonrenewal of her contract. On April 14, 1987, petitioner was informed in writing that her teaching contract with Sheridan Public School ~istrict No. 5 was not being renewed for the 1987-88 school year. The letter informing her of nonrenewal gave no reasons for the termination of her contract. However, the minutes from the school board meeting reflected that the reason all nontenured teachers (of which Keller was one) had not been rehired was financial. Allegedly, all of the nontenured teachers were released in anticipation that the upcoming mill levy would not pass. Respondent argues in her brief that the mill levy for the school district did pass in June 1987 and the board of trustees considered a motion to rehire all of the nontenured teachers, but the motion failed. The record discloses that a motion to rehire all of the nontenured teachers, with the exception of Rose Keller, was passed subsequently. Following the April 14 nonrenewal letter, petitioner did not request reasons for her nonrenewal as permitted by S 20-4-206(3), MCA (1985). She allegedly relied on the school board minutes which stated that the nontenured teachers were being released "due to financial conditions of the district at this time." Petitioner appealed her termination with the County Superintendent on July 21, 1987. The appeal was dismissed on motion of the school district, for Keller's failure to appeal within the thirty days required by 10.6.103 (5), ARM. The State Superintendent of Public Instruction, Ed Argenbright., affirmed the decision of the Deputy County Superintendent. The school district appealed to the District Court and on November 3, 1988, the court reversed the decision of the Deputy County Superintendent of Schools, stating that Keller had appealed in a timely fashion and was entitled to be given reasons for the nonrenewal of her contract. The first issue is whether the appeal by petitioner with the County Superintenderit of Public Instruction was timely subsequent to her termination. We will address issue two in conjunction with issue one as they are closely related in the appeal process. Issue two is whether the teacher is entitled to reasons for her termination. Upon the termination of a teaching contract, a nontenured teacher has the option of requesting the reasons for the nonrenewal release under S 20-4-206(3), MCA (1985). 20-4-206. Notification of nontenure teacher reelection -- acceptance -- termination and statement of reason. (1) The trustees shall provide written notice by April 15 to all nontenure - - - - - teachers who have been reelected. Any nontenure teacher who does not receive notice of reelection or termination shall be automatically reelected for the ensuing school fiscal year. (Emphasis added). . . . (3) When the trustees notify a nontenure teacher of termination, the teacher may within 10 days after receipt of such notice make written request of the trustees for a statement in writing of the reasons for termination of employment. Within 10 days after receipt of the request, the trustees shall furnish such statement to the teacher. "The nontenured teacher is entitled to a notice which states what undesirable qualities merit a refusal to enter into a further contract." ~ridger Education ~ssociation v. Board of Trustees, Carbon County School ~istrict No. 2 (1984), 209 Mont. 31, 34, 678 P.2d 659, 660. The request, in writing, must be made within ten days. A nontenured teacher also has the right to appeal the decision of the board of trustees, pursuant to 10.6.103(5), ARM, within thirty days of receiving notice of her nonrenewal. An exception to S 20-4-206(3), MCA, is subsection (4) of the same statute which states: The provisions of this section shall not apply to cases in which a nontenure teacher is terminated when the financial condition of the school district requires a reduction in the number of teachers employed and the reason for the termination is to reduce the number of teachers employed. section 20-4-206 (4), MCA. Petitioner did not request the reasons for termination of her contract within ten days, nor did she appeal the board's decision to not renew the contract within thirty days. 10.6.103 (5), ARM. Teacher claims that there are special circumstances involved here which did not require her to take action. ~ccording to the board of trustees' minutes, the nontenured teachers were being released because "financial conditions" required the reductions. It is clear that if the board of trustees are to meet the 5 20-4-206, MCA, statutory requirement of informing teachers of their renewal or termination, they must do so before April 15 (May 1, as of the 1987 Montana Legislature, 5 20-4-206(3), MCA) of the current school year. Section 20-4-206(1), MCA. Therefore, if the mill levy vote does not take place until after April 15, then it is apparent that the school board may release all of the nontenured teachers until the board knows whether it will have the funds to rehire the nontenured teachers. Because petitioner relied on the alleged financial condition grounds for the cancellation of her contract, she saw no necessity in requesting reasons for her termination, pursuant to 5 20-4-206(3) or filing notice of appeal according to 10.6.103, ARM. Only after Keller was the only nontenured teacher not to be rehired did she appeal her termination. Allegedly, by this time, the reasons of the board had changed and, therefore, 5 20-4-206(4), "financial conditions," was no longer applicable. While Rose Keller waited to be rehired after the mill levy vote, her chance for appeal passed. The statute requires a two-step process. First, if a teacher is not going to be rehired for the subsequent year, the board of trustees is required to give written notice to the nontenured teacher. Section 20-4-206(l), MCA. Second, the nontenured teacher has the right to request the reasons for her termination, but must make written request within ten days. Section 20-4-206 ( 3 ) , MCA. The letter received by Keller on April 14, informed her that she was not being rehired. Keller did not request reasons for her termination within the required ten days. The statute gives a nontenured teacher the opportunity to find out upon what grounds termination is based. Even in those cases where "financial conditions"is the alleged reason for termination, nontenured teachers cannot assume this is the reason for termination unless they request and receive from the district trustees written confirmation of the reasons for termination. Having failed to comply with the requirement of 5 2 0 - 4 - 2 0 6 ( 3 ) , MCA, Keller is not entitled to reasons for her termination. We hold that the decision of the District Court must be reversed and the findings of the Deputy County Superintendent reinstated. Reversed. We concur: Mr. Justice William E. Hunt, Sr., dissenting: I dissent. The Madison County Deputy Superintendent of Schools and the State Superintendent of public Instruction both found that the Sheridan Public School Board of Trustees terminated four nontenured teachers, including appellant Rose Keller, due to the financial condition of the school district. Keller justifiably relied on this reason for her termination and did not request further justification. In fact, under S 2 0 - 4 - 2 0 6 ( 4 ) , MCA, the trustees were not required to give her reasons for her termination if the financial condition of the school district was indeed the reason for her nonrenewal. The majority, however, holds that, because Keller did not request a statement of reason within 10 days after notification of termination, she lost all rights of appeal. Under this reasoning, whenever a board of trustees decides not to renew contracts due to the financial condition of the school district, in order to protect appeal rights, all nontenured teachers must request a statement of reasons--just in case the trustees did not mean what they said when they adopted the resolution. If a teacher cannot rely on the resolution of a school board, what can she rely on? I would affirm the ~istrict C Justice | June 6, 1989 |
8d717d93-611d-4130-be9f-e5c3333cf896 | STATE v DePUE | N/A | 88-591 | Montana | Montana Supreme Court | N o . 8 8 - 5 9 1 IN THE SUPREME COURT OF THE STATE O F MONTANA 1 9 8 9 STATE O F MONTANA, P l a i n t i f f and R e s p o n d e n t , -vs- DAVID ARTHUR DePUE, 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 d J u d - i c i a l D i s t r i c t , I n and for t h e C o u n t y of P o w e l l , T h e H o n o r a b l e T e d I,. M i z n e r , Judge presiding. COUNSEL O F RECORD: For A p p e l - l a n t : C . F . M a c k a y , A n a c o n d 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 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 C h r i s t o p h e r G. M i l l e r , C o u n t y A t t o r n e y , D e e r L o d g e , M o n t a n a S u b m i t t e d on B r i e f s : A p r i l 6 , 1 9 8 9 D e c i d e d : June 1, 1 9 8 9 I - - C F i l e d : --. d ' ~ 1 ) I , ,- - 1 C l e r k M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion o f t h e Court. This appeal a r i s e s from a c o n v i c t i o n e n t e r e d i n t h e Third J u d i c i a l D i s t r i c t Court, Powel..l County, t h e Honorahle Ted L. Mizner p r e s i d i n g . Following a bench t r i a l , defendant was found g u i l t y of aggravated assauJ t and now appeals. W e a f f i r m . Myron Cunningham, t h e v i c t i m , w a s a p r i s o n e r a t t h e Montana S t a t e P r i s o n i n Deer L,odge, Montana. On August 17, 1987, a s he walked through t h e p r i s o n yard, M r . Cunningham was s t r u c k i n t h e eye a l l e g e d l y by defendant, David DePue. I n i t i a l l y b e l i e v i n g t h e i n j u r y t o be minor, M r . Cunningham r e p o r t e d t o t h e i n f i r m a r y d o c t o r s t h a t he had been h i t i n t h e eye w i t h a ba.sebal.1. L a t e r i n t h e evening, M r . Cunningham informed d-octors t h a t someone had s t r u c k him, b u t r e f u s e d t o i d e n t i f y h i s a s s a i l a n t . On August 21, 1.987, upon l e a r n i n g t h e i n j u r y would r e s u l t i n t h e l o s s o f h i s eye, M r . Cunningham i d e n t i f i e d defendant a s t h e a s s a i l a n t . Based upon t h e a s s a u l t a l l e g a t i o n s , defendant was placed on temporary lock-up s t a t u s w i t h i n t h e maximum s e c u r i t y u n i t . I n compliance w i t h t h e Inmate Rules and Guidelines, p r i s o n o f f i c i a l s conducted a r e c l a s s i f i c a t i o n hearing. E s s e n t i a l l y , t h e hearing g i v e s an inmate n o t i c e o f t h e reason he i s being moved t o another p a r t o f t h e p r i s o n . A t t h e o u t s e t o f t h e h e a r i n g , p r i s o n o f f i c i a l Tom Forsyth commented t o defendant t h a t charges may b e f i l e d . Immediately, defendant responded " [ £ ] o r what? I only used m y f i s t . " T h e r e a f t e r , o f f i c i a l s i n s t r u c t e d defendant n o t t o v o l u n t e e r any information. The h e a r i n g proceeded without defendant having been r e a d h i s Miranda warnings. ~ i r a n d a v . Arizona (19661, 384 U.S. 436, 86 S.Ct. 1602, 16 ~ . ~ d . 2 d 694. At trial, defendant moved to suppress all testimony concerning the incriminating statement, claiming the statement was made in violation of his Miranda rights. After hearing the disputed testimony and oral arguments by both parties, the District Court denied the motion, concluding defendant's statement was not made in response to any "interrogation." Thereafter, the District Court heard evidence, including the testimony of the victim, conflicting statements of two other prison inmates, and medical testimony of the infirmary physician. On August 23, 1988, the District Court entered judgment finding defendant guilty of aggravated assault. The defendant presents two issues for our review: 1. Did the District Court err when it allowed testimony concerning the defendant's incriminating statement made during the reclassification hearing prior to the defendant being informed of his Miranda rights? 2. Did sufficient evidence exist to convict defendant of the offense of aggravated assault? At trial, the District Court admitted the testimony of Tom Forsyth, a prison official present during defendant's reclassification hearing. Mr. Forsyth testified that defendant, after learning that charges may be filed as a result of the alleged assault, immediately remarked "[£]or what? I only used my fist." This comment was made prior to a reading of Miranda guarantees. Defendant contends the statement was improperly admitted. into evidence during his criminal trial and in violation of his privilege against self -incrimination. Miranda requires an individual "taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning," be notified of " h i s right of silence and . . . assure[d] that the exercise of the right will be scrupulousl.y honored . . ." Miranda, -. 354 U.S. at 478-79, 86 S.Ct. at 1630, 16 I,.Ed.2d at 726. We do not question the fact that defendant was in custody when the incriminating statement was made. State V. Dannels (Mont. 1987), 734 P.2d 188, 44 St.Rep. 472. Rather, we examine defendant's assertions of "interrogation." The Defendant argues our decision in State v. Harris (1978), 176 Mont. 70, 576 P.2d 257, controls the outcome of the present appeal. In Harris, prison officials discovered a knife in a cell. shared by inmates Harris and Hendricks. A formal disciplinary hearing was scheduled and each inmate was provided a lay-advisor to assist in the hearings. During Hendricks-hearing, Harris made incriminating statements in response to questions asked by the lay-advisor. These statements were later used against Harris during a criminal trial. On appeal of his conviction, we found the const.itutional guarantees announced in Miranda applicable: [Tlhe prison disciplinary hearing was conducted by prison officials for the purpose of ascertaining inmate responsibility for prison offenses punishable under the Inmate Rules and Guidelines. No notice of potential criminal prosecution was announced to Harris until after he uttered the incriminating statements at Hendricks' disciplinary hearing. The constitutional guarantees of the Fifth Amendment, . . . cannot be subverted under the guise Harris knowingly and voluntarily uttered the incriminating statements. Harris, 576 P.2d at 258. Defendant's reliance upon Harris is misplaced. The cited case concerned statements elicited from questions asked during a formal prison disciplinary hearing. In the instant case, no questions were asked defendant, and testimony at trial indicated that prison officials seldom make inquiries of t h e inmates regarding alleged i n c i d e n t s . Rather, the hearings simply give n o t i c e and determine f u t u r e placement within t h e prison. I n S t a t e v. Ryan (1979), 182 Mont. 130, 595 P.2d 1146, we found t h a t statements made by defendant p r i o r t o h i s a r r e s t were not t h e product o f c u s t o d i a l i n t e r r o g a t i o n . In Ryan, four p o l i c e o f f i c e r s a r r i v e d a t defendant's home t o execute a search warrant. The warrant authorized t h e o f f i c e r s t o search Ryan's home f o r various firearms which defendant had e a r l i e r reported s t o l e n and f o r which he had received insurance compensation. Upon reading a copy of t h e warrant, defendant t o l d t h e o f f i c e r , " [wl e l l , you guys have g o t m e anyway. I w i l l j u s t show you where t h e guns a r e a t . " Ryan escorted t h e o f f i c e r s t o h i s bedroom, and pointed a t t h e c l o s e t , and s a i d , " [ t l h e guns a r e i n t h e r e . " When t h e o f f i c e r s began checking t h e s e r i a l numbers on t h e various weapons, defendant t o l d them t h a t t h e r e was no sense i n w r i t i n g them down because he had a l t e r e d them a f t e r submitting t h e burglary r e p o r t . Thereafter, t h e o f f i c e r s placed Ryan under a r r e s t and read defendant h i s Miranda warnings. O n appeal, we found t h a t " [wlhere t h e e n t i r e s i t u a t i o n was f r e e from any coercion o r deprivation of freedom of a c t i o n by t h e law enforcement o f f i c e r s and t h e statements were not t h e r e s u l t of i n t e r r o g a t i o n , t h e requirements of Miranda were not applicable." Ryan, 595 P.7d a t 1 1 4 9 , c i t i n g Oregon v. Mathiason (1-97?), 429 U . S . 492, 97 S.Ct. 711, 50 L.Ed.2d 714. A s was pointed o u t i n Miranda, a confession which i s t r u l y voluntary i s not foreclosed from evidence because t h e statement was made before t h e person confessing had. been warned of h i s r i g h t s : [Alny statement given f r e e l y and v o l u n t a r i l y without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. Miranda, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at - - 726. Defendant was not questioned at the reclassification hearing. We find defendant's statement was a voluntary statement outside the application of - - Miranda. Next, we turn to defendant's second claim. Our standard of review when presented with a challenge to the sufficiency of the evidence is " [wlhether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State 17. McDonald (Mont. 19871, 734 P.2d 1216, 1217, 44 St.Rep. 593, 595, citing Tackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 T,.Ed..?d 560, 573; State v. Rodriguez (Mont. 1981), 628 P.2d 280, 38 St.Rep. 578F. This standard gives responsibility to the trier of fact to "[rlesol~re conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. " ,Tackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. Defendant contends the evidence presented at trial was insufficient to support a conviction. Defendant argues that the conviction is based solely on the word of a convicted felon, and for this reason, we should view Mr. Cunningham's testimony with distrust. However, we decline to engage in a battle over the credibility of witnesses. Rather, the credibility of witnesses and the weight assigned to their testimony is left to the trier of fact. State v. Green ( 1 9 8 4 ) , 212 Mont. 20, 605 P.2d 370. Of the three inmates testifying, the District Court chose to accept the victim's testimony. At trial, Mr. Cunningham testified to the ill will which existed between himself and defendant prior to the assault, including an earlier threat. Additionally, Mr. Cunningham stated that after he was hit in the eye, he saw defendant hide something in his pocket, giving Mr. Cunni-ngham the indication that he had been struck with some sort of an instrument. Resides the victim's testimony, other evidence supports the conviction. Dr. Ridgeway testified that the injury resulted from a rupture of the orbit of the left eye. While Dr. Ridgeway stated that a large foreign object embedded in the seam of a baseball could have caused the injury, nonetheless, he doubted that the arc of a thrown ball could have penetrated deep enough, making a baseball an unlikely mechanism. Finally, we view defendant's incriminating statement made during the recl-assification hearing strong evidence to support his conviction. Affirmed. We concur: | June 1, 1989 |
7afe7ffc-3669-4583-9334-73ac7e859521 | CIOTTI v HOOVER | N/A | 88-365 | Montana | Montana Supreme Court | No. 88-365 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 KENNETH CIOTTI AND JORDANELLA CIOTTI, Plaintiffs and Respondents, ROBERT HOOVER, DIANE HOOVER, JOHN GERLETTI, and JENNIFER HENDRIX, Defendants and Appellants. APPEAL FROM: District Court of the Twentieth Judicial ~istrict, In and for the County of Sanders, The Honorable C. B . McNeil, Judge presiding. COUNSEL OF RECORD: For Appellant: Timothy J. Lape, Polson, Montana For Respondent t Thomas Alan Kragh; Rosscup & Kragh, Polson, Montana Submitted on Rriefs: March 2, 1989 Decided: June 6, 1989 - . I U f -..-, Fgle&'? . ~ * ' . . . . --.3 1 ' ) .. -3 L . I ; I ' t 1 . c' tl ., . -.-. lerk M r . ~ u s t i c e John C . Sheehy d e l i v e r e d t h e opinion of t h e Court. The appeal o f t h e defendant John G e r l e t t i from a judgment e n t e r e d i n t h e D i s t r i c t Court of t h e Twentieth ~ u d i c i a l District, Sanders County, concerns t h e n e c e s s i t y of a p p o i n t i n g t h r e e r e f e r e e s i n a p a r t i t i o n a c t i o n a s required by s t a t u t e . Because w e f i n d t h e s t a t u t e was n o t followed i n t h e District Court, we r e v e r s e t h e judgment and remand f o r f u r t h e r proceedings. There a r e f o u r i s s u e s f o r review by t h i s Court as follows: 1) Did t h e D i s t r i c t Court err by n o t appointing t h r e e ( 3 ) r e f e r e e s a s mandated by 5 70-29-202(l) and ( 2 ) , MCA, b e f o r e p a r t i t i o n i n g t h e l a n d i n t o t h r e e p a r c e l s ? 2) id t h e D i s t r i c t Court err by f i n d i n g t h a t none of t h e defendants o b j e c t e d t o t h e appointment of a s i n g l e r e f e r e e i n s t e a d of t h r e e r e f e r e e s ? 3 ) Did t h e D i s t r i c t Court err by f i n d i n g t h a t t h e defendants waived t h e i r r i g h t s t o t h e appointment of t h r e e r e f e r e e s ? 4 ) Did t h e ~ i s t r i c t Court err by f i n d i n g t h a t Judge Henson's o r d e r d a t e d J u l y 16, 1984 was i n f u l l f o r c e and e f f e c t ? The p a r t i e s e n t e r e d i n t o a c o n t r a c t f o r deed with Leonard and Peggy smith f o r t h e purchase o f 200 a c r e s i n Sanders County, Montana. A t t h e t i m e o f t h e purchase, t h e r e were t h r e e couples; t h e ~ i o t t i s , t h e Hoovers and t h e Gerlettis. The G e r l e t t i s have s i n c e divorced. The p a r t i e s are t e n a n t s i n common, each paying an equal p a r t of t h e purchase p r i c e . The p r o p e r t y has been p a i d f o r i n f u l l and t h e Smith's a r e no longer p a r t i e s t o t h i s a c t i o n . On May 18, 1983, the Ciottis filed a complaint for partition of the land because they were seeking financing and the bank would not lend on a mortgage without all the owners signing for the loan. The defendants, the Hoovers and Gerlettis were not personally served with the summons and complaint. Service was attempted by publication despite the Ciottis knowledge of the whereabouts of the defendants who resided out of state. In October, 1983, a default judgment was entered against the defendants. On July 16, 1984, an order was issued by Judge John S. Henson based on the default which ordered that the property be partitioned, that Hilman Hanson be appointed referee to partition the property and that the referee submit his report dividing the property to the ~istrict Court. On October 10, 1984, Judge Henson signed an order confirming the referee's report and an amended order confirming the report was signed December 17, 1984. On April 11, 1985, the defendants filed a motion to set aside the judgment based upon lack of service and notice. On May 24, 1985, Judge C. B. Mc~eil signed an order vacating the default judgment and declaring the orders of October 10, 1984 and December 17, 1984 void because the District Court was without jurisdiction to issue the default judgment and subsequent orders. On June 13, 1985, the defendants filed an answer to the original complaint. One year later, the Ciottis filed a motion for an order to partition the land, for the appointment of a single referee, that ~ilman Hanson be appointed as that referee and for confirmation of Hanson's report which was previously submitted to the court. The motion was set for hearing July 8, 1986. Prior to the hearing, the parties met for a settlement conference. The Ciottis and Gerlettis each made a proposal for settlement. There is some disagreement about which proposal was agreed upon. John Gerletti contends that the only unresolved item was the cost to have the land surveyed but it appears that he wanted five acres which abutted the creek on the property that had been fenced by the Ciottis. The settlement conference failed and the matter was set for trial on December 21, 1987. Gerletti made a motion to compel compliance with the settlement agreement and it was decided that the motion would be treated as a counterclaim at trial. Trial was held on December 21, 1987 with only the ~iottis and John ~erletti appearing. in dings of fact, conclusions of law and judgment for partition were entered on March 1, 1988 denying Gerletti's counterclaim and partitioning the land into three parcels. No referees were appointed prior to the partitioning of the land. post-trial motions were filed by Gerletti addressing the appointment of referees and the court entered amended findings of fact, conclusions of law and judgment for partition on ~ p r i l 22, 1987. Again, no referees were appointed. Finding of fact no. 13 incorporates the July 16, 1984 order which appoints ~ilman Hanson as the single referee, however the parties never consented to the appointment of a single referee. Additional post-trial motions regarding the appointment of referees were filed by ~erletti and denied. his appeal followed. I 1) Did the ~istrict Court err by not appointing three (3) referees as mandated by S 70-29-202 (1) and (2), MCA before partitioning the land into three parcels? 2) Did the ~istrict Court err by finding that none of the defendants objected to the appointment of a single referee instead of three referees? 3 ) Did t h e D i s t r i c t Court err by f i n d i n g t h a t t h e defendants waived t h e i r r i g h t s t o t h e appointment o f t h r e e r e f e r e e s ? The f i r s t t h r e e i s s u e s regarding 5 70-29-202, MCA, governing t h e p a r t i t i o n i n g of property and t h e appointment of r e f e r e e s w i l l be addressed a s one. s e c t i o n 70-29-202(1) and ( 2 ) provide i n p a r t , a s follows: . . . upon r e q u i s i t e proofs being made, it [ t h e c o u r t ] must o r d e r a p a r t i t i o n according t o the r e s p e c t i v e r i g h t s o f t h e p a r t i e s a s a s c e r t a i n e d by t h e c o u r t and appoint t h r e e r e f e r e e s . . . ( 2 ) The c o u r t , -- w i t h t h e consent o f t h e p a r t i e s , - - may a p p o i n t a s i n g l e r e f e r e e i n s t e a d of t h r e e r e f e r e e s i n t h e proceedings under t h e p r o v i s i o n s of t h i s c h a p t e r , and t h e s i n g l e r e f e r e e , when t h u s appointed, h a s a l l t h e powers and may perform a l l t h e d u t i e s o f t h e t h r e e r e f e r e e s . (Emphasis added. ) The i n t e r p r e t a t i o n o f t h i s s t a t u t e , i n s o f a r a s it concerns t h e appointment o f r e f e r e e s , has n o t been an i s s u e b e f o r e t h i s Court u n t i l now, most l i k e l y because t h e language o f t h e s t a t u t e i s c l e a r and does n o t l e a v e any d i s c r e t i o n whatsoever t o t h e D i s t r i c t Court. An a c t i o n f o r p a r t i t i o n i s a s p e c i a l s t a t u t o r y proceeding. Hurley v. O t N e i l l (1905), 31 Mont. 595, 79 P. 242, 243. "We must t h e r e f o r e look t o t h e s t a t u t e f o r t h e a u t h o r i t y t o b r i n g t h e a c t i o n --- and f o r t h e procedure t o be followed b o t h i n b r i n q i n g t h e a c t i o n and a f t e r it i s - - -- - -- i n s t i t u t e d . " ( ~ m p h a s i s added.) Lawrence v. Harvey (19801, 186 Mont. 314, 607 P.2d 551, 555, quoting Hurley, s u p r a , 79 P. a t 243. The s t a t u t e provides t h a t u n l e s s t h e p a r t i e s consent t o t h e appointment o f a s i n g l e r e f e r e e , t h r e e r e f e r e e s must be appointed. This was n o t done, t h e r e f o r e t h e D i s t r i c t Court e r r e d . The respondents contend t h i s e r r o r was harmless e r r o r and t h a t had t h r e e r e f e r e e s been appointed, t h e r e s u l t would have been the same. ÿ his argument is pure speculation. We do not know what three referees might have done because three referees were not appointed under the mandatory language of the statute. The ~istrict Court, in its findings of fact nos. 17, 18, 19, and 20, finds that the defendants did not object to the appointment of a single referee until post-trial motions. First, it is not a matter of objecting to the appointment of a single referee, it is a matter of consent which the defendants did not give. Second, these findings simply are not supported by the record. The defendant first objected at the July 8, 1986 hearing on plaintiff's motion dated June 13, 1986 which requested an order partitioning the property, the appointment of Hilman Hanson as the single referee, and for an order confirming Hanson's report filed in the proceedings which were set aside for failure to make proper service. The defendant objected again when answering a renewed motion by the plaintiffs dated August 31, 1987 requesting the appointment of Hilman Hanson as the single referee. The defendant also objected at the December 21, 1987 trial when the report by Hanson prepared for the void proceedings was introduced into evidence. Based upon the court's finding that the defendant did not object, the court found that this supposed failure constituted a waiver of the defendant's right to have three referees appointed by the court. This is clearly error. If consent for a lesser number is not given, the statute states the court must appoint three referees. 4) id the District Court err by finding that Judge Henson's order of July 16, 1984 was in full force and effect? It is fundamental to our system of law that the court rendering a decision in any particular case, have jurisdiction over the parties. ~urisdiction is power, that is, the authority to render a judgment. The District Court realized this when it vacated the first proceeding on the grounds that jurisdiction did not exist. It is elementary that when the judgment roll upon its face shows that the court was without jurisdiction to render the particular judgment, its pronouncement is in fact no judgment. It cannot be enforced. No right can be derived from it. All proceedings founded upon & are invalid ineffective for any purpose. (Emphasis added.) Apple v. Edwards (1949), 123 Mont. 135, 140-141, 211 ~ . 2 d 138. The District Court, in its findings recognized the invalidity of the default judgment issued October 4, 1983 and voided two of the resulting orders, but then states that the July 16, 1984, order was in full force and effect. This is not correct. The whole prior proceeding is void, not just parts of it. As a result, the July 16, 1984, order cannot be the basis for the appointment of a single referee. Otherwise the clearly stated requirements of § 70-29-202, MCA, are not given effect. Reversed and remanded for further proceedings in accordance with this opinion. , \_)dm 4- . . 2 L . A 7 - Justice We Concur: | June 6, 1989 |
3e84fe6e-222e-40a6-9bfb-3f987cb46485 | STATE v DELAP | N/A | 88-601 | Montana | Montana Supreme Court | No. 88-601 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Appellant, -vs- KEVIN LESLIE DELAP, Defendant and Respondent. APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Joseph Gary, Judge presiding. COUNSEL OF RECORD: For Appellant: Bruce E. Becker, City Attorney, Rozeman, Montana Karl P. Seel, Rozeman, Montana For Respondent: James A. Johnstone, Bozeman, Montana Submitted on Briefs: March 23, 1989 Decided: May 10, 1989 Mr. Justice I , . C. Gulbrandson delivered the Opi-nion of the Court. The State of Montana appeals the order of the Eighteenth Judicial District Court, Gallatin County, dismissing two charges against Kevin Delap (Delap) . Delap wa.s convicted in City Court in Bozeman, Montana, of violating § 61-8-401, MCA, driving under the Infl.uence, and § 23-2-631, MCA, operating a snowmobile on a city street. Delap appealed his conviction to the District Court which dismissed both charges. In dismissing the 5 61-8-401, MCA, charge, the District Court noted thet the dismissal does not preclude the State from charging Delap under 5 23-2-632(1)(b), YCA, the snowmobile DUI statute. We affirm the order of the District Court as to dismissal of the $ 3 61-8-401, MCA, charge. On December 13, 1987, Bozeman city police arrested Delap. At the time of his arrest, Delap was operating a snowmobile. His blood alcohol was determined by a breath test to be . 1 7 4 . After Delap was convicted in City Court of both offenses charged, he appealed and was tried in District Court on October 14, 1988. Following trial, the court dismissed the charge under § 61-8-401, MCA, and found 5 23-2-631, MCA, inapplicable because a controlled access highway was not involved. The State presents two issues on appeal: 1. Is a snowmobile a vehicle as defined in § 61-1-103, MCA,and thus subject to the restrictions in § 61-8-401, MCA, prohibiting the operation of a vehicle upon the ways of the state while under the influence of alcohol? 2. Does the civil offense of driving a snowmobile while under the influence of alcohol in violation of S 23-2-623 (1) (b) supersede and preclude charging a defendant under 5 61-8-401, M C A ? Delap was charged with v i o l a t i n g S 61-8-401, MCA. The p e r t i n e n t p a r t of t h i s s t a t u t e provides: Persons under t h e influence of alcohol o r d.rugs. (1) It i s unlawful and punishable a s provided i n 61-8-714 and 61-8-723 f o r any person who i s under t h e influence of: (a) alcohol t o d r i v e o r be i n a c t u a l physical c o n t r o l of a v e h i c l e upon t h e ways of t h i s s t a t e open t o t h e p u b l i c [ . ] Section 61-8-401(1) ( a ) , MCA. A s used i n t h i s s t a t u t e , t h e term v e h i c l e is defined a s follows: "Vehicle" means every device i n , upon, o r by which any person o r property may be transported o r drawn upon a public highway, except devices moved by animal power o r used exclusively upon s t a t i o n a r y r a i l s o r t r a c k s . However, i n chapters 3 and 4 , t h e term means "motor vehicle" a s defined i n t h i s p a r t ; and i n chapter 8 , p a r t 4 , t h i s term does not include a bicycle a s defined i n 61-1-123. Section 61-1-103, MCA. Our reading of t h e p l a i n language of t h i s s t a t u t e i n d i c a t e s a snowmobile f i t s within t h i s d e f i n i t i o n of a v e h i c l e . A snowmobile is a device upon which a person o r property may be transported upon a p u b l i c highway under c e r t a i n conditions. L t i s not driven by animal power and does not u t i l i z e s t a t i o n a r y r a i l s o r t r a c k s . It a l s o does not f i t within t h e d e f i n i t i o n of a bicyc!e, t h e only device excluded from T i t l e 6 1 , Chapter 8 , p a r t 4 , a s deiined i n S 61-1-123, MCA. W e note however, t h a t snowmobiles a r e not defined i n T i t l e 61, Chapter 8 , p a r t 1, although o t h e r types of v e h i c l e s a r e s p e c i f i c a l l y defined t h e r e i n . Instead, snowmobiles a r e defjned a s follows: "Snowmobile" incl-udes any selF-propelled vehicle of an overall width of 48 inches or less, excluding accessories, designed primarily for travel on snow or ice, which may be steered by skis or runners and which is not otherwise registered or licensed under the laws of the state of Montana. Section 23-2-601(10), MCA. Further, Title 23, Chapter 2, part 6, provides statutory regulation for the operation of snowmobiles on public streets and highways. Section 23-2-631, MCA. Of particular note is S 23-2-632 (1) (b) , MCA , which makes the operation of a snowmobil.e upon a public street or highway unlawful while under the influence of intoxicating liquor or narcotics or habit-forming drugs. The general ru1.e of statutory construction commands t.hat the more specific statute shall control over the general statute. Section 1-2-10?, MCA. The legislature in enacting Title ?3, Chapter 2 , part 6, duplicated with specificity the motor vehicle code concerns for regulation of snowmobiles upon the public streets, roadways, and highways. Viewing the foregoing provisions in conjunction with secti-ons which provide for registration, licensing, accidents, enforcement, penalties, and. disposition of fines and forfeitures, we find. the legislature provided a statutory scheme which supplants the motor vehicle code regarding snowmobil-es. The State, however, contends S 61-8-401, MCA, provides for criminal sanctions while Title 23, Chapter 2, part 6, provides for civil sanctions. As such, they are supplemental rather than conflicting and may be imposed for the same occurrence. See One Lot Emerald Cu-t Stones v. United States (1972), 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438. However, "the question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction. " (Citations omitted. ) Uni ted States v. Ward (1980), 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.~d.2d 742, 749. A court's determination of the proper statutory construction depends upon a determination of two issues: (1) whether the legislature expressly or impliedly labeled the penalty as civil or criminal, and ( 2 ) if the legislature has identified the penalty as civil, whether the statutory scheme is "so punitive either in purpose or effect as to negate that intention." Ward, 448 U.S. at 248-49. When making the second inquiry, "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground." (Citations omitted.) Ward, 448 U.S. at 249. After consideration of the first level test in light of the statutes relevant to this case, we find clear legislative intent to impose a civil penalty for operating a snowmobile upon the streets or highways of this state while under the influence of drugs or alcohol. Section 23-2-642, MCA, clearly states that the penalty levied for violation of 55 23-2-601 through 23-2-644, MCA, is a civil penalty. Examination of the legislative history of Title 23, Chapter 2, part 6, shows this part originally provided that violation of any section of the act was considered a criminal misdemeanor, "punishable by fine or imprisonment or both" under the laws applying to persons owning or operating motor vehicles when the violation occurred on public highways. Section 53-1023, R.C.M. 1947 (1971). This penalty provision was amended by the 1974 legislature, to read a5 follows: 53-1 023. Penalties. (1) A person who violates any provision of this act or a rule and regulation adopted pursuant thereto shall pay a civil penalty of not less than fifteen dollars ($15) nor more than five hundred dollars ($500) for each separate violation. (2) A person who will-fully violates any provision of thjs act or a rule or r e g u l a t i o n adopted pursuant t h e r e t o s h a l l pay a c i v i l penalty of not l e s s than f i f t y d o l l a r s ($50) nor more than one thousand d o l l a r s ($1,000) f o r each separate v i o l a t i o n . The l e g i s l a t i v e h i s t o r y , however, f a i l s t o provide an explanation a s t o why t h e l e g i s l a t u r e changed t h e s t a t u t e , thereby naming t h e penalty a s c i v i l r a t h e r than criminal. The c i v i l l a b e l , however, wi1.l not always be clispositive. Allen v. I l l i - n o i s (1986), 478 U.S. 364, 369, 106 S.Ct. 2988, 2992, 92 L.Ed.2d 296, 304. F 7 e must a l s o determine whether i n t e n t t o provide a " c i v i l , remedial mechanism" has i n s t e a d r e s u l t e d i n sanctions s o punitive a s t o c o n s t i t u t e a criminal penalty. Ward, 448 I1.S. a t 249. The United S t a t e s Supreme Court has held t h a t where a s e c t i o n e x h i b i t s "an i n t e n t t o p r o h i b i t and t o punish v i o l a t i o n s of s t a t e law . . . t h e sum it exacts [is] a penalty." United S t a t e s v. Constantine (1935), 296 1J.S. 287, 295, 56 S.Ct. 223, 227, 80 L.Ed. 233, 239. A conviction under 23-2-632(1) (b), MCA, will. r e s u l t i n a " c i v i l penalty" of not l e s s than $15 nor more than $500 f o r each s e p a r a t e v i o l a t i o n . Section 23-2-642 ( 2 ) , YCA. However, i f a person w i l l f u l l y v i o l a t e s S 23-2-632(1) (b), MCA, they s h a l l pay a c i v i l penalty of not l e s s than $50 nor more than $1,000 f o r each s e p a r a t e v i o l a t i o n . Section 23-2-642 ( 3 ) , MCA. This s t a t u t o r y penalty provision l e v i e s a f i n e upon t h e a c t i o n of a snowmobile operator f o r v i o l a t i n g c e r t a i n provj-sions of s t a t e law. I n Helwig v. ITnited S t a t e s (1903), 188 U . S . 605, 610-11, 33 S . C t . 427, 429, 47 L.Ed. 614, 616, t h e United S t a t e s Supreme Court found t h a t where t h e law l e v i e s f i n e s o r f o r f e i t u r e s a s punishment f o r a p a r t i c u l a r a c t , those f i n e s o r f o r f e i t u r e s c o n s t i t u t e criminal penalti-es. Such p e n a l t i e s r e f l e c t t h e t r a d i t i o n a l . aims of punishment, retribution, and deterrence. Constantine, ?96 U.S. at 295. Furthermore, we note that S 23-2-644, MCA, provides that while the penalties collected are to be applied to a special revenue account for snowmobile safety and education, any penalties collected in justice court are applied to the traditional funds to which criminal fines are applied. Our review of the statutory scheme and its attendant penalties leads us to conclude the penalties provided in S 23--2-642 (2) and (3), MCA, are puniti~~e in nature and constitute criminal penalties. Having found that the statutory scheme supplants rather than supplements the motor vehicle code, it is incumbent that we affirm the District Court's decision that Delap could not he charged under 5 61-8-401, MCA, for operating a snowmobile upon public streets and highways while under the influence of alcohol. To hold otherwise would contradict a basic rule of statutory construction, 5 1-2-102, MCA, and would provide conflicting criminal penalties for the same act. The State also contends in its brief that the District Court's dismissal of the S 23-2-631, MCA, charge against Delap was erroneous. While we find merit in the state'^ argument on this charge, we unfortunately find this issue is not properly before this Court. The State in filing its notice of appeal designated that it was appealing the dismissal of the S 61-8-401, MCA, charge from the November 17, 1988, order of the District Court. Rule 4(c), M.R.App.P., provides a notice of appeal "shall designate the judgment, order or part thereof appealed from." The State designated a part of the order for appeal, and we will not now consider an appeal from any other part of the order. We set forth the foregoing analysis of the 5 23-3-631, MCA, charge simply for guidance purposes. The order of the D i s t r i . c t Court i s a f f i \ We concur: / Mr. Justice R. C. Mcnonough dissents: A legislative body may impose both criminal and civil sanctions for the same occurrence. See One Lot Emerald Cut Stones v. United States (1972), 409 1T.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438. That has been d-one here in explicit terms. The majority uses the incorrect premise that the two statutes are inconsistent in order to reach its conclusion that the specific prevails over the general in arriving at the intention of the legislature under § 1-2-102, MCA. The two statutes are not inconsistent. One is criminal, one is civil, serving different purposes and requiring different burdens of proof. Each is part of a separate body of l a c n r ; each has a different method of enforcing sanctions and establishes a different punishment. The majority expresses puzzlement with the 19?4 amendments to the snowmobile statutes, noting that the legislative history fails to explain why the legislature changed the penalty from criminal to civil. However, before resorting to legislative history, it should be noted that the change made by the legislature in 1974 on its face resolved any conflict that may have existed with the Motor Vehicle Code. The majority cites the U.S. Supreme Court decision in Helwig v. United States (1903), 188 U.S. 605, 23 S.Ct. 427, 47 L,.Ed. 614, for the proposition that where a law levies a fine or forfeiture as punishment for a particular act, that fine constitutes a criminal penalty. This is a misreading of the Helwig case. Helwig dealt with an importer of wood pulp who had undervalued his shipment for the purposes of avoiding customs fees. Upon discovery of the undervaluation, the Federal Government required Helwig to pay the difference between the fee he was charged and the fee he should have been charged. Because Helwig ' s shipment was undervalued by more than l o % , he was also assessed what the customs statutes termed an "additional fee" based on the percentage of the undervaluation. Helwig was brought before a U.S. Circuit Court for trial, as provided for in customs law. He objected to jurisdiction by claiming that the "additional fee" was in fact a penalty, and district courts by statute had exclusive jurisdiction in cases involving a penalty or forfeiture. The dispute was thus about jurisdiction under customs law. The Supreme Court found the additional fee to be a penalty, but the word "criminal" appears nowhere in the opinion. In any event, the civil sanctions or penalties in this case are not so punitive as to constitute criminal penalties. The civil penalties in the snowmobile statutes are roughly equal to the criminal penalties in the Motor Vehicle Code insofar as monetary sanctions are concerned, but this does not make them criminal. There are numerous cases where civil monetary sanctions have actually exceeded criminal monetary sanctions; e .g. , criminal fraud and punitive damages for fraud, antitrust penalties, and civil forfeiture of property deemed to be contraband. Jn this case, by saying the civil sanctions are punitive and criminal in nature, the majority is converting a designated ci~7iJ. statute into a criminal- statute even though the regular criminal statute levies more severe penalties, such as incarceration. The majority then applies it as a specific criminal statute to overrule a more general criminal statute when there is no fundamental inconsistency between the two. T would reverse and remand for trial on the criminal charge. | May 10, 1989 |
984bf094-67fa-4e33-af80-0e2e953bf2f1 | STRAHAN v BUSH | N/A | 88-589 | Montana | Montana Supreme Court | No. 88-589 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 JOHN W. STRAHAN, EVELYN STF!AHAN, and LTERRY b7. STRAHAN, P l a i n t i f f s and R e s p o n d e n t s , -vs- DAVID W. BUSH and PAMELA F . RUSH, e t a l . , D e f e n d a n t s and A p p e l l a n t s . APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r d J u d i c i a l D i s t r i c t , I n a n d for t h e C o u n t y of G r a n i t e , T h e H o n o r a b l e T e d T , . Mizner, LTudge presiding. COUNSEL OF RECORD: F o r A p p e l - ] . a n t : Sol & Wolfe; Michael S o l , M i s s o u l a , Montana F o r R e s p o n d e n t : B o o n e , K a r l b e r g & P a d d o n ; D a v i d 3 . D i e t r i c h , M i ssoul.a, I - Montana r.. ---- - S u b m i t t e d on B r i e f s : M a r c h 2 3 , 1989 D e c i d e d : May 3 1 1 9 8 9 Mr. Justice John Conway Harrison delivered the Opinion of the Court. Defendants, David F J . and. Pamela F. Bush (the Pushes), appeal from a permanent injunction granted in the District Court, Third ,Tu.dicial District, Granite County, Montana, the Honorable Ted L. Mizner presiding, to the plaintiffs, John W. Strahan, Evelyn Strahan an2 Jerry Strahan (the Strahans). The injunction ordered the Rushes to refrain from interfering with the Strahans' ingress and egress from their property. We affirm. The property involved in the matter is located in Granite County, south of Tnterstate 90 near Drummond, Montana. In 1977, the parties purchased their respective properties from a common owner, Maxine Rurruss. Contained in the conveyance to the Rushes, Rurruss reserved an easement " [flor purposes of providing ingress and egress to the above described land which easement shall be over and across the existing road . . . " The easement right granted by virtue of the deed provided the Strahans the only access to their sole residence. At the time of the conveyances, a locked gate existed on the road easement. Burruss controlled the gate and provided the owners access with a combination to the lock. In 1979, the Strahans replaced the combination lock with a key-lock and provided other property owners with keys. The Strahans notified all concerned parties and asked for their cooperation. Shortly thereafter, the Strahans opened the gate. Except for the 1980 and 1981 hunting seasons, the gate remained open for approximately four years without objection from other property owners who used the road. Additionally, the gate was closed when no one was in attendance on any of the properties. As to the operation of the gate, the other property owners testified. to a "gentl-eman's acrreement," stating that what was best for the Strahans was best for them. In 1984, the Rushes unilaterally closed the gate, initiating the present dispute. The Strahans reside on the property year-round and have maintained the private road, including snow removal during the winter months. Also, Evelyn Strahan suffers from a back condition which makes opening the gate extremely difficult, if not impossible. The Bushes are residents of Arizona and spend a few weeks during the summer camping on their property and lease the property to 1-ocal ranchers for cattle grazing purposes. At trial, David Bush testified that the gate is a necessary part of the grazing operation to prevent cattle from straying and is also needed to protect against acts of vandalism on their property. On july 2, 1987, the Strahans filed a verified complaint in the Pistrict Court, requesting a temporary restraining order and a permanent injunction to enjoin the Bushes from closing the gate. The temporary restraining order was granted on July 31, 1987. After the hearing, the District Court, on July 25, 1988, issued an order permanently restraining the Bushes from interfering with the Strahans" unrestricted access to their property. The court's order stated that the Rushes may install a cattle guard at their own expense under the gate controll-ed by the Stra-hans. We rephrase the Rushes' issues as follows: 1. Did the District Court err in construing the terms of the easement which granted the Strahans' ingress and egress? 2. Were all necessary parties joined? 3. Does the cattle g u a r c l . impose an additional burden not contemplated by the easement? On appeal, we limit our review to the question of whether the District Court abused its discretion in granting the injunction. Sampson ~ 7 . Grooms (Mont. 19E38), 748 P.2d 960, 45 St.Rep. 133; Madison Fork Ranch v. T & f? T,odge Pole Timber Products (1980), 189 Mont. 292, 615 ~ . 2 d 900. To determine if an abuse is present, we review the scope of the injunction. The extent of an easement is governed by § 70-17-106, MCA: The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired. In other words, [wlhere an easement is claimed under a grant . . . the extent of the rights granted depends upon the terms of the grant, . . . properly construed . . . If it is specific in its terms, it is decisive of the limits of the easement. Titeca v. State By And Through Dept. Of ~ i s h (~ont. 1981), 634 P.2d 1156, 1159, 38 St.Rep. 1533, 1537, citing 25 Am.Jur.2dI Easements and Licenses, Sec. 73, at 479. However, the instant case involves an easement described generally as "an easement for purposes of providing ingress and egress to the above described land which easement shall be over and across the existing road . . . " Given the ambiguous nature of the easement, the court must exercise a different role: If the easement is not specifically defined, it need only be such as is reasonably necessary and convenient for the purpose for which it was created. It is sometimes held . . . where the grant or reservation of an easement is general in its terms, that an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner, fixes the right and limits it to that particular course or manner. 25 Arn.Jur.2dI Easements and Licenses, Sec. 73, at 479. What may be considered reasonable is determined in light of the situation of the property and the surrounding circumstances. Historically, the gate remained closed to discourage trespassers and, in fact, existed when the parties purchased their properties, subject to the mutual lock agreement. The Bushes allege that the Strahans continued the key-lock arrangement in 1979, and coordinated the cooperation of other landowners to keep the gate closed. Because of their use, the Bushes contend that the Strahans waived any claim of a restricted access and are therefore estopped from asserting that the gate should remain open. Finally, the Bushes desire to use the property for cattle grazing, necessitating a closed qate. On the other hand, the Strahans assert that they took control of the gate in 1979, and continued to monitor access to the easement. The gate was closed during the 1980 and 1981 hunting seasons, or during periods when the Strahans were away from the property for an extended period of time. Further, the other property owners agreed to allow the Strahans to control the gate because the Strahans reside on the property year-round. In addition, the Strahans assert that Evelyn Strahan cannot open the gate due to her back condition. In City of Missoula v. Mix (1950), 123 Mont. 365, 372, 214 P.2d 212, 216, this Court set forth the limitations on the right of an owner of land subject to an easement to interfere with the use of the reserved easement, stating: The owner of a reserved easement may use it to the full use of the right retained. The owner of the servient tenement may make use of the land in any lawful manner that he chooses, which use is not inconsistent with and does not interfere with the use and right reserved to the dominant tenement or estate. See also, Flynn v. Siren (19861, 219 Mont. 359, ' 1 . 1 P.2d 1371, and Titeca, supra. While we acknowledge the Rushes' interest of leasing their property for a cattle grazing operation, nonetheless, the gate unreasonably interferes with the Strahans' reserved easement rights. As found by the lower court, Evelyn Strahan cannot open the gate without assistance, and is therefore restricted in her movement from the property. Also, the gate must be kept open during the winter months to facilitate snow removal and for maintenance of the road. Because the road is the only access to the Strahans' sole residence, t.he District Court denied the Rushes' contention that the gate should remain closed. Accordingl-y, the District Court fashi.oned an injunction which allowed the Strahans' ingress and egress from their property, and ordered an appropriate solution to address the Bushes' interest of leasing the property for a cattle grazing operation. To further minimize the impact of his decision, the District. Court admonished the Strahans to respect the rights of the Bushes and cooperate by closing the gate whenever it is reasonable to do so. We find the scope of the injunction is proper. Next, the Bushes contend the court did not join all parties necessary to the controversy. Rule 19(a), M.R.Civ.P., provides: A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. . . Whenever feasible, persons materially interested in the subject of an action should be joined as parties so they may be heard and a complete disposition made. See, Commission Comments, Rule 19(a), M.R.Civ.P. However, no evidence exists to support the Bushes' assertions that the other property owners are indispensable. The easement subiect to this action lies completely within the perimeter of the !and owned only by the Eushes and. the Strahans. We find that the District Court rendered a binding decision between the part5 es. Finally, the Bushes argue the cattle guard provided for by the District Court's order imposes an additional burden not contempl-ated by the original easement. While it may be that the easement did not specifically contemplate the construction of a catt1.e guard, nonetheless, we note that a court sitting in equity causes is empowered to determine the questions involved in the case and do complete justice. Hames v. City of Polson 11950), 123 Mont. 469, 215 P.2d 950. "The court has all of the power requisite to render justice between the parties. . . I' F.ase v. Castle Mountain Ranch, Tnc. (Mont. 1981), 631 P.?d 680, 687, 38 St.Rep. 992, 1000. Affirmed . ,/ We concur: , + ' ef Justice / | May 3, 1989 |
c01e000e-36ef-4147-aba0-6ef1b33c69e3 | BURGESS v STATE | N/A | 89-021 | Montana | Montana Supreme Court | NO. 8 9 - 2 1 I N THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 RONALD L. BURGESS, P l a i n t i f f and A p p e l l a n t , -vs- STATE OF MONTANA, D e f e n d a n t and R e s p o n d e n t . APPEAL FROM: ~ i s t r i c t C o u r t of the F i r s t J u d i c i a l D i s t r i c t , I n and for t h e C o u n t y of L e w i s & C l a r k , T h e H o n o r a b l e T h o m a s H o n z e l , Judge presiding. COUNSEL OF RECORD: F o r A p p e l l a n t : R o n a l d L. B u r g e s s , pro se, B o z e m a n , M o n t a n a For R e s p o n d e n t : Fred W . R o b i n s o n , D e p t . of ~ i s h , w i l d l i f e and P a r k s , H e l e n a , M o n t a n a S u b m i t t e d on B r i e f s : A p r i l 6 , 1 9 8 9 D e c i d e d : M a y 11, 1 9 8 9 Mr. Justice ?. C, McDonough delivered the Opinion of the Court. This appeal concerns the forfeiture of a bond posted by appellant Burgess for the alleged violation of game laws. Burgess First litigated the forfeiture in the Justi.ce Court and then the District Court of the Fourteent-h Judicial District, County of Meagher. Burgess never appealed this decision. The further presentation of the issue was in a subsequent action before the District Court of the First Judicial District, Lewis & Clark County. The First Judicial District Court held that res judicata barred the claim made by Burgess. This is the decision on appeal. We affirm. The citation against Burgess charged him with possessing more than the legal limit of elk. Burgess posted and forfeited a $700 bond by failing to appear as required by the citation. Close to a year later, Burgess moved the Justice Court to declare the forfeiture unconstitutional because forfeited bonds from citations for game violations partially fund the game warden's retirement account. See S 19-8-504, MCA . The Justice Court denied the motion, and Burgess appealed to the District Court. The District Court affirmed the decision of the Justice Court. Burgess never appealed this decision. The current action was brought by Rurgess, acting pro se, to once again test the constitutionality of S 19-8-504, MCA. The State moved to dismiss based on res judicata. The District Court of the First Judicial District denied the motion. However, shortly thereafter the District Court granted the St-ate' s rnoti.on for summary judgment based on res -jud.icata. Burgess presents one issue: Should the action brought to determine the constitutionality of S 19-8-504, MCA, be dismissed due to the doctrine of res judicata? Burgess argues initially that the First ~udicial District Court erred in granting the motion for summary judgment because its denial of the State's motion to dismiss on the issue of res judicata bound the lower court as the law of the case. This argument fails because the order denying the motion to dismiss was interl..ocutory, and interlocutory orders can be changed without violating the law of the case doctrine. See 56 Am. Jur. 2d Motions, Rules, and Orders 5 42 (2d ed. 1971). The second argument by Rurgess goes to the requirements for finding that. a claim is barred by the doctrine of res judicata. Burgess contends that the issues in this action are difFerent from the issues previously litigated. According to Rurgess, in the first action he claimed only that the statute at issue violated the federal constitution. Here, a different issue appears, Rurgess contends, because he is claiming that the statute violates the state constitution. Burgess also claims that because he is plaintiff here and the State is defendant, and previously he was defendant, and the State was plaintiff, the parties are not the same. The first contention by Burgess on res judicata fails because : [Olnce a party has had full opportunity to present a claim or issue For judicial decision in a given proceeding, the judgment of that court will he deemed final as to all claims or issues which have been raised or which fairly could have been raised. State v. Perry (Mont. 19881, 758 P.2d 268, 273, 45 St.Rep. 1192, 1198. Rurgess had a full and fair opportunity to litjsate the constjtutional issue in the prior action. The second c o n t e n t i o n a l s o f a i . 1 ~ . I n applying t h e r u l e of r e s j u d i c a t a , " p a r t i e s " means: a l l persons who have a d i r e c t i n t e r e s t i n t h e s u b j e c t m a t t e r o f t h e a c t i o n and have a r i g h t t o c o n t r o l t h e proceedings, defend, examine t h e w i t n e s s e s , and appeal i f an appeal lies. 46 Am. J u r . 2d Judgments --- S 529 (2d ed. 1969). Burgess and t h e S t a t e w e r e p a r t i e s t o t h e previous a c t i o n and t h e y bear t h e same r e l a t i o n s h i p t o t h e i s s u e Burgess seeks t o l i t i g a t e , i .e. , t h e c o n s t i t u t i o n a l i t y o f t h e s t a t u t e . The necessary elements f o r f i n d i n g res j u d i c a t a e x i s t i n t h i s case. B r a u l t v. Smith (1984), 209 Mont. 21, 679 P.2d 236. W e a f f i r m t h e l o w e r c o u r t . W e Concur: A / - ~ h i k f J u s t i c e | May 11, 1989 |
951c83af-6d8f-467f-a04f-db6bed0c74bd | O CONNER v LEWIS | N/A | 88-205 | Montana | Montana Supreme Court | No. 88-205 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ROBERT 0 ' CONNOR, Plaintiff and Appellant, -vs- J. R. LEWIS, E. A. ATKINSON and RIVERSIDE INVESTMENT, Defendants and Respondents. APPEAL FROM: ~istrict Court of the Fourteenth Judicial District, In and for the County of Musselshell, The Honorable Peter Rapkoch, Judge presiding. COUNSEL OF RECORD: For Appellant: Bruce E. Lee, ~illings, Montana For Respondent: Karl G. Knuchel; Knuchel & McGregor, Livingston, Montana Submitted on Briefs: June 30, 1989 Decided: J U ~ Y 25, 1989 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. The plaintiff, Robert OIConnor, brought an action based upon a contract seeking $55,000 plus interest from the defendants, J.R. Lewis, E.A. Atkinson, and Riverside Investment. Plaintiff also sought to foreclose on an alleged equitable mortgage on the MN Ranch or, in the alternative, to set aside the transfer of the MN Ranch as fraudulent upon creditors. The District Court of the Fourteenth Judicial District, Musselshell County, found in part that plaintiff held no security or equitable interest in the MN Ranch and that the transfer of the MN Ranch was not fraudulent as to creditors. Plaintiff appeals. We affirm. The following two issues are presented for review: 1. Did the District Court err in finding that the plaintiff did not hold an equitable mortgage nor a vendor lien in the MN Ranch? 2. Did the District Court err in finding that the transfer of the MN Ranch from one defendant to another was not fraudulent as to creditors? In 1979, J.R. Lewis, the defendant, and Robert O1Connor, the plaintiff and the half-nephew of Lewis, joined together in an effort to develop a housing project in Decker, Montana. The understanding between the two parties was that Lewis would provide the money for the project and 0 ' Connor would draft plans, confer with public authorities, and hire and supervise contractors and laborers. Both parties also understood that any profits from the development project would be divided between them. The parties established a joint checking account in which Lewis would deposit the necessary money to fund the housing project. Initially, the parties lived on and operated from the Murphy Ranch that Lewis was purchasing. The housing development project eventually failed, yet O'Connor remained on the ranch and acted as a ranch hand. Lewis eventually realized that he was about to lose the Murphy Ranch and therefore instructed O'Connor to locate and purchase another ranch smaller in size in which he could move his livestock and equipment. OIConnor negotiated and ultimately purchased the MN Ranch with funds provided by Lewis. Lewis did not enter into any of the conferences or negotiations regarding the purchase of the MN Ranch. Without informing Lewis, O'Connor instructed the real estate agent to put his name on the deed to the MN Ranch. Lewis was not immediately aware of this action by O'Connor. O'Connor eventually moved all of Lewis's livestock and equipment to the new location. Lewis was not present at the MN Ranch much of the time, either because of illness or because of his business venture in Alaska. In the meantime, O'Connor proceeded to improve the MN Ranch. He designed and arranged for the construction of fences, water and sewer lines, corrals, a shop building, a small office building, a horse barn and a house. OIConnor issued checks for these expenditures from the joint bank account funded by Lewis. In May, 1984, Lewis and OIConnor disagreed over personal matters and the status of the MN Ranch. In an effort to resolve their disputes, Lewis and O'Connor met in the Musselshell County Courthouse on May 14, 1984 and negotiated and executed a document titled "Agreement to Settle Dispute." The Agreement provided that Lewis would pay O'Connor $20,000 at the execution of the agreement, $30,000 on or before June 5, 1984, and $25,000 at a time not expressly stated in the Agreement. In consideration for the payment, OIConnor executed and delivered to Lewis a quitclaim deed to the MN Ranch. Shortly thereafter, Lewis deeded the MN Ranch to E.A. Atkinson. Atkinson, now the wife of Lewis, recorded the deed on the same day, May 14, 1984. Lewis paid O'Connor the $20,000 at the execution of the agreement, but did not pay the remaining $55,000 as agreed upon and as specified in the "Agreement to Settle Dispute." O'Connor therefore brought an action against the defendants seeking the remaining amount due, and seeking to foreclose on an alleged equitable mortgage or vendor lien on the MN Ranch, or in the alternative to set aside the transfer of the MN Ranch from Lewis to Atkinson as fraudulent to creditors. In its March 13, 1988 judgment, the District Court ordered Lewis to pay the principal sum of $55,000 together with interest of six percent per annum from May 14, 1984 to October 1, 1985 and the rate of ten percent per annum from October 1, 1985 and until paid. The District Court also ordered Lewis to pay the costs of the suit in the amount of $1,673.20. The District Court found that OIConnor did not have an equitable mortgage in the MN Ranch nor did Lewis transfer the MN Ranch for the purpose of defrauding creditors. OIConnor appeals the District Court's findings regarding the equitable mortgage and the transfer of the MN Ranch. The first issue raised on appeal is whether the District Court erred in finding that OIConnor did not hold an equitable mortgage nor a vendor lien in the MN Ranch. 0' Connor argues that the quitclaim deed and the "Agreement to Settle Dispute," when construed together, constitute a bungled lay attempt at creating a mortgage at law. O'Connor then argues that while the documents do not constitute a mortgage as required by the statute, § 71-1-107, MCA, they nonetheless constitute an equitable mortgage. We disagree. The quitclaim deed, dated May 14, 1984, states that in consideration for the sum of ten and no/100 dollars ($10.00), Robert O'Connor conveys, remises, releases and forever quitclaims unto J.R. Lewis and to his heirs, and assigns all right, title and interest in and to the subject real estate situated in Musselshell County, Montana. The pertinent portions of the "Agreement to Settle Dispute" states that the parties agree to the following statement setting out the mutual promises and obligations thereto: 1. Conditioned specifically on the performance of Lewis set forth below, O'Connor shall quit claim all his right, title, and interest without warranty to the . . . [MN Ranch] located in Musselshell County, Montana . . .. This quit claim also applies to chattels and articles of personal property . . .. The agreement further specified that Lewis shall pay O'Connor a total of $75,000, $20,000 at the execution of the agreement, $30,000 on or before June 5, 1984, and $25,000 at a time not expressly stated in the agreement. This agreement was also dated May 14, 1984. The nature of the transaction between O'Connor and Lewis depends upon the parties' intent at the time the documents were executed. In establishing this intent, the courts first must examine both the documents and the circumstances surrounding the execution of the documents. Boysun v. Boysun (1962), 140 Mont. 85, 88, 368 P.2d 439, 440. O'Connor argues that the language "[clonditioned specifically on the performance of Lewis set forth below, O'Connor shall quit claim all his right, title, and interest without warranty to Lewis . . .. " is a reservation by O'Connor or a grant by Lewis of security. The transaction that occurred between the parties and the circumstances surrounding the transaction do not warrant such a conclusion. The record is undisputed that O'Connor negotiated and purchased the MN Ranch in response to Lewis's request and with money provided by Lewis. The record also shows that O'Connor directed the real estate agent to put the title of the MN Ranch in his name without Lewis's permission. Lewis was thus not immediately aware of this action by O'Connor. The record also clearly shows that a disagreement arose between Lewis and O'Connor over personal matters and over the status of the MN Ranch which prompted them to execute the "Agreement to Settle Dispute." The facts outlined above, contrary to O'Connor's assertions, do not give O'Connor a security in the MN Ranch in the form of an equitable mortgage. While this Court recognizes equitable mortgages, see, e.g., Bermes v. Sylling - - (1978), 179 Mont. 448, 587 P.2d 377; Amsterdam Lumber, Inc. v. Dyksterhouse (1978), 179 Mont. 133, 586 P.2d 705, the facts in this case do not warrant the application of this doctrine. An equitable lien, or equitable mortgage, will be invoked by the courts when an intended security interest proves defective. The application of this doctrine therefore prevents the lender from suffering an inequitable loss. Amsterdam Lumber, Inc., 179 Mont. at 140, 586 P.2d at 709. However, written evidence must exist which indicates that the grantor's intent was to subject the real property to a security interest in favor of a lender. Amsterdam Lumber, Inc., 179 Mont. at 140, 586 P.2d at 709. In the present case, the undisputed facts indicate that the parties' intent behind the execution of the documents was to settle a dispute between them, hence the title of the document "Agreement to Settle Dispute." Although O'Connor agrees that this set of facts is not the typical situation in which a court would invoke an equitable mortgage, he nonetheless attempts to argue that the "ideology" behind an equitable mortgage should be applied in this case. We cannot agree. The purpose behind an equitable mortgage is to prevent an inequitable outcome. In light of the documents and the surrounding circumstances, an inequity has not resulted in this case. Further, the facts do not suggest that the parties ever intended to invest a security interest in O'Connor. On the contrary, the facts indicate that neither a sale nor a mortgage was intended by the parties, but instead a contract that settled the disputes between the parties. Therefore, as the District Court correctly stated, the only question remaining is whether the "Agreement to Settle Dispute" is valid. In determining that the Agreement was valid, the District Court found that the Agreement contained an offer, an acceptance, consideration and that neither party was incompetent nor acting under undue influence. The District Court therefore concluded that the Agreement was a binding and valid contract. The evidence clearly supports the District Court's findings and conclusions. We therefore hold that the District Court did not err in determining that a valid contract existed and that OIConnor did not hold an equitable mortgage in the MN Ranch. Plaintiff also attempts to argue that if this Court determines that an equitable mortgage did not exist, then it should nonetheless find that an equitable lien arises by virtue of $ 71-3-1301, MCA. Notwithstanding the inherent problem with OIConnor's argument--an "equitable" lien arising by virtue of a statute--O'Connorls vendor lien argument also fails for the same reason as outlined above. The transaction involved in this case involves neither a sale nor a mortgage, but merely an agreement to settle a dispute. Thus we hold that the District Court did not err in finding that O'Connor held no security interest whatsoever in the MN Ranch. The second issue raised on appeal is whether the District Court erred in finding that the transfer of the MN Ranch from one defendant to another was not fraudulent as to creditors. O'Connor argues that the District Court erred when it found that the transfer of the MN Ranch from Lewis to Atkinson was not fraudulent. Specifically, OtConnor argues that the District Court erroneously relied upon S 31-2-311, MCA, instead of 5 31-2-314, MCA, and therefore the District Court failed to determine whether Lewis conveyed the MN Ranch with the intent to defraud creditors. Section 31-2-311, MCA, states that " [el very conveyance made . . . by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made . . . without a fair consideration." The District Court found that O'Connor did not demonstrate that the "transfer was made for the purpose, or had the effect, of rendering the Defendant J.R. Lewis insolvent." The record clearly supports this finding. O'Connor does not dispute this finding, but instead argues that the District Court erroneously applied S 31-2-311, MCA, to this case in lieu of S 31-2-314, MCA. Section 31-2-314, MCA, states that " [el very conveyance made . . . with actual intent, as distinguished from intent presumed in law, to hinder, delay or defraud either present or future creditors is fraudulent as to both present and future creditors." O'Connor then argues that the evidence indicates that Lewis had actual intent "to hinder, delay, or defraud" creditors. We disagree. O'Connor correctly notes that actual fraudulent intent may be established by circumstantial evidence. Montana Nat'l Bank v. Michels (Mont. 1981), 631 P.2d 1260, 1262-63, 38 St.Rep. 334, 337. OIConnor then relies upon the "badges of fraud," which this Court has previously applied when determining whether a conveyance is fraudulent and therefore whether it should be set aside. These "badges of fraud" include lack of consideration for the conveyance, transfer of the debtor's estate, relationship between transferor and transferee, pendency or threat of litigation, secrecy or hurried transaction, insolvency or indebtedness of the transferor, departure from the usual method of business, the retention by the debtor of possession of the property, and the reservation of benefit to the transferor. Montana Nat'l Bank, 631 P.2d at 1263, 38 St.Rep. at 337. However, we must emphasize that these "badges of fraud," if found, do not necessarily constitute fraud per se, but instead merely afford grounds of inference from which the court or jury are authorized to conclude that a transaction surrounded by them is fraudulent. Montana Nat'l Bank, 631 P.2d at 1263, 38 St.Rep. at 337 (citing Humbird v. Arnet (1935), 99 Mont. 499, 512, 44 P.2d 756, 761). Despite OIConnorls assertions that the majority of these badges are met in this case, the record supports the findings and conclusions of the District Court that Lewis did not convey the MN Ranch with the intent to defrau therefore affirm the District Court. Affirmed. 1 | July 25, 1989 |
4ff87936-1e45-4bb4-a866-653762f2dd9c | HOVEN VERVICK AMRINE P C v M | N/A | 88-529 | Montana | Montana Supreme Court | No. 88-529 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 HOVEN, VERVICK & AMRINE, P.C., petitioner and Appellant, -VS- MONTANA COMMISSIONER OF LABOR, and MONTANA DEPARTMENT OF LABOR AND INDUSTRY, Respondents and Respondents. APPEAL FROM: ~istrict Court of the First ~udicial ~istrict, In and for the County of ~ e w i s & Clark, The Honorable Henry Loble, Judge presiding. COUNSEL OF RECORD: For Appellant: J. Daniel Hoven; Browning, Kaleczyc, Berry & Hoven, Helena, Montana For Respondent : Elizabeth ~riffing, Dept. of Labor & Industry, Helena, Montana ~ilodragovich, Dale & Dye; Lon J. Dale, is sou la, Montana (Vervick) ~arlington, Lohn and ~obinson; ~illiam T. Wagner, Missoula, Montana (Amrine) " -. , > L ) ..* Submitted on Briefs: March 9, 1989 Decided: June 15, 1989 Mr. ~ustice John C. Sheehy delivered the opinion of the Court. Hoven, Vervick and Amrine, P.C. appeals from a decision entered against it in the ~ i r s t Judicial ~istrict Court, ~ e w i s and Clark County. The District Court held that the July 31, 1987 order of the commissioner of Labor and Industry in favor of Larry Vervick and William Amrine be affirmed and awarded attorney fees and costs to ~ervick and Amrine. That judgment awarded the respondents the following: Larry Vervick: $56,919.15 representing unpaid wages of $26,015.05 and a statutory penalty of $26,015.05 pursuant to § 39-3-206, MCA plus costs and attorney fees of $4,889.15. Interest is to accrue on the wage and penalty award of $52,030.10 at a rate of 10% per annum from August 30, 1987 to the date of the district court judgment August 16, 1988. Interest is to accrue at 10% per annum on the entire amount, $56,919.25, from and after August 16, 1988. Bill Amrine: $25,472.27 representing wages of $11,681.07 and the statutory penalty in the same amount, $11,681.07, plus costs and attorney fees of $2,110.37 with interest to accrue on the $23,362.14 award at 10% per annum from August 30, 1987 to August 16, 1988 and to continue to accrue on the $25,472.27 at 10% per annum from and after that date. The court also awarded respondents any future costs and attorney fees incurred in satisfying this judgment. We affirm. The issues before this Court are: 1. id the District Court err by applying a narrow standard of review which prevented it from examining undisputed facts and applying those facts to controlling statutes? 2. Can owners/shareholders/directors of closely-held corporations, who meet the applicable statutory definition of employer, recover wages under the Montana Wage Payment Act? 3. Was the Department of Labor's finding that Vervick was an employee and not a volunteer from October 7, 1985 to January 15, 1986 clearly erroneous? 4. Did the Department of Labor and the District Court abuse their discretion when they failed to provide offsets to the awards of wages to prevent a windfall? 5. id the Department of Labor violate its own regulations and the Montana ~dministrative Procedure Act by designating the hearing examiner's decision as final without allowing for the filing of exceptions? his case stems from a dispute which arose in Hoven v. Amrine (Mont. 1986), 727 P.2d 533, 43 St.Rep. 1977. That dispute culminated in an appeal to this Court in which Hoven received an award of attorney fees for his attempt to enforce the provisions of an agreement whereby Amrine and vervick were to purchase stock from Hoven. Hoven served default notices on Amrine and ~ervick who brought an action in ~istrict Court to have the notices declared void. Hoven prevailed in that cause and forthwith dismissed ~mrine and ~ervick from employment. That dismissal is the subject of the present appeal which is based on the following circumstances: prior to July 1, 1979, Larry vervick and Vern Hoven operated a general partnership for the practice of certified public accounting in is sou la. On July 1, 1979, Hoven, ~ervick and ~mrine formed a corporation in which each held one-third of the shares. On that same date, vervick and Amrine entered into agreements as employees of the corporation. Hoven entered into a similar employment agreement. In 1985, David Green was added to the corporation as a shareholder, diminishing the ownership to 25% per shareholder. From July 1, 1979 to October 7, 1985, Vervick, Amrine and Green served on the board of directors, on the executive committee and as officers of the corporation. Hoven served in the same capacities from July 1, 1979 through August, 1983. He resumed those positions again on October 7, 1985 as sole shareholder, sole director and president of the corporation after litigation in which he demanded the return of Vervick's and Amrine's shares to the corporation due to their failure to pay for the same among the four principal owners. Hoven v. Amrine, supra. Part of the initial disagreement emanated from a salary increase Vervick and Amrine made to themselves in May, 1985. In a special meeting of the board of directors, the board approved staff raises including an increase in the owner's salaries from $40,000 to $44,000 and declared previous loans to the owners to be bonuses. These raises were recommended by the executive committee consisting of Vervick, Amrine and Green. In August, 1985, the corporation was experiencing cash flow problems. Because of this circumstance the four shareholders worked without salaries. Then problems arose between Hoven and the other three shareholders. Hoven regained absolute control of the corporation through court proceedings. He then terminated Amrine and Vervick as employees. He told ~ervick that he was no longer a shareholder in the corporation but offered a joint venture to him. Hoven, through a director's resolution, rescinded Vervick's and Amrine's salary increases retroactively. Vervick did not respond in writing to Hoven's new offer, but continued to work under the HVA name and completed several large contracts that he had entered into as a principal of the corporation. ~ervick later took with him some of those contracts when he left HVA and formed his new corporation. The monies he generated prior to his leaving went into HVA and went to pay off debts that totalled $232,000.00 on October 7, 1986. ~ervick terminated his employment with the corporation on January 15, 1986. On October 3, 1986, he filed a wage claim with the Montana Department of Labor and Industry (Department). He claimed past wages in the total sum of $16,015.05. Amrine filed a wage claim on October 18, 1985 for $8,544.60. These claims were against HVA. The wage claim was based on a salary of $44,000.00 per year. Green had issued a corporate check to himself for accumulated vacation pay when he was terminated by Hoven. HVA never pursued him to recover that payment. A hearing examiner appointed by the Department held a hearing on June 11, 1987. The hearing examiner issued the final order on July 31, 1987 in favor of Vervick and Amrine. It ordered HVA to render a cashier's check or money order in the amount of $75,392.24 as wages and statutory penalty in favor of ~ervick and Amrine, made payable to the Employment elations ~ivision, no later than thirty days after service of the order. The amount ordered to be paid to Vervick was $52,030.10. HVA filed a petition for judicial review of the Department's final order. The ~istrict Court affirmed the Department's decision and issued a final judgment on August 17, 1988. ~otice of entry of judgment was filed on August 23, 1988. HVA then filed notice of appeal to this Court on October 21, 1988. Under Rule 5, M.R.App.P., a 60 day period is allowed for appeal when a governmental agency is a party. The first issue we must examine is whether the District Court erred by applying an incorrect standard of review. The standard of review of administrative decisions is set forth in § 2-4-704, MCA. . . . (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 the administrative findings, inferences, conclusions, or decisions are: (el clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; (f) arbitrary and capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion;. . . Traditionally, review of agency decisions is not intended to be a de novo consideration of findings of fact made by the agency. Because of the standard of review prescribed by the foregoing statute, the party appealing from an agency decision to the ~istrict Court has the burden of showing that his rights were substantially prejudiced by an arbitrary or capricious or a clearly erroneous agency decision. Carruthers v. Board of Horse acing (1985), 216 Mont. 184, 700 P.2d 179. A rebuttable presumption exists in favor of the agency decision. Thornton v. omm mission of Labor and Industry (1980), 190 Mont. 442, 621 ~ . 2 d 1062, 1065. The appellant contends that an issue which raises only a question of law determined by the District Court or by an agency is not binding on this appellate court, which is free to draw its own conclusions from the evidence presented. Sharp v. Hoerner Waldorf Corp. (19781, 178 Mont. 419, 423, 584 P.2d 1298, 1300. To settle the issue for purposes of this case, where the appellant disputes a finding of fact made by the agency, the action of the agency will be sustained unless the finding of fact is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or unless the findings are arbitrary or capricious or characterized by an abuse of discretion by the agency. Section 2-4-704, MCA. If the issue involves a question of law, this Court is not bound by the interpretation of law either by the agency or the ~istrict Court. Sharp, supra. The next issue raised by the appellant is indeed an issue of law. The appellant contends that since it is a professional corporation, it is absurd to construe the provisions of the Montana Wage Payment Act, and particularly the definitions contained in 5 39-3-201, MCA, so that shareholders, owners and directors who hold a proprietary interest in the company may also be considered employees for the purpose of collection of wages under the Act. Under S 39-3-201, an "employer" includes any corporation acting directly or indirectly in the interest of an employer in relation to an employee; and "employee" is defined as any person who works for another for hire. In ~amrnill v. Young (1975), 168 Mont. 81, 540 P.2d 971, this Court held that a professional, if truly an employee, is entitled to be covered as an employee under the Wage Payment Act. Here the appellant contends that Hammill can be distinguished because the professional was not a shareholder and held no ownership interest in the corporation. The District Court, however, concluded that in construing 5 39-3-201, both Vervick and ~rnrine were indeed employees of the professional corporation and that this entitled them to the benefits of the Act. We determine that the District Court correctly interpreted S 39-3-201 as it applies to this case. The professional corporation clearly falls within the definition of an employer under the section, which means that the corporation itself had a separate and distinct identity from its stockholders. Moats Trucking Company, Inc. v. Gallatin Dairies, Inc. (Mont. 1988), 753 P.2d 883, 885, 45 St.Rep. 772, 775. It is further clear that the definition of an "employee" within the meaning of the section covers Vervick and Arnrine. They had entered into contracts of employment with the professional corporation, a separate legal entity. The employment contract between the corporation and the employees specifically provided that their relationship under the contract was that of an employer and an employee. It would be idle for the ~istrict Court or for this Court to disregard the clear language of the employment contracts or the clear language of the statute. Where clarity abounds, it is not the business of the courts to carve out exceptions. The next issue raised by the appellant corporation is whether the appellant Vervick is not entitled to any wages from October 7, 1985 to January 15, 1986. Hoven testified that he had terminated Vervick. Vervick claims that he was never terminated as an employee of HVA. Hoven contended that he offered to ~ervick a joint venture relationship to finish existing contracts which were required to be fulfilled by HVA. The hearing officer found that Vervick remained after October 7, 1985 as an employee. Moreover, the hearing officer found that there was no joint venture. The findings with respect to this issue are clearly supported by substantial evidence in the whole record. ~ervick was not a volunteer but worked as an employee during the time following October 7, 1985, and the corporation was paid for the work done by Vervick during that period of time. As a corporation, the employer received the benefits of the contracts through the efforts of its employee, Vervick. The next issue raised by the appellant corporation is that if wages are to be awarded in this case, reductions should have been made by the Department to avoid an inequitable result. The contention of the appellant here is a bit involved. The Department awarded wages based on a yearly salary of $44,000.00 to each of the employees. The $44,000.00 was premised on an action taken by the board of directors in May, 1985, when Vervick and Amrine were both members of the board. The corporation contends that the award of these salaries placed HVA in violation of loan provisions established by the Small Business Administration. Also in May, 1985, the board of directors declared loans, which Vervick and Amrine had previously received from HVA, as bonuses. When Vern Hoven became the sole shareholder in October, 1985, the board of directors rescinded the corporate actions taken in May, 1985. The Department and the District Court recognized the yearly wage of the employees to be $44,000.00 pursuant to the earlier actions of the board of directors and gave no legal import to the later action of the board of directors rescinding those actions. The corporation contends, on appeal here, that the Department and the District Court thus sanctioned the actions taken by the board of directors when Vervick and Arnrine were members of the board, and disapproved of the actions taken by the board when they were not members and Hoven was the sole shareholder. The appellant corporation contends that it is arbitrary and capricious for the Department to recognize one set of actions taken by the board of directors and to refuse to acknowledge a second set of actions taken by the board. The District Court determined that upon of the adoption of the resolution increasing the salaries to $44,000.00, the resolution then became the obligation of the corporation to those employees and a subsequent action by the board of directors could not rescind a previous action if the rescission would disturb vested rights. We determine that once the corporation obligated itself to pay the wages at an annual rate of $44,000.00, the same corporation could not retroactively, by an action of a different board of directors, take back what had become the obligation of the corporation. A sub-issue on this point is that both Vervick and Amrine, as well as Hoven, had made personal guaranties to the Small ~usiness ~dministration of loans made by that Administration to the professional corporation. The appellant corporation contends that since ~ervick and Amrine were personal guarantors of those loans, the award of wages to them without a reduction for their personal guarantees results in a double benefit. Obviously, this contention has no merit. The obligations of Vervick and Amrine as personal guarantors of loans made to a third party, in this case, the Small Business ~dministration, has no affect on the amount of wages owed by the corporation to ~ervick and ~mrine. heir obligations as personal guarantors are separate and apart from their status as employees entitled to payment of wages by the corporation under the Montana Wage Payment Act. The appellant corporation has shown no legal basis upon which a reduction of the wages should have been made by the agency or the District Court. The last contention made by the appellant corporation is that since the order of the hearing examiner before the agency became the final order, the designation of the hearing examiner's decision as "final" violates S 2-4-621, MCA. Section 2-4-611, MCA authorizes a hearing and an appointment of a hearing examiner under the Administrative Procedure Act. Appellant corporation contends that nothing in S 39-3-210, MCA, or any other provision allows the Commissioner of Labor to delegate the final decision-making authority to an appointed hearing examiner. The appellant points to the Department's regulation, S 24.2.101(1) (b), A.R.M., which reads: If a majority of the officials of an agency who are to render the final order were not present at the hearing of a contested case or have not read the record, a proposed order if adverse to a party to the proceeding other than the agency, including findings of fact and conclusions of law, shall be served upon the parties. An opportunity to file exceptions, present briefs and make oral argument to the officials who are to render the decision shall be granted to all parties adversely affected. If no appeal is taken within twenty (20) days, the decision of the hearing examiner shall be final. The District Court determined that the Commissioner of Labor and Industry is charged with the responsibility of investigating wage claims and holding hearings in the enforcement of the Wage Payment Act under S;S 39-3-209 and 39-3-210, MCA. Further, under S 2-15-112(2) (b), MCA, the Commissioner, as the head of the Department of Labor and Industry, may delegate these functions to a subordinate employee. Section 24.2.101, A.R.M. allows the decision of an appointed hearing examiner to be a final order. Therefore, the District Court declared that there is no error in the designation of the hearing examiner's order as final. The District Court correctly determined the issue. It should be further noted that the statutory authority of the Commissioner of Labor and Industry refers to a single individual and not to a number of officials, who in other agencies, may be required to reach a final decision. The cited section of ~dministrative Rules of Montana is not applicable to wage payment cases and the Department of Labor and Industry and its ~omrnissioner have established a workable procedure for determining issues in wage payment claims under the provisions of the applicable acts. We therefore affirm the Di | June 15, 1989 |
208d20da-5133-4635-98de-d8d2f6a01f61 | MASSMAN v CITY OF HELENA | N/A | 88-116 | Montana | Montana Supreme Court | IF: THE SUPREME COIJRT OF TFE STATE OF MONTANA HUBERT J. MASSMAN, d/b/a HORSKY BLOCK, HUBERT J. MASSMAN, d/b/a MASSMAM LAW FIRM, MILLER ENTERPRISES, INC., a Montana corporation, and EPISCOPAL DIOCESE OF MONTANA, a corporation, Plaintiffs and Appellants, -vs- CITY OF HEI,ENA, a Municipal Corporati on, Defendant and Respondent. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Mark P , Sullivan, Zudge presidina. COUNSEL OF RECORD: For Appel-l ant: Frank R . Morrison, Jr. argued; Morrison TIAW Firm, Helena, Movtana For Respondent: Robert Emmons argued; Emmons & Coder, Great Falls, Montana Submitted: February 21, 1989 Decided: 2, 1989 , . \ . ~i fdd : t-i-.: II .'.f . ;; L . . " . . : . ? . . < ? ' ,... - -- -- L. . . . Clerk - Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Plaintiffs appeal from the jury verdict and subsequent judgment of December 23, 1987, and from the denial of their Irction for a new trial by the First Judicial District Court, Lewis and Clark Countlr. The jury found the City of Helena (City) was not negligent in failing to require an operating sprinkler system in the basement of the Spectrum Building prior t:o the time of the fire in the building. The jury also found that the spread of the fire to the adjacent Horsky Block Building was not caused by any negligent fFrefighting methods or procedures employed by the City. Defendant filed a cross-appeal from the final judgnent. We affirm the jury verdict, judgment entered, and District. Court's denial of the motion for a new trial. Appellant raised the following issues on appeal: 1. Did the District Court err in refusing plaintiffs' offered instruction stating that violation of a city ordinance is negligence per se? ?. Did the District Court err- jn refusing to allow plairltiffs to ask opinion testimony of two people disclosedl as witnesses but not as experts? 3. Did the District Court err in refusing the rebuttal testimony of an expert called to dispute the City's evidence that i.t. was not negligent in fighting the Spectrum Building fire? 4. Did the City improperly prejudice the jury by repezted mention of insurance during trial? Respondent raised numerous cross-appeal issues, which we w f ' l address in our discussi~n of the four above-mentioned eppeal issues, including the following: 1. Is the City exempted from any liability for the fire by the Public Duty Doctrine? 2. Is the City exempted from any liabilitlr for the Lire by the grandfather clause in 5 502 of the UBC? 3. I s the City exempted from any liability for the fire by general tort principles extending liability only to foreseeable act-ions? On June 17, 1980, a fire started in the basement of the Spectrum Ruildi-ng in downtown Helena. The fire quickly spread to the a?jzcent Horsky Block Building and completely destroyed it. At the time of the fire, the Spectrum Building was being remocleled by its owner, Ben Brown. The initial building permit obtained by Brown on May 3 - , 1979 authorized him to make up to $15,00G in 'alterations to the huildjng. (Brown subsequently obtained various plumbing, electrical and mechanical remodeling permits.) Lewis Thorne, the building inspector for the Cityr later determined as a result of his regular biweekly inspections that Brown had exceeded those building alterationc authorized. Consequently, Thorne issued a stop order on J u l : 7 31, 1 3 7 9 . Brown then obtained two additional building permits, one on August 6, 1 3 ' 9 an2 the other on August z7, 1-979, which enabled him to continue remodeling the old Coast to Coast stcre into various retail shops and a restaurant. These two permits allowed for additional alterations in the sum of $78,000. All building permits required Brown to work in compliance with City Ordinances. One such ordinance, incorporating the 1976 URC, required an operational sprinkler sl-stem in the basements of remodeled buildings having a changed occupational charscter the same or more hazardous than the prior use. ( G J 502, UFC ( 1 9 7 6 ) . ) Prior to a final inspection and a final certificate of occupancy, the City issued a temporary certificate which permitted Rose's Cantina to open its restaurant on the top fl.oor of t h e remodeled Spectrum Bui 1din.q. This temporary certificate of occupancy was issued prior to the installation of an operational sprinkler system in the basement of the building. Pipes for the sprinkler system were on the basement floor, but not instal.lec1 at the time of the fire. The riser for the system had been install-ed but it had not been connected to the sprinkler hea.ds. The fire was called in at 9:51 p.m. on June 17, 1 9 8 0 . Firef igllters arrived on the scene minutes afterwards. Two firefighters attempted to get t.n the fire, located in the rear of the basement, from the one entrance located at the front cf the basement. However, a sheet rocked partition ha?. been placed just inside the hasement and this blocked access to the fire. Firefighters thus were unable to directly treat the fire while it still was contained within the basement, and it quickly spread upwards and then to the adjacent Horsky Block Building. John Carroll, one of the two investigators hired to determine the cause of the fire, stated that had fire sprinklers been in place in the Spectrum Building basement, the fire would not have spread to the Horsky Block Building. A later examination indicate?. the fire began in a basement st-orage closet under the stairs. No electrical appliances were in the im~ediate vicinity of this area. The origin location, the presence of various combustibles in the area of the fire origin, and the erected. partj.tion blocking firefighter access led fire investigators to conclude that the fire was incendiary (man-male) in origin. The parties di6. not dispute the incendiary nature of the fire. Consequently, on December 7, 1987, the District Court grante2 summary judgment on the issue cf the cause of the fire. The court, however, denied the City's motion for summary judgment on the issue of the duty owed tc plaintiffs. A jury trial began on December 14, 1987. The jury returned a verdict in lavor of the City on December 17, 1987. Plaintiffs filed a timely motion for a new trial after final judgnent was entered, but the court denied this nction. Plaintiffs then filed this appeal from the court's denial of a new trial and f r o r r , the firla: j-cidam~nt. Defendant cross-appealed. i. T7IOLATION OF A CITY ORDINANCE AS NEGLIGENCE PER SE Appellanl-.s contend that their damages resulted from t h c City's nealigence in failing to enforce section 3802(b) (1) of the 1976 T J R C . They contend violation of the UBC, expresslv adopted by City ordinance, constituted negligence per se 2 n d that the City should therefore be held liable for damage? arising because of this ~riolation. Appellants thus argue the District Court erred in refusins to cffer a fury instruction on negligence per se. Section 104(a) of the 1976 UBC generally requires all buildings altered after 1376, even if the buildings existed pricr to 1976, to comply with all new building requirement? provided in the UBC. The Spectrum Building as a preexisting building under extensive remodeling thus h a ? . to comply wjth the requirements of the URC. UBC requirements mandate the installati on and naintenance cf an operational, standard automatic fire- extinguishing system jn the basement, and on every story, cf a31 buil2ings such as the Spectru~ Building which contained a large h s e v e n t a ~ i a c l ? r c i f i e c ? as a Group F," huilc'inq. See, section 3802(b) (I), I J B C (1976). As stated in section Standard automatic fire-extinguishina systems shall be installed and maintained in operable condition . . . [iln every story, basement or cellar of all buildings except Groups R, Division 3 and M Occupancies when floor area exceeds 1500 square feet and there is not provided at least 20 square feet oi opening entirely above the ad joining ground level in each 5 0 lineal feet or fraction thereof of exterior wall in the story, basement or cellar on at least one side of the building . . . If any portion of a basement or cellar is located more than 75 feet from openings required in this Section, the hasement or cellar shall he provided with an approved automatic fire-extinguishing system. Section 306 of the UBC provides guidance as to when this fire-extinguishing system must be installed. Section 3 0 6 (a) generally states that a building may not be used or occupied "until the Building Official has issued a Certificate of Occupancy." Section 306 (c) , UBC. The Building Official may not issue such a certificate until a final inspection confirms the building's compliance with URC requirements. No other UBC provisions expressly require the operation of a fire-extinguishing system prior to issuance o+ this final Certificate of Occupancy. We therefore hold that although the Ruilding Inspector, acting on behalf of the City, had the duty of enforcing the requirement of an operational fire-extinguishing system, this duty did not arise until such time as the final Certificate of Occrxpancjl was issued. The remodeling of the Spectrum Ruj-lding had not been completed at the time 05 the fire on June 17, 1 9 8 0 . bTo final inspection or final Certificate of Occupancy had been issue6 prior to this time. The City had, however, issued a temporary Certificate of Occupancy which permitted the restaurant located on the top floor of the Spectrum Buildinq to open for business. The UBC expressly authorizes the City to issue such a temporary certificate so that the finished portion of a building may be used before completion of the e n t i r e building. The UBC does not require the building to be in compliance with UAC requirements prior to issuance of this temporary certificate. Section 306 (d) , t J B C (1976) . Because the City had no duty to ensure the operation of a fire-extinguishing system before it issued the temporary Certificate of Occupancy or until such time as it issued a final Certificate of Occupancy, the City may not be held negligent for failing to enforce the requirement of an operational fire-extinguishing system before June 17, 1980. For this reason, we hold that the failure to offer a jury instruction on negligence per se did not amount to an abuse of discretion. Having so ruled, we need not address the various other issues raised by the City as further support for its argument that it should not be held liable for damages arising from the fire. These issues incl-uded whether the City was protected from liability by the Public Duty Doctrine, by the grandfather clause found in sections 104 and. 502 of the 1976 UBC, or by general tort principles extending liability only to foreseeable actions. 11. ADMISSIBILITY OF EXPERT TESTIMONY Appellants argue that the District Court erred in refusing to allow John Todd, the assistant fire chief for the City of Helena fire department. at the time of the Spectrum fire, and Lewis Thorne, City Building Inspector at the time the fire, offer their expert opinions trial. The court prevented both from giving an expert opinion because they were disclosed only as lay witnesses and not as experts prior to trial. Appellants argue that the City knew the field of expertise of each, and thus it would not have been surprised by the testimony of either. Appellants contend that the exclusion of their expert opinions amounted to a hyper-technical ruling contrary to the holding in Ostermiller v. Alvord (Mont. 1986), 720 P.2d 1198, 43 St.Rep. 1180. At the outset, we note that the District Court has the discretion to rule on the admissibility of evidence, and we w i l l not reverse the court unless the ruling amounts to an abuse of discretion. Cooper v. Rosston (Mont. 1988), 756 P.2d 1125, 1127, 45 St.Rep. 978, 981; Rule 104, M.R.Evid. We hold that the District Court did not abuse its discretion when it excluded the expert opinions of Todc! and Thorne. Rule 26 (e) (1) and (2) , M.R.ci~7.p. requires partles i : o list all experts they expect to call at trial. (I) A party is under a duty seasonably to supplement his response with respect. to any question directly addressed to . . . (B) the identity of each person expected to he called as an expert witness at trial, the subject matter on which he is expected to testify, and the suhstance of his testimony. ( 2 ) A party is under a duty seasonably to amend. a prior response if he obtains information upon the basis of which . . . (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in suhstance a knowinq concealment. This rule serves to minimize the element of unfair surprise, thereby encouraging a trial on the merits. Consequently, when no surprise arises from a violation of this rule, thi.s Court has viewed the violation as hyper-technical and allowed the previously undisclosed lay or expert witness to testify. See, Ostermiller, 720 P.2d st 1201; Earrett v. Asarco, Inc. (Mont. 1988), P. 2d. , 45 St.Rep. 1865. For example, in Ostermiller, the Court allowed the defense to elicit expert testimony from a physician even though the physicj a.n was listed in interrogatory answers on1.y as a lay witness, and not as an expert. The Court concluded that no surprise would result from admission of this testimony for the following reasons: The pretrial order and interrogatory answers had listed the physician as a witness; both parties had deposed him prior to trial; and plaintiff had failed to even alleqe any surprise. - Id. at 1201. The facts in Ostermiller are significantly different from those in the present case. In response to a continuing interrogatory request for the names of all expert witnesses that Massman would call at trial, Massman stated that they had "no proposed expert witness identified." Appellants did list Todd and Thorne as lay witnesses, but they failed to amend this earlier interrogatory response to list the two as expert witnesses. Moreover, neither party had deposed either proposed expert. Consequently, the City objected when appellants then attempted to elicit an opinion from Todd as to the ultimate effect of the firefighting methods employed by the City upon the containment of the Spectrum ~ui1di.n~ fire. The City has claimed complete surprise. Given the facts in this case, we hold the ~istrict Court did not abuse its discretion when it excluded the proposed expert testimony of Todd. Appellants also contend the opinion testimony asked of Todd was properly admissib1.e as a lay witness opinion. Rule 701, M.R.Evid., allows for the admission of a lay witmess opinion that is: (a) rationally hased on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue. Todd's proposed testimony as to the ultimate effect of the firefighting meth0d.s on the cont.ainment of the Spectrum fire was not based on such personal perceptions. Rather, his opini.on, about the most effective methods for combating such a fire, was based on that special.ized, technical knowledge obtained from his fire training and work as an assistant fire chief. As such, the substance of his opinion constituted an expert opinion rather then a lay witness opinion. An expert opinion generally is one "not within the range of ordinary training or intelligence." See generally, Kelley v. John F. Daily Co., (1919), 56 Mont. 63, 79, 181 P. 326, 331 (construing Section 7887(9) of the 1907 ~evised Codes of Montana, which was the forerunner of the present statutory rule on expert testi.mony, Rule 702, M.R.~vid.). The ~istrict Court thus committed no error when it precluded admission of this expert opinion testimony a n $ . advised appellants tc limit their questions to those requiring an answer base6 on personal perceptions. Appellants did not seek an expert opinion from Thorne during t.rial because of an alleged ruling by the ~istrict Court in advance of trial that any such t.estimony would not be admissible. No record, however, exists of this ruling. This Court will only t-ake notice of those court rulings attested to by the record or agreed upon by both parties. We ~ 3 ' 1 1 not assume the truth of a contested statement about an allegedly unrecorded prior court order; such a statement would constitute hearsay. See Rule 801Ic), M.R.Evid. Procedures exist under Rule 9 (d) or (e) , M.R.App.P. whereby a party may bring such evidence, which is not a part of the record, to the attention of this Court. Appellants failed to follow this procedure, and we will. not now consider the issue of whether the ~istrict Court erred in precluding Thorne from testifying as an expert at trial-, an issue predicated upon our consideration of an unrecorded ruling and objection. 111. ADflISSIBILITY OF REBUTTAL TESTIMONY Appellants contend that the District Court erred in refusing to allow a retired Billings firefighter, Melvin LaMotte, to give his expert opinion during rebuttal as to the alleged negligent firefighting by the City on the Spectrum fire. The court precluded the admission of such testimony because appellants failed to 6isclose JJaMotte as an expert witness prior to trial. The law does not require the advance disc]-osure of rebuttal witnesses. ~ i l s o n v. Swanson (1976), 169 Mont. 328, 546 P.2d 990. Such previously undisclosed rebuttal witnesses, however, may offer testimony only about "that which tends to counteract new matter offered by the adverse party. " Gustafson v. N. Pac. Ry. Co. /1960), 137 Mont. 154, 164, 351 P.2d 212, 217. F determination of whether proposed testimony is admissible as rebuttal testimony in any given case is within the sound discretion of the District Court, and we will not reverse the District Court's ruling unless it abused this discretion. Spurgeon v. Imperial El-evator Co. (1935), 99 Nont. 432, 438, 43 P.?d 891, 893. We hold that the District Court did not abuse its discretion when it excluded the rebuttal testimony of LaMotte. LaMottels proposed t.estimony related to the issue of whether the City negligently fought the Spectrum fire. This issue was not a new matter raised by the defense; it was one of the main issues raised by appellants in their ccmpl-aint . Appellants had the burden of proving the allegations in their complaint during their case-in-chief. Appe1lant.s attempted, but failed, to meet this burden through the expert testimony of Todd. (The District Court. properly excluded Tod-d 's proposed expert testi-mony because of appellants' failure to disclose him as an expert witness prior to trial.) ~aving failed to meet this burden durinq their case-in-chief, appellants could not then assert that the City' s all-eged negligent firef ighting was a "new matter" first raised by the defense and thereafter introduce expert t.esti.mony on this issue upon rebuttal. The ~istrict Court properly prevented any unfair surprise by excluding the expert testimony of LaMotte. IV. INTERJECTION OF INSURANCE AT TRIAL. Appel-lants contend they were prejudiced by the City's alleged mention of insurance on five different occasions during trial. They argue this improper mention of insurance constituted reversible error warranting a new trial. The interjection of liability insurance coverage or noncoverage generally is prohibited at law. Rule 411., M.R.Evid., states: Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against li-abi lity when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. The District Court. is charged with determining if any given mention of liability insurance is sufficiently prejudicial to warrant a new trial. Doheny v. Coverdale (1937) , 104 Mont. 534, 555, 68 P.2d 142, 148. his determinati-on depends upon the circumstances and manner in which the subject of insurance is brouqht into the case. See, e .q. , D' Hooqe T ~ . McCann (1968), 151 Mont. 353, 360, 4 4 3 P.2d 747, 751. We will not disturb a District Court's determination unless the court abused its discretion in so ruling. In the present case, we hold that the evidence failed to show that the Di-strict Court abused its discretion when it denied appellants' post-trial motion for a new trial becau~e of the alleged interjection of insurance into the case. The first. claim of an improper mention of insurance occurred during the cross-examination of Todd. The City7 questioned whether Todd was told: . . . that there was a conflict of interest in your being someone performing inspections for the city, and going out and soliciting insurance for people that- you were looking at their homes or bulldings . . . This question was asked to demonstrate Tod.dls general lack of judgment and thereby, to undermine his credibility as a witness. As such, it falls within the exception to the Rule prohibiting the introduction of evidence of liability insurance. See Rule 411, M.R.Evid. Further, the question only highlights the conflict of interest arising when one sells insurance and then inspects some of those same insured buildings; it does not specify that the Spectrum ~uilding was one of those insured buildings. 'This general question would be insufficient to prejudice the appellants. Appellants' second claim is that respondent improperly raised the issue of insurance while cross-examining the owner of the Horsky Block ~uildinq. The City asked the follotring question: Q. And on the real. estate, you have stipulated your uncompensated loss was $60,000? Appellant immediately approached the bench and objected before the owner of the Horsky Block ~uilding could answer this question indirectly relating to insurance coverage. This question did not directly ask whether the owner was covered by insurance, and no evidence was introduced to indicate that any jury member understood from it that Massman had liability insurance. Questioning proceeded without any other allusion to insurance. within the total framework of the trial, we hold that the District. Court also 3 . i . d not abuse its discretion by holding that this single question alludinq to insurance was insufficient to warrant a new trial. Appellants' third claim of the improper mention of insurance is totally without merit. We will not discuss it, except to state that appellant objected before any portion of John Carroll's deposition naming the insurance company involved in the Spectrum fire could be read to the jury. Appellants' fourth claim is that several jury members saw the cover page of Todd's final investigative report which listed all the City's insurance and which was placed on respondent's counsel table within view of the jury after it was excluded from introduction into evidence. No evidence exists t-hat any jury member in fact saw this cover sheet prior to it being removed from respondent's counsel table by counsel for appell.ants . Finally, appellants claim that the City mentioned insurance during closing argument. No record exists of the closing argument in this case. For the reasons previously stated in section II above, we will not consider this fifth claim which is based upon a nonexistent record. Finding no abuse of discretion, we affirm the District Court's denial of a new trial. The jury verdict and judgment of the ~istrict Court is affirmed. / We concur: "' JuCge of the District Court., sitting for Mr. Justice John Cnnway Harrison | May 2, 1989 |
df26f5d3-e94f-421b-a3fa-b9ad16c22108 | MEECH v HILLLHAVEN WEST INC | N/A | 88-410 | Montana | Montana Supreme Court | No. 88-410 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 RUSSELL E. MEECH, Plaintiff, -vs- HILLHAVEN WEST, INC., and R. RON SEMINGSON, Defendants. ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Plaintiff: Best Law Offices; Michael Best argued, Great Falls, Montana For Respondent: James, Gray & McCafferty; Robert F. James, Great Falls, Montana Jackson, Lewis, Schnitzler and Krupman; Joel P. Kelly argued, and Elizabeth Platte Johnson on the brief, Los Angeles, California For Amicus Curiae: Church, Harris, Johnson & Williams; Cresap S. McCracken, Great Falls, Montana Patrick W. Shea; Paul, Hastings, Janofsky & Walker, Washington, D.C. JUN 2 3 1989 Filedzd s a ; l # 4 CLERK OF SUPRElblE COURT STATE OF MONTCZI" Submitted: April 11, 1989 De2ided: June 29, 1989 1 ' '' Clerk Mr. Justice R. C. McDonough delivered the Opinion of the Court. This opinion concerns questions certified to this Court by the United States District Court for the District of Montana, Great Falls Division, Honorable Paul G. Hatfield presiding. The questions are as follows: (1) Is the Montana Wrongful Discharge From Employment Act, 55 39-2-901 to -914, MCA, unconstitutional in that it serves to wrongfully deprive an individual falling within the purview of the Act from his or her right to "full legal redress" within the meaning of Article 11, S 16 of the Montana Constitution? ( 2 Are those provisions of the Montana Wrongful Discharge From Employment Act which expressly prohibit recovery of noneconomic damages, and limit the recovery of punitive damages, violative of an individual's right to "full legal redress" within the meaning of Article 11, 5 16 of the Montana Constitution? We answer "No" to both questions. Petitioner Meech's action in the United States District Court claims damages for wrongful termination from employment, breach of the implied covenant of good faith and fair dealing, and intentional or negligent infliction of emotional distress. Meech also seeks punitive damages for allegedly oppressive, malicious, and unjustifiable conduct on the part of Meech's former employer, respondent Hillhaven. The claims grew from the alleged wrongful discharge of Meech by Hillhaven. Hillhaven moved to dismiss asserting that the Montana Wrongful Discharge From Employment Act (Act) precluded Meech's common-law claims. Meech responded to the motion by contending that the Act violated Article 11, 5 16 of the Montana Constitution. Certification of the questions presented here followed. Before fully answering the questions, a brief summary of the Act aids in understanding the issues. The Act provides the exclusive remedy and procedure for actions formerly governed to a great extent by common-law requirements: Preemption of common-law remedies: Except as provided in this part, no claim for discharge may arise from tort or express or implied contract. Section 39-2-913, MCA. The Act exempts from its provisions causes of action for discharge governed by other state or federal statutory procedures for contesting discharge disputes. For example, the Act exempts from its provisions, discriminatory discharges, and actions for wrongful discharge from employment covered by written collective bargaining agreements or controlled by a written contract for a specific term. For other wrongful discharge claims, however, the Act provides the exclusive procedure. Sections 39-2-912 to -913, MCA. The Act repeals Montana statutes which formerly granted to both employees and employers the right to terminate the employment relationship for fault on the part of the other party. Sections 39-2-504 to -505, MCA (1985). The Act's provisions on discharge also limit the operation of § 39-2-503, MCA, Montana's "at-will" statute. See 5 39-2-902, MCA . In place of the prior governing statutes and the common-law causes of action it abrogates, the Act provides a statutorily defined cause of action for wrongful discharge. The Act broadly defines "discharge" to include constructive discharge. Section 39-2-903, MCA. Covered employees may sue for discharges defined as wrongful under the Act. Section 39-2-904, MCA. Three causes of action for "wrongful" discharge exist under the Act: discharge in retaliation for an employee's refusal to violate public policy or for reporting a violation of public policy, discharge in violation of the express provisions of the employer's written personnel policies, and discharge for reasons other than good cause as defined in the Act. The Act limits the time for bringing a cause under its provisions to one year from the date of discharge. Section 39-2-904, MCA. The Act establishes the extent of employers' liability for wrongful discharge. Under the Act, plaintiffs have no claim to damages for "pain and suffering, emotional distress, compensatory damages, or punitive damages, or any form of damages, except as provided for in subsections (1) and (2) [of 8 39-2-905, MCA] ." Subsections (1) and (2) of S 39-2-905, MCA, provide damages for lost wages and fringe benefits, together with interest thereon for a period not to exceed four years from the date of discharge. The Act defines the value of employee paid pension plans, insurance coverage, vacation time, and sick time as fringe benefits. Subsection (2) provides for an award of punitive damages where claimants can show by clear and convincing evidence actual malice or actual fraud. Interim earnings, including those the claimant could have earned with reasonable diligence, are to be subtracted from the award for lost wages. Section 39-2-905 (1) , MCA. The Act also provides an incentive for arbitration as an alternative mechanism for settling employment disputes. Section 39-2-913, MCA. Meech in essence argues that the Act denies his fundamental right to full legal redress under Article 11, S 16 of the Montana Constitution. Meech also contends that the Act violates equal protection by denying the fundamental right to full legal redress to a class of claimants without demonstrating that the classification furthers a compelling state interest. See Corrigan v. Janey (Mont. 1981), 626 P.2d 838, 38 St.Rep. 545; White v. State (1983), 203 Mont. 363, 661 P.2d 1272; Pfost v. State (1986), 219 Mont. 206, 713 P.2d 495. Hillhaven answers that the Act does not violate equal protection of the laws or infringe on a fundamental right to full legal redress because Article 11, S 16 of the Montana Constitution guarantees only a right of access to courts to seek a remedy for wrongs recognized by common-law or statutory authority, and the legislature may alter common-law causes of action to promote a legitimate state interest. See Shea v. North Butte Mining Co. (1919), 55 Mont. 522, 179 P. 499; Stewart v. Standard Publishing Co. (1936), 102 Mont. 43, 55 P.2d 694; Reeves v. Ille ~lectric Co. (1976), 170 Mont. 104, 551 P.2d 647. We agree with Hillhaven and overrule Corrigan, White, and Pfost insofar as they hold that Article 11, § 16 of the Montana Constitution guarantees a fundamental right to full legal redress. I. THE ACT DOES NOT VIOLATE THE FUNDAMENTAL RIGHT OF FULL LEGAL REDRESS, BECAUSE NO SUCH "FUNDAMENTAL RIGHT" IS CREATED BY ARTICLE 11, SECTION 16. Summarized, this section covers the following points: A. The conclusion that Article 11, 5 16 of the Montana Constitution does not create a fundamental right results from examination of long-standing, fundamental principles of constitutional interpretation. B. The basic rule that the legislature may alter the common law harmonizes with an interpretation of Article 11, § 16, as only a mandate to the courts. C. It also follows from the words of the original guarantee, and the meaning intended for the 1972 amendment to the original guarantee, that Article 11, S 16, does not guarantee a fundamental right to a particular cause of action, remedy, or redress. D. Judicial creation of such a fundamental right in this context would also violate the elemental principle of separation of powers. E. Meech's arguments on these points are inapposite. A. Historically, Courts Have Construed Constitutional Guarantees in Light of the Particular Abuses Those Guarantees Seek to Prevent. In construing a constitutional guarantee, courts "have looked to the object and purpose to be accomplished by the provision." C. J. Antieau, Constitutional Construction S 3.05 (1982) . A " 'very useful key to the construction [of] a constitutional guarantee is to inquire what was the evil to be removed, and what remedy did the new instrument propose; . . . I #I C. J. Antieau, Constitutional Construction § 3.05 (1982) (quoting Miller, Lectures on Constitutional Law 82 (1891) 1 . Construing our speedy remedy guarantee in light of the particular abuses the framers sought to correct supports the argument that the clause does not guarantee a fundamental right to "full legal redress." The predecessor to Article 11, 16, was Article 111, § 6 of the 1889 Montana Constitution, which reads as follows: Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property, or character; and that right and justice shall be administered without sale, denial, or delay. The principal cases Hillhaven relies on, Shea, Stewart, and Reeves, concluded that Article 111, 5 6 of the 1889 Constitution did not constrict legislative powers because the article only provided a mandate to the courts to provide equal access to causes of action recognized at law. Shea, 179 P. at 502; Stewart, 55 P.2d at 696; Reeves, 551 P.2d at 651; cf. State ex rel. Carlin v. District Court (1945), 118 Mont. 127, 164 P.2d 155 (trial court's failure to convene jury for case long awaiting jury trial because of inconvenience to jurors violates the mandate in Montana's remedy guarantee requiring that courts provide a proper administration of justice); Tooke v. Miles City Production Credit Association (Mont. 1988), 763 P.2d 1111, 45 St.Rep. 1993 (fact that United States District Courts for the District of Montana deny federal subject matter jurisdiction of tort claims against production credit unions weighs for finding subject matter jurisdiction in Montana District Courts because Montana's remedy guarantee mandates a forum for claims cognizable according to applicable law). Legal history demonstrates that Shea and Stewart reached the correct conclusion. Article 111, S 6, was not placed in the Constitution as a directive to the legislature. Rather, the guarantee was directed at the courts, and it was framed to provide for equality in the administration of justice. Prior to the decisions in Shea and Stewart, this Court traced the guarantee embodied in Article 111, B 6, to Chapter 40 of the Magna Carta. Stephens v. Nacey (1913), 47 Mont. 479, 482-83, 133 P. 361, 362. The Magna Carta's chapter 40, which contains language similar to the last segment of ~rticle 111, § 6, reads as follows: To no one will We sell, to none will We deny or delay, right or justice. A. E. Howard, Magna Carta: Text and Commentary 43 (1964). The language of the first part of Article 111, § 6, providing for a speedy remedy for injury to person, property, and character, resembles commentary on Chapter 40 by the influential 17th century expositor on the common law, Sir Edward Coke: "And therefore every Subject of this Realm, for injury done to him in bonis, terris, vel persona [i.e., goods, lands, or person], by any other Subject, be he Ecclesiastical, or Temporal, Free or Bond, Man or Woman, Old or Young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the Law, and have justice and right for the injury done him, freely without sale, fully without any denial, and speedily without delay." Shuman, Oregon's Remedy Guarantee, 65 Or. L. Rev. 35, 39 (1986) (quoting E. Coke, Second Institute 55-56 (4th ed. 1671) ) . Coke's version of Chapter 40 influenced the content of remedy clauses in many state constitutions: The constitutions of thirty-seven states contain passages which, in substance, provide that the courts "shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation." . . . [Ilt appears most likely that the highly influential Sir Edward Coke, commenting on the Magna Carta more than four centuries after its adoption, was primarily responsible for the contemporary forms of the various certain-remedy provisions. Note, Constitutional Guarantees of a Certain Remedy, 49 Iowa L. Rev. 1202, 1202-03 (1964). Coke's interpretation of the Magna Carta is, in a broad sense, faithful to its origins. The English feudal nobility sought through Chapter 40 to eliminate abuses in the writ system which governed King's courts. The abuses in the system made the price of the writ obtained by a would-be litigant a determinant of the quality of justice received. See generally W. McKechnie, The Magna Carta: A Commentary on the Great Charter of King John (2d ed. 1914) . The goal of ending the abuses present in the English writ system eventually lead to the embodiment of a greater constitutional principle: It is evident that the Magna Carta did not put down the practice of charging heavy fees for writs. Yet this chapter [Chapter 401, although so frequently misunderstood and exaggerated, is still of considerable importance. . . . [Ilt has been interpreted as a universal guarantee of impartial justice to high and low; and because, when so interpreted, it has become in the hands of patriots in many ages a powerful weapon in the cause of constitutional freedom. W. McKechnie, The Magna Carta: A Commentary on the Great Charter of King John 397-98 (2d ed. 1914). The recognition of the historical meaning of guarantees derived from Chapter 40 as mandating that the courts provide equal access to justice, led to limited interpretations of remedy clauses when plaintiffs claimed the provisions constricted the legislature. Wheeler v. Green (Ore. 1979) , 593 P.2d 777, 789 (citing Davidson v. Rogers (Ore. 1978) (Linde, J. concurring) 574 P.2d 624); Goldberg v. Musim (Colo. 1967), 427 P.2d 698; Shoemaker v. ~ountain States Telephone and Telegraph Co. (Colo. App. 1976), 559 P.2d 721; Twin Falls Clinic & Hospital Bldg. Corp. v. Hamill (1d. 1982), 644 P.2d 341; Harrison v. Schrader (Tenn. 1978), 569 S.W.2d 822. The concurring opinion in Davidson by ~ustice Linde set out the rationale for a limited interpretation of the guarantees in remedy clauses as follows: The guarantee in article I, section 10, of a "remedy by due course of law for injury done [one] in his person, property, or reputation" is part of a section dealing with the administration of justice. It is a plaintiffs' clause, addressed to securing the right to set the machinery of the law in motion to recover for harm already done to one of the stated kinds of interest, a guarantee that - - dates by way of the original state constitutions of 1776 back to King John's promise in Magna Charta chapter 40: . . . It is concerned with securing a remedy from those who administer the law, through courts or otherwise. Davidson, 574 P.2d at 625-26 (Linde J., concurring) (emphasis added) . Put another way: The guarantee tells those who apply the law when and how they must do so. It says nothing to lawmakers, except insofar as they attempt to interfere with the administration of justice. Schuman, Oregon's Remedy Guarantee, 65 Or. L. Rev. 35, 67 (1986) (emphasis in original). In Shea, this Court succinctly explained this point holding that Article 111, 6, did not constrict the legislature's power to replace common-law personal injury actions with actions provided by workers' compensation legislation: A reading of the section discloses that it is addressed exclusively to the courts. The courts are its sole subject-matter, and it relates directly to the duties of the judicial department of the qovernment. It means ----- no-more nor less than that, under the provzions -- of the Constitution and laws constituting them, the courts must be a l l - accessible to - e r s E alike, without discrimination^ ---- at the tfme or times -- and the place or places for their sitting, and afford a speedy - - remedy for every wrong recognized by law as being - - - remedial. Shea, 179 P. at 502 (emphasis added). Both Stewart and Reeves quoted Shea for the proposition that the remedy guarantee, as a mandate aimed exclusively at the courts, does not constrict legislative powers. We agree with Shea, Stewart, and Reeves on this point. The history of the guarantee indicates that framers of state constitutions inserted remedy clauses to insure equal administration of justice. Clauses insuring equal administration of justice are aimed at the judiciary, not the legislature. Therefore, the history of our provision supports Hillhaven's argument that our remedy guarantee does not create a fundamental right to full legal redress. Such a reading of the remedy guarantee also accords with another rule recognized in Shea: No one has a vested right to any rule of common law. B. No One Has a Vested Right to a Rule of Common Law. The controversy posed by the first question from the United States District Court hinges also on whether Article 11, 16, prohibits the legislature from exercising its plenary power to abrogate the common-law tort causes of action alleged by Meech. The general rule on the constitutional authority of state legislatures is that: [Tlhe people, through the legislature, have plenary power, except in so far as inhibited by the Constitution, and the person who denies the authority in any given instance must be able to point out distinctly the particular provision of the Constitution which limits or prohibits the power exercised. Missouri River Power Co. v. S t e e l e (1905), 32 Mont. 433, 438-39, 80 P. 1093, 1094. The g e n e r a l r u l e is a l s o t h a t no one has a v e s t e d i n t e r e s t i n any r u l e of common law. Therefore, a s a g e n e r a l p r o p o s i t i o n , t h e l e g i s l a t u r e , under i t s p l e n a r y power t o a c t f o r t h e g e n e r a l w e l f a r e , may a l t e r common-law causes o f a c t i o n . The l e g i s l a t i v e a c t i o n may n o t , however, i n f r i n g e on c o n s t i t u t i o n a l r i g h t s . W e have a l r e a d y pointed o u t t h a t h i s t o r i c a l l y , A r t i c l e 11, 5 16, does n o t c o n s t r i c t t h e power o f t h e l e g i s l a t u r e t o a l t e r common-law causes o f a c t i o n . The more s p e c i f i c i s s u e h e r e i s whether t h e l e g i s l a t u r e may a l t e r o r abrogate causes of a c t i o n sounding i n t o r t . A t o r t may be defined a s : [A] c i v i l wrong, o t h e r than breach o f c o n t r a c t , f o r which t h e c o u r t w i l l provide a remedy i n t h e form of an a c t i o n f o r damages. T h i s , o f course, s a y s nothing more t h a n t h a t a t o r t i s one kind o f l e g a l wrong, f o r which t h e law w i l l g i v e a p a r t i c u l a r r e d r e s s . . . . When it becomes c l e a r t h a t t h e p l a i n t i f f ' s i n t e r e s t s a r e e n t i t l e d t o l e g a l p r o t e c t i o n a g a i n s t t h e conduct o f t h e defendant, t h e m e r e f a c t t h a t t h e claim i s novel w i l l n o t o f i t s e l f o p e r a t e a s a b a r t o t h e remedy. A t t h e o p p o s i t e extreme i s t h e bold attempt t o reduce t h e e n t i r e law of t o r t s t o a s i n g l e broad p r i n c i p l e , t h a t any harm done t o another i s a wrong, and c a l l s f o r r e d r e s s , u n l e s s " j u s t i f i c a t i o n " f o r it can be shown. . . . [Tlhe r u l e does n o t t e l l u s what t h e law w i l l recognize a s "harm" t o a n o t h e r , o r a s " j u s t i f i c a t i o n ' ' f o r it. There a r e many i n t e r f e r e n c e s w i t h t h e p l a i n t i f f ' s i n t e r e s t s , i n c l u d i n g many i n s t a n c e s o f n e g l i g e n t l y causing mere mental s u f f e r i n g w i t h o u t p h y s i c a l consequences o r d e p r i v i n g t h e p l a i n t i f f of t h e b e n e f i t of a c o n t r a c t , f o r which t h e law w i l l g i v e no remedy, although t h e defendant h a s been c l e a r l y a t f a u l t . . . . I t i s l e g a l j u s t i f i c a t i o n which must be looked to: the law will hold the defendant responsible for what the law regards as unjustified---and so stated, the broad rule [remedy for every wrong] means little, or nothing. W. L. Prosser, W. P. Keeton, Prosser and Keeton on Torts 5 1, at 2-4 (5th ed. 1984) (emphasis in original). Prosser also explains: Tort law is overwhelmingly common law, developed in case-by-case decisionmaking by courts. It is also influenced by statute. Early in the development of American tort law, doctrines emerged with respect to enforcement in tort law of standards derived from criminal statutes. Tort law is affected also by statutes explicitly aimed at changing substantive law rules previously developed by courts. Survival acts and wrongful death acts are examples. W. L. Prosser, W. P. Keeton, Prosser and Keeton on Torts 5 1, at 19 (5th ed. 1984). As Prosser demonstrates, wrongs recognized at law are corrected as provided by law. Legislatures in the Anglo-American system have long been held to possess the authority to expand or reduce claims and remedies available at common law. 0 . W. Holmes, The Common Law 112 (1881). The law of Montana has long recognized that the courts and the legislature establish the substantive law governing tort claims. Early Montana statutes contemplated passage of legislation altering the common law. For example, § 1-1-109, MCA, first enacted as part of the Bannack Statutes, states: The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state, is the rule of decision in all the courts of this state. (Emphasis added.) Similarly, Montana law provides that there "is no common law in any case where the law is declared by statute." Section 1-1-108, MCA. And statutes in derogation of the common law are "to be liberally construed with a view to effect their objects and to promote justice." Section 1-2-103, MCA. The legislature's exercise of its power to alter the common law supports in a large part our legal system. And as pointed out by Hillhaven, much of the legislation altering the common law concerns the legislature's decisions on the remedies, redress, or damages obtainable in various causes of action. For example, the legislature has arguably expanded liability in adopting comparative negligence in $ 27-1-702, MCA. Similarly, in S 27-1-715, MCA, the legislature has provided a remedy where none previously existed by ordering courts to hold owners of vicious dogs strictly liable in particular circumstances. Recognition of human rights violations under Title 49 of the Montana Code Annotated, prohibition of certain trade practices in the insurance industry under Title 33 of the Montana Code Annotated, and expansion of parents' liability for children's torts ( S 40-6-237, MCA) are also instances where the legislature has acted to expand available causes of action, remedies, redress, and damages. Other examples undoubtedly exist, and where these legislative expansions govern causes of action, courts and administrative bodies are bound to follow their mandate. Legislative decisions to expand liability to further various policy objectives are debated and passed almost routinely. In a like manner, for policy reasons, the Legislature debates and passes statutes that take away causes of action and/or constrict liability. The following are examples: abolition of a cause of action for alienation of affection ( S 27-1-601, MCA), abolition of a cause for breach of promise to marry ( S 27-1-602, MCA), protection for certain persons against a cause of action for libel ( 27-1-804, MCA), liability limitations for those rendering emergency care at an accident scene ( 27-1-714, MCA), liability limitations for those furnishing alcoholic beverages ( § 27-1-710, MCA) , liability limitations for persons donating food for charity ( S 27-1-716, MCA), liability limitations for agents and volunteers of nonprofit corporations, ( § 27-1-732, MCA) , and liability limitations for nonprofit organizations sponsoring rodeos and other events, ( B 27-1-733, MCA) . Laws on livestock in open range constitute another legislative limit on liability of parties who are arguably tort-feasors. Section 60-7-202, MCA. Landowners also benefit from legislative limits on liability. For example, under § 23-2-321, MCA, a landowner owes only a duty for acts or omissions that constitute willful or wanton misconduct to individuals making recreational use of surface waters flowing over or through the landowner's property. Similarly, from a remedy and redress standpoint, property owners benefit from statutory provisions exempting certain property from execution. The Index to the Montana Code Annotated lists over sixty types of property statutorily exempt from execution. These and other statutes constrain liability and limit remedies and redress available at law. In actions governed by the common law, this Court has also established limitations and expansions of liability. For example, in Miller v. Fallon County (Mont. 1986), 721 P.2d 342, 43 St.Rep. 1185, this Court abrogated interspousal tort immunity. Similarly, this Court, acting in its role as lawmaker, recently imposed on employers the duty of good faith and fair dealing. Gates v. Life of Montana Insurance Company (1982), 196 Mont. 178, 638 P.2d 1063. In another decision, breach of the duty of good faith and fair dealing arising from obligations in a lease justified an award of punitive damages. Nicholson v. United Pacific Insurance Co. (1985), 219 Mont. 32, 710 P.2d 1342. This Court has also refused to expand common law. For example, this Court has affirmed a trial court's decision disallowing evidence of emotional harm to a shareholder where the tort was committed against the shareholder's corporation. Moats Trucking Co. v. Gallatin Dairies (Mont. 1988), 753 P.2d 883, 45 St.Rep. 772. Another case held that the guarantee under Article 11, S 16, does not abrogate a statute of limitations defense. State v. Perry (Mont. 1988), 758 P.2d 268, 45 St.Rep. 1192. The above cited examples of legislative and judicial limitations illustrate that the law, for a variety of policy reasons, refuses to provide a cause of action, remedy and redress for every injury. This proposition is expressed in Latin as damnum absque injuria, meaning a "loss which does not give rise to an action for damages against the person causing it." Black's Law Dictionary 345 (4th ed. 1979). The legislation at issue here similarly alters common-law rights and duties and arguably denies a cause of action, remedy, and redress for injuries recognized at common law. If Article 11, 16, guarantees a fundamental right to full legal redress as embodied in common-law causes of action, then a myriad of legislation altering common law in a restrictive manner, as well as the Act, denies this fundamental right. Shea addressed this issue: If the contention of counsel should be upheld, the consequence would be that the legislature would be stripped of all power to alter or repeal any portion of the common law relating to accidental injuries or the death of one person by the negligence of another. It is true the legislature cannot destroy vested rights. Where an injury has already occurred for which the injured person has a right of action, the legislature cannot deny him a remedy. But at this late day it cannot be controverted that the remedies recognized by the common law in this class of cases, together with all rights of action to arise in [sic] future may be altered or abolished to the extent of destroying actions for injuries or death arising from negligent accident, so long as there is no impairment of rights already accrued. Shea, 179 P. at 503. As Shea demonstrates, if Article 111, § 6, is read as only a directive to the courts to provide for equal administration of justice, then the rule that the legislature may alter the common law does not conflict with the speedy remedy guarantee. Therefore, the general rule that no one has a vested interest in a rule of common law refutes Meech's argument that the Act unconstitutionally deprives him of his fundamental right to full legal redress. C. THE 1972 AMENDMENT TO ARTICLE 111, § 6, DID NOT RECOGNIZE OR CREATE A FUNDAMENTAL RIGHT TO FULL LEGAL REDRESS. In 1972, Article 111, § 6 of the 1889 Constitution was amended and inserted in the current Constitution as Article 1 1 16. The amendment added to the Article as underscored below: Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived - - - of this full legal redress for injury incurred in employment for which another person may be liable-except as to fellow employees and h i s - - - -- immediate employer who hired him if such immediate - --- employer provides coverage under the Workmen's Compensation --- Laws of this state. ~ightand justice shall be administered without sale, denial, or delay. In Reeves, the amended version of Article 111, $ 6 of the 1889 Constitution was held not to constrict the legislature's decision to alter common law: As indicated in Shea and Stewart, the legislature is not constitutionally prohibited from eliminating common law rights which have not accrued or vested. The Constitution does not freeze common law rights in perpetuity. Reeves, 551 P.2d at 652. There was no comment in Reeves on the amendment to Article 111, § 6. 1. The Wording Itself. White and Pfost, without discussing governing precedent, reached the opposite conclusion construing Article 11, Section 16 of the 1972 Montana Constitution on issues involving governmental immunity and equal protection. White held that Article 11, § 16, "guarantees that all persons have a speedy remedy for every injury," and thus the classification resulting from a cap on tort damages awarded against state governmental entities violated equal protection. White, 661 P.2d at 1275 (emphasis added). White then concluded that the legislation violated the guarantee because no compelling state interest justified denying the fundamental right to full legal redress for all injuries. White, 661 P.2d at 1275. In Pfost, this Court faced an equal protection challenge to an amended version of the damages cap at issue in White. Pfost cited White and again held that Article 11, Section 16, provides a "constitutional right to full legal redress for injury." The phrase "full legal redress" from Article 11, 5 16, played an important role in this determination: The use of the clause "this full legal redress" has major significance. It obviously and grammatically refers to the "speedy remedy afforded for every injury of person, property, or character. ' I The adjective "this" means the person, thing or idea that is present or near in place, time or thought or that has just been mentioned. Webster's New Collegiate Dictionary (1981). The constitutional framers thus construed a "speedy remedy" as comprehending "full legal redress." A state constitutional right to full legal redress was thereby created. Any state statute that restricts, limits, or modifies full legal redress for injury to person, property or character therefore affects a fundamental right and the state must show a compelling state interest. Pfost, 713 P.2d at 503. There are flaws in this reasoning. As pointed out by Justice Weberls dissent in White, rules on the construction of constitutional guarantees favor interpretations of the guarantees in line with former judicial decisions where a constitutional convention has approved a similar or identical provision in a new constitution. White, 661 P.2d at 1279 (citing 2A C. Sands, Sutherland Statutory Construction S 45.12, at 37 (4th ed. 1973)). If "this full legal redress" refers to the speedy remedy in the first clause, then the two references are identical and the Convention approved Sheals and Stewart's definition of the guarantee. Shea and Stewart leave little doubt that our remedy provision does not guarantee a fundamental right to a particular cause of action, remedy, or redress. As discussed below, the delegates narrowly drafted the amendment to accomplish the single purpose of limiting the lawmakers1 power in restricting third party actions in workers1 compensation law. Reliance in Pfost on the definitional and grammatical construction of the guarantee is flawed in other ways as well. For example, the word: "injury" as employed in such a constitutional declaration implies the doing of some act which constitutes an invasion of a legal right as established by statutory or common law, . . . 16A Am. Jur. 2d Constitutional Law S 616 at 562-63 (2d ed. 1979) (emphasis added) . Or, as stated by one commentator, a "recognized, pre-existing injury is the predicate, not the subject of the clause. " Schuman, Oregon's Remedy Guarantee, 65 Or. L. Rev. 35, 67 (1986). Similarly, the redress referred to is legal redress. Legal means: Conforming to the law; according to law; required or permitted by law; not forbidden or discountenanced by law; good and effectual in law. Black's Law Dictionary 803 (5th ed. 1979). Legal redress, then, is redress as provided by law, and redress and remedy are necessarily connected to what the law defines as a cause of action. The words "actions, " "cause of action, " "right, " "remedy," and "redress" are often used in a legal sense so that one implies the other. In fact, they are so related that at times one necessarily implies the other. However, there are some important distinctions which must be maintained. The term "cause of action" has been defined as follows: " [Tlhe fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief." The cause of action itself is distinguishable from the form it assumes in its prosecution in the courts. The facts constitute the cause of action, and the legal form used to enforce the action is the remedy. State v. Preston (Ohio 1962), 181 N.E.2d 31, 36 (quoting Norwood v. McDonald (Ohio 1943), 52 N.E.2d 67, 72). The maxim, "For every wrong there is a remedy" thus bestows upon the person who may be wronged the right to seek redress to be made whole again in an action, whereas the facts which entitle a claimant to legal redress is denominated the "cause of action." Remedy is neither "redress" nor "relief." Remedy is "[tlhe means by which a right is enforced or the violation of a right is prevented, redressed, or compensated. I' Black's Law Dictionary 1163 (5th ed. 1979) . Therefore, the Act does not deny full legal redress or a speedy remedy. It simply defines what constitutes the facts which must be established to obtain remedy and redress in the context of wrongful discharge. Similarly, the guarantee of a "speedy remedy" in the first clause of Article 11, 5 16, means such remedy as is provided by law. This "full legal redress," following the guarantee of a speedy remedy, refers to the equal right to be made whole again by what the law defines as a cause of action and its elements. Legal requirements and restrictions, as discussed more fully below, may be part of the entire package the law calls a cause of action, remedy, and redress. These restrictions and requirements are not established by our Constitution. Rather, it is the duty of the courts and the legislature to establish what constitutes available causes of action, remedies, and redress. Thus, we disagree with the notion that the proper grammatical and definitional construction of the words in Article 11, 5 16 of the Montana Constitution supports the existence of a fundamental right to redress so that the legislature may not alter causes of actions except by a showing that the legislation serves a compelling state interest. There must be the basis or underpinning of a cause of action and remedy as defined by the lawmakers before one arrives at the point of redress. 2. The "Intent of the Framers." Basic rules of construction favor deriving the meaning of Article 11, 5 16, from its face. From our discussion above, and apart from what is referred to later in this opinion as the Ashcraft amendment, it is apparent that the words of Article 11, 5 16, only mandate that the courts provide equal access to causes of action and remedies established by the courts or the legislature. However, even if an ambiguity exists, the debates at the 1972 Constitutional Convention reinforce our initial conclusion. White ' s and Pfost Is interpretation of the effect of the 1972 amendment to the remedy provision ignores the specific meaning ascribed to the provision during debates at the 1972 Constitutional Convention. Pfost, 713 P.2d at 508 u urn age, C. J., dissenting) . Moreover, the majority's analysis in these decisions overlooks the explanation of the amendment in the Official Text with Explanation of the Proposed 1972 Constitution, a document circulated to inform voters of the content of the Constitution prior to the vote on its adoption in 1972. Our beginning discussion focuses on the proceedings at the Constitutional Convention. The record from the Constitutional Convention of 1972 demonstrates that the addition to Article 111, B 6, was meant to address a specific problem created by this Court's interpretation of a workers' compensation statute: DELEGATE MURRAY: The committee voted unanimously to retain this section with one important addition. The provision as it stands in the present Constitution guarantees justice and a speedy remedy for all without sale, denial or delay. The Committee felt, in light of a recent interpretation of the Workmen's Compensation law, that this remedy needed to be explicitly guaranteed to persons who may be employed by one covered by Workmen's Compensation to work on the facilities of another. Under Montana law, as announced in the recent decision of Ashcraft versus Montana Power Company, [I56 Mont. 368, 480 P.2d 8121 the employee has no redress against third parties for injuries caused by them if his immediate employer is covered under the Workmen's Compensation law. The committee feels that this violates the spirit of the guarantee of a speedy remedy for all injuries of person, property or character. It is this specific denial, and this one only, that the committee - - intends to alter with the following additional wording: [Delegate Murray reads the amendment] . Montana Constitutional Convention, Vol. V, at 1753-54 (emphasis added). Following Delegate Murray's explanation of the Ashcraft amendment, Delegate Habedank moved for its deletion: DELEGATE HABEDANK: Mr. President [Chairman] , ladies and gentlemen. I have no objection to this being in here if you put it in here with full knowledge of what you are doing. The decision in the Ashcraft case, which I heard and which was brilliantly argued by Mr. Dahood, made quite a change in what a lot of us thought the law was. However, they were interpreting a specific statute of the State of Montana. All that is necessary to change their interpretation is to amend the statute of the State of Montana. And you, if you adopt this particular provision, are writing into the Constitution by vote of a majority of this group what I consider to be strictly statutory matter. Montana Constitutional Convention, Vol. V, at 1755. Delegate Habedank also expressed concern that the addition would extend liability for workers' injuries beyond correcting the decision in Ashcraft: As I view this amendment, it will not allow anyone to recover from anyone else without negligence on the part of the person being charged. However, it will eliminate the ability of you as an owner to hire an independent contractor, require him to carry Workmen's Compensation as a part of the coverage, and be assured that you will not be sued on a third party claim. Montana Constitutional Convention, Vol. V, at 1275. Delegate Dahood, Chairman of the Convention's Bill of Rights Committee, responded to both arguments made by Habedank: I have heard this argument in the Supreme Court, an argument that had no basis in logic. I have heard it by several defense counsel who represent the best of corporate interests, that this is going to affect the individual property owner, and if he hires a contractor, he is going to be exposed to a liability that is unprecedented and they did not experience before. This it totally untrue. This section is doing nothing more, and the wording has been very precisely selected to make sure that it ----- does nothing more, than place the injured working -- man back in the status that he enjoyed prior to 1971, a very basic constitutional right which he enjoyed for 80 years in the State of Montana. . . Regardless of all this conflict, this technicality, having to use the word "Workmen's Compensation" in this particular section, which we didn't want to do, because the minute we did it we knew that somebody would jump up and say it's legislative, but if you're going to draft something with precision and you want to make sure that all -- that you're doing is returning the law to what it ----- was prior to thisdecision a year ago, you are - - compelled, sometimes, in fasKioning this precise language to use language that may be seized upon by someone else as legislative. It is not. It is giving back a basic constitutional right that the citizen of Montana had prior to that particular decision. Montana Constitutional Convention, Vol. V, at 1255-57 (emphasis added). It is perhaps ironic that the convention delegates amended the Constitution to correct this Court's restrictive interpretation of a legislative enactment, and subsequently this Court in White and Pfost interpreted the addition to constrict the power of the legislature to alter the common law. At any rate, the testimony before the Convention demonstrates that the amendment to Article 11, Section 16, was to operate in only one particular area of law. Specifically, the addition prevents lawmakers, that is both the courts and the legislature, from denying workers' compensation claimants a cause of action against negligent - third parties for job related injuries. The amendment did not seek to define "full legal redress" as a fundamental right which could not be altered by the legislature. The delegates sought to overturn Ashcraft, not Shea. The entire discussion presupposes the existence of legislative powers to alter causes of action, remedies, and redress. The narrow purpose the delegates ascribed to the change in the remedy guarantee is further reflected in the Proposed 1972 Constitution for the State of Montana, Official Text with Explanation, circulated to the voters prior to the vote on adopting the 1972 Constitution. According to the explanation in the voters' information pamphlet, the amendment: Adds to 1889 constitution by specifically granting to a person injured in employment the right to sue a third party causing the injury, except his employer or fellow employee when his employer provides coverage under workmens [sic] compensation laws. Proposed 1972 Constitution for the State of Montana, Official Text with Explanation, at 6. In summary, the history of our remedy guarantee, the rule that the legislature may alter the common law, and the wording of Article 11, 5 16, support Hillhaven's assertions that no fundamental right exists to the common-law claims asserted by Meech. The role the judiciary must maintain in interpreting constitutional limitations affecting the plenary power possessed by the people through their legislature, and through their initiative a n d referendum powers, also supports Hillhaven's assertions. D. Deriving A New Fundamental Right From Article 11, S 16, Violates Separation Of Powers. Both courts and legislatures make the substantive law. The Montana Legislature derives its power to make law from the Constitution's grant of plenary power in Article V, S 1: The legislative power is vested in a legislature consisting of a senate and a house of representatives. The people reserve to themselves the powers of initiative and referendum. One conclusion which could be drawn from an application of White and Pfost to the legislation at issue in this case is that while the legislature may play a role in expanding common-law causes of action, its attempts to restrict causes of action newly created by this Court fails under the guarantee in Article 11, § 16. Yet, the general rule states otherwise: [A] constitutional provision that courts of justice shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation, is not intended as a limitation upon the legislative - - - branch of the government where the leaislation 2 2 - - - involved deals with rightful subjects of legislation. 16A Am. Jur. 2d Constitutional Law 5 616, at 564 (2d ed. 1979) (emphasis added); and see Salt Lake City v. Utah ~ i g h t & Traction Co. (Utah 1918), 173 P. 556 (provision only applies to judicial questions, not meant to allow courts to usurp legislative power); Wagoner County Election Board v. Plunkett (Okla. 1956) , 305 P. 2d 525 (provision provides mandate to judiciary, not intended as a limitation on legislative branch) . The interpretation of Article 11, Section 16, called for by Meech would prevent the legislature and the people through the initiative process from restricting or modifying the common law relative to injuries of person, property, or character. Only this Court's reasoning (good or bad), however, would restrict this Court ' s own lawmaking function. Our decision to limit a cause of action would withstand the strict scrutiny mandated by Article 11, S 16; we would be applying the test. But a similar decision made by the legislature could be subject to much closer scrutiny. This Court would act as the ultimate authority in a vast, expanding, and ever changing field of law governing important social and economic rights and duties. It could exclude the legislature from deciding: What are injuries to an individual's person, property, or reputation; what wrongs are actionable; what remedies are available; and what redress will be given. The present appeal presents this separation of powers issue. Gates expanded the law of wrongful discharge by defining as an injury the breach of the implied covenant of good faith and fair dealing. Similarly, Nicholson defined the same injury in the context of a leasehold dispute. Under White's and Pfost's interpretation of Article 11, 5 16, those recently recognized injuries would remain a part of our law despite a legislative mandate to the contrary. Any change in such determinations could only be accomplished through constitutional amendment. We agree with Chief Justice Turnage's dissent in Pfost on this aspect of the issue: There further can be no question that our courts are open to every person and speedy remedy afforded for every injury of person, property, or character; however, this does not mean that the people have been denied the right to act through their legislature in providing a system of law that may set forth the scope and extent of the remedies provided by law. For this Court to decide otherwise requires a denial of the doctrine of separation of powers in Article 111, Section 1, of the Montana Constitution. Pfost, 713 P.2d at 514 (Turnage, C.J., dissenting). E. Meech's Arauments Are Ina~~osite. Meech has several contentions addressing the arguments supporting Hillhaven's position. First, Meech points out that in State ex rel. Montana Citizens for the Preservation of Citizens1 Rights v. alterm mire (Mont. 1987), 738 P.2d 1255, 44 St.Rep. 913, this Court declared null and void the effect of a voter initiative passed in 1986 amending Article 11, 16, to overrule White and Pfost. The amendment was held invalid because of an error in the voter information pamphlet. Montana Citizens, 738 P.2d at 1264. Meech asserts that the fundamental right to full legal redress remains in Montana law because the legislature passed the Act under the authority of the invalid amendment. This proposition depends on the continued vitality of White and Pfost. We are overruling White and Pfost and any decisions relying on White and Pfost to the extent that they hold Article 11, $ 16, guarantees a fundamental right to a particular cause of action, remedy, or redress. Meech further contends that the legislation at issue in Shea must be distinguished from the Act. Meech asserts that in Shea, the modification of common law benefited workers, but here, according to Meech, the legislation only "creates employers' defenses and eliminates many employees' claims for recovery." We disagree that the Act must be distinguished from the legislation at issue in Shea for the purpose of - testing its constitutionality under Article 11, § 16. Shea analyzed the trade-off in employees' and employers' interests as a result of the passage of workers' compensation legislation, but the holding rested on an interpretation of Article 111, § 6, as only a mandate to the courts to provide for the equal administration of justice. Shea, 179 P. at 502. Thus, Shea does not require this Court to analyze whether the Act provides an adequate trade for the loss of common-law wrongful termination claims. However, this Court's decision in Corrigan could be construed as placing this jurisdiction in with those that require an adequate substitute for legislative acts abrogating common-law remedies. See B. R. Burke, Constitutional Initiative 30: What Constitutional Rights did -- Montanans Surrender - in Hopes - of Securing Liability Insurance, 48 Mont. L. Rev. 53, 66 (1987). Even if Montana law required an adequate substitute for legal remedies abrogated by the legislature, as explained below, we disagree that no adequate remedy for common-law wrongful discharge exists under the Act. Therefore, we do not reach the issue. In conclusion, we answer, "No" to the first question submitted by the United States District Court. Article 11, S 16, does not render the Act unconstitutional as depriving an individual, in this case Meech, of a fundamental right to the common-law actions he alleges. 11. THE ACT SURVIVES EQUAL PROTECTION SCRUTINY BECAUSE IT IS RATIONALLY RELATED TO A LEGITIMATE STATE INTEREST. The second question certified from the United States District Court concerns the validity of the Act's specific: limitations on damages. The issue as framed is whether the Act's prohibition on the recovery of noneconomic damages and punitive damages violates Article 11, 5 16. Our discussion in answer to this question necessarily extends to an analysis of the equal protection guarantee found in Article 11, 5 4 of the Montana Constitution. White and Pfost interpreted Article 11, S 16, as guaranteeing a fundamental right of full legal redress for "all recognized compensable components of in jury, including the right to be compensated for physical pain and mental anguish and the loss of enjoyment of living." White, 661 P. 2d at 1275. These decisions then went on to hold that the legislation at issue violated the equal protection guarantee because no compelling state interest justified denying the fundamental right found in Article 11, S 16, to the class of claimants affected by the damages limitation at issue. Here, the question involving the Act's damages limitation is similar, and more properly framed as: Do the limitations on the recovery of certain damages in the Act violate equal protection because the Act unconstitutionally burdens a class of claimants seeking damages for wrongful discharge? Selection of the proper equal protection test is our first task in determining this issue. As discussed in the previous section, no fundamental right to "full legal redress" exists under Article 11, S 16. Meech alleges no other infringement of fundamental rights by operation of the Act, and no suspect classifications are involved. The strict scrutiny test applies only where legislative classifications infringe on a fundamental right, or where the legislature employs suspect classifications such as race or national origin to define the benefited or burdened class. See J. E. Nowak, R. D. Rotunda, & J. N. Young, Constitutional Law Ch. 16, 5 I, at 596-98 (2d ed. 1983). Therefore, the strict scrutiny test does not apply. We also refuse to employ middle tier scrutiny to analyze classifications created under the Act. The United States Supreme Court has employed the middle tier criterion in only a few situations which are not applicable here. See generally Butte Community Union v. Lewis (1986), 219 Mont. 426, 432-33, 712 P.2d 1309, 1312. This Court's decisions have applied the test only where specific directives in the Montana Constitution protected interests in education and welfare. See Butte Community Union, 712 P.2d at 1314; Deaconess Medical Center of Billings Inc. v. Department of Social and Rehabilitation Services (Mont. 1986) , 720 P. 2d 1165, 43 St.Rep. 1112; State ex rel. Bartmess v. Board of Trustees (Mont. 1986), 726 P.2d 801, 43 St.Rep. 1713. Our interpretation of Article 11, $ 16, as only a directive to the courts distinguishes the interest at issue here from the interests at stake in those cases. We determine that the proper level of scrutiny for the classifications created by the Act's limitation on employers' liability is provided by the rational basis test. We further find that the Act's provisions on damages pass equal protection muster because the Act's disparate treatment of similar claims is rationally related to a legitimate state interest. Until recently, the fundamental body of law governing available damages in the employment area has been contract law. Courts, by virtue of their power to alter the common law, have expanded employers' liability by recognizing tort claims in the employment context. The legislature has now acted to reverse this trend by restricting damages for wrongful discharge. This decision to limit liability "emerges as a classic example of an economic regulation--a legislative effort to structure and accommodate 'the burdens and benefits of economic life.'" Duke Power Co. v. Carolina Environmental Study Group (1978), 438 U.S. 59, 83, 98 S.Ct. 2620, 2636, 57 L.Ed.2d 595, 617-18. A statutory "limitation on recovery is a classic economic regulation, . . . [which] must be upheld if it is reasonably related to a valid legislative purpose." Boyd v. Bulala (W.D. Va. 1986), 647 F. Supp. 781, 786 (finding heightened scrutiny inappropriate for reviewing liability-limitation under requirements of Virginia's remedy guarantee). The Court in Duke Power pointed out that use of the rational basis test harmonizes with the ru1.e that the legislature may alter the common law: Our cases have clearly established that "[a] person has no property, no vested interest, in any rule of the common law." [citation omitted]. The "Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible state object," [citation omitted], despite the fact that "otherwise settled expectations" may be upset thereby. Duke Power, 438 U.S. at 88, n. 32. The California Supreme Court also emphasized that where the legislature may alter the common law, the rational basis test applies to testing liability-limitations: [Olur past cases make clear that the Legislature retains broad control over the measure, as well as the timing, of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and that the Legislature may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest. Fein v. Permanente Medical Group (Cal. 19851, 695 P.2d 665, 680 (emphasis in original). This Court, too, in Reeves, recognized that the rational basis test applied to analyzing whether liability-limitations imposed through a special statute of limitations for architects and builders violated equal protection: The test of the constitutionality of class legislation is whether the classification has some reasonable, just and practical basis and whether the law operates equally upon every person within the class. [citations omittedl A statute will not be stricken down upon constitutional grounds unless its violation of the fundamental law is clear and palpable, and the classification it makes is illusory and unreal. [citation omittedl Applying these tests, section 93-2619, R.C.M. 1947, does not violate equal protection of the laws. Reeves, 551 P.2d at 652. We hold that these decisions provide the proper rule on which equal protection test applies to analyzing the Act. Initially, in applying the rational basis test, it is important to note that [i]t has long been the general rule of this Court that statutes carry a presumption of constitutionality. [citation omitted] Generally, "whenever there are differing possible interpretations of [a] statute, a constitutional interpretation is favored over one that is not." Brewer v. Ski Lift, Inc. (Mont. 1988), 762 P.2d 226, 228, 45 St.Rep. 1769, 1772 (quoting Department of State Lands v. Pettibone (1985), 216 Mont. 361, 374, 702 P.2d 948, 956). Another rule pertaining to testing legislation under minimal scrutiny analysis mandates that this Court must not be concerned with the expediency of the statute: "What a court may think as to the wisdom or expediency of the legislation is beside the question and does not go to the constitutionality of the statute. We must assume that the Legislature was in a position and had the power to pass upon the wisdom of the enactment, and in the absence of an affirmative showing that there was no valid reason behind the classification, we are powerless to disturb it." McClanathan v. Smith (1980), 186 Mont. 56, 66, 606 P.2d 507, 513 (quoting State ex rel. Harnmond v. Hager (1972), 160 Mont. 391, 399, 503 P.2d 52, 56). Moreover, in "applying the equal protection clause to social and economic legislation, great latitude is given to state legislatures in making classifications." McClanathan, 606 P.2d at 513. The remedy provision in the Act, set out below, arguably classifies wrongful. discharge claimants based on the magnitude of harm: Remedies. (1) If an employer has committed a wrongful discharge, the employee may be awarded lost wages and fringe benefits for a period not to exceed 4 years from the date of discharge, together with interest thereon. Interim earnings, including amounts the employee could have earned with reasonable diligence, must be deducted from the amount awarded for lost wages. (2) The employee may recover punitive damages otherwise allowed by law if it is established by clear and convincing evidence that the employer engaged in actual fraud or actual malice in the discharge of the employee in violation of 39-2-904 (1). (3) There is no right under any legal theory to damages for wrongful discharge under this part for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in subsections (1) and (2). Section 39-2-905, MCA. Claimants alleging only wage loss within a four year period, and only noneconomic damages, are not adversely affected by the Act's remedy provision. Claimants seeking damages extending beyond four years, or claimants suffering from noneconomic harm such as emotional distress, are foreclosed from pursuing their claims by the Act's remedy provision. Meech asserts that this difference in available remedies violates equal protection guarantees. In addition, Meech argues that the Act unconstitutionally limits the availability of punitive damages. The general rule on the plenary power of the legislature in determining the availability of punitive damages refutes Meech's argument that the Act unconstitutionally limits such damages : There is no vested right to exemplary damages and the legislature may, at its will, restrict or deny the allowance of such damages. 22 Am. Jur. 2d Damages 5 239, at 326 (2d ed. 1965). See also White, 661 P.2d at 1276 (tort claimants have no constitutional right to punitive damages). We hold that the Act's provision on punitive damages is constitutional. We also hold that the Act's classification of claims by available remedies passes equal protection muster. Again, these types of limitations are not new to law. Limitations on recovery for wrongful death, for recovery against common carriers, and limits for damages on baggage claims are classic examples of liability-limitations. As explained below, we conclude that that the Act rationally relates to promoting a legitimate state interest. The legislative history of the Act demonstrates that lawmakers perceived an unreasonable financial threat to Montana employers from large judgments in common-law wrongful discharge claims. Testimony in legislative hearings also indicated to legislators that large judgments in common-law wrongful discharge cases could discourage employers from locating their businesses in Montana. The Act's limitation on damages is intended to alleviate these threats. Therefore, the Act passes muster on this leg of the test because promoting the financial interests of businesses in the State or potentially in the State to improve economic conditions in Montana constitutes a legitimate state goal. Buckman v. Deaconess Hospital (Mont. 1986), 730 P.2d 380, 386, 43 St.Rep. 2216, 2223. We also conclude that the Act relates rationally to promoting Montana's economic interests. Some awards for common-law wrongful discharge have included wages which extend far into the claimant's employment future. See Stark v. Circle K Corp. (Mont. 1988), 751 P.2d 162, 45 St.Rep. 371. The effect of the Act's limitations on damages to four years lost wages rationally relates to reducing this potential liability. Moreover, the limit itself is not irrational or so arbitrary that the classification it creates violates equal protection. As a matter of policy, the legislature determined that four years should be the maximum period for consideration of wage loss reasoning that claimants could generally be expected to find similar employment by the end of this period. The time period in any given claim is necessarily speculative. However, statistics before the legislature supported the conclusion that most wrongful discharge claimants with reasonable diligence will obtain other employment within the four year period. Therefore, judicial deference for the time period at issue is appropriate. See e.g., Duke Power, 438 U.S. at 91. The same sort of analysis applies to the Act's limitations on damages for pain and suffering and emotional distress; the restriction on recovery rationally relates to the legislature's legitimate purpose of limiting employers' liability for wrongful discharge. It could be surmised too that this particular limitation relates rationally to another legitimate legislative aim, that is, it provides for greater certainty in defining an employer's duties by recalling a contract law limitation on damages for pain and suffering. See e.g., S 27-1-310, MCA. As a corollary to this purpose, a greater certainty of the rights of employees also exists under the Act as a result of the "good cause" requirement. For example, in computing contract damages according to the contemplation of the parties, recovery for mental anguish is not, as a general rule, allowed. . . . the courts evidently believe that the mental suffering which accompanies a breach of contract is too remote for compensation. 22 Am. Jur. 2d Damages § 195 (2d ed. 1965). Montana follows the general rule by prohibiting damages for emotional or mental distress in most contract actions. Section 27-1-310, MCA . In contrast, the law generally permits a broader measure of damages in personal injury actions: There is no fixed rule or exact standard by which damages can be measured in personal injury cases. The law does not assume that a particular injury calls for a definite amount of compensation, for just compensation may vary widely in different cases, even where the physical injury is the same, especially where the injury is permanent, or where pain and suffering are involved. When a plaintiff suffers pain, fright, or humiliation because of a tort, dollars are awarded as "compensation" but not as the equivalent of what was suffered. Because of this lack of equivalence in a major portion of many personal injury awards, precise rules of damages are impossible to state. 22 Am. Jur. 2d Damages S 86 (2d ed. 1965) (emphasis in original). Montana also follows the general rule on damages for personal injury: For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether - it could - - have been anticipated or not. -- Section 27-1-317, MCA (emphasis added). The differences in calculating personal injury damages and contract damages points out a problem with the emergence of tort claims in the employment relationship. Tort claims for at-will employees compensate for these workers' inability to control the term of their employment. Gates, 638 P.2d at 1066. Employers, however, are unable to plan for the extensive liability which may arise from damages available in these claims. Testimony in legislative hearings indicated that this is a source of great discontent in the Montana business community. The Act's limitation on noneconomic damages applies long-standing contract law in an attempt to solve this problem by dictating a more objective measure of damages. Under the Act, employers benefit because their potential liability is made more certain. Meanwhile, employees' control over the manner in which they are discharged remains, in part, as a result of the Act's "good employees' cause" requirement. The Act, in making this trade, is in no sense irrational. Therefore, classifications in the Act satisfy the requirements of the rational basis test. Finally, we address the argument mentioned above that Shea requires the legislature to provide adequate substitutes for causes of action abrogated by statute. The Court in Duke Power faced a similar contention based on the Due Process Clause of the United States Constitution: The District Court held that the Price-Anderson Act contravened the Due Process Clause because " [tlhe amount of recovery is not rationally related to the potential losses"; because " [tlhe Act tends to encourage irresponsibility in matters of safety and environmental protection . . . "; and finally because " [tlhere is no quid pro quo" for the liability limitations. 4 3 1 F. Supp. at 222-223. Duke Power, 438 U.S. at 82. The Court in Duke Power resolved the argument for requiring a quid pro quo as follows: -- Initially, it is not at all clear that the Due Process Clause in fact requires that a legislatively enacted compensation scheme either duplicate the recovery at common law or provide a reasonable substitute remedy. However, we need not resolve the question here since the Price-Anderson Act does, in our view, provide a reasonably just substitute for the common law or state law remedies it replaces. Duke Power, 438 U.S. at 88. Here, too, the benefits of the Act for employees are not illusory. Therefore, we need not reach the issue as posed by Meech because the Act provides a reasonably just substitute for the common-law causes it abrogates. In some situations the Act may benefit employees by eliminating common-law defenses formerly available. For example, in Prout v. Sears (Mont. 1989), 772 P.2d 288, 46 St.Rep. 257, a majority of this Court explained that under prior Montana law, an employer could defend a discharge suit by claiming that the employee was let go for no cause: At the same time we give effect to the employment application and record time card. These give the employer the right to fire without cause. Prout, 7 7 2 P. 2d at 2 9 2 (emphasis added) . Under the Act, the no-cause defense for discharging an employee who has worked beyond the probationary period is unavailable to most employers. Instead, employers may be subject to discharge only for good cause defined as: "Good Cause" means reasonable job-related grounds for dismissal based on failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason. Section 39-2-903 (5) , MCA. Similarly, the good-cause provision may provide greater protection for an employee whose employer has carefully avoided giving objective manifestations of continued employment, a requirement for maintaining a cause of action for violation of the covenant of good faith and fair dealing under the former law. Stark, 751 P.2d at 166. Imposition of a good-cause requirement in discharge may also provide greater employee protection in situations, as in Prout, where employers sought to disclaim in the employment contract any objective manifestations of continued employment. The Act's provision allowing claims for prejudgment interest also betters the prior common-law provisions for recovery. In addition to the amount awarded for lost wages, pensions, insurance benefits, and vacation time may be considered as fringe benefits under the statute. Section 39-2-903(4), MCA. All fringe benefits which would have accrued during the four year period following the discharge are available as damages under the Act. Therefore, the Act contemplates allowing some recovery for wrongful discharges which would otherwise deny retirement benefits, and more. To summarize, greater certainty in the law may alleviate problems experienced by both employers and employees. As explained by one commentator: [Tlhe employees who benefit [under common-law cause of action] are few and far between, first, because of the difficulties involved in staying the course of a lengthy and expensive judicial process, and second, because of limitations inherent in the legal doctrines adopted by the courts. Gould, Stemming the Wrongful Discharge - Tide: - - - A Case for Arbitration, 13 Emp. Rel. L.J. 404, 413 (1988). Therefore, Meech's argument that the Act provides an inadequate trade for prior common-law actions fails to provide authority for finding the Act unconstitutional. In conclusion, Montana's remedy clause seeks to guarantee equal access to courts to obtain remedies for injuries as provided by governing law. It does not, however, impart a definition of what the law considers a remedy or full legal redress. Nor does it empower this Court to exclude the legislature from defining what are legal injuries. Finally, we make clear here that the proper test to apply to the Act's classifications burdening one class and not another, is the rational basis test. The classifications created under the Act at issue here survive scrutiny under this test, and even if Montana law required a quid - pro quo for the old causes of actions, the Act provid-es a reasonable substitute. Thus, we answer "No" to both questions posed by the United States District Court. We Concur: / ' ) ' 'Chief Justice &if'&~M$& Justice Justices Mr. Justice John C. Sheehy, dissenting: This is the blackest judicial day in the eleven years that I have sat on this Court. Indeed it may be the blackest judicial day in the history of the state. Certainly this decision is more regressive than the ill-boded Ashcraft v. Montana Power Company (1971), 156 Mont. 368, 480 P.2d 812 case, which deprived injured workers of their full legal redress against third party tortfeasors. The decision today cleans the scalpel for the legislature to cut away unrestrainedly at the whole field of tort redress. Perhaps worse by this decision today, the Court throws in the sponge as a co-equal in our tripartite state government. I. For the reader to understand the drastic ramifications of the "Wrongful Discharge From Employment Act" the whole of the Act must be set out. The legislation passed as Ch. 641, Laws of Montana (1987) . A full copy of the text is attached to this dissent as Exhibit A. The bracketed numbers thereon indicate the present number of the code sections of the Act as they now appear in Montana Code Annotated. The contraction of what was once in this state the tort of wrongful discharge is found principally in three sections of the Act, Section 4 [ § 39-2-904, MCA], Section 5 [ § 39-2-905, MCA] and Section 8 [ B 39-2-913, MCA]. Under Section 4 of the Act [ § 39-2-904, MCA] grounds for wrongful discharge are limited to three possibilities: (1) It was in retaliation for the employees refusal to violate public policy or for reporting a violation of public policy; (2) The discharge was not for good cause and the employee had completed the employers probationary period of employment; [under the Act, a probationer has absolutely no right of recourse for a wrongful discharge] or (3) The employer violated the express provisions of its own written personnel policy. The attorneys in this case supporting the Wrongful Discharge From Employment Act filed briefs claiming that it provided great new rights for discharged workers. Not true. Each of the elements listed above was established by this Court in decisions heretofore made and each was fully available to wrongfully discharged. employees, including probationers. Thus, the first element was recognized in Kenneally v. Orgain (1979), 186 Mont. 1, 606 P.2d 127, where we said: . . . It is only when a public policy is violated in connection with the wrongful discharge that the cause of action arises. Examples given by the courts are: refusal to perjure himself in the case of one employee; firing of another employee for asserting a right to obtain Workers' Compensation benefits to which he was statutorily entitled.; and refusal of sexual relations. Id., 186 Mont. at 6, 606 P.2d at 129. - As to the second element, where the discharge of the employee was not for good cause, we had protected the employee in cases before the adoption of this Act. In Ameline v. Pack and Company (1971), 127 Mont. 301, 45 P.2d 689, this Court found that the employer had not established good cause in the termination of an employee before the end of his one-year contract. Our recent cases of Prout v. Sears Roe Buck and Co., (No. 88-117, Mont. Decided February 16, 1989), 772 P.2d 288, 46 St.Rep. 257, and Hobbs v. Pacific ~ i d e and Fur (No. 84-437, Mont. ~ecided March 31, 1989), 771 P.2d 125, 46 St.Rep. 544, confirmed that a discharge must be for good cause after the probationary period has elapsed. These and other cases relied on the implied covenant of good faith and fair dealing. The third element for which wrongful discharge is granted under the Act is if the employer violates the express provisions of its own written personnel policy. Here again, the legislature granted nothing that had not already been firmly established in our decisions. In Dare v. Montana Petroleum Marketing Company (1984), 212 Mont. 274, 687 P.2d 1015 (Weber, J.) , we held that even an employment handbook promulgated by the employer was not essential for a cause of action for a breach of the implied covenant of good faith and fair dealing stating that: . . . [A]n employee is protected from bad faith or unfair treatment by the employer to which the employee may be subject due to the inherent inequality of bargaining power present in many employment relationships.. . . Id., 668 P.2d at 1020, 212 Mont. at 282. - violation of the employer's handbook procedures for termination which gave rise to a wrongful discharge action was firmly established in Gates v. ~ i f e of Montana Insurance Company (1982), 196 Mont. 178, 638 P.2d 1063, and Gates v. Life of Montana Insurance Company (1983), 205 Mont. 304, 668 P.2d 213. We followed that rule in Stark v. Circle K Corporation (1988) , - Mont . - , 751 P.2d 162; and Kerr v. Gibson's Products Company of Bozeman (19871, - Mont . I 733 P.2d 1292 (Turnage, J . ; ~lanigan v. prudential savings and Loan ~ssociation (1986), 221 Mont. 419, 720 P.2d 257; Krenshaw v. Bozeman Deaconess ~ospital (1984), 213 Mont. 488, 693 P.2d 487; The elements of wrongful discharge, as found in the Act, therefore, are but restatements of cases based on some judicial policy heretofore promulgated by this Court. While perforce, the legislature had to recognize at least those three elements of wrongful discharge, it took care to provide that - no significant amount o f damages could - be recovered by - a wrongfully discharged employee even under those elements. A wronged employee's remedies are nearly emasculated under the Act. Section 5 of the Act [ S 39-2-905, MCA] describes the recoverable remedies for a wrongfully discharged employee. He or she may recover no more than four years of lost wages and fringe benefits --- from both of which are deducted amounts the employees earned or could have earned with reasonable diligence during that period. Since Section 6 of the Act [S 39-2-911, MCA] limits suits to one year from the date of discharge, the employee's loss is wholly speculative. Section 5 of the Act completely wipes out any right of any discharged employee to damages for pain and suffering, emotional distress, compensatory damages or any other form of damages except the four years of mitigated lost wages and fringe benefits. These stricken elements of damages are traditionally allowed against tortfeasors, elements which we have supported in any number of cases, as proper items of recovery. Finally, to make certain that a wronged employee would have to take his or her lumps without a legal basis for proper recovery, the legislature adopted Section 8 [ S 39-2-913, MCA] which states that no claim for discharge may arise from a tort or express or implied contract except as provided in the Act itself. The real purpose of Section 8 is to negate by elimination any possible employee claim of tort based upon an implied covenant of good faith and fair dealing in the employment contract. This provision takes Montana out of the mainstream of American legal thought. Restatement (Second) of Contracts, 205, provides: Duty of good faith and fair dealing. - - Every contract Imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. The duty of "good faith" is incorporated in the Uniform Commercial Code [S 30-1-201(19); S 30-1-208, MCAI. A large and important body of oil and gas law is based upon implied covenants contained in oil and gas leases and other instruments. This Court has recognized that an implied covenant of good faith and fair dealing attends insurance policies. First security Bank of Bozeman v. Goddard (1979), 181 Mont. 407, 593 P.2d 1040; State ex rel. Larson v. ~istrict Court (1967), 149 Mont. 131, 136, 423 P.2d 598, 600. We have also found a remedy for the breach of the implied covenant in the employment cases noted above, in Dare v. Montana Petroleum Marketing Company (19841, 212 Mont. 274, 687 P.2d 1015; in the attorney-client relationship, Morsen v. Espeland (1985), - Mont . , 696 P.2d 428; and in the - dealings by banks with their customers, ribb by v. Northwestern Bank of Great Falls (1985), - Mont. - , 704 P.2d 409; First ~ational Bank in ~ i b b y v. Twombly (1984), 213 Mont. 66, 689 P.2d 1226. We found an implied covenant of good faith and fair dealing in real property lease agreements in ~icholson v. United pacific Insurance Company (1985), - Mont . - , 710 P.2d 1342. The implied element of "good faith" connotes a moral quality "honesty of person, freedom from fraudulent intent, and faithfulness to duty or obligation." Raab v. Casper (1975), 124 Cal.Rptr. 590, 51 Cal.3d 866; Restatement (Second) of Contracts, S 205. The nature and extent of an implied covenant of good faith and fair dealing is measured in any particular contract by the justifiable expectations of the parties to the contract. Nicholson, supra. The approval by this Court in this case of the elimination by the legislature of the element of good faith and fair dealing in employment contracts has the effect of reversing all of the employment cases this Court has handed down in the last decade. The elimination has a profound effect on the recovery of punitive damages. Although the Act here in question provides [Section 5 ( 2 ) 1 for punitive damages in case of actual fraud or actual malice on the part of the employer, unless an employee can show an implied covenant of good faith and fair dealing in his employment contract, he will find no basis upon which punitive damages can be awarded to him. The legislature, in effect, has converted the tort of wrongful discharge into a sort of contract action by the adoption of the Wrongful isc charge From Employment Act. The legislature refused, nonetheless, to provide all the elements of the damages allowable for breach of contract which ordinarily would compensate the party aggrieved for all of the detriment proximately caused by the breach and in the ordinary course of things likely to result therefrom. Section 27-1-311, MCA. In a recent case, the Supreme Court of Nevada in K-Mart Corporation v. Ponsock (Nev. 1987), 732 P.2d 1364, found the implied covenant of good faith and fair dealing in the employment contract, and stated that even contract damages were inadequate in this type of case. The Nevada Court said: In this case we have a contract in which the relationship with the parties is in many ways analogous to those present in an insurance contract. Ponsock was just as dependent in "specially relying" on K-Mart's commitment to his extended employment and subsequent retirement benefits as is an insurance policyholder dependent on the good faith indemnity promised by the insurance carrier. The special relationships of trust between this employer and this employee under this contract under this kind of abusive and arbitrary dismissal cries out for relief and for a - remedy beyond that traditionally flowing from breach of contract. To permit only contract damages as the sole remedy for this kind of conduct would be to render K-Mart totally unaccountable for these kinds of actions. If all a large corporate employer had to do was to pay contract damages for this kind of conduct, it would allow and even encourage dismissals of employees on the eve of retirement with virtual impunity. ~aving to pay only contract damages would offer little or no determent to the types of practice apparently engaged in by K-Mart In this case. Further, an aggrieved employee, relying on, and anxiously awaiting his retirement benefits would not be made whole by an award of contract damages resulting from wrongful discharge, even if he were awarded the expected retirement benefit . . . After involving itself in a relationship of trust and special reliance between itself and its employee and allowing the employee to rely and depend upon continued employment and retirement benefits, the company, to serve its own financial ends, wrongfully and in bad faith breached the employment agreement. The jury specifically found this reliance and concluded that K-Mart was guilty of bad faith . . . (Emphasis in original.) Id.,732 P.2d at 1372. - It is evident that the Wrongful isc charge From Employment Act adopted by the Montana legislature purporting to give a wronged employee some rights, instead, took away any possible right of meaningful recovery. The ominous implications of this Act for all employees not working under a union contract cannot be overstated. The longer the employee works for an employer, the greater reliance the employee places upon the employer's proffer of fringe benefits and retirement allowances, then the more the employee is at risk to be discharged, because the economic result of a wrongful discharge to the employer, even if the employee's suit under the Act should be successful, is nothing but paltry damages to the employee and possible profit to the employer. The lack of legislative clout of the unorganized workers, although they may comprise a majority of the workers in this state, is demonstrated in that this patently unfair legislation in 1987 passed the State Senate without a no vote on third reading, and with but 16 no votes out of 100 in the State House of Representatives. When law can do no right [Then] it be lawful that law can bar no wrong. -~illiam Shakespeare, ~ i n q John (Magna ~arta's John) Act 111, Scene i. Four centuries ago ~illiam Shakespeare stated in capsule the view of the majority of this Court in upholding the Act. The majority view is that the legislature can abolish any right of recovery and when it does courts are barred from awarding "full legal redress" under Art. 11, Sec. 16, Montana State Constitution. So holding, the majority airily overrule Pfost v. State (1986), 219 Mont. 206, 713 P.2d 494; white v. State (1983), 203 Mont. 363, 661 P.2d 1272 and orr rig an v. Janney (1981), - Mont . , 626 P.2d 838. We submit that - not only are these reversals overbroad, but they are clearly in error. First let us examine the overruled cases. Corrigan v. - Janney, supra, involved an appeal from a summary judgment granted in the District Court against a plaintiff in a wrongful death case. Janneys had leased living quarters to the Corrigans, and the leased premises were defectively wired so that Max Corrigan came in contact with the faucet on a bathtub and received an electrical shock which ultimately caused his death. The District Court, reading earlier cases of this Court, decided that there was no cause of action by a tenant against the landlord for such a defect and granted summary judgment. his Court held (~arrison, J.) that there is in modern day usage a need for rental houses to be suitable for human occupation and that a cause of action for wrongful death in this case did exist. The Court cited Art. 11, Sec. 16 of the Constitution and went on to state: It would be patently unconstitutional to deny a tenant a l l the causes of action for personal injuries or wrongful death arising out of the alleged negligent management of rental premises by a landlord. If this action were to be taken away, a substitute remedy would have to be provided. Arguably, the repair and deduct statute provides an alternative remedy for damage to the leasehold interest. However, in no way can it be considered an alternative remedy for damages caused by personal injury or a wrongful death. (Emphasis supplied. ) Id., 626 P.2d at 840. - Justice Harrison then noted a controlling statute and went on to state: In summary, we overrule Dier v. Mueller, supra, and hold that our Constitution requires that plaintiff have a form of redress for wrongful death and survivor damages. We hold that 5 58-607 R.C.M. (1947), is controlling and that one is responsible for injury occasioned to another by want of ordinary care subject to the defenses and contributory negligence or assumption of risk. Id., 626 P.2d at 841. - Thus Corrigan held that S 58-607 provided a statutory basis for recovery in this wrongful death case, and that Art. 11, Sec. 16 constitutionally guaranteed the right of redress in that case. Why the majority overrules that case is beyond my conjecture. In White - v. State, supra, Karla white sued the State of Montana alleging that the State was grossly negligent in permitting an allegedly violent and dangerous person to escape from the mental hospital at Warm springs and to remain free for a period of 5 years without serious attempts to locate and reincarcerate the escaper. Karla was brutally attacked by this individual about 5 years after he had escaped from Warm springs. The legislature meanwhile had passed S 2-9-104, MCA, which provided that any governmental unit, including the State, was not liable for noneconomic damages, nor for any economic damages in excess of $300,000 for any one claimant. If this statute were upheld, Karla's right of recovery, premised upon severe emotional injuries which she received from the attack but insignificant economic damages, would be effectively wiped out. The District Court held that the statutory limitation on governmental liability for damages was unconstitutional and granted summary judgment in favor of Karla. The State appealed to this Court, which said: Article 11, Section 16 of the Montana Constitution guarantees that all persons shall have a "speedy remedy . . . for every injury of person, property, or character. " In Corrigan v. Janney (1981), Montana, 626 P.2d 838, this Court held that it is "patently unconstitutional" for the legislature to pass a statute which denies a certain class of Montana Citizens their causes of action for personal injury and wrongful death. We affirm and redefine our holding in Corrigan v. Janney, supra; we hold that the Montana Constitution guarantees that all persons have a speedy remedy for every injury. The language "every injury" embraces all recognized cornpensable components of injury including the right to be compensated for physlcal 7 - pain and mental angulsh and the loss of enjoyment - ---- of llvlng. hes sf ore, strict scrutiny attaches. - (Emphasis supplied. ) Id., 661 P.2d at 1275. - In white, this Court found no compelling state interest to classify tortfeasor victims on whether they had been injured by a nongovernment tortfeasor or by a government tortfeasor. The Court struck down a statute which allowed recovery to plaintiffs damaged economically up to $300,000, but totally denied recovery for noneconomic damages; and further, the statute classified victims of government tortfeasors by the severity of the victim's injuries. It should be clear to all that 5 2-9-104, MCA, denied the equal protection of the law to white because the statute discriminated between tortfeasors injured by government agents or by private defendants; and as between persons injured by government tortfeasors, it discriminated on the basis of economic and noneconomic damages. Certainly this Court in white enforced the state constitutional mandate to courts that "Right and justice shall be administered without . . . denial . . ." Art. 11, Sec. 16. Before adverting to Pfost 1 . State, supra, we set out for the convenience of the reader the full text of Art. 11, Sec. 16, of the State Constitution: Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full a redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under Workmens' Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay. (Emphasis added. ) Pfost - v. State involved a plaintiff who had been injured when his truck-tractor collided with a bridge on an extremely icy and hazardous highway. He alleged no precautions had been taken by the State to remedy the hazardous condition although three separate wrecks had occurred prior to Pfost's arrival. Pfost suffered injuries which eventually made him a quadriplegic. He sought compensatory damages of 6 million dollars. In the meantime, the legislature had adopted a new statute regarding the liability of the State in tort cases, limiting any or all recovery to $300,000 for a single person. Section 2-9-107, MCA. Pfost's medical expenses alone exceeded that sum. The District Court held the statute to be unconstitutional as a denial of equal protection and the State appealed. In Pfost, we followed White - v. State, supra, holding that Art. 11, Sec. 16, 1972 of Montana constitution, granted a fundamental right to access to courts for a full legal redress and on the basis of equal protection found that S 2-9-107, MCA, discriminated improperly between those with minor injuries and those with catastrophic injuries resulting from the tort of a government agent. In passing on the language of Art. 11, Sec. 16, supra, we stated: The use of the clause "this full legal redress" has major significance. It obviously and grammatically refers to the "speedy remedy afforded for every injury of person, property, or character." The adjective "this" means the person, thing, or idea that is present or near in place, time, or thought or that has just been mentioned. Websters New Collegiate ~ictionary (1981). The constitutional framers thus construed a "speedy remedy" as comprehending "full legal redress." A state constitutional right to full legal redress was thereby created. Any state statute that restricts, limits, or modifies full legal redress for injury to person, property, or character therefore affects a fundamental right and the State must show a compelling state interest if it is to sustain the constitutional validity of the statute. Pfost, 713 P.2d at 503. The majority object to our grammatical interpretation in Pfost of Art. 11, Sec. 16, as "flawed." Perhaps the majority have rules of grammar of which this writer is unaware, but we will leave it to the teachers of English that the clause "this full legal redress" refers in Art. 11, Sec. 16 to the "speedy remedy afforded for every injury of a person, property, or character." Grammatically, we insist that "speedy remedy" comprehended "full legal redress." Speaking in the vein of grammatical construction, the majority ask us to construe the term "full legal redress" in the second sentence of Art. 11, Sec. 16 as applying only to injured workmen who have claims against third parties for their injuries. The majority contend that the purpose of the inclusion of the second sentence was only to protect injured workmen and had no effect on the remainder of Art. 11, Sec. 16. In this sense, the majority grammatically misconstrue the article. Under its plain language the right of "full legal redress" is not given only to Workers' Compensation claimants. Rather, the right of "full legal redress" is emphatically granted to Workers' Compensation claimants too. The framers intended to make certain that included in Art. 11, Sec. 16 was a specific provision which also extended the speedy remedy comprehending full legal redress to Workers' Compensation claimants who might have separate causes of action against third parties, not their employers or fellow employees. Ashcraft v. The Montana Power Company (1971) , 156 Mont. 368, 480 P.2d 812 was the reason for the insertion by the framers of the second sentence in Art. 11, Sec. 16, to make certain that Workers' Compensation claimants had the right of full legal redress, too. Ashcraft was a laborer working for a construction company which as an independent contractor was performing work on the job for the general employer, Montana Power Company. Ashcraft was injured through the alleged negligence of the Montana Power Company. He recovered Workers' Compensation benefits through his employer, and sought to sue Montana Power Company as a third party tortfeasor. This Court held that Ashcraft had no cause of action for his injuries against the third party tortfeasor, Montana Power Company. Ashcraft and several cases of its progeny following, were at the forefront when Art. 11, Sec. 16 was considered by the constitutional framers in 1972. The second sentence of Art. 11, Sec. 16 was inserted specifically to overrule Ashcraft. When the provisions of Art. 11, Sec. 16 came before the Constitutional convention for eventual adoption, Delegate Habedank, as indicated in the majority opinion, made a motion to strike the second sentence of the section upon the grounds that the sentence was merely legislative, and its subject was better left to the legislature. Delegate Habedank's amendment to delete the second sentence was defeated in the convention, but before the amendment was submitted to a vote, Delegate Habedank made a comment that is interesting in light of this case: DELEGATE HABEDANK: Yes, Mr. president [Chairman] you have had the matter very fairly presented to - - you by Mr. Dahood. As I told you in the first place, I do not particularly oppose this particular amendment, but I have been told that we lawyers are writing the Constitution, trying to slip matters into this Constitution for our own personal gain. You have had the pro of the con given to you. This is somethinq that can't be corrected by the legislature. - You have it in your power to be the ---- --- supreme Legislature, as the committee has requested you to do. I leave it to you, but I do think that when you do it, you should do it knowing what you do and not accuse the lawyers of pulling the wool over your eyes. (Emphasis supplied.) verbatim h ran script, page 1758. Even more interesting in connection with the Constitutional Convention is that the author of the majority opinion here, a respected member of the Constitutional Convention, stood and opposed Delegate Habedank's motion to delete the second sentence of Art. 11, Sec. 16. He stated: DELEGATE McDONOUGH: Mr. Chairman, I also support the committee's proposal. In Eastern Montana there's a lot of accidents in the oil field, and practically all the work is subcontracted out or contracted out, and we never dreamed--and Mr. Habedank, I am sure, admits himself he never dreamed, because he's defended these law suits--that the Supreme Court would rule in this manner. And I support the committee proposal because it just--it was a very bad law and it should be restored. verbatim rans script, pages 1757, 1758. There is an inconsistency between the statements of Delegate McDonough in support of Art. 11, Sec. 16, and the his statements as the author of the majority opinion as expressed today. If, as he now espouses, Art. 11, Sec. 16 gives only a right of access to the courts, but not to a full legal redress, the legislature could make the second sentence of Art. 11, Sec. 16, meaningless by simply abolishing the remedies available to third party plaintiffs as they have abolished the tort remedies of the employees in this case. Such a view was unexpressed by any delegate to the Convention. In the light of his opinion today, the commendable efforts of Delegate McDonough to support Art. 11, Sec. 16 were not worth the candle. The injured workman now has no more guaranty of a legislature allowing full legal redress than the merest employee relying on implied covenants. The fundamental right to remedy was expressed to the Constitutional Convention by the chairman of the sill of Rights Committee, supporting Art. 11, Sec. 18 (governmental immunity) when he said: We submit it's an inalienable right to have remedy when someone injures you through negligence and through wrongdoing, regardless of whether he has the status of a governmental servant or not. (Emphasis added.) (See No11 and Kenneady v. Bozeman (1975), 166 Mont. 504, 507, 534 P. 2d 880, 882) . The Jeffersonian word "inalienable" means incapable of being surrendered or transferred. [Webster's New Collegiate ~ictionary (198l)l. Now let us state exactly what Corrigan, white, and Pfost stood for. ~orriqan established that when a cause of action is grounded on statute the right of a plaintiff to a full legal redress under that statute was fundamental. White and Pfost established that when a statute discriminated invidiously between injured plaintiffs, the courts under Art. 11, Sec. 16 would apply exacting scrutiny to determine the necessity, if any, for the discrimination. Those results were commanded by the language of Art. 11, Sec. 16. A major premise of the majority opinion is that Art. 11, Sec. 16 is addressed to the courts, and because the section is not addressed to the legislature, the legislature is free to act without restraint except for a minimal rational test. That concept ignores the last sentence of Art. 11, Sec. 16, which tells the courts that "right and justice shall be administered without denial.'' The courts must consider first the right and then justice, and neither must be denied. A full legal remedy, state the majority, is not a fundamental right; and so bring themselves to deny the essence of a fundamental right. The right of a citizen to claim justice from his state, is, we should agree, a fundamental right; else the right of petition for redress from grievances is meaningless. State protection of citizens from injustice, - a fortiori, is also a fundamental right; else the right of petition is toothless. A legal remedy that delivers only 25% justice automatically also delivers 75% injustice. Assuming a wrong-doing employer, a legal remedy that delivers to the long-term employee only four working years of justice delivers also the balance of a working lifetime of injustice. For justice is not divisible. Either the result is just or it is unjust, just as a single fact is true or else it is untrue. There is no middle to justice, for injustice takes up where partial justice ends. In defining justice, we do not mess with Mr. In-Between. As surely as there are fundamental rights, there are surely no fundamental half-rights. The right of access to courts is only part of the fundamental right; the right to a full legal remedy completes the part to make a whole. The two, access to the courts and full redress, indivisibly make one fundamental right, and together they are the essence of justice. They must coexist to complete the fundamental right to justice. The least plausible argument of the majority in this case is that the legislature has the power to limit remedies, and that this Court may not interfere if the legislature so acts. If this were true in all cases, the public in this state would have no protection from free-wheeling legislatures. Fortunately, if the Court does its job, our state constitutional system is designed to contain legislative action within constitutional limits. That design requires the state courts to rein in a rampant legislature. specially must an appellate court (in Montana the only appellate court is this Court) be watchful to safeguard the rights of the public in state constitutional disputes. Our appellate jurisdiction has a two-fold purpose: First, we assure state litigants that the decision makers at the first level, the district courts, will make correct decisions, not in isolation, but with the connected support of the state legal system. The review for correctness reinforces the dignity and acceptability of the trial court's decisions, and controls any adverse effects of shortcomings at the first level. The second purpose of this appellate court is equally important. Our institutional review of the workings of trial courts serves to announce, clarify and harmonize the rules of decision and the application of laws in the state legal system. Necessarily, institutional review is both creative and political; to say that legislatures, and not courts, make law ignores the facts of appellate life. The final arbiter of what the state law in Montana shall be is this Court, under Art. 11, Sec. 16, not the legislature. We are given that power, to be used judicially. The Justices in the majority do not seem to realize it, but in approving without objection or by inaction the Wrongful Discharge From Employment Act of 1987, they are making law. They have blessed what should be repugnant to a court--a savage curtailment of redress for wrongs, and they excuse their inaction by ceding overall power to the legislature. Though the State Constitution requires courts of justice (not the legislature) to afford a speedy remedy for every injury of person, of property, or of character, the majority have taken a detour from the road to remedy. They have declined to insist on not only a speedy remedy, but on full legal redress for wrongfully discharged employees. They have made law by being passive, and deserve no praise. A toothless court, when abstaining from its duty, is making law and is as great a threat to a just government as an unrestrained legislature. This is not to say that this Court sits as a super legislature, governing by its discretion the policy, wisdom, and direction of legislative acts. When, however, the legislature acts invidiously to discriminate between persons similarly situated, as will be demonstrated below, Art. 11, Sec. 16 imposes a duty upon this Court to make certain that right and justice are not denied. 111. Having determined that Meech has no fundamental right to a full legal redress here, the majority sustain the equal protection implications of the Wrongful Discharge From Employment Act by applying the rational test. This leads the majority to the irrational result that it is rational to make the state safe for unscrupulous employers. The legislature made no findings to accompany the Act, nor does the Act itself articulate its purpose. The statements by the majority as to the purpose of the Act are extrapolated from written statements of proponents submitted to the committees considering the Act, and not the whole legislature. At its core, the Wrongful l is charge From Employment Act is nothing more than a cap on recoverable damages available to wronged employees. In that sense, the type of law we are looking at here is no different than the types presented to us in White and Pfost, supra. To begin with, the at-will statute which formerly governed employee relationships in Montana is not really repealed in the Act. The same language as existed in S 39-2-504, MCA, is included in S 2 of the Act. At-will employees still exist in Montana. We should also put out of the way any argument that the Act discriminates with respect to punitive damages to the extent that they are allowed under the Act. The test of punitive damages in 5(2) of the Act is the same test faced by any plaintiff claiming punitive damages under S 27-1-221, MCA . The Wrongful Discharge From Employment Act cannot be sustained as an equal protection under the rational basis test because it discriminates adversely between persons similarly situated and it discriminates vertically as well as horizontally. Equal protection permits reasonable classifications only if those similarly situated in relevant respects are treated similarly. An Act is excessively underinclusive if it excludes persons who are similarly situated. The majority opinion does not begin to state the number of ways in which employees similarly situated are discriminated against under the Wrongful Discharge From Employment Act. Horizontally, the discriminations include at least these: 1. A union worker is not affected by the Act; only non-union workers are covered. Thus a union worker who is discharged for "whistle blowing1' has larger rights of recovery than a non-union worker discharged for the same reason. 2. Workers whose discharge is the result of a violation of the Human ~ights Act, the Equal Employment Opportunity Act, the Pension Reform Act of 1974 (ERISA), the Pregnancy Disability Act and any number of other state or federal acts are not covered under the Wrongful isc charge From Employment Act. Such employees' full rights of recovery are not taken away under this Act (see for example, ~rinkwalter v. shipton Supply Company, Inc. (1987 , - Mont. , 732 P.2d 1335; - Breese v. Steel Mountain ~nterprises, Inc. (1986) , 220 Mont. 454, 716 P.2d 214; and Strong v. State (19791, 183 Mont. 410, 600 P.2d 191. 3. The Act discriminates against long term employees by severely limiting their damages which might be large in magnitude. See ~lanigan v. prudential Federal savings and Loan (1986), 221 Mont. 419, 720 P.2d 257. 4. A worker on probation is entirely precluded from any action for wrongful discharge. In addition, the Act is vertically discriminatory in that it imposes upon wrongfully discharged employees the burden of subsidizing a better business climate for wrongdoing employers. It is not a legitimate state purpose to protect employers from their unscrupulous acts as against the traditional rights of individuals to earn their livelihood. Our state constitution includes among inalienable rights "pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities." Art. 11, § 3, 1972 Mont. Const. Thus, no case can be made on a rational basis to sustain a law the principal purpose of which is to subsidize, protect or enhance the acts of wrongdoers. Because of its manifest discrimination, because it serves no legitimate state purpose, and because it cannot survive a proper balancing test as between the rights of employers and of individuals to pursue life's basic necessities, the Wrongful Discharge From Employment Act of 1987 violates the Equal protection Clause of the 1972 Montana Constitution, Art. 11, S 4. As stated in Richardson v. ~arnegie ~ibrary Restaurant, Inc. (NM 1988), 763 P.2d 1153: We commence our examination by repeating that the court of appeals erred in its equal protection analysis of the damage limitation. A legislative classification not only must affect equally a11 persons within the class to which the legislation applies but, to begin with, the legislature must have a legitimate purpose for creating the class, and a constitutionally permissible reason for treating persons within that class differently from those without. See McLaughlin v. ~lorida, 379 U.S. Id., 763 P.2d at 1164. - IV. Generally, when a legislative act is invalid because of a discrimination, the act also violates other provisions of the state constitution. That is true in this case. The majority dismisses without proper discussion the due process implications of the Wrongful Discharge From Employment Act. It is usually a due process argument that an Act which limits the rights of recovery of injured parties must provide a reasonably adequate substitute, or quid pro ~ u o , - as the majority calls it. The majority, having adopted the irrational conclusion that the Wrongful Discharge From Employment Act was valid, is driven to a further irrationality in determining that the substitution of mitigated recovery provided to wronged employees in the Act was adequate. Not unlike Polonious in Hamlet, the majority can find in a cloud a camel's shape, a weasel's, or very like a whale. In determining the adequacy of the substituted recovery in the Act, the majority confined itself to examination of the mitigated four years of damages as against what might be recovered for loss of wages or fringe benefits. The majority paid no attention in determining adequacy to the elimination of compensatory damages, damages for emotional or mental distress, and damages arising from the breach of the implied covenant of good faith and fair dealing. By so examining, the majority managed to escape the best indication of the inadequacy of the recoverable damages in the Act demonstrated by the cases that have come to this Court. The results in such cases as ~laniqan, supra, Stronq - v. - State, supra, and Stark v. The circle K Corporation ( 1 9 8 8 ) , 7 5 1 P.2d 162, show the injury done by the Act to plaintiffs through the elimination of common law tort remedies. The Act simply does not survive an adequacy test when properly admeasured against the former law in Montana. Other constitutional provisions probably affected by the majority decision but not referred to by the majority opinion and thus not pertinent to this dissent are the right to trial by jury, and the privilege and immunity clauses of the state constitution. Art. 11, S 26; Art. 11, S 31, 1972 Mont. Const. Oregon looks to Art. I, S 20 of its constitutional privileges and ~rnmunities Clause rather than to equal protection tests to determine the validity of a statute. There the court inquires into whether the challenged statute affects a "privilege or immunityw--that is, "some advantage" to which a person "would be entitled but for a choice made by government authority." Salem v. Bruner (Ore. 1985), 702 P.2d 70, 74. In a recent case in washington, sophie v. ireb board corporation (Wash. 1989), 771 P.2d 711, the Supreme Court of that state found, because of the language in washington's Tort Reform Act, a violation of the state constitutional provision of the right to trial by jury. Arguments with respect to similar clauses in our state constitution could be made in this case, but were not raised in briefs nor decided by the majority. They are therefore open to future discussions. v. If Art. 11, 16 of the Montana Constitution does anything, it imposes upon the judiciary the duty to guard the state constitution. In its decision today, this Court sidesteps that duty and reverses not only the cases mentioned in the majority opinion but a long line of cases in the past 15 years that have established solid boundaries for employers and employees, while adhering to the at-will principle declared in our statutes. In yielding our duty to the vagaries of the legislature, we have disadvantaged a large portion of the Montana labor market in the guise of a better business climate. The Wrongful Discharge From Employment Act of 1987 is economically and socially regressive. The majority opinion is legally regressive. Because of the unwillingness of the majority to act properly in a constitutional case, regressiveness is the order of the day. I would hold the Wrongful isc charge From Employment Act of 1987 to be invalid on the basis that under an equal protection test it cannot meet even a rational scrutiny. The only basis for the Act that I can find is that as between business and the workers, the legislature discriminatingly prefers business. That is not a constitutional basis on which to found a statute. ' -\ i . , ' I concur in the dissent of Mr. Justice John C. Sheehy. / EXHIBIT A CHAPTER NO. 641 AN ACT PROVIDING A PROCEDURE AND REMEDIES FOR WRONGFUL DISCHARGE; AUTHORIZING ARBITRATION AS AN ALTERNATIVE; ELIMINATING COMMON-LAW REMEDIES; REPEALING SECTIONS 39-2-504 AND 39-2-505, MCA; AND PROVIDING AN APPLICABILITY CLAUSE AND AN EFFECTIVE DATE. Be in enacted by the ~egislature of the State of Montana: section 1. Short title. [Sections 1 through 9 1 may be cited as the "Wrongful isc charge From Employment Act". [5 39-2-9011 Section 2. Purpose. [Sections 1 through 91 set forth certain rights and remedies with respect to wrongful discharge. Except as limited in [sections 1 through 91, employment having no specified term may be terminated at the will of either the employer or the employee on notice to the other for any reason considered sufficient by the terminating party. Except as provided in [section 71, [sections 1 through 91 provide the exclusive remedy for a wrongful discharge from employment. [ S 39-2-9021 Section 3. ~efinitions. In [sections 1 through 91, the following definitions apply: (1) "Constructive discharge" means the voluntary termination of employment by an employee because of a situation created by an act or omission of the employer which an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative. Constructive discharge does not mean voluntary termination because of an employer's refusal to promote the employee or improve wages, responsibilities, or other terms and conditions of employment. (2) isch charge" includes a constructive discharge as defined in subsection (1) and any other termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and any other cutback in the number of employees for a legitimate business reason. (3) "Employee" means a person who works for another for hire. The term does not include a person who is an independent contractor. (4) "~ringe benefits" means the value of any employer-paid vacation leave, sick leave, medical insurance plan, disability insurance plan, life insurance plan, and pension benefit plan in force on the date of the termination. (5) "Good cause" means reasonable, job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason. (6) "Lost wages" means the gross amount of wages that would have been reported to the internal revenue service as gross income on Form W-2 and includes additional compensation deferred at the option of the employee. (7) "Public policy" means a policy in effect at the time of the discharge concerning the public health, safety, or welfare established by constitutional provision, statute, or administrative rule. [ § 39-2-903 (1) - (7), inc. I Section 4. Elements of wrongful discharge. A discharge is wrongful o n l y ? £ : (1) it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; ( 2 ) the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or ( 3 ) the employer violated the express provisions of its own written personnel policy. [ § 39-2-9041 section 5. ~emedies. (1) If an employer has committed a wrongful discharge, the employee may be awarded lost wages and fringe benefits for a period not to exceed 4 years from the date of discharge, together with interest thereon. Interim earnings, including amounts the employee could have earned with reasonable diligence, must be deducted from the amount awarded for lost wages. (2) The employee may recover punitive damages otherwise allowed by law if it is established by clear and convincing evidence that the employer engaged in actual fraud or actual malice in the discharge of the employee in violation of [ S 4 (1) I . (3) There is no right under any legal theory to damages for wrongful discharge under [sections 1 through 91 for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in subsections (1) and (2). [ S 39-2-9051 Section 6. Limitation of actions. (1) An action under [sections 1 throuqh 91 must be filed within 1 year after the date of-discharge. ( 2 ) If an employer maintains written internal procedures, other than those specified in [section 7 1 , under which an employee may appeal a discharge within the organization structure of the employer, the employee shall first exhaust those procedures prior to filing an action under [sections 1 through 91 . The employee's failure to initiate or exhaust available internal procedures is a defense to an action brought under [sections 1 through 9 ! . If the employer's internal procedures are not completed within 90 days from the date the employee initiates the internal procedures, the employee may file an action under [sections 1 through 91 for purposes of this subsection the employer's internal procedures are considered exhausted. The limitation period in subsection (1) is tolled until the procedures are exhausted. In no case may the provisions of the employer's internal procedures extend the limitation period in subsection (1) more than 120 days. (3) If the employer maintains written internal procedures under which an employee may appeal a discharge within the organizational structure of the employer, the employer shall within 7 days of the date of the discharge notify the discharged employee of the existence of such procedures and shall supply the discharged employee with a copy of them. If the employer fails to comply with this subsection, the discharged employee need not comply with subsection (2) [ S 39-2-9111 Section 7. Exemptions. [sections 1 through 9 do not apply to a discharge: (1) that is subject to any other state or federal statute that provides a procedure or remedy for contesting the dispute. Such statutes include those that prohibit discharge for filing complaints, charges, or claims with administrative bodies or that prohibit unlawful discrimination based on race, national origin, sex, age, handicap, creed, religion, political belief, color, marital status, and other similar grounds. ( 2 ) of an employee covered by a written collective bargaining agreement or a written contract of employment for a specific term. [ § 39-2-9121 section 8. preemption of common-law remedies. Except - as provided in [sections 1 through 91, no claim for discharge may arise from tort or express or implied contract [ B 39-2-9131 Section 9. Arbitration. (1) Under a written agreement of the parties, a dispute that otherwise could be adjudicated under [sections 1 through 9 1 may be resolved by final and binding arbitration as provided in this section. ( 2 ) An offer to arbitrate must be in writing and contain the following provisions: (a) A neutral arbitrator must be selected by mutual agreement or, in the absence of agreement, as provided in 27-5-211. (b) The arbitration must be governed by the Uniform Arbitration Act, Title 27, chapter 5. If there is a conflict between the uniform ~rbitration Act and [sections 1 through 9 1 , [sections 1 through 91 apply. (c) The arbitrator is bound by [sections 1 through 91 . (3) If a complaint is filed under [sections 1 through 91, the offer to artibrate must be made within 60 days after service of the complaint and must be accepted in writing within 30 days after the date the offer is made. (4) A party who makes a valid offer to arbitrate that is not accepted by the other party and who prevails in an action under [sections 1 through 9 1 is entitled as an element of costs to reasonable attorney fees incurred subsequent to the date of the offer. (5) A discharged employee who makes a valid offer to arbitrate that is accepted by the employer and who prevails in such arbitration is entitled to have the arbitrator's fee and all costs of arbitration paid by the employer. (6) If a valid offer to arbitrate is made and accepted, arbitration is the exclusive remedy for the wrongful discharge dispute and there is no right to bring or continue a lawsuit under [sections 1 through 81. The arbitrator's award is final and binding, subject to review of the arbitrator's decision under the provisions of the Uniform Arbitration Act. [ S 39-2-9141 Section 10. Repealed. sections 39-2-504 and 39-2-505, MCA, are repealed. Section 11. Severability. If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications. Section 12. Applicability. This act applies to claims arising after the effective date of this act. Section 13. Effective date. This act is effective July 1, 1987. Approved May 11, 1987. Mr. Justice John Conway Harrison, dissenting. While I agree with much that is said by the majority in this opinion, the totality of this opinion in reversing so many cases this Court has previously decided, necessitates my filing this dissent. I cannot concur with all that has been said in the dissent of Mr. Justice John C. Sheehy, yet I find I must agree with Justice Sheehy regarding Corrigan v. Janey (Mont. 1981), 626 P.2d 838, 38 St.Rep. 545. I feel that it is totally unnecessary to reverse Corrigan which established that when a cause of action is grounded on statute the plaintiff has a fundamental right to full- legal redress under that statute. | June 29, 1989 |
775cb5a1-30ab-4213-b9fe-ae5880548cdb | GREAT FALLS TRIBUNE CO INC v C | N/A | 89-086 | Montana | Montana Supreme Court | No. 89-86 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 GREAT FALLS TRIBUNE COMPANY, INC., ., - - < -. -> h'.' Petitioner and Respondent, % _ - . % C: -vs- . 1 1- . c-- - -?", /-- CASCADE COUNTY SHERIFF, BARRY MICHELOTTI, c ) - I and CITY OF GREAT FALLS, a Municipal corp., -+--J \_I - 2 Respondents and Appellants. \ - - ' , 8 c . , . f - 2 < ' . 5.". .-'- k , APPEAL FROM: ~istrict Court of the Eighth ~udicial ~istrict, In and for the County of Cascade, The Honorable Thomas ~c~ittrick, Judge presiding. COUNSEL OF RECORD: For Appellant: David V. ~ l i k o , City Attorney, Great Falls, Montana For Respondent: Peter Michael Meloy, Helena, Montana Filed: Submitted on Briefs: May 18, 1989 Decided: July 6, 1989 Clerk Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. The City of Great Falls appeals from an order of the District Court for the Eighth ~udicial ~istrict, Cascade County, that the City must publicly disclose the names of three law enforcement officers disciplined as the result of a November 30, 1988, incident. We affirm. The issue is whether the privacy rights of the individ- ual police officers exceed the merits of public disclosure of the names of the officers in the Great Falls Tribune. On November 30, 1988, certain police officers and deputies from the Cascade County Sheriff's Office engaged in a high-speed automobile chase through the City of Great Falls in an attempt to apprehend a suspect. The suspect left his car and continued his flight on foot. A deputy sheriff attempting to stop the suspect ran his squad car up on a city sidewalk and struck the suspect. When the suspect was taken to jail, a jailer noticed that the suspect had suffered injuries to his head and face. The jailer brought the injuries to the attention of the sheriff and an investigation followed. As a result of the investigation, a sheriff Is deputy was suspended for a period of time, one police officer was fired, and two other police officers were given the option to resign or be terminated. They resigned. A reporter from the Great Falls Tribune (~ribune) had been given access to an "initial offense report" which contained the names of a number of officers involved in the incident without specify- ing how they were involved. He attempted to obtain the names of the officers disciplined. The reporter asked the Cascade County Sheriff, the Great Falls city police chief, and the Great Falls City Manager for the names of the officers disci- plined, but all three refused to disclose the names on the grounds of the officers' right to privacy. The Tribune filed a petition in District Court seeking an order directing the defendants to release the names of the law enforcement officers who had been disciplined. The City of Great Falls (City) moved to dismiss and filed an answer asserting the individual officers' right to privacy under Article 11, Section 10 of the Montana Constitution. The court held a hearing at which two witnesses for the Tribune testified. The City did not call witnesses but filed an affidavit by the Police Chief which was entered by stipulation as part of the record. On January 17, 1989, the District Court issued its opinion and order directing the City to disclose the identity of the officers who were disciplined. The court noted that the Cascade County Sheriff had disclosed the name of the deputy sheriff to the Tribune and had been dismissed from the lawsuit. In analyzing the issue before it, the District Court conducted a balancing of two rights guaranteed under the Montana Constitution. The right to know is set forth at Art. 11, Section 9, Mont.Const.: Section 9. Right to know. No person shall be deprived of the right to exam- ine documents or to observe the deliber- ations of all public bodies or agencies of state government and its subdivi- sions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure. The right of privacy is set forth at Art. 11, Section 10, Mont.Const.: Section 10. Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest. The court determined that "the demands of individual privacy as shown on this record do not clearly exceed the merits of public disclosure." It ordered the City to provide the Tribune with the names of the officers disciplined as a result of the November 30th incident, along with information on which officers were terminated and resigned. Before conducting our analysis, we will review recent cases in which this Court has been asked to balance the right of privacy against the right to know. This Court has used a two-part test in determining whether a person has a constitutionally-protected privacy interest. Montana Human Rights Div. v. City of Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287. First, we determine whether the person has a subjective or actual expectation of privacy. Next, we evaluate whether society is willing to recognize that expectation as reasonable. In Human Rights, the issue was whether the Human Rights Division had the authority to subpoena employment records of employees other than the employee who was accusing the employer of discrimination. The Court concluded that the other employees had a high expectation of privacy worthy of protection under Art. 11, section 10, Mont.Const., since their files presum- ably contained sensitive information. his Court next bal- anced the right of privacy of the other employees against the State's interest in prohibiting employment discrimination, using as its standard whether there was a compelling state interest which overrode the right to individual privacy. Human ~ights, 649 P.2d at 1288. his Court concluded that the State had a compelling interest. The Court ordered that the information sought by the Human Rights Division must be released, but that a protective order must also issue to prevent release of names of the other employees outside of the investigating agency. In Missoulian v. Board of Regents of Higher Educ. (1984), 207 Mont. 513, 675 P.2d 962, this Court was asked to balance the public right to know about the performance of a university president against the president's expectation of privacy in job performance evaluations. After determining that the university president had a constitutionally- protected privacy interest, the Court used as its standard the Art. 11, Section 9, Mont.Const., test of whether the demand of individual privacy clearly exceeded the merits of public disclosure. Missoulian, 675 P.2d at 970. The Court ruled that closed job performance evaluations were justified because the individual privacy interest of the university president clearly exceeded the public's right to know. Missoulian, 675 P.2d at 973. In Belth v. Bennett (Mont. 1987), 740 P.2d 638, 44 St.Rep. 1133, the balance was between insurance companies' privacy interests in national regulatory reports on them and the public's right to disclosure of the reports. The Court first determined that the insurance companies had a constitutionally-protected privacy interest. The Court then stated the balancing test as whether the demand of individual privacy clearly exceeded the merits of public disclosure. Belth, 740 P.2d at 641. Because the Court found that there were ways other than reviewing the reports to obtain similar information about insurance companies' performance and finan- cial status, and because the reports had been represented to the insurance companies as confidential during data gather- ing, the Court affirmed the ~istrict Court in denying release of the requested information. In Engrav v. Cragun (Mont. 1989), 769 P.2d 1224, 46 St.Rep. 344, we weighed the public right to know about county law enforcement operations, as represented by appellant's desire to do a school research project, against the privacy interest of persons named in daily logs of telephone calls, case files of criminal investigations, pre-employment inves- tigation reports, and a list of persons arrested. We deter- mined that the individuals whose names would be disclosed by release of the information had an actual expectation of privacy which society recognized and that this privacy inter- est outweighed the appellant's right to do a study for his school research project. We stated that no compelling state interest justified invading the privacy of the individuals affected. Engrav, 769 P.2d at 1229. In the present case, the ~istrict Court declared that "it is not good public policy to recognize an expectation of privacy in protecting the identity of a law enforcement officer whose conduct is sufficiently reprehensible to merit discipline." We agree. The law enforcement officers in the present case may have had a subjective or actual expectation of privacy relating to the disciplinary proceedings against them. However, law enforcement officers occupy positions of great public trust. Whatever privacy interest the officers have in the release of their names as having been disci- plined, it is not one which society recognizes as a strong right. On the other hand, the public has a right to know when law enforcement officers act in such a manner as to be sub- ject to disciplinary action. The public health, safety, and welfare are closely tied to an honest police force. The conduct of our law enforcement officers is a sensitive matter so that if they engage in conduct resulting in discipline for misconduct in the line of duty, the public should know. We conclude that the public's right to know in this situation represents a compelling state interest. When we balance the limited privacy interest of the law enforcement officers against the public's right to know which officers have been disciplined for unlawful acts, we conclude that the ~istrict Court was correct. The privacy interest of the officers does not clearly exceed the public's right to know. We note that we are not ruling that the entirety of any personnel files must be revealed. The ~istrict Court ordered only the release of the names of the officer who was terminated and those who resigned. Affirmed. We concur: | July 6, 1989 |
b69ba150-d5bf-410b-971c-8f5c06a1981c | MARRIAGE OF ROBERTSON | N/A | 88-588 | Montana | Montana Supreme Court | NO. 88-588 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF PATTI JEAN ROBERTSON, Petitioner and Appellant, and RICK LEE ROBERTSON, Respondent and Respondent. APPEAL FROM: ~istrict Court of the Eighth ~udicial ~istrict, In and for the County of Cascade, The Honorable John McCarvel, Judge presiding. COUNSEL OF RECORD: For Appellant: Cameron Ferguson; ~artelius, Ferguson & Baker, Great Falls, Montana For R&spondent : ii . , ' Barbara Bell; Bell & Marra, Great Falls, Montana , - : 1-i i submitted on ~riefs: Feb. 23, 1 9 8 9 Decided: May 18, 1989 Mr. Justice John C. Sheehy delivered the Opinion of the Court. This is an appeal from an order of the District Court of the Eighth Judicial District, Cascade County, which modified the decree of dissolution relating to maintenance for appellant. We reverse and remand. The principal issue raised by Patti Jean is whether a district court may modify maintenance provisions for a wife, where the district court has approved and incorporated in the decree a property settlement agreement presented by the parties. We hold here that the District Court has no such power and so reverse. The specific provisions of the property settlement agreement here are important to our holding. Patti Jean Robertson, appellant, and Rick Lee Robertson were married on June 24, 1983, in Great Falls. On April 28, 1985, their only child, a son was born. A petition for dissolution was filed by appellant on ~ p r i l 10, 1986. A decree of dissolution of marriage was granted on December 18, 1986 on the grounds that the marriage was irretrievably broken and that there was serious marital discord which adversely affected the attitudes of both parties. A property settlement, executed on September 19, 1986 was approved and incorporated into the decree. Although the parties agreed to joint custody of their child, the mother had physical custody and primary care of the child. The father had rights to visitation which he had the option of exercising. The decree provided for the support and maintenance of the child as follows: 4. SUPPORT: Wife contemplates that for the next four years she will be attending the University of Montana in Missoula, Montana. With the college education and degree, Wife contemplates that she will then be able to obtain a much higher paying job then [sic] she could obtain at the current time. Husband agrees to pay wife $500 per month for the next four years while she is attending school plus an additional period of six months following her graduation at the end of the fourth school year to allow her time to find good employment after graduating and set up a household. in the location where she will be working. $250 per month of this $500 per month shall be spousal maintenance. The other $250 per month shall be child support. At the end of six months after Wife graduates, husband shall be required to pay $250 per month as child support. There shall be no further spousal maintenance obligation . . . . The parties are agreed that there are no issues relating to the right of the spouse to the child support payments set forth in the property settlement agreement. The decree additionally contains the following provisions: 5. PROPERTY DIVISION: Husband shall be able to retain all rights which he has in the retirement account and profit sharing account and other forms of investment. [The value of the profit sharing plan at the time of the divorce was $20,106.00. The value of the retirement plan was $1,716.00.1 Husband agrees to pay wife the sum of $2,000 per year for each of the next four years to assist wife in her tuition, books and other school expenses. This sum can be paid quarterly. Payment for the first quarter is due September 15, 1986. The parties have offered their house in Great Falls for sale. Out of the net sales proceeds, Husband shall be entitled to pay his parents the remaining sum due on the loan which the parties borrowed for part of the down payment. This sum, however, may not exceed the sum of $2,000. Husband may also reimburse himself for the amount of attorney fees which he has paid Wife's attorney under the provision of this agreement labeled attorney fees [$850.00] . The remaining balance shall be equally split between the parties. 8. MODIFICATION OF AGREEMENT: Husband and Wife agree that except as to provisions involving child custody, support and visitation this Agreement may not be modified by any subsequent Court order following the divorce, except on express written acknowledged consent of the parties. 9. WAIVER OF PROPERTY RIGHTS: All property received and retained by the parties pursuant hereto shall be the separate property of the respective parties, free and clear of any right, interest or claim of the other party, and each shall have a right to deal with and dispose of his or her separate property, as fully and effectively as if the parties had never been married. 10. MUTUAL RELEASE: Subject to the provisions of this Agreement, each party by this Agreement for himself or herself, his or her heirs, legal representatives, executors, administrators, and assigns, releases and discharges the other of and from all causes of action, claims, rights or demands, whatsoever which either of the parties ever had or now has against the other. The parties also agreed that: In the event any party breaches the terms of this agreement in the future, the prevailing party in any court proceeding shall be awarded his or her attorney fees from the other party. On November 2, 1987, the husband petitioned the court to modify the spousal maintenance provisions set out above. On January 27, 1988, a hearing was held on that motion and on October 11, 1988, the ~istrict Court issued an order modifying the Decree of iss solution. This order deprived the mother of all spousal maintenance and the $2,000 .OO per year for her tuition and other college expenditures. The mother appeals that order. Modification of Court Decree Rick Robertson contends that the payments to patti Robertson constitute maintenance and not a property settlement, and that, therefore, the court should modify the agreement because it was unconscionable. The statute governing this premise is 5 40-4-208, MCA (1987). Modification and termination of provisions for .- maintenance, support, and property disposition. (1) Except as otherwise provided in 40-4-201(6), a decree may be modified by a court as to installments accruing subsequent to actual notice to the parties of the motion for modification. ( 2 ) . . . (b) Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made: (i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable; However, 5 40-4-201(6), MCA ( 1 9 8 7 ) , as referred to in the above statute directs us that Except for terms concerning the support, custody, or visitation of children, the decree may expressly reclude or limit modification of terms set forth : n the dTcree if the separation agreement so provides. (~mphasis added.) Under the statutes, the ~istrict Court does have the power to reopen a prior decree on the grounds of unconscionability if the support at issue is child support, custody, or maintenance that is not integrated with a property settlement. The property disposition provisions of a dissolution decree may only be modified where the parties give their written consent or where the agreement is subject to rescission or modification under the general law governing all contracts. In re Marriage of Richardson (1985), 214 Mont. 353, 693 P.2d 524. patti Robertson entered into a property settlement and gave up the right to any future support beyond four years of college and the six months thereafter. She relinquished claims against Rick Robertson's retirement, savings and profit sharing accounts acquired during the marriage. These accounts were subject to discovery at the time of the dissolution and patti Robertson had the right to implement full discovery procedures. On December 31, 1986, those accounts showed the following balances: Employee Stock Ownership Plan $20,106.00 and Carpenter's Retirement $1,716.00. Patti gave up that right her claim to those funds as consideration for the exchange promise from Rick Robertson that he would pay her tuition of $2,000.00 per year ($167.00 paid monthly) and payments of $250.00 per month in lieu of that property. The couple had agreed that ~ i c k would sell the family home in which they were living and from the proceeds of that sale he would repay patti Robertson's attorney fees of $870.00. They were to have split the remainder of any proceeds after all expenses were paid. After the dissolution was final, Rick moved out of the home which they purchased for $54,000.00. patti had moved out before the dissolution. In its vacant state it sold for $47,000.00. ~ i c k did not divide the proceeds with patti quite as he agreed. He himself received "$3,000.00 or so" from the sale, paid the $870.00 attorney fees and gave Patti $1,000.00. It is clear to this Court that the wife's monthly payments were an inseverable part of a property settlement arrangement. The obligation was undertaken by the husband in exchange for the wife's forbearance in regard to the property of the marital estate. This Court in Washington v. Washington (1973), 162 Mont. 349, 356, 512 P.2d 1300, adopted the rule that . . . if support provisions have been made an inseverable part of the agreement between husband and wife to divide their property, and the court in the divorce action approves the agreement, the provisions of such agreement cannot thereafter be modified without the consent of both of the contracting parties. It is obvious here as it was in washington, 162 Mont. at 354, 512 P.2d at 1303, that one cannot sever the maintenance provision from the property settlement agreement between the parties without destroying the contract. We hold that the contractual property agreement was not subject to modification and the ~istrict Court erred in so modifying. Timeliness of Appeal The husband contends that the judge's oral comments made during the hearing of January 27, 1988 constituted the entry of final judgment. Husband's counsel argues that there was no doubt what the court ordered and that the husband relied on that order and stopped paying maintenance at that time. The written order of the court was issued October 11, 1988. patti appealed shortly thereafter. Husband argues that patti should have appealed within 30 days of the January hearing. Pursuant to Rule 77 (d) , M.R.Civ.P., notice of entry of judgment must be served by the prevailing party upon all parties who have made an appearance in the cause. ank kin son v. Picotte (Mont. 1988), 766 P.2d 242, 45 St.Rep. 2259. It is the filing of the notice of entry of judgment that begins the running of the time limits for filing a notice of appeal. Hankinson, supra; h orris on v. ~igbee (1983), 204 Mont. 501, 668 P.2d 1029. If no notice of entry of judgment has been served on the losing party, the right to appeal has not expired. Haywood v. Sedillo (1975)' 167 Mont. 101, 535 P.2d 1014. Unless post-trial motions are made by a party under Rule 52 or 59, I4.R.Civ.P. the appealing party is not required to adhere to the 30 day period for filing a notice of appeal until proper service of notice of entry of judgment is made. Hankinson, supra. pierce Packing Co. v. ~istrict Court (1978), 177 Mont. 50, 579 P.2d 760. The record before us indicates that no entry of judgment was served by the prevailing party as required under Rule 77. since it is necessary for this step to be taken before the time limit for the appeal begins to run, the appeal was timely. The time limitations had not yet begun to run. Moot Issue The next issue raised is whether, as the District Court found, there was a change in circumstances so substantial and continuing as to make the original custody and property settlement agreement spousal maintenance provisions unconscionable. Because we hold that the decree in this case cannot be modified as above stated, this issue is moot. Attorney Fees The property settlement agreement incorporated in the decree provides for attorney fees to the prevailing party when any party breaches the terms of the property settlement agreement. Wife is entitled to attorney fees here and in the District Court. The order of the District Court is reversed and the original decree is reinstated. Attorqey fees on remand to 1 the wife as the prevailing party. , (-- ', ' , " : . I - I L ~ + c-- . L ~ /LC/ Justice /I We Concur: | May 18, 1989 |
4c949f38-3105-4ef7-8647-71898f6d6e3c | DEW v DOWER | N/A | 88-542 | Montana | Montana Supreme Court | NO. 88-542 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ROBERT DEW and SALLY DEW; LEIGHTON DRESCH and JAN DRESCH; and JAMES POSEY and LORI POSEY, plaintiffs and Appellants, -vs- DOUGLAS C. DOWER and ALICE S. DOWER, a/k/a ALYCE S. DOWER, Defendants and Respondents. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Thomas ~c~ittrick, Judge presiding. COUNSEL OF RECORD: For Appellant: Cotter & Cotter; ~atricia 0'~rien Cotter, Great Falls, Montana For Respondent: H. ~illiam Coder & Joseph M. Sullivan; Emmons & Coder, Great Falls, Montana Submitted on Briefs: April 27, 1989 Decided: June 6, 1989 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. The District Court for the Eighth Judicial District, Cascade County, entered a directed verdict at the close of trial in this matter. Plaintiffs appeal, arguing that they presented evidence which would warrant submitting to the jury several issues relating to their purchases of land from defendants, the Dowers. We reverse and remand for further proceedings consistant with this opinion. The dispositive issue is whether the District Court erred in directing a verdict for the defendants at the close of all the evidence, based on the statute of frauds. The Dowers owned approximately 205 acres of real prop- erty south of Great Falls, Montana. They sold the property in parcels of a little over 20 acres each. Defendant Alice Dower was, at the time of the sales, a licensed realtor. The plaintiffs, as husbands and wives, purchased some of those parcels. Plaintiffs executed buy-sell agreements and con- tracts for deed in purchasing their respective parcels. Plaintiffs' complaint alleged negligence, fraud, an6 breach of a covenant of good faith and fair dealing for the Dowers' failure to bring the access roads up to "county grade." Plaintiffs testified at trial that the Dowers orally agreed to improve two roads found on the 205 acres to "county grade" 60-foot wide roads and to guarantee access to the property. The Dowers testified that if any oral promises were made about the roads, it was to improve the roads to make them "passable" and to seek alternative access to the property. They maintained that they had done these things. During oral arguments on the Dowers' motion for direct- ed verdict after all evidence had been submitted, plaintiffs' attorney withdrew the claims as to plaintiffs Sally Dew, Jan Rae Dresch, and Lori Posey. She a l s o withdrew a l l negligence claims alleged by p l a i n t i f f s . The c o u r t then d i r e c t e d a v e r d i c t f o r t h e Dowers and entered findings, conclusions, and a judgment i n t h e i r favor on t h e remaining claims. I t s t a t e d t h a t p l a i n t i f f s were barred by t h e s t a t u t e of frauds from claiming o r a l promises i n a d d i t i o n t o t h e terms of t h e w r i t - t e n c o n t r a c t s between t h e p a r t i e s . Did t h e D i s t r i c t Court e r r i n d i r e c t i n g a v e r d i c t f o r t h e defendants a t t h e c l o s e of a l l t h e evidence, based on t h e s t a t u t e of frauds? The s t a t u t e of frauds a s applicable i n t h i s case i s s e t f o r t h a t S 28-2-903 (1) (d) , MCA: (1) The following agreements a r e i n v a l i d unless t h e same o r some note o r memoran- dum thereof is i n w r i t i n g and subscribed by t h e p a r t y t o be charged o r h i s agent: (dl an agreement f o r t h e l e a s i n g f o r a longer period than 1 year o r f o r t h e s a l e of r e a l property o r of an i n t e r e s t t h e r e i n . . . . P l a i n t i f f s ' c e n t r a l argument i s t h a t t h e s t a t u t e of frauds does not b a r t h e i r claim because they were fraudulently induced i n t o signing t h e i r c o n t r a c t s with t h e Dowers by Alice Dower's f a l s e r e p r e s e n t a t i o n s about t h e roads which would be b u i l t . They a l s o a s s e r t t h a t t h e D i s t r i c t Court failed. t o examine t h e f a c t s i n t h e l i g h t most favorable t o them, t h e non-moving p a r t i e s . Third, they maintain t h a t t h e court. erred i n f a i l i n g t o submit t o t h e jury questions regardinq Alice Dower's f i d u c i a r y duty a s a r e a l t o r and her breach of a covenant of good f a i t h and f a i r dealing. The Dowers and t h e D i s t r i c t Court r e l i e d upon Kel-ly v. E l l i s ( 1 P 0 9 ) , 39 Mont. 5 9 7 , 1 0 4 P. 8 ? 3 . That case arose o u t of KeI-ly's written contract to sell his ranch to Ellis. Kelly claimed that Ellis orally promised that Kelly would be employed as ranch manager. Kell-y arqued that he had been fraudulently induced into entering t l : 3 written contract by the oral promise. This Court ruled that where there was no allegation of failure to keep all promises made in the writ- ten agreement, the statute of frauds precluded admission of evidence of an oral promise directly related to the subject matter of the contract. Kelly, 104 P. at 875-76. Plaintiffs cite Goggans v. Winkley (1970), 154 Mont. 451, 465 P.?d 326. In that case, this Court set forth the rule that fraud in the inducement is provable by parol evi- dence, despite the parol evidence rule. Goggans, 465 P.2d at 330. However, evidence of a promise regarding a futurity is only admissible if there is also evidence of intent to de- fraud at the time the promise was made. Dodds v. Gibson Products Co. of W. Mont. (1979), 181 Mont. 373, 379, 593 P.2d 1022, 1025. Plaintiffs also cite Xajers v. Shining Mountains IMont. 1986), 713. P.2d 1375, 43 St.Rep. 16 (Majers I), aff'd after remand (Mont. 1988), 750 P.2d 449, 45 St.Rep. 283 (~ajers 11). In that case, buyer and plaintiff Majers alleged a - common-law implied covenant on the part of the seller to build roadways in Shining Mountains subdivision. As is true in the present case, the written contracts by which plaintiff purchased property did not contain a promise to build roads. However, recorded plats showing roadways within the subdivi- sion were referred to in the contracts and used by the sell- ing agents. In Majers I, this Court held that whether the use of the plats gave rise to an implied covenant was an issue of fact which must go to the jury. Majers I, 711 P. 2d at 1378. In Majers XI, this Court concluded that substantial evidence supported the district court's finding that defendant's sales agents had represented that defendant would construct and provide roads. Majers 11, 750 P.2d at 451. This Court affirmed the district court's order for specific performance (building the roads). The evidence presented at trial in the present case included the testimony of plaintiffs Robert Dew and James Posey that Alice Dower promised to improve the roads to "county grade." A realtor who showed and sold the property to plaintiff Leighton Dresch testified that prior to the sale, he met Alice Dower on the property and she showed him where the stakes were for the "county-standard-type" roads she was going to put in. The realtor repeated this represen- tation to Mr. Dresch. A certificate of survey was introduced into evidence. It showed 60-foot road easements on the 205 acres. The male plaintiffs all testified that they had been shown the certificate of survey when they were negotiating to buy their parcels. The recorded certificate of survey was also referenced in the contracts for deed. Further, plain- tiffs introduced a letter from the Dowers' attorney to the insuring title company. In that letter the attorney agreed, on behalf of Alice Dower, to hold the title company harmless from any claims arising from purchasers' access problems. The written buy-sell agreements and the contracts for deed were introduced into evidence. The buy-sell agreements contained no promise to improve the roads and stated: Purchaser enters into this agree- ment in full reliance upon his indepen- dent investigation and judgment. No agreements, verbal or other, modify or affect this agreement. Each contract for deed contained a clause stating: Purchaser has carefully examined the described property and accepts the same in its present condition without reliance upon any statement, representation or warranty by or on behalf of the Vendor as to the condition or state of repair thereof. The testimony also included Alice Dower's statement that she only promised to make the roads "passable," which she maintained at trial that she had done. She admitted that she only improved the roadways to a 50-foot width and d.enied that survey stakes at the 60-foot width established the width of the planned roads. She testified that the stakes estah- lished only the outer boundaries to which property owners could fence. It was clear in Majers that the sellers admitted prom- ising to do work on the roads. Here, too, Alice Dower admit- ted at trial that she had promised to do roadwork; the dispute is about the extent of the promise. Because they sold their property in parcels of more than 20 acres, the Dowers were not required to comply with the Montana statutes requiring subdivision developers to provide roads. However, the plaintiffs' case is not based upon the Montana subdivi- sion statutes, but upon the extent of Alice Dower's promises over and above what. she was required to do. The Dowers point out that Majers and the present case were submitted under different theories. Majers was decided under contract theories; the present case i-nvolved only a tort claim at the time the District Court entered its direct- ed verdict. Nevertheless, we conclude that the present case is governed by the rules set forth in Majers, Goggins, and Dodds . Plaintiffs are correct in their statement that, in ruling on a motion for directed verdict, the court must evaluate the facts in the light most favorable to the non-moving party. Stout v. Montana Power Co. (Mont. 1988), 762 P.2d 875, 876, 45 St.Rep. 1926, 1928. There is a conflict in the evidence regarding the representations made by Alice Dower. We hold that the District Court erred in taking from the jury the issue of whether the plaintiffs were fraudulently induced to enter the contracts to purchase their parcels of land from the Dowers. As to the claims of fiduciary duty and breach of cove- nant of good faith and fair dealing, those matters may be addressed anew upon retrial o f this case. Reversed and remanded. t We concur: , G = ' - Justices | June 6, 1989 |
63cf8974-58cc-43ab-b352-2802501f61ff | BUSKIRK v NELSON | N/A | 88-348 | Montana | Montana Supreme Court | NO. 88-348 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IRVIN "BUZZ" BUSKIRK, plaintiff and Appellant, -VS- ADELINE NELSON, et a1 . , Defendants and Respondents. APPEAL FROM: ~istrict Court of the Twelfth ~udicial ~istrict, In and for the County of Hill, The Honorable Chan ~ttien, Judge presiding. COUNSEL OF RECORD: For Appellant: Goldstein Law ~ i r m ; Mort Goldstein, Havre, Montana For Respondent: smith, Walsh, Clarke & re go ire; Joseph P. Gilligan, Great Falls, Montana Submitted on Briefs: March 23, 1989 Decided : June 6, 1989 Mr. Justice John C. Sheehy delivered the Opinion of the Court. Irvin usk kirk appeals from a summary judgment entered on April 27, 1988 in the ~istrict Court, Twelfth Judicial District, Hill County, against Buskirk and in favor of defendants Adeline Nelson and Donald Nelson. Because we determine that genuine issues of material fact existed in the cause on which the District Court purported to make findings of fact, we hold that the entry of summary judgment in this cause was improper, reverse and set aside summary judgment, and remand the cause to the ~istrict Court for further proceedings. On January 13, 1983, us kirk was helping Donald Nelson install a garage door opener on a garage door owned by Adeline Nelson. Adeline is the mother of Donald Nelson. After the door opener was installed, it is alleged that an object flew loose from the door and struck usk kirk in his left eye. us kirk received immediate medical attention and subsequently incurred substantial expense in relation to medical treatment of his eye. As far as the record now reveals, he may have lost the sight of that eye. Adeline Nelson was insured under a home owner's policy issued by Farmer's Insurance Exchange, a unit of Farmer's Insurance Group. usk kirk made a claim under the policy for the injuries he received to his eye. On February 2, 1983, a claims agent for Farmers, Tim McConville, met with Buskirk at his home in Havre, Montana. The claim was discussed but no settlement was reached. McConville again visited Buskirk on March 15, 1983. It appears that as a result of that meeting, b us kirk signed a release which if valid would have the legal effect of discharging Donald and ~deline Nelson from all of Buskirk's claims. usk kirk's contentions respecting that release will be set out below. Eventually Buskirk brought suit against Donald and Adeline Nelson and the other defendants on September 27, 1984. The Nelsons, through their insurer, filed an answer to the complaint on November 20, 1984. In the answer, as a fourth defense, it is alleged that Buskirk had released and discharged the Nelsons. During the course of litigation, the Nelsons moved for summary judgment. The court granted the summary judgment on April 27, 1988. In doing so the District Court made findings of fact. We find that the District Court made findings where contested and genuine issues of material fact existed in the cause. We set them out below. The indented portions are the findings made by the District Court: 1. When the draft was presented to Buskirk, McConville explained that the amount was being paid as a final settlement as to any claims usk kirk had against the Nelsons. Buskirk's affidavits show that he contends that McConville represented to him that the $1,500 was an advance payment on his claim against the Nelsons and that more money would be forthcoming. 2. McConville explained to usk kirk that he would also be entitled to $500 representing the limits of the medical payments provision of the Nelson policy given the medical expenses he incurred following the accident. McConville explained that the draft for $500 was to be issued out of the ~illings claims office and that usk kirk would receive that check in several days. Buskirk claims that when he received the check for $500, it confirmed the statement made to him by ~cconville that he would be receiving payments in the future as he understood the arrangement with McConville. The deposition of McConville taken during discovery, cited by respondents as supporting the ~istrict Court's finding, does not show that the $500 was explained to Buskirk as being a payment under the medical payments coverage. There appears to be no evidence on which to base the finding. Also usk kirk claims otherwise. 3. At the same meeting, McConville presented Buskirk a document entitled "Release in Full of All Claims and Rights." usk kirk looked at the document and signed his name on the signature line at the bottom. McConville witnessed the signature of Buskirk and also signed the release agreement. Buskirk contends that at the time the release was presented to him, he was told that it was a paper presented for his signature so that ~cConville's bosses would know that McConville was in contact with Buskirk. Buskirk claimed that the instrument he signed was 3" x 84" which is not the size of the release. Buskirk also claims that because of his injured eye, he could not read at the time the instrument was presented to him, and that he did not read it when he signed his name. He contends he signed the instrument because of the representations by McConville that he would receive partial payments, for which a draft was presented to him in the sum of $1,500 at the same time, and that the release instrument was simply proof for the insurance company that McConville was doing his job. 4. On March 16, 1983, usk kirk asked his wife, Clarice Buskirk to read the wording on the backside of the draft for the $1,500 given the small print. The wording on the 91,500 draft expressly provided: Endorsement of this draft constitutes a release or covenant not to sue of all claims, known or unknown, the undersigned has or may have against the payor, their principals, agents, successors and assigns and insurance carriers. The release and covenant not to sue shall not destroy and or otherwise affect the rights of persons on whose behalf this payment is made, or persons that may claim to be damaged by reason of the accident other than the undersigned, to pursue any legal remedies they may have against the undersigned or any other persons. However, if this draft is a payment under Workman ' s or Worker ' s Compensation, Medical Payments, Guaranteed ~enefits, No Fault or similar coverage, Advance Payments, Minor settlements or Comprehensive or Collision Losses, endorsement of this draft shall constitute a receipt only. 5 . Buskirk endorsed the back of the draft for $1,500 and deposited the money in the bank. usk kirk refuses to tend the money back to Farmer's Insurance. What the District Court omits in this finding, is that when Clarice read the language on the back of the draft to her husband, o us kirk, their testimony is that they became concerned about the language and that they underlined those portions on the reverse of the draft which would indicate that the $1,500 was for a receipt only. Thus the draft itself indicates the following underlining of the last paragraph: However, if this draft is a payment under Workman's or Worker's Compensation, Medical Payments, Guaranteed Benefits, - No Fault - or similar - coverage, Advance Payments, Minor settlements or Comprehensive or Collision Losses, endorsement of this draft shall constitute - a receipt only. It was when the Buskirks underlined the draft that Buskirk endorsed it and deposited the money in the bank. Whether Buskirk "refuses" to tender the money back to Farmer's Insurance may be irrelevant. The insurer claims that in order to get a rescission, the draft amount must be tendered. 6. After March 15, 1983, Buskirk made no efforts to contact McConville or any other claims representative of Farmer's Insurance as to the settlement of the claim. Farmer's had no notice of alleged claim until suit was filed. Contravening this finding are the contentions of Buskirk following the receipt of the second payment of $500. Buskirk inquired of Donald Nelson, and of Nelson' s insurance agent, concerning additional payments that Buskirk understood he would receive in the future. H ~ S testimony and affidavits show that when he made inquiries of the insurance agent, he was led to believe that the insurance company was "working on his claim" and that he would be receiving more advance payments and an offer of final settlement. He was informed that the company was waiting to learn whether or not he would be able to recover his sight in his injured eye. In addition to the foregoing findings, the District Court also found as a conclusion of law that Buskirk was guilty of laches in waiting to sue until 18 months had passed because he had not made any further contact with the insurer in that period. This is a case where the ~istrict Court adopted verbatim the proposed findings of fact and conclusions of law that were submitted by the attorney representing the insurer and the Nelsons. The court clearly fell into error when in adopting such proposals, the court constituted itself as a trier of factual issues, rather than determining as a judge whether under Rule 56, Montana Rules of Civil Procedure, any genuine issues of material fact existed. It is clear that such issues do exist. The par01 evidence rule is codified in Montana, § 28-2-905, MCA. Under that statute, evidence outside the terms of the written agreement is admissible when the validity of the agreement is the fact in dispute, or if it i.s evidence to explain an intrinsic ambiguity or to establish illegality or fraud. The language on the face of the $1,500 draft, purporting to be a release, but which is also a receipt in certain situations is indeed an ambiguity and Buskirk's testimony is admissible in support of his claim of ambiguity, or to establish illegality or fraud, or to dispute the validity of the release. Brown v. erri ill Lynch pierce Fenner and Smith, Inc. (1982), 197 Mont. 1, 640 P.2d 453. This Court has stated that summary judgment was r i o t "intended nor can it be used as a substitute for existinq - - - - - - - methods - - in the trial of issues of fact . . ." - -- Hull v. D. Irvin Transport Ltd. (1984) 213 Mont. 75, 690 P.2d 414, 417; Kober and Kyriss v. Stewart and Billings Deaconess Hospital (1966), 148 Mont. 117, 122, 417 P.2d 476, 479. The purpose of a motion for summary judgment is to determine whether any issues of material fact exist, and whether the moving party is entitled to judgment as a matter of law. Rule 56(c), Montana Rules of civil Procedure; Cereck v. Albertsonls, Inc. (1981), 195 Mont. 409, 637 P.2d 509. Because in this case the ~istrict Court determined issues of fact on a motion for summary judgment, reversal of the summary judgment is necessary. There are other issues raised in this case which require a comment. The admissibility of the release in this case is in issue. On discovery, Farmer's produced what appears to be a photocopy of a carbon copy of the original of the release. The original of the release was not produced by the insurer. Under Rules 1001, 1002, 1003 of the Montana Rules of Evidence, a copy of a writing kept in the regular course of business copied from another writing is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original, or if under the circumstances it would be unfair to admit the duplicate or copy in the regular course of business in lieu of the original, or if a specific statute otherwise requires admissibility. We determine that whether the original of an instrument is authentic is a different question from whether an authentic original instrument was entered into by fraud or mistake. Unless, therefore, in this case usk kirk disputes the authenticity of the original, a true copy would be admissible. The original, of course, is the best evidence of the instrument, if it is available. Reversed and remanded. --~\ | June 6, 1989 |
94d40013-fd42-4e8f-a508-36f1a7784930 | MARRIAGE OF CHASE | N/A | 88-575 | Montana | Montana Supreme Court | IN THE SUPREME COURT OF THE STATE OF MONTANA IN RE THE MARRIAGE OF KATHRYN L40UISE CHASE, a/k/a KATHRYN LOUISE WISE, Petitioner and Respondent, 1 and 1 O R D E R 1 STEVEN ELL CHASE, Respondent and Appellant. The initial opinion in this cause was decided and file& -- C : : with the Clerk of this Court on March 30, 1989. As a ~ e s u l ' ~ ~ of the petition for rehearing on the part of the appe31*antz; - w . 3 the Court has concluded that the original opinion should b e : - - < ( ' ! ? withdrawn and a revised opinion substituted. --u F J c--. IT IS ORDERED: - - - 2 i - - :;.I rJ 1. That the original opinion in this cause showglas i- c ? having been submitted on briefs February 23, 1989, and d e c & d - @ ed March 30, 1989, is withdrawn. 3 2. That the revised opinion in this cause, which is shown to have submitted on briefs February 23, 1.989, and decided April dz% 1989, is substituted as the final opinion in the above cause. d DAmED this 27-day of April, 1989. Mr. Justice Fred J. Weber delivered the Opinion of the Court. Steven Chase appeals from an order granted by the Dis- trict Court for the Eleventh Judicial District, Flathead County, modifying certain portions of a divorce decree and a subsequent order relating to visitation of the Chase's four children. The issue presented for our review is whether the District Court erred in granting respondent's motion to modify. Steven argues that the motion should have been denied because it had no foundation in statute. He also argues that the motion should have been denied on several procedural grounds. We affirm the granting of the modifica- tion order. Steven and Kathryn Chase were granted a Decree of Disso- lution on February 19, 1987. Kathryn was granted sole custo- dy of the parties' four minor children, with visitation and other matters set forth in the decree. In July, 1987, Steven moved to modify the decree, requesting a reduction in child support and modified terms of visitation. Following a hear- ing, the parties stipulated to certain modifications, includ- ing a joint custody arrangement. At the time of that arrangement, Kathryn lived in Kalispell, Montana, and Steven lived in Thousand Oaks, California. Pursuant to the court's order, Kathryn was to remain primary residential custodian, with reasonable rights of visitation granted to St.even in accordance with the original decree and as modified. In the original decree, Steven was entitled to visit every other weekend, every other major holidav, and for 30 days each summer, with 48 hours notice required prior to any visitation. The modification order increased Steven's summer visitation period to 45 days each year, allowed him one-half the Christmas vacation period each year, and required a 30 day written notice to Kathryn with a 48 hour confirmation prior to any visitation. The court ordered that the parties share equally in the costs of trans- porting the children. Tn June 1988, Kathryn moved for an order to modify or clarify the decree and its subsequent modification. Briefs were submitted and a hearing was held. The parties waived the making of a record at that hearing. In granting the motion, the court identified the splitting of transportation costs as the particular provision requiring modification or cl-arification. The court did not alter the number of visita- tion days granted to Steven. Finding Steven in a better position to meet the burden of covering transport-ation costs, the court ordered that: 1. Respondent should he entitled to visitation on alternating weekends provided; a. thzt. such visitation occur in Flathead County, Montana or such other county as the Petitioner may reside at the time of visitation, and b. that notice of such visitation shall he given I 0 days in advance of such visita- tion, i.n writing, hy Respondent to Petitioner. 2. Respondent shall he entitled to visitation on alternating holidays as provided in the origi- nal decree, provided, however, that Respondent shall pay all costs of transportation for such visitation and, further, that notice of such visitation shall be given at least 20 days in advance of such visj-tation, in writing, by Respondent to Petitioner. 2 -. The Respondent shall be entitled t.o a visita- tion for a total period of 45 days during the summer between June 10 and Auqust 20 of each year provided: a . that the parties shall equally share the cost of transportation of the children for that visitation with the Respondent paying the cost of having the children transported from the Petitioner's resi- dence to his residence and the Petitioner paying the cost of having the children re-transported from the Respondent's residence to her residence, and b. that notice of such visitation shall be given no later than April 15 of each year for which visitation is to be exercised, in writing, by Respondent to Petitioner. It-. is from this order that Steven appeals. He argues that Kathryn's motion to modify or clarify has nc foundation in the statute because she failed to allege how modification would serve the "best interests of the children" as required by S 40-4-217, MCA, nor did the District Court make any flndings in that regard. The record before us is incomplete. We cannot determine from the record if there was a hearing held on Kathryn's motion. No transcript was made. Steven argues that the matter was submitted on briefs without. a hearing. The court's order dated September 15, 1988, indi- cated that a hearing on the motiolz had been held and the court had been advised. We therefore consider the issue without the benefit of findings of fact or transcript. The argument on the part of the Steven that the matter should be returned for further consj.derati.on of the best interests of the children disregards the essence of the order of September 15, 1988. The visitation rights on the part of both Steven and. Kathryn were not modified by that order. As appears above, the primary purpose of the modification was to estahlishe$ the manner of sharing the costs o f : transporta- tion. The aim on the part of the District Court was to clarify a previous custody order so as to make the visitation more workable. The partjes had heen before the court a number of times requesting the court to judicially resol~7~ various issues upon which they could not reach agreement. We conc1ud.e there is no adequate record from which this Court may review the issue of the best interests of the children. V ? e further conclude thzt the present record does not disclose that the modification affected the best interests of the children. We hold that Steven has failed to demonstrate a basis for reversal of the crdex of September 15, 1988. Steven next makes a number of procedural arguments for setting aside the order of the District Court. First, Steven contenCs that Kathryn's motion to modify or clarify was not timeIy. f l e argues that because no "changed circumstances" were all-eyed, the motion was actually one to alter or amend the judgment u ~ d e r Rule 5 9 ( g ) , M.R.Civ.P., which must be made within 10 days. Alternatively, he proposes that the motion is one to modify because of a mistake of fact under Rule 60, M.R.Civ.P., which must be made within 60 days after entry of judgment. Rule 60 (b) , K. R.Civ.P. Since Kathryn's motion was made 120 days after the District Court's order, Steven argues that It should have been dismissed as untimely under either of the above stated rules. Kathryn's motion was brought pursuant to S 40-4-217, FCA, which allows the court to modify a visitation order whenever modification would serve the best interest of the child. Section 40-4-217 (3) , MCA. There is no requirement that the movant show changed circumstances under this stat- ute, although the court "shall not restrict a parent's visi- tation rights unless it finds that the visitation would endanger seriously the child's physical-, mental, moral, or emotional health. " Section 40-4-217 ( 3 ) , MCA. This standard has been held to he the same standard used to judge the modification of custody decrees in S 40-4-219, MCA, which requires a showing o l : "changed circumstances." PTatter of P..r,.S. v. Barkhoff (1983), 207 Mont. 199, 209-10, 674 P.2d 1082, 1087. In this case, however, the District Court was not restricting either parent's visitation rights. The number of days which Steven was entitled to visit the chil- dren remained the same, and only the required notice and transportation costs were altered by the court. We conclude that there is no reason to ignore the form in which Kathryn's motion was presentee? to the court. Since S 40-4-217, MCA, contains no time limitations, we hold that Steven's claim under Rules 59 and 60, M.R.Civ.P. fails. Steven also argues that the District Court's ruling on motions under either Rules 59 or 60, M.R.Cjv.P., must be made within 45 days, and since it was not. so made in this case, the motion should be deemed denied. Kathryn's motion to modify was not made pursuant to Rule 59 or Rule 60, K.P..C~TT.P. This argument is therefore without merit. Steven argues that Kathryn's failure to file a brief in support o= her motion until 45 days after the motion was filed should. result in a summary denial under Rule 2, Uniform District Court Rules, which states in pertinent part: (b) Failure to file briefs may subject the motion to summary ruling. Failure to file a brief within five days by the moving party shall be deemed an admission that the motion is without merit. Failure to file an answer brief by the adverse party within ten days shall be deemed an admission that the motion is well taken. Reply briefs by movant are optional, and failure to file will not subject a motion to summary ruling. We note that Steven obtained an extension of time by stipula- tion of the parties under which his answer brief was filed nearly 60 days after Kathryn's brief was filed. The District Court did not specifically rule on the Rule 2 ohjection. Clearly the District Court did not deem the failure to comply with the filing of the briefs as an admis- sion that the motion was without merit. It considered the matter on the merits. Under subparagraph (d) of Rule 2, the District Court is given the discretion to enlarge the time allowed in which a motion is to be deemed submitted. While the court did not specifically enlarge the time by order, it accepted the briefs on the part of both parties without- regard to the time constraints of Rule 2(b). In the absence of any showing by the record that the District Court commit- ted an abuse of discretion, we will not overturn the decision of the lower court. We hold t.here is no reversible error on the procedures before the District Court. Affirmed. We Concur: | April 27, 1989 |
a5fb9254-2b69-4d0b-8316-9abf0e8262c0 | STATE v BABELLA | N/A | 88-524 | Montana | Montana Supreme Court | No. 88-524 I N T H E SUPREME C O U R T OF THE STATE O F M O N T A N A 1989 STATE O F M O N T A N A , P l a i n t i f f and Appellant, -VS- ANNETTE BABELLA, Defendant and Respondent. APPEAL FROM: D i s t r i c t Court o f 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 o f Missoula, The Honorable James B. Wheelis, Judge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: Hon. Marc Racicot, Attorney General, Helena, Montana Robert F.W. Smith, A s s t . Atty. General, Helena Robert L. Deschamps, County Attorney; C r a i g Friedenauer, Deputy County A t t y . , Missoula, Montana For Respondent: J. Dirk Beccari, P u b l i c Defender, iss sou la, Montana i .I F i l e d : 4 Submitted on B r i e f s : Jan. 2 6 , 1989 Decided: May 9, 1989 , - -, Clerk Mr. Justice Fred J. Weber delivered the Opinion of the Court. The District Court for the Fourth Judicial District, Missoula County, dismissed the charges against this defen- dant. The State appeals. We reverse. The issue is: Did the District Court err in granting defendant's motion which requested disclosure of the identity of confi- dential informants? On October 3, 1987, Missoula law enforcement obtained a search warrant to search the home of Terry LaRoque. The application for the warrant was lengthy and contained infor- mation from several sources including Crimestoppers reports, anonymous phone calls, a participant in the drug sales, and information from confidential informants. The application recited specific instances in which reports given by infor- mants and callers had been verified by law enforcement. Information obtained from the informants and other sources linked the sale of drugs to Terry LaRoque. When the officers executed the search warrant at the home of Terry LaRouqe, Ms. Babella was found in bed with him. Drugs, various items of drug paraphernalia, and a large amount of cash, were found in the bedroom and in pants be- longing to Ms. Babella. She was subsequently arrested. On October 19, 1987, the State filed an information charging Ms. Babella with the offense of possession of dan- gerous drugs with the intent to sell, in violation of 5 45-9-103(1), MCA. Ms. Babella plead not guilty on November 13, 1987. Later, the defendant moved for the disclosure of the State's confidential informants, and a hearing on this motion was held on June 17, 1988. At that hearing the State presented one witness, police officer Bill Wicks. He testi- fied to facts which indicated that disclosure of identity would produce a substantial risk of harm to the informants. The defendant produced no testimony. The court ordered both parties to brief the issue, and subsequently ordered the State to disclose the identity of the informants. When the State refused, the court ordered the charges against the defendant dismissed. A governmental entity may claim the privilege to refuse to disclose the identity of its confidential informants. This privilege is not absolute but is subject to a balancing test enunciated in Roviaro v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. In Roviaro the Court stated: We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protect- ing the flow of information against the individu- al's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. 353 U.S. at 62. Montana previously recognized this test in State ex rel. Offerdahl v. Dist. Ct. of Eighth Judicial Dist. (1971), 156 Mont. 432, 481 P.2d 338. This privilege was codified in Montana in 1977 by the enactment of Rule 502 M.R.Evid, which states: (a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law. (b) Who may claim the privilege. The privi- lege may be claimed by an appropriate representa- tive of the public entity to which the information was furnished. (c) Exceptions and limitations. (1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or his interest in the subject matter of his communication has been disclosed to those who would have cause to resent the communi- cation by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the public entity. (2) Testimony on relevant issue. If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show facts relevant to determining whether the informer can, in fact, supply that testimony. If the Court finds that the informer should be required to give the testimony, and the public entity elects not to disclose his identity, the court on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the court may do so on its own motion. In civil cases, the court may make any order that justice requires. The Commission Comments regarding this rule state, "The Commission believes this balances the interest of the public entity against a party's right to prepare his defense and to confront and examine his accuser." In 1985, the Montana Legislature enacted § 46-15-324(3), MCA, which also addresses this privilege. That statute provides : Disclosure of the existence of an informant or of the identity of an informant who will not be called to testify is not required if: (a) disclosure would result in substantial risk to the informant or to his operational effec- tiveness; and (b) the failure to disclose will not infringe the constitutional rights of the accused. These rules reflect the policy of balancing the public's interest in protecting the flow of information to law en- forcement, against the defendant's rights. In the present case, the record is bare regarding the defendant's basis for making the motion for disclosure of the informants. Likewise, the order by the District Court gives no reason supporting its decision to order disclosure. In considering this issue on appeal, we have only the transcript from the hearing for our guidance. At the hearing, the defendant made no showing whatsoever which would establish a need for information about the confidential informants. We are therefore unable to determine why the court ordered disclosure. In the present case the State contends that it met its burden by showing that disclosure would subject the infor- mants to a substantial risk of harm. At the hearing on the motion to disclose the identity of the informants, Officer Wicks stated that Ms. Babella's boyfriend, Terry LaRoque, was connected with individuals in other states who were "in the habit of using violence for enforcement." The excerpt from the transcript states: Q. Do you have any feeling as to whether or not disclosure of these informants could result in a risk of harm to them? A. Yes, sir, I do. Q. What is the basis for your feeling? A. Our investigation has revealed that individu- als connected with LaRoque in other states are in the habit of using violence for enforcement. In particular, one incident in Pasco, Washington, resulted in the death of four people by machine gun. These people have been directly tied into Mr. 1,aRoque by investigatj-on. Officer Wickes also testified to finding nine guns in the residence of Mr. LaRoque and Ms. Babella. On cross-examination, defense counsel asked if Ms. Babella herself had made threats against the informants. The officer said, "Yes," and stated that after a discussion between Ms. Babella and law enforcement, Ms. Babella had reported the police activity to "some Mexicans in town" who told her in so many words that "they would handle the problem. " The testimony by Officer Wicks established that disclo- sure would result in substantial risk to the informants, and is clearly sufficient to invoke the privilege pursuant to 5 46-15-324 (3) (a), MCA. Ms. Babella contends that in her case two exceptions may apply to this rule of privilege. She urges that nondisclo- sure may violate her constitutional rights pursuant to S 46-15-324 (3) (b) , MCA, or that the informant may be able to give "testimony relevant to any issue" pursuant to Rule 502(c)(2), M.R.Evid. However, Ms. Babella made absolutely no showing which would invoke either exception. After Officer Wicks testified that Ms. Babella had reported the police activity to "some Mexicans in town," defense counsel moved for "immediate disclosure of that information, " stating, "It is obviously pertinent to Ms. Babella's case." This state- ment made by defense counsel constitutes the defendant's only attempt to show a need for disclosure. The information referred to did not even relate to her alleged offense. "Mere conjecture or supposition about the possible relevancy of the informant's testimony is insufficient to warrant disclosure." State v. McLeod (1987), 740 P.2d 672, 675, 44 St.Rep. 1251, 1255 (citing United States v. Kerris (11th Cir. 1984), 748 F.2d 610, 614). As we stated in State v. Sykes (1983), 663 P.2d. 691, 695, 40 St.Rep. 690, 693, "allowing such a routine challenge as that presented by defendant would hamstring the effective operation of law enforcement agen- cies." Whereas the State met its burden, there was a total failure on the part of the defendant to demonstrate any need which would compel disclosure. The general assertion of a need for disclosure was wholly inadequate to satisfy the defendant's burden under the Roviaro test, or under either relevant statute. Ms. Babella contends that the State must first disclose the relevance of the informants' testimony. She argues that only then can she know if her constitutional rights have been violated, and only then can the balancing test be made. This misconstrues the balancing test, and the requirements under the statutes. In this balancing test the burden is on the defendant to show the need for disclosure, and this need must be one which overrides the government's interest. Mere speculation will not suffice. United States v. Prueitt (9th Cir. 1 9 7 6 ) , 540 F.2d 995, 1003-04. The District Court's order is vacated and this case is remanded for further proceedings. We Concur: Mr. Justice John C. Sheehy, dissenting: I dissent on two grounds, (1) the majority analysis of S 46-15-324(3), MCA, is incomplete, and (2) the testimony of the police officer regarding danger to the informants is vague and imprecise, as it relates to the defendant Annette Babella. First the statute. It has two subsections (a) and (b) as set out in the majority opinion. The subsections are connected with the conjunction "and." To gain the nondisclosure of information, because of the conjunction, the State must show (1) substantial risk, and (2) the constitutional rights of the accused are not infringed. The majority opinion discusses the first prong but fails utterly to examine the infringement of Babella's constitutional rights, including the right to meet her accusers face-to-face, and the right to prepare a defense. Second, the purported risk to the informers. The testimony of Officer Wicks speaks vaguely and arcanely of a "habit" based on one incident unconnected to Babella. He testified that she spoke of police activity to "some Mexicans in town" who told her "they would handle the problem." ~othing in those statements reflects any danger to hidden witnesses or informers, unless we assume that "~exicans" as a class are dangerous, and that in "handling" the problem, the Mexicans meant violence. At most, the supposed danger is speculation, if the testimony is all the State has. ---\ I concur in t h e dissent of M stice J o h n C. | May 9, 1989 |
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